Ex parte Boyette
Decision Date | 18 December 1998 |
Citation | 728 So.2d 644 |
Parties | Ex parte Tom BOYETTE. (Re Tom Boyette v. Jefferson County, Alabama, et al.) |
Court | Alabama Supreme Court |
Adam M. Porter, Birmingham, for petitioner.
Michael G. Graffeo, general counsel, Jefferson County Personnel Board; and Jeffrey M. Sewell, asst. county atty., for respondents.
This Court has granted the plaintiff Tom Boyette's petition for review of a decision of the Court of Civil Appeals. See Boyette v. Jefferson County, 728 So.2d 639 (Ala.Civ. App.1998). The petition asserts that the decision of the Court of Civil Appeals conflicts with Ex parte Averyt, 487 So.2d 912 (Ala. 1986), and other cases. The question is whether the Court of Civil Appeals correctly relied on Ex parte Smith, 683 So.2d 431 (Ala.1996),1 to affirm a summary judgment for Jefferson County on Boyette's complaint alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), or whether, under Averyt, the summary judgment should have been reversed. May Boyette pursue this action, which is collateral to the proceedings by which his employment with the county was terminated, or is this action barred by a res judicata effect of his failure to raise the ADEA claim in those proceedings?
The Court of Civil Appeals also affirmed the summary judgment on Boyette's claims other than his ADEA claim, and, as to his ADEA claim, affirmed the summary judgment for the defendants other than the county. Boyette's certiorari petition did not seek review of those holdings; those holdings, therefore, are not before us.
We hold that Smith is distinguishable and Averyt is controlling, because Smith relies upon the Alabama Administrative Procedure Act ("AAPA"), § 41-22-20(k)(1), Ala.Code 1975, whereas the proceedings for review of Boyette's termination were governed by § 22 of Act No. 248, 1945 Ala. Acts p. 376, Act No. 679, 1977 Ala. Acts p. 1176, the provisions of which are analogous to the provisions pertinent to Averyt. Section 41-22-20(k)(1) allows a court reviewing an administrative action that is subject to the AAPA to "grant other appropriate relief from the agency action, equitable or legal, ... if substantial rights of the petitioner have been prejudiced because the agency action is ...: (1) In violation of constitutional or statutory provisions...." By contrast, the local acts at issue here and in Averyt provide only for limited review of the agency decision. Section 22 of Act No. 248, as amended, states:
"The decision of the [Jefferson County Personnel] Board based upon all proceedings before the Board shall be final subject to appeal by either party to the Circuit Court to review questions of law and the question of whether or not the decision or order of the Board is supported by the substantial and legal evidence."
(Emphasis added.) This provision for "review" is far short of the broad power in AAPA proceedings for a circuit court to determine whether "the agency action [is in] violation of constitutional or statutory provisions." As the succeeding discussion will show, administrative agencies ordinarily have limited authority to decide allegations of constitutional and statutory violations, and appellate review of agency decisions has been limited to the questions within the agency's authority. Only because the AAPA grants more expansive authority to a court hearing an appeal from an agency decision does Smith disallow a collateral attack raising constitutional and statutory claims that were outside the authority of the administrative agency to decide.
In Averyt, Clyde Averyt had been discharged as a firefighter for the City of Mobile, and the Mobile County Personnel Board had upheld that discharge. Averyt appealed the Board's ruling to the circuit court and filed a collateral action in the circuit court alleging constitutional violations. The Court of Civil Appeals affirmed the dismissal of the collateral action, Averyt v. Doyle, 456 So.2d 1096 (Ala.Civ.App.1984) (Averyt I), and Averyt, instead of petitioning this Court for certiorari review, proceeded with the administrative appeal, as mandated by the Court of Civil Appeals. However, the circuit court hearing the administrative appeal did not allow Averyt to add his constitutional claims, and that court affirmed the Board's order upholding his discharge. The Court of Civil Appeals affirmed, holding:
Averyt v. City of Mobile Fire Dep't, 487 So.2d 909, 910-11 (Ala.Civ.App.1985) (Averyt II).
This Court reversed:
Ex parte Averyt, 487 So.2d 912, 913-14 (Ala. 1986) ( )(brackets original).
In City of Homewood v. Caffee, 400 So.2d 375 (Ala.1981), this Court affirmed a judgment holding unconstitutional a zoning ordinance as applied to the facts at issue. The Court rejected the city's argument that the collateral action was barred by the pendency of the appeal from the order of the Board of Zoning Adjustments denying Caffee's request for a variance. "[B]ecause the Board of Zoning Adjustments was without authority to consider any constitutional attack on the Homewood ordinance, Caffee's constitutional challenge to that ordinance in the circuit court was not precluded by the City's claims of `identical issues' in both proceedings." 400 So.2d at 378.
The Court of Civil Appeals has cited Ex parte Averyt and Caffee in upholding an order affirming the dismissal of a police-department employee:
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