Ex parte Franklin County Dept. of Human Resources

• Citation: 674 So.2d 1277
• Parties: Ex parte FRANKLIN COUNTY DEPARTMENT OF HUMAN RESOURCES. (Re Alan Rorer v. State of Alabama ex rel. Sandra Hillman). 1940662.
• Decision Date: 12 January 1996
• Court: Alabama Supreme Court

Page 1277

674 So.2d 1277

Ex parte FRANKLIN COUNTY DEPARTMENT OF HUMAN RESOURCES (Re Alan Rorer v. State of Alabama ex rel. Sandra Hillman).

1940662.

Supreme Court of Alabama.

Jan. 12, 1996.

William Prendergast, Sharon E. Ficquette and Mary E. Pons, Asst. Attys. Gen., Department of Human Resources, for Petitioner.

John Pilati, Russellville, for Respondent Alan Rorer.

Jeff Sessions, Atty. Gen., and Robert M. Weinberg, Asst. Atty. Gen., for Amici Curiae 36 State boards, departments, and agencies.

PER CURIAM.

The Franklin County Department of Human Resources, after having been denied relief in the Court of Civil Appeals, ¹ petitioned this Court for a writ of mandamus and for an immediate stay of an order issued by Judge John D. Jolly, of the 34th Judicial Circuit. Judge Jolly's order had held that the Franklin County Department of Human Resources was not constitutionally immune from a suit brought by Alan Rorer.

Alan Rorer had filed a counterclaim against the Department, alleging that the Department and certain fictitiously named Department employees had "maliciously, willfully and/or wantonly and/or without probable cause therefor, initiated [against him] a paternity action," which he says later ended with a directed verdict in his favor.

The facts are sufficiently set out by the Court of Civil Appeals in its opinion in Ex parte State Department of Human Resources, 674 So.2d 1274 (Ala.Civ.App.1995), in which that court denied the Defendant the same relief it requests here. We adopt and quote the Court of Civil Appeals' statement of those pertinent facts:

"In 1984 the Franklin County Department of Human Resources, on behalf of Sandra Hillman, filed an action against Alan Rorer, requesting that he be adjudicated the father of Hillman's minor child. Rorer was determined to be the father and began paying child support at that time.

"In 1991 Rorer requested that blood tests be ordered. His request was granted. The results of the tests excluded Rorer from being the biological father of the child. Following proceedings in the district court, Rorer was granted certain relief and, in effect, was found not to be the father of the child.

"The Department filed a notice of appeal to the circuit court for a trial de novo. Rorer filed a jury demand.

"Rorer subsequently filed a counterclaim, requesting that the circuit court enter an order directing the Department and the mother to return to him all child support payments he had previously made on behalf of the child and ordering the Department and the mother to pay all his costs, expenses, and attorney fees expended defending the matter. He further requested that the Department and the mother pay damages based on commencing and continuing a malicious, harassing proceeding after the blood tests clearly excluded him from being the biological father of the minor child.

"A jury trial was held in September 1992. Following the presentation of both parties' cases, the circuit court granted a directed verdict in favor of Rorer. His counterclaim was ordered severed and set for adjudication at a later date.

"The Department filed an appeal with this court, attacking a procedural matter. We affirmed the judgment of the trial court. State ex rel. Hillman v. Rorer, 629 So.2d 656 (Ala.Civ.App.1993). The supreme court denied the Department's petition for writ of certiorari. Ex parte State ex rel. Hillman, 629 So.2d 657 (Ala.1993).

"Rorer amended his counterclaim to include fictitious defendants X, Y, and Z ('individuals who decided or aided in the decision to pursue the paternity action against [him] after the blood test results were made available'). The counterclaim was again amended to allege that the defendants intentionally and in bad faith initiated a paternity action against him in violation of their own policy and/or under a mistaken interpretation of the law.

"The Department filed a motion to dismiss or, in the alternative, a motion for summary judgment, raising sovereign immunity as a defense.

"Following a hearing on the matter, the trial court denied the Department's motion, finding that the Department was not constitutionally immune from the suit and that 'the amended counterclaim states a cause of action against the counter-defendants which is not due to be dismissed without further discovery.'

"The Department filed a petition for writ of mandamus in this court, requesting that we order the trial court to dismiss Rorer's counterclaim. It insists that the trial court erred in finding that the Department was not immune from suit."

674 So.2d at 1275.

In denying relief, the Court of Civil Appeals held, in part, as follows:

"The trial court could have reached this decision based on the rationale of Ex parte McCurley, 412 So.2d 1236 (Ala.1982). With the facts, or lack thereof, that it had before it, we find no clear abuse of discretion with the trial court's finding."

674 So.2d at 1276.

I.

We first address the issue whether the Franklin County Department of Human Resources is immune from suit pursuant to the provisions of Art. 1, § 14, Alabama Constitution of 1901.

This Court recognized in Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992), that a county department of human resources is considered to be a State agency for purposes of asserting the defense of sovereign immunity. Based on Mitchell, we hold that the Franklin County Department of Human Resources is a State agency. Article I, § 14, Alabama Constitution of 1901, provides that "the State of Alabama shall never be made a defendant in any court of law or equity." Under this provision, the State and its agencies have absolute immunity from suit in any court. Barnes v. Dale, 530 So.2d 770 (Ala.1988). At this time, the only actual party named as a defendant in Rorer's counterclaim is the Franklin County Department of Human Resources; no particular employee of the Department has been named as a Defendant, although the complaint fictitiously names three of the Department's employees as defendants. ²

II.

We now address the second issue in this case, that being whether this Court should adopt the so-called "collateral order doctrine" employed by the federal courts to permit review of rulings denying claims of sovereign immunity. The Department, joined by the attorney general, who has filed an amicus curiae brief, strongly urges this Court to adopt the collateral order doctrine in Alabama ³ and to treat the petition as an interlocutory appeal.

We have carefully examined the arguments made for adopting the collateral order doctrine, but we decline to adopt it at this time. We point out that Rule 5, Ala.R.App.P., provides an adequate remedy for a state agency or employee seeking review of a lower court order denying a claim of sovereign immunity. In this connection, we would also point out that "Rule 5 is a composite of [Fed.R.App.P.] 5, and 28 U.S.C. § 1292(b)." Comment to Rule 5, Ala.R.App.P.

Based on the foregoing, we decline to adopt the collateral order doctrine, but we issue the writ of mandamus. The Circuit Court of Franklin County is directed to dismiss Rorer's counterclaim against the Franklin County Department of Human Resources.

WRIT GRANTED.

HOOPER, C.J., and SHORES, HOUSTON, and INGRAM, JJ., concur.

COOK and BUTTS, JJ., concur specially.

MADDOX, J., concurs in the judgment and in Part I of the opinion and dissents from Part II of the opinion.

COOK, Justice (concurring specially).

I concur in the issuance of the writ of mandamus, but write separately to express my opinion why this Court should not adopt the "collateral order doctrine," which would allow an immediate appeal for State agencies or State employees acting within their public function where the agency or employee claims immunity and the trial court has rejected the claim. I do not believe it is necessary at this time to engraft onto our rules of procedure this right of immediate appeal. Any needed early review of immunity privileges can be provided by the mandamus procedure (Rule 21, Ala.R.App.P.), as in this case, or by Rule 5, Ala.R.App.P., which allows appeals by permission.

Alabama recognizes absolute immunity, commonly presented with regard to State agencies or public employees, granted under Art. I, § 14, Alabama Constitution of 1901, and qualified immunity, commonly referred to as discretionary function immunity. This Court has held that the question of immunity is a question of law for the courts to decide. Foreman v. State, [Ms. 1931068, March 31, 1995] --- So.2d ---- (Ala.1995); Smith v. King, 615 So.2d 69, 72 (Ala.1993); Nance v. Matthews, 622 So.2d 297, 300 (Ala.1993). See Mitchell v. Davis, 598 So.2d 801, 806-07 (Ala.1992); White v. Birchfield, 582 So.2d 1085, 1087 (Ala.1991); Phillips v. Thomas, 555 So.2d 81, 84 (Ala.1989); and Grant v. Davis, 537 So.2d 7, 8 (Ala.1988). However, many questions of immunity are fact-driven and cannot be decided on motions to dismiss. Fact-driven immunity questions should be first decided in the trial court, with a developed record. Our mandamus procedure and permissive appeal procedure give us the opportunity to review immunity questions on a case-by-case basis, which is the better procedure, especially where we are not being overrun by questions of immunity in litigation involving State agencies or public employees.

I am not persuaded that we have reached the point in Alabama that we must, either because of the number of cases or for some other reason, search for other ways to deal with questions of immunity. The United States Supreme Court in its most recent interpretation of the collateral order doctrine, in Johnson v. Jones, 515 U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), held that a district court order denying a defendant a summary judgment on the basis of a claimed immunity was a fact-related determination that could not be immediately appealed. The United States Supreme Court appears to be refining the doctrine in such a manner as to come full circle to where that ...