Ex Parte Richardson

• Decision Date: 09 November 2006
• Docket Number: 1051474.
• Citation: 957 So.2d 1119
• Court: Alabama Supreme Court
• Parties: Ex parte Dr. Ed RICHARDSON, individually and as interim president of Auburn University, et al. (In re: Dwight Carlisle, individually, as a taxpayer and citizen of the State of Alabama and as a trustee of Auburn University v. Dr. Ed Richardson, individually and as interim president of Auburn University, et al.).

957 So.2d 1119

Ex parte Dr. Ed RICHARDSON, individually and as interim president of Auburn University, et al. (In re: Dwight Carlisle, individually, as a taxpayer and citizen of the State of Alabama and as a trustee of Auburn University v. Dr. Ed Richardson, individually and as interim president of Auburn University, et al.).

1051474.

Supreme Court of Alabama.

November 9, 2006.

David R. Boyd and Dorman Walker of Balch & Bingham, LLP, Montgomery; Ed R. Haden of Balch & Bingham, LLP; Birmingham; and Phillip E. Adams, Jr., of Adams, Umbach, Davidson & White, LLP, Opelika; and Lee F. Armstrong, general counsel, Auburn University, for petitioners.

Robert H. Harris of Harris, Caddell & Shanks, P.C., Decatur; and Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for respondent.

STUART, Justice.

Dr. Ed Richardson, interim president of Auburn University; John G. Blackwell, Byron P. Franklin, Samuel L. Ginn, Robert E. Lowder, Charles D. McCrary, Earlon C. McWhorter, John C.H. Miller, Jr., Sarah B. Newton, James W. Rane, Paul J. Spina, Jr., and Virginia N. Thompson, current members of the Auburn University Board of Trustees ("the Board"); and Charles E. Ball, a former member of the Board (hereinafter referred to collectively as "the petitioners"), petition this Court for a writ of mandamus directing the trial court to dismiss the declaratory-judgment action filed by Dwight Carlisle, a current member of the Board, for lack of subject-matter jurisdiction. We grant the petition and issue the writ.

Facts and History

On February 10, 2004, the Alabama Senate confirmed Ball's appointment to the Board as a member from the Fifth Congressional District. Ball succeeded Lowell Barron as a member of the Board; Barron had succeeded Mike McCartney. A question arose as to whether Ball was appointed to complete Barron's "unexpired term" or whether he was appointed for a full seven-year term. According to the petitioners, the answer to this question depends on whether Barron's term ended when he left the Board in 2003, or whether he left an unexpired term to be filled. This analysis depends, in turn, on when Barron's 12-year term began, which requires consideration of the service term of Barron's predecessor, McCartney.

A dispute arose because McCartney, whose term expired in 1991, had served a holdover period and Barron was confirmed in February 1993 for a 12-year term. Thus, under one view, Barron's 12-year term began in 1993 and had not expired when he left the Board in 2003, and Ball's appointment and confirmation in February 2004 was to fill the remainder of Barron's unexpired term. Under the other view, Barron's 12-year term began in 1991, when McCartney's 12-year term expired, and his term thus expired in 2003. Under the second view, Ball's appointment was not to fill an unexpired term, but was for a full seven-year term.

In October 2005, the attorney general, in response to a request by Dr. Richardson, issued an opinion addressing the term lengths of the Board members. The attorney general refused to express an opinion on the term length for each Board member, but he did offer an opinion as to what he deemed to be a correct statement of the law to be applied in making such a determination. See Op. Att'y Gen. 2006-002 (Oct. 7, 2005). The attorney general stated that under the holding of James v. Langford, 695 So.2d 1158 (Ala.1997), and the "plain language" of Amendment No. 161,¹ "the [12-year] term of a Board member appointed pursuant to Amendment 161 commences on the date the Board member is confirmed by the Senate, and not before," and a Board member may continue to serve, indefinitely, in a holdover situation until his or her successor is confirmed. The opinion recognized that Amendment No. 161 was amended in 2000 by Amendment No. 670,² under which several current members of the Board, including Carlisle, were appointed. Amendment No. 670 reduces from 12 years to 7 years a board member's term and specifically limits an outgoing Board member's "holdover" service to one year. Additionally, according to the attorney general's interpretation of Amendment No. 670, "the term of a member of the Board appointed pursuant to Amendment 670 commences on the date the member is confirmed by the Senate."

After receiving the attorney general's opinion, Auburn University, acting by and through Dr. Richardson and/or the Board, determined that Barron, who was appointed pursuant to Amendment No. 161, was serving a 12-year term that began in 1993 and that that term had not expired when Barron left the Board in 2003. Consequently, Auburn University concluded that Ball's confirmation in 2004 was to fill the remainder of Barron's unexpired term, and not for a full seven-year term. When Barron's unexpired term ended in 2005, no successor for Ball had been confirmed. Thus, pursuant to Amendment No. 670, Ball was authorized to serve a one-year holdover term, which expired on February 10, 2006. Auburn University concluded that on that date Ball's service on the Board had ended and that the seat on the Board for the Fifth Congressional District was vacant. Ball agreed with the statement of law in the opinion of the attorney general and Auburn University's application of that statement of the law to his appointment and term length, and he voluntarily ceased serving as a Board member on February 9, 2006.

As provided in Amendment No. 670, Governor Bob Riley, as chairman of the appointing committee for the Board, called a meeting of the appointing committee for the purpose of filling the slot left vacant by Ball's resignation. Before the appointing committee could meet, however, Carlisle filed a complaint in the Lee Circuit Court seeking a declaratory judgment and injunctive relief. The complaint named as defendants Governor Riley, who is the president of the Board and the chairman of the appointing committee, the petitioners, and two additional individuals who serve on the appointing committee but are not members of the Board. Carlisle's complaint sought a declaration that Ball's term had not expired and that Ball is entitled to serve a seven-year term beginning from the date of his confirmation. In his complaint, Carlisle maintained that a term of a Board member appointed pursuant to Amendment No. 161 begins at the end of the predecessor's unextended term, not at Senate confirmation. Carlisle also sought a declaration that the attorney general's opinion had misconstrued Amendment No. 161, and a declaration of the ending dates of the terms of Board members Lowder, Blackwell, Spina, Franklin, Miller, and Rane. Lastly, Carlisle asked for a temporary restraining order prohibiting the appointing committee from meeting because, according to Carlisle, there was no vacancy to be filled.

The trial court conducted a hearing and issued a "temporary restraining order/preliminary injunction" prohibiting the appointing committee from meeting or taking action to appoint a trustee to the Board to represent the Fifth Congressional District until the question of the ending date of Ball's term was decided. On April 18, the defendants moved to dismiss the complaint on the ground that Carlisle lacked standing to bring the action. The trial court denied the motion to dismiss and denied the defendants' request that it certify for an interlocutory appeal pursuant to Rule 5, Ala. R.App. P., the question of Carlisle's standing, stating:

"The issue at bar is whether or not [Carlisle] has standing to bring suit against the Defendants. Since [Carlisle] is a Trustee of Auburn University, he is no longer simply a private citizen, but rather acting as a public officer. An analogous case on issue of standing is The City Council of the City of Prichard et al. v. A.J. Cooper, Jr. [358 So.2d 440 (Ala.1978)]. In that case, the defendants argued that the plaintiff, a mayor, did not have standing to bring suit. The Alabama Supreme Court disagreed, noting `the mayor is a real party in interest when he, as a public officer, is confronted with questions concerning his duty under statutory law. This is particularly true when those questions are controverted by other city officials who interpret their own statutory responsibilities in a manner which might make his own actions either inconsistent with his legal duties or subject to legal challenge.' City v. Cooper, 358 So.2d 440, 441 (Ala. 1978).

"[Carlisle] also raises the issue of whether or not President Ed Richardson was acting under statutory authority when he asked the Attorney General of Alabama for an opinion regarding the interpretation of the trustees' terms of office. At the very least, § 36-15-1(1)(c), Ala.Code 1975, provides [Carlisle] with standing to contest President Richardson's action. This portion of the Title reads:

"`Any other officer or governing body of a municipality or county or officer or governing body of any other elected or appointed body shall submit with the request for an opinion a resolution adopted by the governing body setting forth the facts showing the nature and character of the question which makes the advice or opinion sought necessary to the present performance of some official act that the officer or governing body must immediately perform.'

"The defendants' motion to dismiss is . . . denied."

Standard of Review

"Mandamus review is available when the question presented is one of subject-matter jurisdiction.

"`"Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).'

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