Ex parte Sizemore

• Decision Date: 08 January 1993
• Citation: 611 So.2d 1069
• Parties: Ex parte James M. SIZEMORE, Jr., as Commissioner, Alabama Department of Revenue. (Re James M. SIZEMORE, Jr., as Commissioner, Alabama Department of Revenue v. Edmon L. RINEHART, et al., Individually and as Representatives of the Class). 1911015.
• Court: Alabama Supreme Court

Page 1069

611 So.2d 1069

Ex parte James M. SIZEMORE, Jr., as Commissioner, Alabama Department of Revenue.

(Re James M. SIZEMORE, Jr., as Commissioner, Alabama Department of Revenue v. Edmon L. RINEHART, et al., Individually and as Representatives of the Class).

1911015.

Supreme Court of Alabama.

Jan. 8, 1993.

Petition for writ of Certiorari to the Court of Civil Appeals (2900290). Appeal from the Montgomery Circuit Court, Nos. CC-89-704, CC-89-707 and CC-89-734, Eugene W. Reese, Judge.

Ron Bowden, Chief Counsel, and Mark D. Griffin, Asst. Counsel, Dept. of Revenue and Asst. Attys. Gen., for petitioner.

Mark D. Wilkerson of Parker, Brantley & Wilkerson, P.C., James R. Seale of Robison & Belser, P.C., Montgomery, William J. Baxley, Joel E. Dillard and Charles Dauphin of Baxley, Dillard & Dauphin, Birmingham, Jerrilee P. Sutherlin, Huntsville, Robert M. Hill, Jr. of Hill, Young & Boone, Florence, James P. Smith, Huntsville, J. Doyle Fuller, C. Knox McLaney III, Montgomery, Mark Ezell, Butler, John W. Sharbrough, Mobile, and Thomas T. Gallion III and William M. Slaughter of Haskell, Slaughter, Young & Johnston, P.C., Birmingham, for respondents.

ALMON, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

HORNSBY, C.J., and MADDOX, SHORES, ^* ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.

HOUSTON, J., dissents.

HOUSTON, Justice (dissenting).

Because this case presents a question of first impression that potentially involves the payment of approximately $20,000,000 from the Special Education Trust Fund of the State of Alabama, the important issues that have been raised in this petition should be addressed by the highest Court in this state.

The people of Alabama, in the Constitution of Alabama of 1901, declared: "That the State of Alabama shall never be made a defendant in any court of law or equity." Section 14 (emphasis added). This Court has held that § 14 prevents not only an action against the state, but also an action against its officers and agents in their official capacities, when a result favorable to the plaintiff would directly affect a property right of the state. DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1981); Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971); Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963). In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), the United States Supreme Court held: "[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants."

Based upon the understandable, intelligible, lucid, comprehensible, discernible, plain, obvious, unambiguous, unequivocal, explicit, definite, unmistakable, indisputable, unquestionable, and incontrovertible wording of § 14 of the Constitution, as consistently interpreted by this Court, I must conclude that this is an action against the state, seeking as a remedy funds from the state treasury.

The state timely raised the defense of sovereign immunity under § 14 by a motion to dismiss. The Court of Civil Appeals did not address this constitutional issue. It merely relied on Thorn v. Jefferson County, 375 So.2d 780 (Ala.1979). Thorn involved an action against a county seeking a refund of ad valorem taxes. A county has no sovereign immunity. Neither Thorn, nor the case that it relied on, Graves v. McDonough, 264 Ala. 407, 88 So.2d 371 (1956), is authority for allowing a class action against the state. In Graves, Chief Justice Livingston, writing for the Court, specifically noted that the attorney general was "not insisting that this is a suit against the state in violation of Section 14 of the Constitution." 264 Ala. at 409, 88 So.2d at 373. In the case at issue, the state is insisting that this action is barred by § 14.

This Court can no more permit an action against the state, or an official of the state, when a result favorable to the plaintiff would affect a property right of the state, than we can deny parties to litigation a trial by jury, if they had the right to trial by jury at common law. The people, by their Constitution, have denied us that right.

There can be no question that a refund of approximately $20,000,000 from the state treasury would affect a property right of the state. Therefore, in this case, the State of Alabama was made a defendant in violation of § 14 of the Alabama Constitution, and its motion to dismiss should have been promptly granted, unless this constitutional provision (§ 14) violates the United States Constitution.

In determining whether § 14 violates the United States Constitution, what is our standard of review? Justice Almon wrote for a unanimous Court in White v. Reynolds Metals Co., 558 So.2d 373, 375 (Ala.1989), cert. denied, Reynolds Metals Co. v. Sizemore, 496 U.S. 912, 110 S.Ct. 2602, 110 L.Ed.2d 282 (1990):

"Although the Supremacy Clause, U.S. Const. Art. VI, cl. 2, binds 'the judges in every state' to abide by the United States Constitution, 'any thing in the Constitution or laws of any state to the contrary notwithstanding,' we are also sworn to 'support the Constitution of the United States, and the Constitution of the State of Alabama.' Ala. Const.1901, Art. XVI, § 279. It is therefore our duty to support both, if that be possible, before we conclude that one violates the other."

(Emphasis added.)

In my opinion, the Court of Civil Appeals, 611 So.2d 1064 (1992), and the majority of this Court as well, by quashing the writ, have ignored the duty to support the Alabama Constitution, if that can be done without violating the United States Constitution.

The Court of Civil Appeals relied on James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (hereinafter Beam v. Georgia ), and Davis v. Michigan Department of Treasury, 489 U.S. 803, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989), in holding that the state was required to provide refunds to the affected taxpayers in this case. After carefully examining these two cases, however, I find it clear that this reliance was misplaced. In Davis v. Michigan, Davis pursued the administrative remedies that were available to him to obtain a refund of taxes; and the State of Michigan conceded the refund issue: "The State having conceded that a refund is appropriate in these circumstances, ... to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund." 489 U.S. at 817, 109 S.Ct., at 1508-09. In the petition before this Court, the state vehemently denies that it should be required to provide refunds in this class action. In Beam v. Georgia, ¹ the United States Supreme Court issued four opinions in which six Justices agreed that the ruling in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), should apply retroactively to claims arising on facts antedating that decision. Three Justices held that retroactive application of Bacchus was not appropriate. However, the opinions of the majority in Beam v. Georgia did not decide the issue of which remedies were to be applied under the new rule. In the opinion written by Justice Souter, the following statements appear:

"Subject to possible constitutional thresholds, see McKesson Corp. v. Florida Alcoholic Beverages and Tobacco Div., 496 U.S. , 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), the remedial inquiry is one governed by state law, at least where the case originates in state court. See American Trucking Assns., Inc. v. Smith, 496 U.S. [167, 210-11], 110 S.Ct. 2323 [2348], 110 L.Ed.2d 148 (1990) (Stevens, J., dissenting). But the antecedent choice-of-law question is a federal one where the rule at issue itself derives from federal law, constitutional or otherwise. See Smith, supra, at [177 n. 8], 110 S.Ct., at [2330-31 n. 8] (plurality opinion); cf. United States v. Estate of Donnelly, 397 U.S. 286, 297, n., 90 S.Ct. 1033, 1039, n., 25 L.Ed.2d 312 (1970) (Harlan, J., concurring)."

501 U.S. at ----, 111 S.Ct. at 2443.

"[N]othing we say here precludes consideration of individual equities when deciding remedial issues in particular cases.

"....

"The grounds for our decision today are narrow. They are confined entirely to an issue of choice of law: when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata. We do not speculate as to the bounds or propriety of pure prospectivity.

"Nor do we speculate about the remedy that may be appropriate in this case; remedial issues were neither considered below nor argued to this Court, save for an effort by petitioner to buttress its claim by reference to our decision last Term in McKesson. As we have observed repeatedly, federal 'issues of remedy ... may well be intertwined with, or their consideration obviated by, issues of state law.' Bacchus, 468 U.S., at 277, 104 S.Ct., at 3058. Nothing we say here deprives respondent of his opportunity to raise procedural bars to recovery under state law or demonstrate reliance interests entitled to consideration in determining the nature of the remedy that must be provided, a matter with which McKesson did not deal."

501 U.S. at ----, 111 S.Ct., at 2448. (Emphasis added.)

In Melof v. Hunt, 718 F.Supp. 877 (M.D.Ala.1989), a case involving all of the defendants in this case and at least three of the remaining plaintiffs in this case, it was judicially determined (1) that the relief sought, as in the present case, was against the state; (2) that Ala.Code 1975, § 40-1-11, repealed by "The Alabama Taxpayers' Bill of Rights and Uniform Revenue Procedures Act," Ala.Acts 1992, No. 92-186, § 80, effective October 1, 1992 (conferring a right to recover taxes paid under protest); Ala.Code 1975, § 40-18-40, rewritten by amendment, Act 92-186, § 53, effective October 1, 1992,...