Ex Parte Town of Lowndesboro

• Citation: 950 So.2d 1203
• Decision Date: 12 May 2006
• Docket Number: 1041071.
• Parties: Ex parte TOWN OF LOWNDESBORO and Lee Frazer. (In re Alabama Department of Environmental Management v. Town of Lowndesboro and Lee Frazer).
• Court: Supreme Court of Alabama

950 So.2d 1203

Ex parte TOWN OF LOWNDESBORO and Lee Frazer (In re Alabama Department of Environmental Management v. Town of Lowndesboro and Lee Frazer).

1041071.

Supreme Court of Alabama.

May 12, 2006.

Rehearing Denied August 25, 2006.

Appeal from the Montgomery Circuit Court, No. CV-99-2071, Sarah M. Greenhaw, J J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, P.C., Montgomery, for petitioners.

Troy King, atty. gen.; Scott L. Rouse, asst. atty. gen.; and Olivia H. Rowell and Paul Christian Sasser, asst. attys. gen., Department of Environmental Management.

SMITH, Justice.

The plaintiffs below, the Town of Lowndesboro and Lee Frazer (hereinafter "the petitioners"), were awarded "interim" attorney fees and expenses in their declaratory-judgment action against the Alabama Department of Environmental Management ("ADEM"). The petitioners' declaratory-judgment action arose out of ADEM's approval of the construction of a landfill in Lowndes County. ADEM appealed the trial court's order, and the Court of Civil Appeals reversed the trial court's decision. Lowndesboro and Frazer then petitioned this Court for certiorari review. We granted the petition, and we now affirm the judgment of the Court of Civil Appeals.

Facts and Procedural History

In 1998, Alabama Disposal Solutions-Landfill, L.L.C. ("ADSL"), a waste-disposal company, entered into an agreement with the Lowndes County Commission pursuant to which ADSL would operate a solid-waste landfill in Lowndes County. ADSL petitioned ADEM for a permit to operate the landfill. As part of the permitting process, ADSL was to submit a list of all persons who owned property adjacent to the landfill site. ADSL provided ADEM with such a list; however, Frazer, who owns property adjacent to the site, was not included on the list. ADEM ultimately issued a permit for the landfill. Frazer and the Town of Lowndesboro, however, appealed the issuance of the permit to the Environmental Management Commission ("EMC"), alleging that Frazer had not been given proper notice and that the presence of the landfill violated an ordinance of the Town of Lowndesboro.

In August 2000, while their appeal was pending before the EMC, the petitioners filed a declaratory-judgment action in the Montgomery Circuit Court alleging numerous statutory and regulatory violations by both ADEM and ADSL, including an allegation that ADEM had failed to adopt a State Solid Waste Management Plan ("State Plan") as a "final" regulation pursuant to Ala.Code 1975, § 22-27-45.

In November 2000, the circuit court entered an order staying the appeal that was then pending before the EMC. ADEM and ADSL appealed that order, and while the appeal of that order was pending, ADEM adopted a State Plan, and the circuit court lifted the stay. The Court of Civil Appeals thus dismissed the appeal as moot. See Alabama Disposal Solutions-Landfill, L.L.C. v. Town of Lowndesboro, 837 So.2d 292 (Ala.Civ.App.2002). The petitioners then filed a motion for a summary judgment in the declaratory-judgment action, arguing that the notice ADEM had provided to the public and to adjacent landowners was improper. In March 2002, the circuit court entered a summary judgment and declared the landfill permit void.

Shortly before the circuit court entered the summary judgment, the petitioners filed a motion requesting an award of attorney fees against ADEM. This request argued that, as a result of the petitioners' efforts, ADEM had adopted a State Plan that benefited the citizens of Lowndes County and of the State. The petitioners argued that under the common-benefit doctrine they were entitled to attorney fees, which they alleged totaled $1.6 million. In December 2002, the circuit court entered an order awarding the petitioners $338,618 in interim attorney fees and expenses. ADEM appealed; the Court of Civil Appeals reversed the circuit court's order, holding that an award of attorney fees and expenses against ADEM violated Ala. Const.1901, § 14. See Alabama Dep't of Envtl. Mgmt. v. Town of Lowndesboro, [Ms. 2020385, April 8, 2005] 950 So.2d 1180 (Ala.Civ.App.2005). The petitioners then filed with this Court a petition for certiorari review.

Discussion

Article I, § 14, Alabama Constitution of 1901, provides generally that the State is immune from suit: "[T]he State of Alabama shall never be made a defendant in any court of law or equity." Justice Maddox has previously described the long history of this provision:

"During the early years of our history as a State our rule of state governmental responsibility was directly opposite from what it is today. Our first Constitution provided:

"`The general assembly shall direct, by law, in what manner, and in what courts, suits may be brought against the State.'

"Ala. Const. Art. 6, § 9 (1819).

"The constitutional mandate of 1819 remained unchanged until the Constitution of 1865 was adopted when the provision granting a right to sue the state was changed to read:

"`That suits may be brought against the State, in such manner, and in such courts, as may be by law provided.'

"In 1875, the Legislature repealed all acts granting the right to sue the State, and the Constitution of 1875 contained a provision, that `The State of Alabama shall never be made defendant in any court of law or equity.' Section 15, Const. of Alabama, 1875. Section 14 of the 1901 Constitution is the same as Section 15 of the 1875 Constitution. The adoption of the 1875 Constitution closed the door to litigants who had claims against the State, and the door has remained closed continuously by subsequent constitutional provisions and court decisions interpreting those provisions.

"Section 14 of the Alabama Constitution of 1901 specifically prohibits the State from being made a party defendant in any suit at law or in equity. This Court, construing Section 14, has held almost every conceivable type of suit to be within the constitutional prohibition."

Hutchinson v. Board of Trs. of Univ. of Alabama, 288 Ala. 20, 23, 256 So.2d 281, 282-83 (1971) (footnote omitted).

Section 14 has been described as a "nearly impregnable" and "almost invincible" "wall" that provides the State an unwaivable, absolute immunity from suit any in any court. Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867 (Ala. 2004); Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002); and Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994). When an action is one against the State or a State agency, § 14 wholly removes subject-matter jurisdiction from the courts. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003). An action is considered to be against the State "`when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiff's recovery of money from the [S]tate.'" Jones, 895 So.2d at 873 (quoting Shoals Cmty. College v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)) (emphasis added in Jones).

The appellate courts of this State have generally held that an action may be barred by § 14 if it seeks to recover damages or funds from the State treasury. Ex parte Alabama Dep't of Mental Health & Mental Retardation, 937 So.2d 1018, 1023 (Ala.2006) ("Sovereign immunity bars claims against State agencies on the rationale that a damages award against a State agency would result in a monetary loss to the State treasury."); Lyons, 858 So.2d at 262 (noting that a party could not bring an action against a State official, because "[s]uch an action impermissibly seeks funds from the State treasury"); Armory Comm'n of Alabama v. Staudt, 388 So.2d 991, 993-94 (Ala.1980) (stating that an action against the Armory Commission of Alabama was barred by § 14 because a judgment against it "would adversely affect the state treasury"); Southall v. Stricos Corp., 275 Ala. 156, 158, 153 So.2d 234, 235 (1963) (holding that § 14 prevents an action against the State when a result favorable to the plaintiff "would directly affect a contract or property right of the State"); and Moody v. University of Alabama, 405 So.2d 714, 717 (Ala.Civ.App. 1981) (noting that an action was barred because a result in the plaintiff's favor "could ultimately `touch' the state treasury by requiring the disbursement of state funds"). Additionally, a party may not indirectly sue the State by suing its officers or agents "`when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.'" Patterson v. Gladwin Corp., 835 So.2d at 142 (quoting State Docks Comm'n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932)) ( emphasis added in Patterson ).

This case presents an issue of first impression: whether § 14 prohibits an award of attorney fees and expenses against a department or agency of the State of Alabama. The Court of Civil Appeals held that the attorney-fee award in this case did violate § 14:

"We return to the language of the Constitution. Section 14 simply states that `the State of Alabama shall never be made a defendant in any court of law or equity.' We likewise return to the basic principle that an action is one against the State when, among other things, the relief sought will impact the State treasury. . . . [W]e conclude that no decision of our Supreme Court stands as precedent for the proposition that the language of § 14 serves to protect the State treasury any differently from an award of attorney fees than from an award of money damages. Qualitatively, the effect on the treasury—and ergo the implication for the immunity of the State—would be the same in both cases.

"Corroborating the dispositive import of the basic principle against invasion of the state treasury that underlies our holding today is the recent decision of our Supreme Court in Haley v. Barbour County, [885 So.2d 783 (Ala.2004)]. Haley involved an action by several counties and sheriffs against the commissioner of the Department of Corrections, in his...