Water and Sewer Com'Rs of Mobile v. Hunter

• Decision Date: 28 July 2006
• Docket Number: 1050067.
• Citation: 956 So.2d 403
• Parties: BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE v. James HUNTER et al.
• Court: Alabama Supreme Court

956 So.2d 403

BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE v. James HUNTER et al.

1050067.

Supreme Court of Alabama.

July 28, 2006.

Rehearing Denied October 20, 2006.

Benjamin T. Rowe of Cabaniss, Johnston, Gardner, Dumas & O'Neal, LLP, Mobile, for appellant.

Herndon Inge III, Mobile; John W. Parker, Mobile; and David G. Wirtes, Jr.,

and George M. Dent III of Cunningham, Bounds, Crowder, Brown & Breedlove, L.L.C., Mobile, for appellees.

STUART, Justice.

The Board of Water and Sewer Commissioners of the City of Mobile ("the Water Board") appeals from an order of the Mobile Circuit Court declaring § 34-11-1, Ala.Code 1975, unconstitutional; in that order, the trial court also enjoined enforcement of that statute. We reverse and remand.

Factual and Procedural Background

The plaintiffs in the trial court, James Hunter and his family members, sued the Water Board, alleging negligent design, construction, operation, and maintenance of the sanitary-sewer system that served their residence. The Hunters proffered the testimony of Roger Hicks as an expert in support of their claims. Hicks is certified as an "engineer intern" by the Board of Licensure for Professional Engineers and Land Surveyors ("the Licensure Board").

The Water Board moved to strike Hicks's testimony. The Water Board pointed out that the engineering profession is governed by Title 34, Chapter 11, Alabama Code 1975 ("the Licensure Act"). The Licensure Act sets forth those acts constituting "the practice of engineering." See § 34-11-1(7), Ala.Code 1975. The Water Board also pointed out that, in 1997 the Alabama Legislature passed Act No. 97-683, Ala. Acts 1997, which amended, among other sections, § 34-11-1(7) to include the term "testimony" within the definition of "the practice of engineering." The Water Board argued that, as a result of that 1997 amendment, Alabama law prohibited anyone from testifying under oath regarding engineering matters unless they were licensed as a "professional engineer" by the Licensure Board. Because Hicks was not a licensed "professional engineer," the Water Board argued, he was not qualified to testify as to the engineering matters at issue in this case.

The Hunters responded to this motion, presenting evidence indicating that, in the absence of § 34-11-1(7), Ala.Code 1975, Hicks would unquestionably qualify as an "expert" in this case. The Hunters argued that Hicks was trained as an engineer, that he was certified by the Licensure Board as an "engineer intern," and that he had approximately 17 years experience in sewer maintenance and related matters.¹ The Hunters also argued that Hicks's proposed testimony was based on his education, training, and experience and that his education, training, and experience were sufficient to qualify him as an expert witness in this case.

The Hunters also asserted that the Licensure Act was unconstitutional to the extent it purported to impose any penalty or criminal liability upon Hicks for providing opinion testimony in this case.² The Hunters also argued that the title of Act No. 97-683 failed to comply with § 45, Constitution of Alabama 1901 ("the single-subject" rule), and that the Licensure Act might have a field of operation but not to the extent of prohibiting otherwise qualified experts from testifying in a court of law. The Hunters also argued that the Licensure Act was unconstitutionally infirm on numerous other grounds.³

The Hunters then moved the trial court to declare the Licensure Act unconstitutional to the extent it purported to prohibit persons from testifying regarding engineering matters in a court of law. The Hunters also requested that the trial court enjoin the enforcement of the Licensure Act to the extent that it inhibited or prevented the admission of testimony by certain individuals in an Alabama court of law.

After taking the deposition of Regina Dinger, the executive director of the Licensure Board, the Hunters amended their motion seeking to have the Licensure Act declared unconstitutional. In this amended motion, the Hunters alleged that the Licensure Act, as amended, was unconstitutionally vague because ordinary people could not understand what conduct the Act sought to prohibit. The Hunters asserted that Dinger's deposition testimony established that the Licensure Act was so vague that the Licensure Board could not even explain what conduct was prohibited by the statute.

After hearing arguments on the Hunters' amended motion, the trial court issued a 16-page order, declaring that the inclusion of the term "testimony" in § 34-11-1(7), Ala.Code 1975, created an unconstitutionally vague statute. The trial court also concluded that Act No. 97-683 violated Art. IV, § 45, Alabama Constitution of 1901. For these reasons, the trial court enjoined any application of the term "testimony," as that term is used in § 34-11-1(7), Ala.Code 1975.

The Water Board appealed, raising the following issues:

"1. Whether Alabama Act. No. 97-683's amendment of Code § 34-11-1(7) to include `testimony' among the services of professional engineers required to be licensed made the professional engineer licensure law unconstitutionally vague in violation of the due process provisions of the Alabama Constitution.

"2. Whether Alabama Act No. 97-683, which, among other changes, added `testimony' to the description of services provided by professional engineers required to be licensed was inadequately titled in violation of Section 45 of the Alabama Constitution."

(Water Board's brief at 4.)

Standard of Review

"Our review of constitutional challenges to legislative enactments is de novo." Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala.2001). However, we must approach this review in light of the following:

"`[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.' Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944) (emphasis added). This is so, because `it is the recognized duty of the court to sustain the act unless it is clear beyond a reasonable doubt that it is violative of the fundamental law.' 246 Ala. at 9, 18 So.2d at 815 (emphasis added)."

McInnish v. Riley, 925 So.2d 174, 178 (Ala.2005).

Moreover, the trial court did not receive evidence ore tenus; thus, there is no presumption of correctness attached to the trial court's order.

Additionally, the facts in this case were virtually undisputed; however, the parties differed in their application of the law to those facts. The trial court's application of the law to undisputed facts is reviewed de novo. See George v. Sims, 888 So.2d 1224, 1226 (Ala.2004) (pure questions of law are reviewed de novo); Ex parte C.L.C., 897 So.2d 234, 237 (Ala.2004) (we review de novo the trial court's conclusions of law).

We also review the trial court's grant of a permanent injunction under a de novo standard. TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1241 (Ala.1999).

Applicable Code Sections

Title 34, Chapter 11, Alabama Code 1975, regulates the engineering profession in this State. Section 34-11-2(a), Ala. Code 1975, provides:

"No person in either public or private capacity shall practice or offer to practice engineering . . ., unless he or she shall first have submitted evidence that he or she is qualified so to practice and shall be licensed by the board as hereinafter provided. . . ."

Section 34-11-1(7), Ala.Code 1975, as amended in 1997, defines "the practice of engineering" as:

"Any professional service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, testimony, investigation, evaluation, planning, design and design coordination of engineering works and systems, planning the use of land and water, performing engineering surveys and studies, and the review of construction or other design products for the purpose of monitoring compliance with drawings and specifications; any of which embraces such services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products; equipment of a control, communications, computer, mechanical, electrical, hydraulic, pneumatic, or thermal nature, insofar as they involve safeguarding life, health, or property; and including other professional services necessary to the planning, progress, and completion of any engineering services."

(Emphasis added.) Section 34-11-15(a), Ala.Code 1975, makes it a Class A misdemeanor for anyone to practice, offer to practice, or hold himself or herself out as qualified to practice engineering within this state without being licensed by the Licensure Board.

Additionally, Regulations 330-X-2-.01(2) and 330-X-2-.01(19), Alabama Administrative Code (Alabama State Board of Registration for Professional Engineers and Land Surveyors), provide additional guidance on the meaning of the terms used in the Licensure Act.⁴

Discussion

We first address the trial court's conclusion that Act No. 97-683 violated § 45, Ala. Const.1901, known as "the single-subject rule." That section provides in part: "Each law shall contain but one subject, which shall be clearly expressed in its title. . . ."

The title to Act No. 97-683, the act amending § 34-11-1, Ala.Code 1975, provides as follows:

"To amend Sections 34-11-1, 34-11-2, 34-11-3, 34-11-4, 34-11-5, 34-11-6, 34-11-7, 34-11-8, 34-11-9, 34-11-11, 34-11-12, 34-11-14, 34-11-15, 34-11-30, 34-11-31, 34-11-32, 34-11-34, 34-11-35, 34-11-36, 34-11-37, and 11-6-21 of the Code of Alabama 1975, which relate to the regulation and registration of...