Woodfin v. Bender, [Ms. 1150797, Mar. 31, 2017] __ So. 3d __ (Ala. 2017). The Court, in a plurality opinion (Main, J., Stuart and Wise, J.J., concur; Bolin, Parker, Murdock, Shaw, and Bryan, J.J., concur in the result) holds the Jefferson Circuit Court was without subject-matter jurisdiction to award 24 classified employees of the Birmingham Board of Education monetary relief stemming from their claims that the Superintendent of the Birmingham City School System and the members of the Birmingham Board of Education in their official capacities incorrectly miscalculated plaintiffs’ salaries following adoption in 2004 of a new salary schedule. The Court holds that because the amounts claimed for past-due salaries was disputed, the Birmingham Education officials had discretion in making salary determinations and payments and were therefore entitled to state immunity under Article I, § 14 of the Alabama Constitution of 1901.
The Court’s reiteration of the pertinent § 14 immunity criteria is instructive:
“[T]he State of Alabama shall never be made a defendant in any court of law or equity.” Article I, § 14, Ala. Const. 1901. “Section 14 immunity is more than a defense; when applicable, it divests the trial courts of this State of subject-matter jurisdiction.” Alabama State Univ. v. Danley, [Ms. 1140907, April 8, 2016] ___ So. 3d ___, ___ (Ala. 2016). Concerning § 14 immunity, this Court has stated:
“‘The wall of immunity erected by § 14 is nearly impregnable. Sanders Lead Co. v. Levine, 370 F. Supp. 1115, 1117 (M.D. Ala. 1973); Taylor v. Troy State Univ., 437 So. 2d 472, 474 (Ala. 1983); Hutchinson v. Board of Trustees of Univ. of Alabama, 288 Ala. 20, 24, 256 So. 2d 281, 284 (1971). This immunity may not be waived. Larkins v. Department of Mental Health & Mental Retardation, 806 So. 2d 358, 363 (Ala. 2001) (“The State is immune from suit, and its immunity cannot be waived by the Legislature or by any other State authority.”); Druid City Hosp. Bd. v. Epperson, 378 So. 2d 696 (Ala. 1979) (same); Opinion of the Justices No. 69, 247 Ala. 195, 23 So. 2d 505 (1945) (same); see also Dunn Constr. Co. v. State Bd. of Adjustment, 234 Ala. 372, 175 So. 383 (1937). “This means not only that the state itself may not be sued, but that this cannot be indirectly accomplished by suing its officers or agents in their official capacity, when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.” State Docks Comm'n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932) (emphasis added); see also Southall v. Stricos Corp., 275 Ala. 156, 153 So. 2d 234 (1963).’
“Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002).”
Alabama Agric. & Mech. Univ. v. Jones, 895 So. 2d 867, 872-73 (Ala. 2004).
“Section 14 immunity is not absolute; there are actions that are not barred by the general rule of immunity.
“‘[C]ertain actions are not barred by § 14. There are six general categories of actions that do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; (4) actions brought against State officials under the Declaratory Judgments Act, Ala. Code 1975, § 6-6-220 et seq., seeking construction of a statute and its application in a given situation; (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law. See Drummond Co. v. Alabama Dep’t of Transp., 937 So. 2d 56, 58 (Ala. 2006) (quoting Ex parte Carter, 395 So. 2d 65, 68 (Ala. 1980)); Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So. 2d 831 (Ala. 2008) (holding that the exception for declaratory-judgment actions applies only to actions against State officials). As we confirmed in Harbert, these “exceptions” to sovereign immunity apply only to actions brought against State officials; they do not apply to actions against the State or against State agencies. See Alabama Dep’t of Transp., 990 So. 2d at 840-41.’
“Ex parte Alabama Dep’t of Fin., 991 So. 2d 1254, 1256-57 (Ala. 2008). The sixth ‘exception’ to § 14 immunity was restated in Ex parte Moulton, 116 So. 3d 1119, 1141 (Ala. 2013), as follows:
“‘(6)(a) actions for injunction brought against State officials in their representative capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So. 2d 428 (1967), and (b) actions for damages brought against State officials in their individual capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, subject to the limitation that the action not be, in effect, one against the State. Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989).’”
Ex parte Hampton, 189 So. 3d 14, 17-18 (Ala. 2015).
“‘These actions are sometimes referred to as “exceptions” to § 14; however, in actuality these actions are simply not considered to be actions “‘against the State’ for § 14 purposes.” Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002). This Court has qualified those “exceptions,” noting that “‘[a]n action is one against the [S]tate 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.’” Alabama Agric. & Mech. Univ. v. Jones, 895 So. 2d 867, 873 (Ala. 2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So. 2d 1311, 1314 (Ala. Civ. App. 1995)) (emphasis added in Jones).’
“Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So. 2d 831, 840 (Ala. 2008).”
Vandenberg v. Aramark Educ. Servs., Inc., 81 So. 3d 326, 332 (Ala. 2011).
“‘To determine whether an action against a State officer is, in fact, one against the State, this Court considers
“‘“whether ‘a result favorable to the plaintiff would directly affect a contract or property right of the State,’ Mitchell [v. Davis, 598 So. 2d 801, 806 (Ala. 1992)], whether the defendant is simply a ‘conduit’ through which the plaintiff seeks recovery of damages from the State, Barnes v. Dale, 530 So. 2d 770, 784 (Ala. 1988), and whether ‘a judgment against the officer would directly affect the financial status of the State treasury,’ Lyons [v. River Road Constr., Inc.], 858 So. 2d  at 261 [(Ala. 2003)].”
“‘Haley [v. Barbour County], 885 So. 2d  at 788 [(Ala. 2004)]. Additionally, “[i]n determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought.” Ex parte Carter, 395 So. 2d 65, 67-68 (Ala. 1980).’”
Ex parte Moulton, 116 So. 3d 1119, 1130-31 (Ala. 2013) (quoting Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So. 2d 831, 839-40 (Ala. 2008)).
Here, however, the plaintiffs did not “seek construction of a statute and its application in a given situation.” Ms. *11, quoting Hampton, supra, 189 So. 3d at 18. Instead, the plaintiffs sought a construction of the Board’s policy and monetary relief. Therefore, the declaratory-judgment “exception” to § 14 immunity did not apply. Ms. *12, citing Ex parte Town of Lowndesboro, 950 So. 2d 1203 (Ala. 2006).
To the extent plaintiffs sought mandamus and injunctive relief, their claims were foreclosed by Alabama Department of Transportation v. Harbert International, Inc., 990 So. 2d 831 (Ala. 2008) where the Court stated:
“Generally, mandamus relief is available in certain situations to compel a State officer to perform the ministerial act of tendering payment of liquidated or certain sums the State is legally obligated to pay under a contract. State Highway Dep’t v. Milton Constr. Co., 586 So. 2d 872, 875 (Ala. 1991); see also [Alabama Agric. and Mech. Univ. v.] Jones, 895 So. 2d  at 877-79 [(Ala. 2004)](describing as ‘well-established [the] rule that a writ of mandamus will issue to compel payment of only such claims as are liquidated’ and noting that prior caselaw had held ‘that payment for goods or services, for which the State had contracted and accepted, could be compelled by mandamus’); and State Bd. of Admin. v. Roquemore, 218 Ala. 120, 124, 117 So. 757, 760 (1928) (‘the claim asserted [against the State was] for an amount fixed or determinable by the terms of the contract of sale,’ and was ‘definite and certain, ... and not an unliquidated claim, in the sense that would render mandamus unavailable’).
“We find our opinions in Milton Construction Co. v. State Highway Department, 568 So. 2d 784 (Ala. 1990) (‘Milton I’), and State Highway Department v. Milton Construction Co., 586 So. 2d 872 (Ala. 1991) (‘Milton II’), dispositive on this issue. In Milton I, the plaintiff, Milton Construction Company, asked the trial court to declare the disincentive clause of an ‘incentive/disincentive-payments provision’ in two highway-construction contracts it had entered into with ALDOT (then called ‘the Highway Department’) void and unenforceable as a penalty. Milton Construction further asked the trial court to order the defendants – the State, ALDOT, and ALDOT’s director – to pay it the amounts of ‘disincentive payments’ ALDOT had allegedly wrongfully withheld. On appeal, this Court held that the ‘disincentive clause’ in the contracts was ‘void as a penalty and therefore unenforceable,’ 568 So. 2d at 791, and remanded the case.
"On return to remand, the defendants claimed that § 14 barred the trial court from ordering them to pay the money they had withheld from Milton Construction under the void disincentive clause. In Milton II, this Court disagreed, stating:
“‘It is true that § 14 of the Constitution prevents a suit against the state as well as suits against its agencies. See Phillips v. Thomas, 555 So. 2d 81 (Ala. 1989); Rutledge v. Baldwin County Comm’n, 495 So. 2d 49 (Ala. 1986). However, this Court has also recognized that there are certain established exceptions to the protection afforded the state or its agencies by sovereign immunity. See Ex parte Carter, 395 So. 2d 65, 68 (Ala. 1981). Among those recognized exceptions are actions brought to force state employees or agencies to perform their legal duties. Id. See also Nix and Vercelli, Immunities Available In Alabama For Cities, Counties And Other Governmental Entities, And Their Officials, 13 Am. J. Trial Advoc. 615 (1989).
“‘... Once the Highway Department has legally contracted under state law for goods or services and accepts such goods or services, the Highway Department also becomes legally obligated to pay for the goods or services accepted in accordance with the terms of the contract. It follows that this obligation is not subject to the doctrine of sovereign immunity and is enforceable in the courts. See, e.g., Gunter v. Beasley, 414 So. 2d 41 (Ala. 1982); State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757 (1928).
“‘It is undisputed that Milton Construction has already rendered the services called for under the contract. Consequently, we hold that this lawsuit is not barred by the doctrine of sovereign immunity, because it is in the nature of an action to compel state officers to perform their legal duties and pay Milton Construction for services contracted for and rendered. Gunter, supra; Roquemore,supra.
“‘For example, in Roquemore the Highway Department contracted with Roquemore to purchase hay. After Roquemore had delivered a substantial amount of hay to the Highway Department, it refused to accept any further deliveries of hay and refused to pay for the hay that it had already received. Roquemore petitioned this Court for a writ of mandamus ordering the State Board of Administration and the Highway Department to pay him for the hay that he had delivered. This Court held that the writ was proper and was not barred by the doctrine of sovereign immunity because, under the applicable statutes, the Highway Department could not refuse to pay for goods that it had already accepted. This Court held that the suit in Roquemore was one to force a state agency to perform its legal duty, i.e., to force the Highway Department to pay for the hay that it had already accepted. Likewise, in this case, Milton Construction’s action against the Highway Department is not barred by the doctrine of sovereign immunity.’
“Milton II, 586 So. 2d at 875. This Court thus upheld the trial court’s judgment holding that the moneys withheld under the disincentive clause were due to be paid to Milton Construction.
“Like the plaintiff in Milton I and Milton II, Harbert contended that a provision in a contract with ALDOT was void as a penalty. Harbert thus sought mandamus relief directing that State officers pay the funds withheld by ALDOT. The trial court agreed and, like the trial court in Milton II, ordered that the withheld funds be paid. In their initial brief on appeal, the Governor and the director do not appear to contest the trial court’s holding that the liquidated-damages provision was unlawfully applied in this case. Thus, under the authority of Milton II, the trial court’s mandamus relief directing that the funds withheld as liquidated damages are due to be returned to Harbert is affirmed. See Hardin v. Fullilove Excavating Co., 353 So. 2d 779, 783 (Ala. 1977) (agreeing with the trial court’s factual findings and legal conclusions interpreting a contract between a State agency and a contractor ‘as calling for payment of the disputed sum’ and affirming the issuance of the writ of mandamus to compel State officers to tender payment).”
990 So. 2d at 842-44.
"the trial court can generally, by writ of mandamus, order State officers in certain situations to pay liquidated damages or contractually specified debts. The payment of these certain, liquidated amounts would be only a ministerial act that State officers do not have the discretion to avoid. [Alabama Agric. and Mech. Univ. v.] Jones, 895 So. 2d  at 878-79 [(Ala. 2004)];[State Bd. of Admin. v.]Roquemore, 218 Ala.  at 124, 117 So.  at 760 [(1928)]. Furthermore, although the payment of the funds ‘may ultimately touch the State treasury,’ Horn v. Dunn Bros., 262 Ala. 404, 410, 79 So. 2d 11, 17 (1955), the payment does not ‘affect the financial status of the State treasury,’ Lyons [v. River Road Constr., Inc.], 858 So. 2d  at 261 [(Ala. 2003)], because the funds ‘do not belong to the State,’ Alabama Dep’t of Envtl. Mgmt. v. Lowndesboro, 950 So. 2d 1180, 1190 n.6 (Ala. Civ. App. 2005) (two-judge opinion), and the State treasury ‘suffers no more than it would’ had the State officers originally performed their duties and paid the debts. Horn, 262 Ala. at 410, 79 So. 2d at 17. The trial court may not, however, award retroactive relief in the nature of unliquidated damages or compensatory damages, because such relief affects a property or contract right of the State. Stark [v. Troy State Univ., 514 So. 2d 46 (Ala. 1987)]; Williams [v. Hank's Ambulance Serv., Inc., 699 So. 2d 1230 (Ala. 1997)]; Roquemore; J.B. McCrary Co. v. Brunson, 204 Ala. 85, 86, 85 So. 396, 396 (1920) (‘mandamus will not lie to compel the payment of unliquidated claims’); and Vaughan [v. Sibley, 709 So. 2d 482 (Ala. Civ. App. 1997)]. ...
“Although the trial court cannot award compensatory damages or unliquidated damages in this case, the trial court does have the ability to compel State officers who are acting arbitrarily and capriciously to properly perform their duties. Stark, 514 So. 2d at 50 (holding that an action seeking to compel State officers who are acting arbitrarily to perform their legal duties ‘will not be barred by the sovereign immunity clause of the Alabama Constitution of 1901’); McDowell-Purcell, [Inc. v. Bass,] 370 So. 2d  at 944 [(Ala. 1979)] (‘If judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof.’); St. Clair County v. Town of Riverside, 272 Ala. 294, 296, 128 So. 2d 333, 334 (1961) (‘Injunctive action may be maintained against a state official, if the official is acting beyond the scope of his authority or acting illegally, in bad faith, or fraudulently.’) ....”
Harbert, 990 So. 2d at 845-46.
As Justice Murdock correctly noted in his special concurrence in Harbert:
“[I]t becomes critical ... to recognize that the reference in the cases cited in the above-quoted passage from the main opinion to claims that are ‘liquidated,’ when considered in context, are references not merely to claims for amounts that have been reduced to sums certain, but claims as to which there is no room for dispute as to liability, i.e., whether the amounts at issue are owed.”
990 So. 2d at 849 (Murdock, J., concurring specially).
Ms. *12-17, quoting Harbert, 990 So. 2d at 845-46. Because in this case the evidence established that the defendants did not act arbitrarily but instead based on the language in the 2004 policy afforded them discretion in making salary determinations, they were entitled to § 14 immunity, and the trial court was therefore divested of subject-matter jurisdiction.