Standing - Challenge to Expenditure of State Funds: Morrow and Zeigler v. Bentley
Morrow and Zeigler v. Bentley, [Ms. 1151313, Nov. 3, 2017] __ So. 3d __ (Ala. 2017). This per curiam decision (Stuart, C.J., and Bolin, Shaw, Bryan, and Sellers, JJ., concur; Parker and Wise, JJ., concur in the result; and Main, J., recuses himself) affirms the Montgomery Circuit Court’s dismissal of this action by Johnny Morrow, a member of the Alabama House of Representatives, and State Auditor Jim Zeigler, challenging the defendant state officials’ expenditure of funds received from BP as a result of the Deepwater Horizon disaster toward the construction of a hotel conference center at Gulf State Park. The plaintiffs, asserting claims both in their individual and official capacities, contended that the expenditure of the BP funds violated § 9-14E-1, et seq., the Gulf State Park Projects Act, which in pertinent part provided that “other than project revenues, only National Resource Damage Assessment funds or Restore Act funds may be expended to implement this chapter.” Ms. *3, quoting § 9-14E-9, Ala. Code 1975.
The plaintiffs contended that the BP funds were not project revenues, Restore Act funds, or National Resource Damages Assessment funds and that the defendants should be enjoined from making further unconstitutional and illegal expenditures toward the project at Gulf State Park and required to account for any sums previously disbursed or expended. Ms. *4-5.
The Court noted that “‘[t]he issue of standing presents a pure question of law, and the trial court’s ruling on that issue is entitled to no deference on appeal.’” Ms. *9, quoting Town of Mountainboro v. Griffin, 26 So. 3d 407, 409 (Ala. 2009).
The Court refused to consider the plaintiffs’ argument on appeal that they had standing to prosecute the action in their individual capacities as taxpayers because “the plaintiffs waived that argument by not presenting it to the trial court.” Ms. *9. The Court was at pains to point out that “the issue of lack of standing may not be waived” because lack of standing implicates the subject matter jurisdiction of the court. Ms. *12. The Court explained that by contrast when a party fails to present an argument to support his standing in the trial court, affirmance of dismissal of the action “does not risk affirming a void judgment by refusing to address the plaintiff’s taxpayer-standing argument. As a result, this Court is under no duty, as it would be in a case where a judgment had been entered in favor of a plaintiff who lacks standing, to consider the abandoned theory that the plaintiffs have taxpayer standing.” Ms. *12-13.
The Court rejected State Auditor Zeigler’s official capacity standing because “the complaint did not allege that the defendants’ actions constitute an ‘ongoing harm’ to Zeigler by interfering with or usurping his authority as state auditor. The plaintiffs’ failure to allege that Zeigler suffered an injury in fact in the form of intrusion upon or usurpation of his statutory and/or constitutional authority as state auditor is fatal to the plaintiffs’ argument that Zeigler has standing to prosecute their action in his official capacity.” Ms. *18-19.
In regard to legislator Morrow’s standing, the Court noted that “‘legislators have no special right to standing simply by virtue of their status: like other plaintiffs, legislators must establish a distinct, concrete injury in fact.’” Ms. *20, quoting American Civil Liberties Union of Tennessee v. Darnell, 195 S.W. 3d 612, 625 (Tenn. 2006). The Court noted that “‘to establish standing, a legislator must overcome a heavy burden’ because ‘courts are reluctant to hear disputes that may interfere with the separation of powers between branches of government.’” Ms. *21, quoting Dodak v. State Admin. Board, 441 Mich. 547, 555, 495 N.W. 2d 539, 543 (1993). In addressing whether Morrow suffered a particularized injury in fact, the Court held
Courts that have addressed the issue of legislator standing have held that a legislator suffers an injury in fact in his or her capacity as a legislator only in limited circumstances, which typically include (1) allegations that the legislator has been deprived of his or her right to vote or that his or her legislative votes have been nullified and (2) allegations that the legislator has been deprived of his or her constitutional right to advise and consent on executive appointments or other matters upon which a legislator has a right to act.
Ms. *23-24. The Court ultimately concluded that Morrow lacked standing because
[A] mere allegation that executive action is unlawful because it fails to comport with previously enacted legislation is simply too attenuated to establish an injury in fact to a single legislator and, thus, is an insufficient ground upon which the single legislator can establish standing to challenge the executive action. This is so because, ..., once a legislator’s vote on a bill has been counted and the bill signed into law, the legislator’s connection with the transaction as a legislator, ... is at an end, and a subsequent failure to comply with the provisions of validly enacted legislation is nothing more than a generalized grievance about the correctness of governmental conduct that does not in any manner impact a single legislator’s ability to act in his or her capacity as a legislator.
Ms. *35 (internal citations and quote marks omitted).