Venue in Action against State Officials - Waiver: Ex Parte Alabama Director of Finance Clinton Carter


Ex parte Alabama Director of Finance Clinton Carter, [Ms. 1160894, Nov. 22, 2017] __ So. 3d __ (Ala. 2017). This decision by Justice Sellers (Stuart, C.J., and Bolin, Parker, Wise, and Bryan, JJ., concur; Murdock and Shaw, JJ., concur in the result) issues a writ of mandamus to the Jackson Circuit Court directing transfer of this action to Montgomery County where the defendant state officials reside.

The plaintiffs, Smith and Paulk, are attorneys who represented Whitton, an indigent defendant, in a prior criminal case in the Jackson Circuit Court. Ms. *3.

In the Whitton criminal case, Smith and Paulk filed a motion for a declaratory judgment that § 15-12-21’s statutory cap on total attorney fees payable to appointed counsel for indigent defense is unconstitutional. Ms. *4. The Jackson Circuit Court heard the motion while two assistant State attorneys general were present at the hearing. The Jackson Circuit Court declared § 15-12-21 unconstitutional, and the Attorney General did not appeal the order or otherwise challenge it. Ibid. After completion of the criminal trial, the Jackson County Circuit Court approved attorney-fee declarations of Smith and Paulk exceeding the fee cap set out in § 15-12-21. Ms. *4. However, the Alabama Office of Indigent Defense Services approved and paid only the amount of the fee award authorized by § 15-12-21. Ibid.

Smith and Paulk then sought unsuccessfully to recover from the State Board of Adjustment the balance of the fee award. Ms. *5.

Smith and Paulk filed the subject civil action in Jackson Circuit Court individually and on behalf of all similarly situated Alabama lawyers seeking injunctive relief directing the state defendants to perform their legal and ministerial duties pursuant to the Whitton order declaring § 15-12-21 unconstitutional. Ibid. The complaint also sought retroactive relief dating back to June 14, 2011, and prospective relief for a state-wide class of similarly situated criminal-defense lawyers. Ibid.

The state defendants, the Director of Finance and Director of the Alabama Office of Indigent Defense Services, moved the Jackson Circuit Court to transfer venue of the action to Montgomery County. Ms. *6. The Jackson Circuit Court denied the motion to transfer. Ibid.

In issuing the writ and ordering the action transferred to Montgomery, the Court held that “‘absent statutory authority to the contrary, venue for ... actions against a state agency or a state officer should be in the county of the official residence of the agency or officer.’” Ms. *7, quoting Ex parte Neeley, 653 So. 2d 945, 947 (Ala. 1995).

The plaintiffs argued that in failing to appeal the order in the Whitton criminal case declaring § 15-12-21 unconstitutional, the Attorney General waived any objections to venue in Jackson County. Ms. *8. The Court rejected this contention holding that “the civil action is distinct from the criminal proceeding, and there has been no waiver of venue in the civil action.” Ms. *10.

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