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Office of Indigent Defense Services - Sovereign Immunity - Third-Party Standing

Butler v. Parks and Porter, [Ms. 1190043, Jan. 22, 2021], ___ So. 3d ___ (Ala. 2021). Holding that the claims in question are barred by sovereign immunity, the Court (Mitchell J.; Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur; Shaw, Bryan, Sellers, and Mendheim, JJ., concur in the result) reverses the Montgomery Circuit Court’s class certification order in an action filed by Attorneys Parks and Porter against the State Finance Director and Director of the Office of Indigent Defense Services asserting that the officials improperly refused to pay bills for fees that exceeded statutory payment caps.

The Attorneys sought a judgment “declaring that the omission of the good-cause exception in the 2011 amendment to § 15-12-21 [which created the Office of Indigent Defense Services] was a drafting error, which they say can be “cured” by reading that exception back into the statute, and that trial judges have inherent authority to order payment of fees to satisfy constitutional requirements. Alternatively, they asserted that the lack of a good-cause exception in § 15-12-21 violates the federal and state constitutions by, among other things, depriving indigent defendants of their rights to a fair trial and effective assistance of counsel.” Ms. **5-6.

The Court first concludes the State officials enjoyed sovereign immunity because they were enforcing the law as written. Ms. *9. The Court rejects the drafting error argument, and explains “writing words into a statute that are not there – is the province of the Legislature and not within the judicial power. See Ala. Const. 1901 (Off. Recomp.), Art. III, § 42 (‘[T]he judicial branch may not exercise the legislative or executive power.’).” Ms. *11.

The Court also concludes the Attorneys lacked third-party standing to attack the constitutionality of the statute on behalf of indigent criminal defendants. Borrowing the analysis of third-party standing in Kowalski v. Tesmer, 543 U.S.125 (2004), the Court explains that “the Attorneys have not specifically identified whose rights have been violated – rather, their complaint refers to indigent defendants generally. That is not sufficient to establish a close relationship with any individual whose rights have allegedly been violated.” Ms. *18. The Attorneys also failed to meet Kowalski’s second requirement for third-party standing because they “have not shown a hindrance to indigent defendants’ seeking an appellate or post conviction remedy.” Ms. **19-20.

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