from Jackson Circuit Court (CV-15-900181)
Alabama Department of Conservation and Natural Resources
("the Department") appeals from a judgment
declaring that § 9-11-88(b), Ala. Code 1975, is void
because it is a local law and was not properly advertised as
such. We dismiss the appeal based on the trial court's
lack of jurisdiction.
Kellar is a licensed commercial fisherman and a resident of
Madison County. He regularly engages in commercial fishing in
the waters of the Tennessee River and its tributaries
situated within the boundaries of Jackson County. Before the
events giving rise to this action, Kellar used gill or
trammel nets in his fishing enterprises in the Tennessee
River. In December 2012, Kellar received information that the
Department would begin enforcing a ban on gill and trammel
net fishing pursuant to § 9-11-88(b).
August 24, 2015, Kellar sued the Department in the Jackson
Circuit Court seeking a judgment declaring that §
9-11-88(b) was unconstitutional because the act proposing it
was a local law that was not properly advertised as a local
law pursuant to Art. IV, § 106, Ala. Const. 1901. As
required when the constitutionality of a statute is
challenged, a copy of the complaint was served on the
attorney general. The Department answered the complaint;
among its affirmative defenses, the Department pleaded that
"[t]his action is barred by Article I, § 14 of the
Alabama Constitution (1901)." The parties stipulated to
the relevant facts, and the trial court held a final hearing
on the merits on February 2, 2016.
February 18, 2016, the trial court entered a final order in
which it concluded that § 9-11-88(b) was a "local
law" and that, as such, it had not been properly
advertised. The trial court accordingly concluded that §
9-11-88(b) was "unconstitutional, null, and void."
attorney general appeared as counsel for the Department and
filed a timely notice of appeal from the trial court's
pretermit any discussion of the merits, i.e., the
constitutionality of § 9-11-88(b). We must address
instead the threshold issue of jurisdiction.
filed this action solely against the Department, an agency of
"Article I, § 14, Alabama Const. of 1901, provides
generally that the State of Alabama is immune from suit:
'[T]he State of Alabama shall never be made a defendant
in any court of law or equity.' This constitutional
provision 'has been described as a "nearly
impregnable" and "almost invincible"
"wall" that provides the State an unwaivable,
absolute immunity from suit in any court.' Ex parte
Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala. 2006).
Section 14 'specifically prohibits the State from being
made a party defendant in any suit at law or in equity.'
Hutchinson v. Board of Trs. of Univ. of Alabama, 288
Ala. 20, 23, 256 So.2d 281, 283 (1971). Additionally,
under § 14, State agencies are 'absolutely
immune from suit.' Lyons v. River Road Constr.,
Inc., 858 So.2d 257, 261 (Ala. 2003)."
Alabama Dep't of Transp. v. Harbert Int'l,
Inc., 990 So.2d 831, 839 (Ala. 2008) (emphasis added).
In Harbert, also a declaratory-judgment action, this
Court held: "[O]nly State officers named in their
official capacity -- and not State agencies -- may be
defendants in such proceedings." 990 So.2d at 841.
Ex parte Alabama Department of Finance, 991 So.2d
1254, 1257 (Ala. 2008), this Court noted the six general
categories of actions that do not come within the prohibition
of § 14, one of which is "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, " and stated that those
"exceptions" "apply only to actions
brought against State officials; they do not apply to actions
against the State or against State agencies."
Department admits that it did not argue § 14 immunity in
the hearing before the trial court, but, even if a defendant
"raises this argument for the first time on appeal,
'[t]he assertion of State immunity challenges the
subject-matter jurisdiction of the court; therefore, it may
be raised at any time by the parties or by a court ex
mero motu.'" Health Care Auth. for Baptist
Health v. Davis, 158 So.3d 397, 402 (Ala. 2013) (quoting
Atkinson v. State, 986 So.2d 408, 411 (Ala. 2007)).
reasons discussed, the judgment of the trial court against
the Department is void. A void judgment will not support an