from Montgomery Circuit Court (CV-17-159)
Douglas Arthur appeals from the Montgomery Circuit
Court's dismissal of his complaint seeking a judgment
declaring §§ 15-18-82 and -82.1, Ala. Code 1975,
unconstitutional, which he contends he brought pursuant to
§ 6-6-220 et seq., Ala. Code 1975, and seeking
injunctive relief. In that action, Arthur sought to have that
court (1)declare that §§ 15-18-82 and -82.1, Ala.
Code 1975, which deal with execution of convicts, violate
Art. III, § 42, Ala. Const. 1901, the
separation-of-powers provision, as an unconstitutional
delegation by the legislative branch of lawmaking authority
to the executive branch; (2) declare that §§
15-18-82 and -82.1, Ala. Code 1975, violate Art. I, § 6,
of the Ala. Const. 1901 by depriving Arthur of due process of
law; and (3) enjoin the State from executing Arthur pursuant
to a method of execution determined by the executive branch,
specifically the Alabama Department of Corrections. The State
moved to dismiss the declaratory-judgment action, arguing
that the Montgomery Circuit Court did not have subject-matter
jurisdiction over the action, that the claims raised by
Arthur were barred by the statute of limitations, by the
doctrine of laches, and by the doctrine of res judicata, and
that the action failed to state a claim upon which relief
could be granted. On May 8, 2017, the Montgomery Circuit
Court entered the following order:
"Arthur filed a declaratory judgment action rooted in
the premise that Alabama's death penalty statutes
unconstitutionally delegate to the [Alabama Department of
Corrections] unfettered discretion to determine lethal
injection protocol in violation of the separation of powers
provision of the Alabama Constitution.
"The Court believes that the action should have been
filed as a Rule 32 [Ala. R. Crim. P.] petition and further
concludes that such action would be precluded as time-barred
filed his notice of appeal to the Supreme Court of Alabama
the next day. On May 10, 2017, the Supreme Court transferred
the appeal to the Alabama Court of Civil Appeals because it
appeared from his notice of appeal that Arthur intended to
appeal the case to the Court of Civil Appeals. The same day,
the Court of Civil Appeals transferred the appeal back to the
Supreme Court citing a lack of subject-matter jurisdiction.
On May 16, 2017, the Supreme Court again transferred the
appeal, this time to this court. In its order transferring
the appeal to this court, the Supreme Court noted that the
appeal appeared to be in the original appellate jurisdiction
of the Court of Criminal Appeals because it appeared that
"this proceeding in substance seeks relief from a
sentence on constitutional grounds, from which the proper
appellate jurisdiction lies in the Court of Criminal
Appeals." In support of its holding, the Supreme Court
cited its decision in Citizenship Trust v.
Keddie-Hill, 68 So.3d 99 (Ala. 2011), and Rules 32.1 and
32.4, Ala. R. Crim. P.
Supreme Court's determination that Arthur's
declaratory-judgment action is in substance a Rule 32, Ala.
R. Crim. P., petition for postconviction relief is now the
law of the case. The "law of the case" doctrine,
first cited by Justice Holmes over a century ago in
Messinger v. Anderson, 225 U.S. 436 (1912),
"merely expresses the practice of courts generally to
refuse to reopen what has been decided." Id. at
444. In Ex parte Woodard, 883 So.2d 256, 258
(Ala.Crim.App.2003), this Court recognized the following
summation of the doctrine by the Florida Supreme Court:
"'Generally, under the doctrine of the law of the
case, "all questions of law which have been decided by
the highest appellate court become the law of the case which
must be followed in subsequent proceedings, both in the lower
and appellate courts." Brunner Enters., Inc. v.
Department of Revenue, 452 So.2d 550, 552 (Fla. 1984).
However, the doctrine is not an absolute mandate, but rather
a self-imposed restraint that courts abide by to promote
finality and efficiency in the judicial process and prevent
relitigation of the same issue in a case.'"
(Quoting State v. Owen, 696 So.2d 715, 720 (Fla.
Arthur's action has been determined to be a petition for
postconviction relief, Montgomery County is not the proper
venue for his action. Rule 32.5, Ala. R. Crim. P., states:
"Petitions filed under this rule shall be filed in and
decided by the court in which the petitioner was convicted.
If a petition is filed with another court, it shall be
transferred to the court where the conviction occurred."
of dismissing Arthur's action, the Montgomery Circuit
Court should have transferred it to the Jefferson Circuit
Court, the court in which Arthur was convicted. See
Barker v. State, 766 So.2d 988
Court notes that on April 7, 2017, the Jefferson Circuit
Court entered an order dismissing another Rule 32 petition
for postconviction relief Arthur had filed with that court.
Arthur appealed the dismissal of that petition for
postconviction relief to this Court, and that appeal was
docketed as case no. CR-16-0776. That appeal is currently
pending before this Court. "The general rule is that
jurisdiction of one case cannot be in two courts at the same
time." Ex parte Hargett, 772 So.2d 481, 483
(Ala.Crim.App.1999). Thus, this action must be held in