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Ex parte Alabama Director of Finance Clinton Carter

Supreme Court of Alabama

November 22, 2017

Ex Parte Alabama Director of Finance Clinton Carter and Alabama Office of Indigent Defense Services Director Chris E. Roberts
v.
Clinton Carter, in his official capacity as Director of Finance of the State of Alabama and Chris E. Roberts, in his official capacity as Director of the Alabama Office of Indigent Defense Services) In re: Ronald W. Smith and Gerald R. Paulk, individually and on behalf of all other Alabama lawyers similarly situated

         Jackson Circuit Court, CV-17-900050

          PETITION FOR WRIT OF MANDAMUS

          SELLERS, JUSTICE.

         Clinton Carter, in his official capacity as Director of Finance of the State of Alabama, and Chris E. Roberts, in his official capacity as director of the Alabama Office of Indigent Defense Services (hereinafter referred to collectively as "the State defendants"), petition this Court for a writ of mandamus directing the Jackson Circuit Court to transfer the underlying action to Montgomery County, where, they argue, venue is proper. For the reasons discussed below, we issue the writ.

         Facts

         In January 2015, the Jackson Circuit Court, pursuant to § 15-12-21, Ala. Code 1975, [1] appointed Alabama attorneys Ronald W. Smith and Gerald R. Paulk to represent Barry Van Whitton, an indigent, in a noncapital-murder case. While the criminal case against Whitton was pending, Smith and Paulk filed a motion seeking a declaration that § 15-12-21 was unconstitutional; an order allowing them to exceed the statutory fee cap set in § 15-12-21; and, in the alternative, an order reimbursing them for their overhead expenses incurred in the defense of the case. The trial court conducted a hearing on the motion; two assistant attorneys general were present at the hearing.

         On September 9, 2015, the trial court entered an order, which, among other things, declared § 15-12-21 unconstitutional and "no longer of any force or effect" ("the Whitton order). The attorney general did not appeal the Whitton order or otherwise challenge it.

         Upon completion of the criminal trial, the trial court approved Smith's and Paulk's attorney-fee declarations, i.e., $15, 995.01 and $28, 596.21, respectively. Smith and Paulk submitted to the Office of Indigent Defense Services ("the OIDS") the approved attorney-fee declarations, along with a copy of the Whitton order. The OIDS paid Smith and Paulk only those amounts authorized by § 15-12-21, citing the statute as the basis for its limited payment. Smith and Paulk filed a claim with the State Board of Adjustment, which was unsuccessful.

         On March 13, 2017, Smith and Paulk, individually, and on behalf of all similarly situated Alabama lawyers, filed a complaint in the Jackson Circuit Court against the State defendants in their official capacities. Count one of the complaint sought mandamus and/or injunctive relief directing the State defendants to perform their legal and ministerial duties pursuant to the Whitton order. Counts two and three of the complaint sought retroactive (dating back to June 14, 2011) and prospective relief for a state-wide class of similarly situated indigent-defense lawyers.

         On April 19, 2017, the State defendants moved the Jackson Circuit Court for a change of venue to Montgomery County, citing Tri-State Corp. v. State ex rel. Gallion, 272 Ala. 41, 46, 128 So.2d 505, 509 (1961)(stating that "it is well established ... that suits involving public officials are properly maintained in the county of their official residence"), and Ex parte Neely, 653 So.2d 945, 946 (Ala. 1995)(holding that "where an officer of the state is a defendant ..., venue is proper only in [the county of the defendant's official residence], 'absent specific statutory authority to the contrary or waiver of objection to venue'" (quoting Ex parte City of Birmingham, 507 So.2d 471, 474 (Ala. 1987))). Smith and Paulk argued in opposition to the motion for a change of venue that the attorney general, by failing to challenge the Whitton order declaring § 15-12-21 unconstitutional, waived objections to venue and that that "waiver" is binding on the State defendants. Smith and Paulk also argued that the Jackson Circuit Court had continuing and ancillary jurisdiction to enforce the Whitton order.

         On June 27, 2017, the trial court entered an order denying the State defendants' motion for a change of venue. The State defendants filed this petition for a writ of mandamus asking this Court to direct the trial court to vacate its order denying their motion for a change of venue and to transfer the case to Montgomery County. This Court ordered answer and briefs.

         Standard of Review

"The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala. 1986). 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). 'When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.' Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala. 1995)."

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. ...


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