Vous êtes sur la page 1sur 7

DOCUMENT 23

ELECTRONICALLY FILED 4/7/2017 4:36 PM 03-CV-2017-900286.00 CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA TIFFANY B.
ELECTRONICALLY FILED
4/7/2017 4:36 PM
03-CV-2017-900286.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
TIFFANY B. MCCORD, CLERK

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

WARREN CRAIG POUNCEY,

)

)

Plaintiff

)

)

v.

)

Case No.: 2017-CV-900286

)

MARY SCOTT HUNTER, et al.

)

)

Defendants.

)

DEFENDANT MARY SCOTT HUNTER’S MOTION TO DISMISS AND BRIEF IN SUPPORT OF MOTION TO DISMISS

Sometime on February 12, 2016, an unknown and unseen person placed a letter on the

desks of various members of the Alabama State Board of Education. The mysterious letter claimed

that Plaintiff, Dr. Craig Pouncey, had cheated in graduate school and had violated state law by

using his office for perceived personal gain. Like the unknown person who placed the letters, the

author of the letter was anonymous. The letter had no signature, no return address and no marks

that would indicate who wrote the letter – exactly when the letter was written – and why the letter

was distributed on February 12, 2016.

Dr. Pouncey, who was a candidate for the position of State Superintendent, which position

brings with it, a salary of hundreds of thousands of dollars and prestige, felt that the letter had

permanently stained his career and that he was humiliated and embarrassed.

So, Dr. Pouncey

sought the assistance of a lawyer to seek retribution against the person that distributed the letter

and the person that wrote the letter.

Now, the facts alleged by Plaintiff would make for an interesting lawsuit and perhaps a

great legal thriller novel. However, the individuals that are actually sued in this lawsuit are not

DOCUMENT 23

the unseen person that distributed the letter – and not the author of the anonymous letter. Instead,

Plaintiff has chosen to sue those folks who merely read the letter and tried to deal with the

aftermath of the allegations contained in the letter. So, in an apparent attempt to sue somebody

for something, Plaintiff has chosen to name as defendants various persons who work part-time or

full-time for the State of Alabama Department of Education claiming that they are at fault for their

role in trying to clean up the mess that the anonymous letter created.

The Defendant, Mary Scott Hunter, is one of the eight board members who are elected to

the State Board of Education. Ala. Code § 16-3-1. Hunter’s position was created by Alabama’s

Constitution. Ala Const. Art. XIV, § 262. As a constitutional officer, Hunter enjoys absolute and

complete immunity from lawsuits while performing her formal and official duties. See Ret. Sys.

of Ala., 182 So. 3d at 533–34; Wheeler v. George, 39 So. 3d 1061, 1092–93 (Ala. 2009).

The

reason the framers of the constitution gave this extraordinary immunity to state officers was so

that they would not be continually harassed by time-consuming and expensive lawsuits such as the

one brought by Dr. Pouncey.

There is no “bad faith” exception to absolute immunity, and Ms.

Hunter, by virtue of our constitution is not a proper defendant in this lawsuit.

Even if absolute immunity (by some unforeseeable, unknown and impossible stretch of the

imagination) does not end the inquiry, Ms. Hunter is entitled to state agent immunity.

This

immunity, which finds its source in both the common law, Ex parte Cranman, 792 So. 2d 392

(Ala. 2000), and by a specific state statute, Ala. Code § 36-1-12, mandates that a state official

performing duties consistent with their office, are immune from lawsuits such as the one Plaintiff

has brought. Although there exists exceptions to the general rule of state agent immunity, none of

those exceptions are applicable in this case.

2

DOCUMENT 23

Finally, it should be noted that nothing argued in this motion is novel or new.

The

constitutional provisions are clear. The statutes are clear. The case law is clear, and has been clear

for decades and decades.

Simply, this case cannot be brought against Defendant Mary Scott

Hunter. The following shows why.

STANDARD OF REVIEW

Pursuant to Rule 12(b)(1) of the Alabama Rules of Civil Procedure, this Court cannot

exercise subject matter jurisdiction if Hunter is immune from suit. Alabama State Docks Terminal

Ry. v. Lyles, 797 So. 2d 432, 435 (Ala. 2001) (holding that sovereign immunity bars a civil action

and prevents a court from exercising subject-matter jurisdiction). This Court must first determine

whether Hunter is entitled to either absolute immunity or state-agent immunity that shields her

from civil liability. If Hunter is immune from suit, this Court must dismiss Pouncey’s claims.

Pouncey’s claims should be dismissed for lack of subject matter jurisdiction because of

immunity. However, as an alternative, Plaintiff’s claims may also be dismissed pursuant to Rule

12(b)(6) of the Alabama Rules of Civil Procedure for failure to state a claim upon which relief

may be granted. The allegations of a complaint must be viewed in a plaintiff’s favor, but “a Rule

12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set

of facts in support of the claim that would entitle the plaintiff to relief.” Ex parte Walker, 97 So.

3d 747, 750 (Ala. 2012).

HUNTER HAS ABSOLUTE IMMUNITY FROM TORT LIABILITY

“[T]he State of Alabama shall never be made a defendant in any court of law or equity.”

Article I, § 14, Const. of Ala. 1901. Section 14 “affords the State and its agencies an absolute

immunity from suit in any court.” Board of School Com’rs of Mobile Cnty v. Weaver, 99 So. 3d

1210, 1216 (Ala. 2012).

Likewise, Ala. Const. Art. XIV, § 262 provides that “[g]eneral

3

DOCUMENT 23

supervision of the public schools in Alabama shall be vested in a state board of education, which

shall be elected in such manner as the legislature may provide.” Based on §§ 14 and 262 of the

Alabama Constitution, Hunter, as a member of the Board of Education, is a constitutional officer

and has absolute immunity from suit.

Even though Plaintiff sues Hunter in her individual and personal capacity, the touchstone

event that Plaintiff seizes upon is Hunter’s role in selecting a new State Superintendent.

The

process of hiring a new State Superintendent is consistent with her role as a Board member and is

a legitimate state interest. Thus, Art. I, § 14 of the Alabama Constitution immunizes Hunter from

individual civil liability. See Ex parte Hale, 6 So. 3d 452, 456-57 (Ala. 2008) (holding that Art. I,

§ 14 of the Alabama Constitution gives an officer of the State of Alabama with absolute immunity

even though the officer is sued in his individual capacity when the officer’s actions involve a State

interest).

Pouncey’s claim for relief seeks “fair and just amount of compensatory and punitive

damages to be determined by a jury, plus interests and costs.” Compl. ¶ 93.

Although Pouncey

states conclusory allegations against Hunter for malice and bad faith, there is no “bad-faith”

exception under absolute immunity in suits for monetary damages against constitutional officers.

See Ret. Sys. of Ala., 182 So. 3d 527, 533-34; Wheeler v. George, 39 So. 3d 1061, 1092-93. On

this basis, Pouncey’s claims cannot survive, and the inquiry ends.

HUNTER HAS STATE AGENT IMMUNITY FROM CIVIL LIABILITY

Even if this Court does not dismiss Plaintiff’s claim on the basis of sovereign immunity,

this Court should dismiss Plaintiff’s claim on the basis of a second, different type of immunity,

that is, state-agent immunity. The Alabama Supreme Court set forth principles establishing state-

agent immunity in Ex parte Cranman:

4

DOCUMENT 23

A State agent shall be immune from civil liability in his or her personal capacity

when the conduct made the basis of the claim against the agent is based upon the agent’s

(2) exercising his or her judgment in the administration of a department or agency

of government, but not limited to, examples such as:

(a)

making administrative adjudications;

(b)

allocating resources;

(c)

negotiating contracts;

(d) hiring, firing, transferring, assigning or supervising personnel

792 So. 2d 392, 405 (emphasis added). The state agent cases demonstrate that if a plaintiff’s claim

arises from a function that entitles the particular agent to state-agent immunity; then the burden

shifts to the plaintiff to show that one of the two exceptions found in Cranman applies. Ex parte

Hugine, 2017 WL 1034467, *18 (Ala. 2017).

State-agent immunity applies whenever a state-

agent is performing decisions or actions that are discretionary. See Ex parte Estate of Reynolds,

946 So. 2d 450, 454 (holding that immunity from tort liability must be afforded to public officials

acting within the general scope of their authority in performing functions that involve a degree of

discretion). Discretionary actions are “‘those acts as to which there is no hard and fast rule as to

the course of conduct that one must or must not take and those acts requiring exercise in judgment

and choice and involving what is just and proper under the circumstances.’” Thurmond v. City of

Huntsville, 904 So. 2d 314, 319 (Ala. Civ. App. 2004) (quoting Ex parte City of Gadsden, 781 So.

2d 936, 983 (Ala. 2000). Here, there is no question the hiring of a new Superintendent and the

investigation into the candidates “good moral character” 1 are functions that require indemnity.

Plaintiff, in an effort to circumvent state-agent immunity, drafts conclusory allegations of

malice or bad faith by Hunter. Plaintiff must have factual allegations of bad faith because legal

conclusions do not qualify as an exception under Cranman for state-agent immunity.

See Ala. R.

1 Hunter’s task, as a member of the Board of Education, was to select a State Superintendent of “good moral character”

as well as a person with “academic and professional education Ala. Code § 16-4-1.

5

qualify him to perform the duties of his office”.

to

DOCUMENT 23

Civ. P. 8, Committee Comments on 1973 Adoption; see also Segrest v. Lewis, 907 So. 2d 452,

456-57 (Ala. 2005) (holding that a plaintiff must provide something more than just an innocent

misrepresentation by a state agent); see also Bayles v. Marriott, 816 So. 2d 38, 42 (Ala. Civ. App.

2011) (holding that wanton or malicious behavior abrogating state-agent immunity must be shown

by a reckless or conscious disregard of the rights or safety of others.).

Based upon Plaintiff’s

allegations, Hunter’s actions do not amount to bad faith. Thus, Plaintiff has failed to provide any

facts in his Complaint that support malice or bad faith.

CONCLUSION

For the aforementioned reasons, Plaintiff’s claims must be dismissed for lack of subject

matter jurisdiction because Hunter is entitled to either sovereign immunity or state-agent

immunity. 2

s/ Lee H. Copeland

Lee H. Copeland (COP004) Joel Caldwell (CAL075) Copeland, Franco, Screws & Gill, P.A. 444 South Perry Street (36104) Post Office Box 347 Montgomery, AL 36101-0347 T: 334/834-1180 F: 334/834-3172 Email: copeland@copelandfranco.com Email: caldwell@copelandfranco.com Counsel for Defendant, Mary Scott Hunter

2 Hunter also adopts all grounds for dismissal made by each of the named defendants in their motions to dismiss and briefs in support thereof.

6

DOCUMENT 23

CERTIFICATE OF SERVICE

I hereby certify that on the 7 th day of April, 2017, I electronically filed the foregoing with the Clerk of the Court using the AlaFile system which will send notification of such filing to the following:

Kenneth J. Mendelsohn JEMISON & MENDELSOHN 1772 Platt Place Montgomery, Alabama 36117

Samuel H. Franklin

R. Ashby Pate

Rachelle E. Sanchez LIGHTFOOT, FRANKLIN & WHITE, L.L.C. The Clark Building

400 North 20th Street

Birmingham, AL 35203-3200

Dorman Walker David R. Boyd

G. Lane Knight

Balch & Bingham LLP

105 Tallapoosa Street, Suite 200

Montgomery, AL 36104

Ham Wilson

Ball, Ball, Matthews & Novak

445 Dexter Avenue, Suite 9045

Montgomery, AL 36104

s/ Lee H. Copeland

Of Counsel

7