BRYAN, Justice.
The Alabama Educational Television Commission ("the Commission") and Ferris W. Stephens, Rodney D. Herring, Les Barnett, J. Holland, Dannetta K. Thornton Owens, Bebe Williams, and Gregory O. Griffin, Sr. (hereinafter collectively referred to as "the Commissioners"), have petitioned this Court for the writ of mandamus directing the Jefferson Circuit Court to dismiss claims brought against them by Allan Pizzato and Pauline Howland and to strike Pizzato and Howland's second amended complaint.
The purpose of the Commission is to "mak[e] the benefits of educational television available to and promot[e] its use by inhabitants of Alabama." § 16-7-5, Ala. Code 1975. The Commission is composed of seven commissioners, one from each congressional district in Alabama. During the relevant period, Stephens served as chairman of the Commission.
From 2000 until June 2012, Pizzato served as the executive director of Alabama Public Television ("APT") and Howland served as the deputy director and chief financial officer of APT. Sometime before June 2012, tension arose between Pizzato and the Commissioners. At its regular quarterly meeting on June 12, 2012, the Commission voted to go into
On July 11, 2012, Pizzato requested certain materials from the Commission pursuant to the Open Records Act, § 36-12-40 et seq., Ala.Code 1975. On July 18, 2012, Pizzato sued the Commission and the Commissioners in their individual and official capacities, alleging violations of the Open Meetings Act, § 36-25A-1 et seq., Ala.Code 1975, and the Open Records Act and seeking compensatory and punitive damages. Pizzato also requested a judgment declaring that Stephens improperly held the office of assistant attorney general while he was serving as a commissioner.
The Commissioners moved the circuit court to dismiss Pizzato's claims against them, arguing that Pizzato did not have standing to bring an Open Meetings Act claim, that the Open Meetings Act does not provide for the recovery of compensatory or punitive damages, and that the complaint failed to state a claim under the Open Meetings Act. The Commissioners also argued that Pizzato's Open Records Act claim was moot because, they said, the requested documents had been produced
Pizzato amended his complaint on August 4, 2012. On August 6 and 7, the circuit court held a preliminary hearing on the claims in the amended complaint and heard oral argument on the motions to dismiss. On August 8, the circuit court granted the Commission's and the Commissioners' motions in part, dismissing the claims against the Commissioners in their individual capacities and all claims seeking compensatory and punitive damages. The circuit court denied the motions to dismiss
On August 10, Pizzato filed a second amended complaint, adding Howland as a plaintiff and alleging an additional claim, pursuant to § 36-25A-7(b)(3), Ala.Code 1975, based on the alleged discussion of Howland during the executive session at the June 12 meeting. On August 13, the Commission and the Commissioners moved the circuit court to certify three questions for an immediate permissive appeal: (1) whether § 36-25A-9(a), Ala.Code 1975, gave Pizzato and Howland standing to bring their claims; (2) whether § 36-25A-7(a)(1), Ala.Code 1975, prohibits the discussion in an executive session of the Commissioners' personal knowledge regarding the job performance of certain employees; and (3) whether the Commission, as a State agency, was immune from suit for declaratory or injunctive relief. The Commission and the Commissioners moved to stay the proceedings in the circuit court pending the interlocutory appeal. The Commission and the Commissioners also moved the circuit court to strike the second amended complaint and to amend or reconsider its order denying in part their motions to dismiss. The Commission and the Commissioners argued that Pizzato and Howland had not complied with Rule 15(a), Ala. R. Civ. P., in filing the second amended complaint and that the Commission and the Commissioners would be prejudiced if the second amended complaint were allowed to be considered.
After a hearing, the circuit court denied the Commission and the Commissioners' motions, including the motion for a permissive appeal under Rule 5, Ala. R.App. P. The Commission and the Commissioners then petitioned this Court for mandamus relief and moved for an emergency stay of the circuit court's orders. After the mandamus petition had been filed, this Court granted the motion to stay and ordered that discovery and other proceedings be stayed pending further order of this Court. The Commission and the Commissioners supplemented their mandamus petition, adding a request that the circuit court be directed to strike the second amended complaint.
The Commission and the Commissioners argue that they have a clear legal right to have the Open Meetings Act claims against them dismissed and to have the second amended complaint stricken on the ground that "[t]he circuit court lacks jurisdiction over [those] claim[s] because Pizzato [and Howland] lack[] standing and § [36-25A-]9(a) of the [Open Meetings] Act cannot supply it." Petition, at 11.
Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala.2003) (citations omitted).
Section 36-25A-9(a) provides, in pertinent part: "Enforcement of this chapter may be sought by civil action brought in the county where the governmental body's primary office is located by ... any Alabama citizen." The Commission and the Commissioners argue that although § 36-25A-9(a) allows for enforcement by "any Alabama citizen," a plaintiff must still satisfy the three requirements for standing set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
In Lujan, the United States Supreme Court stated:
504 U.S. at 560-61, 112 S.Ct. 2130 (citations omitted).
This Court has adopted the Lujan test as the means of determining standing in Alabama. See Ex parte King, 50 So.3d 1056, 1059 (Ala.2010) ("Traditionally, Alabama courts have focused primarily on the injury claimed by the aggrieved party to determine whether that party has standing; however, in 2003 this Court adopted the following, more precise, rule regarding standing based upon the test used by the Supreme Court of the United States: `A party establishes standing to bring a ... challenge ... when it demonstrates the existence of (1) an actual, concrete and particularized "injury in fact" — "an invasion of a legally protected interest"; (2) a "causal connection between the injury and the conduct complained of"; and (3) a likelihood that the injury will be "redressed by a favorable decision."'" (quoting Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So.2d 70, 74 (Ala.2003), quoting in turn Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130)). See also Muhammad v. Ford, 986 So.2d 1158, 1162 (Ala.2007) (stating that, "[i]n [Henri-Duval], this Court adopted a more precise rule regarding standing articulated by the United States Supreme Court" in Lujan); Town of Cedar Bluff v. Citizens Caring for
Applying the Lujan test here, we conclude that Pizzato and Howland do not have standing to bring this action because they have failed to demonstrate "a likelihood that [their alleged] injury will be `redressed by a favorable decision.'" Henri-Duval, supra. Pizzato and Howland argue that they were injured by the Commission's termination of their employment and that that "termination was the direct result and consequence of the Commissioners' violation of the Open Meetings Act." Pizzato and Howland's brief, at 21. They also argue:
Pizzato and Howland's brief, at 23.
In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 186, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), the Supreme Court held that civil penalties can serve as redress for standing purposes "[t]o the extent that they encourage defendants to discontinue current violations and deter them from committing future ones." The Supreme Court distinguished Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 106, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), stating:
Friends of the Earth, 528 U.S. at 187, 120 S.Ct. 693 (citation omitted).
Here, the only specific relief Pizzato and Howland requested was the civil fines provided for in § 36-25A-9(g).
Pizzato and Howland's brief, at 23-24. Fines sought for such purposes do not satisfy the redressability prong of the Lujan test. See Steel Co., 523 U.S. at 107, 118 S.Ct. 1003 ("Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement."). Thus, Pizzato and Howland have failed to establish standing under the Lujan test for their claims against the Commission and the Commissioners.
Because Pizzato and Howland have not established standing to bring their action against the Commission and the Commissioners under the Open Meetings Act, the claims asserted in both the first amended and second amended complaints are due to be dismissed. Our decision in this regard pretermits consideration of the remaining arguments raised in the mandamus petition. Therefore, we grant the petition for mandamus relief and issue the writ, instructing the circuit court to dismiss Pizzato's and Howland's claims against the Commission and the Commissioners.
PETITION GRANTED; WRIT ISSUED.
STUART and WISE, JJ., concur.
MURDOCK, J., concurs specially.
BOLIN, J., concurs in the result.
PARKER, SHAW, and MAIN, JJ., dissent.
MOORE, C.J., recuses himself.
MURDOCK, Justice (concurring specially, as substituted on denial of application for rehearing on January 24, 2013).
I have struggled mightily to reason my way past the redressability barrier cited in the main opinion. Having failed in that endeavor, I am compelled to concur.
The redressability barrier before us is, as the main opinion indicates, the same redressability barrier that has been referred to by the United States Supreme Court as part of "the irreducible constitutional minimum of standing":
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102-03, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (footnote omitted).
Justice Scalia wrote for the majority in Steel that it was not necessary to decide "whether being deprived of information that is supposed to be disclosed" under the public-information law at issue there was "a concrete injury in fact that satisfies Article III ... because, [even] assuming injury in fact, the complaint fails the third test of standing, redressability."
523 U.S. at 105-06, 118 S.Ct. 1003 (emphasis added).
As Justice O'Connor stated in her special concurrence in Steel:
523 U.S. at 110, 118 S.Ct. 1003 (O'Connor, J., concurring specially) (emphasis added). Likewise, the plaintiffs' loss of their jobs in the present case "cannot be redressed by a judgment that would, in effect, require only the payment of penalties to the [Alabama] treasury."
That said, I believe it is important to take note of what is not before us in this case. First, we do not have before us a claim by which a media organization or a citizen seeks to enjoin an anticipated future violation of the statute, or even one in which the circumstances attendant to multiple (or perhaps even one) prior violation supports an inference that such violations will continue in the future but might be deterred by the judicial declaration of one or more such prior offenses and punishment for the same. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185-86, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (holding that in an appropriate case civil penalties can "afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct"); Steel, 523 U.S. at 110, 118 S.Ct. 1003 (O'Connor, J., concurring specially) ("[H]ad respondent alleged a continuing or imminent violation of the Emergency Planning and Community Right-To-Know
Nor is this a case brought as permitted by § 36-25A-9(a), Ala.Code 1975, by the attorney general or the district attorney, officials constitutionally imbued with standing to act on behalf of the public for whose benefit the law was intended.
And finally, although an argument can be made that we do have before us today a case in which the plaintiffs can draw a sufficient connection between a private meeting of a public body and some action of that body that has injured them so as to satisfy the injury and causation elements of standing,
Consequently, all the plaintiffs can achieve for themselves in the case that is before us is the psychological satisfaction of knowing that those who purportedly injured them have been forced to pay a fine to the State. I agree with the main opinion that this is not enough. As our Court of Civil Appeals explained recently in Alabama Department of Environmental Management v. Friends of Hurricane Creek, 114 So.3d 47, 54 (Ala.Civ.App.2012):
PARKER, Justice (dissenting).
I agree with Justice Shaw: Imposing the test set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), on the Open Meetings Act, Ala.Code 1975, § 36-25A-1 et seq., would effectively neuter the Act.
SHAW, Justice (dissenting).
I respectfully dissent. I am not convinced that the test for determining standing under federal law, set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), is applicable in this case. The standing analysis in Lujan is closely tied to the "case or controversy" provision in Article III of the United States Constitution, which grants judicial power to the federal judiciary. Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ("[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III."). The source of the third prong of the Lujan analysis, redressability, upon which the main opinion turns, looks to whether a plaintiff has a personal stake in the litigation.
The Alabama Constitution does not have a "cases or controversy" provision, but we have followed a similar analysis:
Ex parte McKinney, 87 So.3d 502, 513 (Ala.2011) (Murdock, J., dissenting).
It is well settled that the legislature may provide for a cause of action and may supply subject-matter jurisdiction to the courts of this State. Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006) ("The jurisdiction of Alabama courts is derived from the Alabama Constitution and the Alabama Code."). Here, the legislature, through the Open Meetings Act, Ala.Code 1975, § 36-25A-1 et seq. ("the Act"), has provided a cause of action, has designated who may file the action, and has designated the remedies. Specifically, the Act provides, among other things, that certain meetings by certain governmental bodies must be open to the public. A "civil action" may be brought by "any Alabama citizen" to enforce the Act. Ala.Code 1975, § 36-25A-9(a) ("Enforcement of this chapter may be sought by civil action brought ... by ...
Pizzato and Howland allege in their complaint that certain members of the Alabama Educational Television Commission were motivated by personal, political, and religious views and that they made "threats" against Pizzato and others. They allege that Pizzato's "general reputation, character, and job performance," as well as Howland's "job performance," were discussed in a closed meeting in violation of the Act and that, immediately after the meeting, their employment was terminated. They seek the imposition of civil penalties under Ala.Code 1975, § 36-25A-9(g) — the only relief apparently available to them — for the commissioners' alleged violation of the Act in a meeting where the apparent decision to terminate Pizzato's and Howland's employment was made. This action is not pursued by a disinterested third party or stranger to the incident, but rather by the parties who were allegedly wronged by a procedure that purportedly did not comply with Alabama law. It seems to me that the allegations in Pizzato and Howland's complaint indicate that their interests are sufficiently "adverse" to those of the petitioners and that they are "so situated" that they bring "the requisite adverseness" to the proceeding. For all that appears, this fulfills the requirements of standing.