BRYAN, Justice.
Clement David Poiroux, Lamar Sanders Osborne, Travis Kyle Blair, Christopher Raybon, Sara Hawkins, Brian Williams, Levorish Hudson, Joseph Gardner Johnson, Jr., Nicholas Cain McNeil, and Willie James Walker II (hereinafter collectively referred to as "the criminal defendants"), and McNeil & Stokley Enterprises, LLC, d/b/a Metro Bonding Co., Bay Area Bail Bonds, LLC, A-Plus Bonding, Inc., Alternative Justice Bail Bonding, Inc., A-Advantage Bonding, LLC, Affordable Bail Bond, Inc., and Allstar Bail Bonds, Inc. (hereinafter collectively referred to as "the bail-bond companies"), appeal the dismissal of their claims against various district attorneys,
On July 6, 2012, several of the criminal defendants and of the bail-bond companies
With the exception of minor traffic cases, the filing fee and the back-end fee are "imposed on every bail bond in all courts of [Alabama]." § 12-19-311(a)(1). The filing fee, if collected by the official executing the bond, is collected "at the execution of the bond or at the time of release," or, if the circuit clerk collects the bond, the filing fee can also be collected "within two business days of release." § 12-19-311(b). The back-end fee is "assessed to the defendant and ... imposed by the court when the defendant appears in court for adjudication or sentencing." § 12-19-311(e)(1).
The filing fee is assessed "in the amount of thirty-five dollars ($35) on each bond executed." § 12-19-311(a)(1)a. The back-end fee is set forth in § 12-19-311(a)(1)b., which provides, in pertinent part:
Section 12-19-313, Ala.Code 1975, provides:
No such provision appears to apply to the filing fees.
The filing and back-end fees are distributed as follows:
§ 12-19-311.
The criminal defendants and the bail-bond companies asked the circuit court to certify a class under Rule 23, Ala. R. Civ. P., and for a judgment declaring that the circuit court had jurisdiction over the matter and that § 12-19-311 violated the Alabama Constitution and the United States Constitution. They also asked for a declaration that the defendants' acts and practices were "unlawful" and sought "injunctive and equitable relief in accord with the declarations of this Court." The criminal defendants and the bail-bond companies asked the circuit court to "award [them] damages and the cost of this matter" and "a reasonable attorney fee."
On July 26, 2012, the defendants, with the exception of the sheriffs named in the action ("the defendant sheriffs"), moved the circuit court to dismiss the criminal defendants and bail-bond companies' claims against them or, in the alternative, for a summary judgment or, in the alternative, to deny the criminal defendants and bail-bond companies' request for injunctive relief. On August 7, 2012, Sheriff D.T. Marshall moved the circuit court to dismiss the claims against him, and, on August 10, 2012, Sheriff Thomas Tate and Sheriff Huey "Hoss" Mack moved for dismissal of the claims against them. In a separate motion, Sheriff Sam Cochran also asked the circuit court to dismiss the claims against him. Each sheriff's motion alleged that he was entitled to sovereign immunity, pursuant to Art. I, § 14, Ala. Const. of 1901.
In August 2012, after a hearing, the circuit court denied the criminal defendants and bail-bond companies' request for a temporary restraining order and a preliminary injunction. In October 2012, the circuit court stayed discovery pending a ruling on the motions to dismiss. In November 2012, the criminal defendants and the bail-bond companies amended their complaint, adding several plaintiffs and an additional claim for relief under the Fifth and Fourteenth Amendments to the United States Constitution. The criminal defendants and the bail-bond companies also filed objections to the circuit court's order staying discovery and a response to the motions to dismiss. The defendants filed various motions to dismiss the amended complaint, to which the criminal defendants and the bail-bond companies responded.
On February 15, 2013, the circuit court dismissed the criminal defendants and bail
Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala.2003) (citations omitted). "Matters of subject-matter jurisdiction are subject to de novo review." DuBose v. Weaver, 68 So.3d 814, 821 (Ala.2011). "`"When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction."'" Blevins v. Hillwood Office Ctr. Owners' Ass'n, 51 So.3d 317, 321 (Ala.2010) (quoting Riley v. Pate, 3 So.3d 835, 838 (Ala.2008), quoting in turn State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999)).
We turn first to the criminal defendants and bail-bond companies' argument that the circuit court erred in concluding that "[the circuit court] lack[ed] jurisdiction to consider [their] claims pursuant to the authority of [Keddie-Hill]." In Keddie-Hill, this Court addressed claims by Mary Kathleen Keddie-Hill, Cheryl Tillman, and Justin Hammond, alleging, among other things, that the provision in Act No. 2009-768, Ala. Acts 2009, allowing a portion of the DNA-database fee to be distributed to the Citizenship Trust was unconstitutional. Keddie-Hill and Tillman had pleaded guilty to traffic violations and paid the fines and court costs assessed against them in their respective cases, including the DNA-database fee. However, they paid the DNA-database fee under protest, arguing that the provision for distribution of the fee to the Citizenship Trust was unconstitutional but that they could not afford a lawyer to challenge the allegedly unconstitutional portion of the fee. Hammond had also received a traffic citation, but, at the time he filed his claims in Keddie-Hill, he had not yet pleaded guilty or been ordered to pay any fines or court costs. Instead, he argued that "`[s]hould I plea[d] or be found guilty I anticipate being ordered to pay fines and court costs assessed against me,'" including the allegedly unconstitutional portion of the DNA-database fee. Keddie-Hill, 68 So.3d at 103.
The Court first addressed Keddie-Hill's and Tillman's claims, stating:
Keddie-Hill, 68 So.3d at 104. The Court went on to hold: "[B]ecause this is a civil
Turning to Hammond's claims, the Court stated:
Keddie-Hill, 68 So.3d at 106.
The criminal defendants and the bail-bond companies purport to seek relief from both the filing fee and the back-end fee. However, it is not until their reply brief that they make any specific arguments regarding the back-end fee. "Arguments made for the first time in a reply brief are not properly before this Court." Baldwin Cnty. Elec. Membership Corp. v. City of Fairhope, 999 So.2d 448, 458 n. 12 (Ala.2008). Moreover, only two of the criminal defendants, Walker and Johnson, have alleged injuries from the imposition of the back-end fee. As the defendants note, Walker successfully challenged on appeal the back-end fee assessed against him in his criminal proceeding. See Walker v. State, 137 So.3d 943 (Ala.Crim.App. 2013) (finding that Walker could not be charged the back-end fee because he was not released on bail). No specific argument is made regarding alleged error in the circuit court's judgment as it relates to the back-end fee assessed against Johnson. Thus, the criminal defendants and the bail-bond companies have not demonstrated any error in the circuit court's judgment as it applies to the claims regarding the back-end fee.
With regard to the filing fee, the criminal defendants and the bail-bond companies argue that Keddie-Hill is distinguishable
This Court's second holding in Keddie-Hill, which related to Hammond's request for relief from a fine that had not yet been assessed against him, likewise does not apply. Hammond had been cited for speeding in Jefferson County, but, at the time the underlying action in Keddie-Hill was filed, criminal proceedings were still pending against him, and no judgment had been entered. This Court held that, under "`[t]he general rule ... that a court may not interfere with the enforcement of criminal laws through a civil action,'" the trial court did not have subject-matter jurisdiction over Hammond's claim. Keddie-Hill, 68 So.3d at 106 (quoting Tyson v. Macon Cnty. Greyhound Park, Inc., 43 So.3d 587, 589 (Ala.2010)).
As noted, however, the filing fee, unlike the DNA-database fee, which was assessed upon conviction or entry of a guilty plea, is, in most cases, "assessed at the issuance, reissuance, or reinstatement of the bond,"
The defendants argue, however, that, even assuming the inapplicability of Keddie-Hill, the criminal defendants and bail-bond companies' claims for monetary relief were due to be dismissed because such claims are barred by the doctrine of sovereign immunity. Article I, § 14, Ala. Const. of 1901, provides "[t]hat the State of Alabama shall never be made a defendant in any court of law or equity." This Court has stated:
Ex parte Moulton, 116 So.3d 1119, 1130-32 (Ala.2013) (quoting Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 840 (Ala.2008)).
In Patterson v. Gladwin Corp., 835 So.2d 137 (Ala.2002), this Court addressed whether a party that had successfully challenged the constitutionality of corporate franchise taxes collected pursuant to § 40-14-40, Ala.Code 1975, before that Code section was repealed, could get a refund of taxes paid under that statute. The Court determined:
Patterson, 835 So.2d at 143 (quoting State Docks Comm'n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932)). This Court then went on to note that several statutory remedies had been set forth to allow a refund of improperly paid taxes but ultimately found that the appellants in that case had not pursued those remedies. Therefore, the Court concluded:
Patterson, 835 So.2d at 154.
The criminal defendants and the bail-bond companies in this case, like the taxpayers in Patterson, request a refund of fees paid under allegedly unconstitutional provisions of § 12-19-311. They have also requested the payment of costs and attorney fees. Recovery on those claims, like the taxpayers' claims in Patterson, would "affect the financial status of the state treasury," Patterson, 835 So.2d at 143, and would "`result in the ... recovery of money from the [S]tate.'" Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) ("However, `[a]n action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiff's recovery of money from the [S]tate.'" (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)) (emphasis omitted)). Such claims are barred by the doctrine of sovereign immunity. See Patterson, supra; see also Ex parte Town of Lowndesboro, 950 So.2d 1203, 1211-12 (Ala.2006) (holding that "an award of interim attorney fees and expenses impacts the State treasury and divests it of funds in the very way forbidden by § 14").
The defendant sheriffs argue that all the criminal defendants and bail-bond companies' claims against them are barred by the doctrine of sovereign immunity.
Ex parte Donaldson, 80 So.3d 895, 898 (Ala.2011) (quoting Ex parte Shelley, 53 So.3d 887, 895 (Ala.2009)).
Ex parte Donaldson, 80 So.3d at 898 n. 1 (quoting Alexander v. Hatfield, 652 So.2d 1142, 1143 (Ala.1994), quoting in turn Parker v. Amerson, 519 So.2d 442, 443 (Ala. 1987)).
The defendant sheriffs argue that none of the five exceptions to immunity applies here because "sheriffs do not collect, administrate, or enforce any of the bail bond fees." Brief of Sheriffs Hughes, Tate, and Mack, at 13. We agree. Nothing in § 12-19-311 indicates that sheriffs are responsible for assessing, enforcing, or collecting the filing fee or that the sheriff is a necessary party for the construction of the statute. The criminal defendants and the bail-bond companies make no argument to the contrary; instead, they insist that because "the Circuit Court did not issue a ruling on whether or not the [defendant s]heriffs should be afforded immunity and dismissed from the case, the issue is not properly before this Honorable Court for a decision." The criminal defendants and bail-bond companies' reply brief, at 17. However, "[t]he assertion of State immunity [under § 14] 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." Atkinson v. State, 986 So.2d 408, 411 (Ala.2007). Thus, this Court may address the defendant sheriffs' argument, regardless of whether that issue was addressed by the circuit court.
Because the criminal defendants and bail-bond companies' claims against the defendant sheriffs do not fall within any of
We turn now to the criminal defendants and bail-bond companies' argument that the circuit court erred in concluding that they did not have standing to bring their claims against the defendants. This Court has recently noted: "[T]he concept [of standing] appears to have no necessary role to play in respect to private-law actions, which, unlike public cases ..., come with established elements that define an adversarial relationship and `controversy' sufficient to justify judicial intervention." Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, September 13, 2013] ___ So.3d ___, ___ (Ala.2013). Public-law actions involve "constitutional or other challenges to the actions of officials or administrative agencies." BAC Home Loans, ___ So.3d at ___; see also Black's Law Dictionary 1350-51 (9th ed.2009) (defining "public law" as "[t]he body of law dealing with the relations between private individuals and the government, and with the structure and operation of the government itself; constitutional law, criminal law, and administrative law taken together").
The underlying action is brought by private individuals and companies against various state officials, and the claims relate to the constitutionality of the fees imposed pursuant to § 12-19-311, Ala.Code 1975. Thus, this action falls within the definition of a public-law case, and the concept of standing applies.
In Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256-57 (Ala.2004), this Court stated:
(Quoting Henri-Duval Winery, 890 So.2d at 74, quoting in turn Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).)
As noted previously, "[a] ruling on a motion to dismiss is reviewed without a presumption of correctness. This Court must accept the allegations of the complaint as true. Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail." Newman, 878 So.2d at
We have determined that the criminal defendants and bail-bond companies' claims for monetary relief are barred by the doctrine of sovereign immunity. Therefore, those funds cannot act as redress for the alleged injuries. The defendants argue that "[t]o the extent a [criminal defendant] has paid the [filing] fee in the past, he has no standing to seek prospective injunctive relief. The existence of a filing fee does not impose any real or immediate threat of future injury to any of them, making their claims for future relief speculative." Defendants' brief, at 25.
Lyons, 461 U.S. at 102-03, 103 S.Ct. 1660 (emphasis added).
The Supreme Court went on to apply the rationale in O'Shea to Lyons's request for "a preliminary and permanent injunction against the City [of Los Angeles (`the City')] barring the use of control holds," including chokeholds, by the City's police officers. 461 U.S. at 98, 103 S.Ct. 1660. Lyons alleged that he had been injured when police officers from the City applied a chokehold to him during a traffic stop, even though, Lyons argued, "[he] offered no resistance or threat whatsoever" to the officers. 461 U.S. at 97, 103 S.Ct. 1660. The Supreme Court determined:
As the criminal defendants and the bail-bond companies note, this case, unlike Lyons, involves an "official policy" of the State. Section 12-19-311(a) provides that the filing fee will be "imposed on every bail bond in all courts of this state," and the criminal defendants or their sureties — the bail-bond companies — can be held in contempt for failing to pay those fees. See § 12-19-311(c), Ala.Code 1975. Also, unlike the plaintiff in Lyons, the criminal defendants and the bail-bond companies have sought to be certified as representatives of a class of plaintiffs who have allegedly suffered the same injuries.
However, O'Shea also involved a class of plaintiffs and, like the plaintiffs in that case, future harm to the criminal defendants here "rests on the likelihood that [the criminal defendants] will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings." O'Shea, 414 U.S. at 496, 94 S.Ct. 669; see also Lyons, 461 U.S. at 105, 103 S.Ct. 1660 ("That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part."). This is true even under the official policy in this case. The criminal defendants and the bail-bond companies have not meaningfully distinguished Lyons or O'Shea, in this regard.
The criminal defendants and the bail-bond companies also argue that, "[u]nlike the O'Shea plaintiffs, [the criminal defendants and the bail-bond companies] do not have to violate the law to be again subject to the unconstitutional [filing] fee. Instead, they only need to be arrested and be released on bail, which is not always equivalent to breaking the law." Criminal defendants and bail-bond companies' brief, at 57. However, the United States Supreme Court in O'Shea did not state that the plaintiffs' alleged future injury depended upon actual violations of the law but upon being arrested and charged with violations of the law. Instead, the Supreme Court stated: "[H]ere the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners." O'Shea, 414 U.S. at 496, 94 S.Ct. 669. As noted previously, the prospect of future harm to the criminal defendants here rests on the same assumption — that the criminal defendants will be arrested and subjected to bond proceedings.
The defendants do not argue that the bail-bond companies lack standing pursuant to O'Shea and Lyons. Instead, they argue that the bail-bond companies lack standing because,
Defendants' brief, at 31. However, the statement from the criminal defendants and the bail-bond companies' brief was made in the context of their argument that the criminal defendants had suffered a monetary injury, even where a bail-bond company or other individual had paid the filing fee on their behalf. The Criminal defendants and the bail-bond companies do not argue that the bail-bond companies have recouped the filing fees paid on behalf of their clients or that they will be able to recoup those fees from future clients.
As noted previously, pursuant to the provision in § 12-19-311(a) that the filing fee be "imposed on every bail bond in all courts of this state," the bail-bond companies are likely to suffer the injury alleged in the complaint and amended complaint — the payment of the allegedly unconstitutional filing fee — for bonds paid on behalf of future clients. Thus, the bail-bond companies have alleged an injury caused by the allegedly unconstitutional statute that would be redressed by the requested declaratory and injunctive relief. Therefore, the circuit court erred in dismissing those claims based on an alleged lack of standing. See Town of Cedar Bluff, 904 So.2d at 1256-57.
Moreover, as noted previously, our decision in Keddie-Hill does not apply to the bail-bond companies, which do not pay the filing fee as part of a criminal proceeding, and the doctrine of sovereign immunity does not bar "actions brought to enjoin State officials from enforcing an unconstitutional law" or "actions brought under the Declaratory Judgments Act ... seeking construction of a statute and its application in a given situation."
The defendants also argue that, "[e]ven if the circuit court had jurisdiction [over the criminal defendants and bail-bond companies' claims], the judgment should be affirmed because [the] defendants are due to prevail on the merits." Defendants' brief, at 32. However, as noted previously, "in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail." Newman, 878 So.2d at 1149 (emphasis added). Thus, we will not address the merits of the bail-bond companies' surviving claims at this time.
For the foregoing reasons, we affirm the circuit court's dismissal of all claims regarding the back-end fees, all claims seeking monetary relief, and all claims against the defendant sheriffs. We also affirm the dismissal of the criminal defendants' claims for declaratory and injunctive relief. We reverse the circuit court's judgment insofar as it dismissed the bail-bond companies' claims for declaratory and injunctive relief against the defendants other than the defendant sheriffs. The cause is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MOORE, C.J., and STUART, BOLIN, PARKER, MAIN, and WISE, JJ., concur.
MURDOCK, J., concurs specially.
SHAW, J., concurs in the result.
MURDOCK, Justice (concurring specially).
I concur in the main opinion. I write separately to offer two comments.
First, in reference to footnote 12 of the main opinion, 150 So.3d at 1043-44, I would simply note that the case cited, Ex parte Town of Lowndesboro, 950 So.2d 1203 (Ala.2006), was not a case in which the plaintiff's claim for a declaratory judgment implicated the State's treasury. Insofar as we reinstate the bail-bond companies' claim for a declaratory judgment in the present case, the same is true. Compare Ex parte Alabama Dep't of Transp., 978 So.2d 17, 25 (Ala.2007) (holding that a claim seeking a declaratory judgment should have been dismissed on sovereign-immunity grounds because, among other things, a judgment in favor of the plaintiff would "directly affect a contract right of [the State] and would `necessarily open the doors of the State treasury to legal attack'" (quoting Lowndesboro, 950 So.2d at 1211)).
Second, in the final paragraph of its "Analysis," the main opinion considers the defendants' argument that "`[e]ven if the circuit court had jurisdiction ..., the judgment should be affirmed because [the] defendants are due to prevail on the merits.'" 150 So.3d at 1044. I do not foreclose the possibility that some of the alternative grounds offered by the defendants in support of the circuit court's judgment are valid, alternative legal grounds — grounds allegedly entitling the defendants to a judgment as a matter of law based on facts that are not genuinely disputed. Notwithstanding that possibility, I have no objection to returning this case to the circuit
116 So.3d at 1141 (citations omitted).
(Quoting State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 633, 11 So.2d 342, 345 (1943), superseded, in part, on other grounds, Ala. Code 1940, tit. 7, § 167 (now Ala.Code 1975, § 6-6-221) (emphasis added).)
