BRYAN, Judge.
Central Alabama Community College ("the College") and C.I.T.Y. Skills Training Consortium ("the Consortium") appeal from a judgment of the Montgomery Circuit Court entered in favor of Hodtric C. Robinson, Suzanne L. Schmitz, and Joy Suttle (collectively "the employees").
The employees performed work for the Consortium, which is operated by the College.
On January 23, 2009, the circuit court entered a judgment denying the petition for a writ of certiorari filed by the College and the Consortium and granting the employees' summary-judgment motion.
The College and the Consortium appeal the circuit court's judgment in favor of the employees on their counterclaim. The College and the Consortium do not appeal the circuit court's denial of their petition for a writ of certiorari.
On appeal, the College and the Consortium argue that State immunity under Art. I, § 14, Ala. Const.1901, also known as sovereign immunity, Ex parte Tirey, 977 So.2d 469, 470 (Ala.2007), acts as a jurisdictional bar in this case. The College and the Consortium raise this argument for the first time in their reply brief. Typically, an appellate court "does not address issues raised for the first time in a reply brief." Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002). However, "[t]he assertion of State immunity 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). "`[A]n action contrary to the State's immunity is an action over which the courts of this State lack subject-matter jurisdiction.'" Ex parte Alabama Dep't of Transp., 978 So.2d 17, 21 (Ala.2007) (quoting Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 363 (Ala.2001)). Therefore, we address whether State immunity applies in this case and, consequently, whether the circuit court had subject-matter jurisdiction over the employees' counterclaim.
Alabama Dep't of Corr. v. Montgomery County Comm'n, 11 So.3d 189, 191-92 (Ala.2008). "[State] immunity extends to the state's institutions of higher learning," Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala.1983), which includes the state's community colleges, such as the College in this case. Williams v. John C. Calhoun Cmty. Coll., 646 So.2d 1, 2 (Ala.1994); and Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1313 (Ala.Civ.App.1995).
"[C]ertain causes of action are not barred by § 14:
Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 840 (Ala.2008). The categories of actions that are not barred by § 14 are "relevant only as they relate to claims against State officials in their official capacities, not as they relate to the
In this case, the ALJ issued an order determining that the employees were employed by the College and rescinding the employees' dismissals. The College and the Consortium filed in the circuit court a petition for a writ of certiorari seeking review of the ALJ's order. The employees then filed in the circuit court a counterclaim against the College and the Consortium seeking a declaratory judgment and injunctive relief. Although the employees' counterclaim named both the College and the Consortium as counterdefendants, the counterclaim sought relief based on the employees' employment relationship with the College. As noted, the ALJ determined that the College, not the Consortium, employed the employees. Therefore, the College, not the Consortium, was the real counterdefendant in interest as to the counterclaim. Therefore, we consider only whether the College is entitled to State immunity with respect to the employees' counterclaim.
As a state institution of higher learning, the College is absolutely immune from suit under Art. 1, § 14, Ala. Const. 1901. Williams, 646 So.2d at 2; and Colagross, 674 So.2d at 1313. Because the employees' counterclaim was filed against the College and not against any State official in his or her official capacity, the categories of actions that are not barred by § 14 have no possible application. Alabama Dep't of Corr., 11 So.3d at 194. Therefore, we conclude that the employees' counterclaim was barred by State immunity.
In conclusion, the circuit court lacked subject-matter jurisdiction over the employees' counterclaim. Therefore, that portion of the circuit court's judgment adjudicating the employees' counterclaim is void and, therefore, is vacated. Moreover, a void judgment will not support an appeal. Faith Props., LLC v. First Commercial Bank, 988 So.2d 485, 492 (Ala. 2008). Therefore, we dismiss the appeal.
The employees' motion seeking to strike that portion of the reply brief concerning State immunity or, alternatively, seeking leave to respond to the reply brief is denied.
JUDGMENT VACATED IN PART; APPEAL DISMISSED.
THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.
BRYAN, J., concurs specially.
BRYAN, Judge, concurring specially.
Article 1, § 14, Ala. Const. 1901, affords the State of Alabama absolute immunity from suit. Unfortunately, State immunity conflicts with the principle that for every wrong there should be a remedy. Courts and commentators have frequently criticized the doctrine as being an unjust anachronism. See 1 Civil Actions Against State and Local Government § 1.8 (Jon L. Craig ed. 1992) (discussing the abrogation of common-law sovereign immunity in many jurisdictions); and Kenneth Culp Davis, Sovereign Immunity Must Go, 22 Admin. L.Rev. 383 (1970) (discussing sovereign immunity in federal courts). However, barring constitutional amendment, State immunity is the law in Alabama. In this case, the employees sued the College directly, thus implicating the State's absolute immunity.