author: MURDOCK, Justice.

text:
    Ex parte Anthony ROGERS. (In re Anthony Rogers v. Penske Truck Leasing Co., L.P.).
    1080880.
    Supreme Court of Alabama.
    Dec. 30, 2010.
    George B. Azar and Elizabeth C. Wible of Azar & Azar, LLC, Montgomery, for petitioner.
    Patricia J. Ponder and Jennifer S. Morgan of Hand Arendall LLC, Mobile, for respondent.
   MURDOCK, Justice.

Anthony Rogers petitioned for certiorari review after the Court of Civil Appeals affirmed a judgment denying his claim for unemployment-compensation benefits. We granted certiorari review to reconsider prior Alabama decisions holding that the claimant has the burden of proving the absence of a disqualification for misconduct.

Facts and Procedural History

Rogers was employed by Penske Truck Leasing Co., L.P., for several years as a customer-service representative. His duties included pumping fuel into trucks leased to Penske’s customers. Rogers was accused of helping Christopher Bibb (not an employee or a customer of Penske) steal fuel from Penske. Bibb drove a large truck that was not leased from Penske. With the assistance of one or more Penske employees, Bibb arranged to have his truck fueled at Penske’s Montgomery facility using billing codes assigned to trucks leased to Penske customers.

In October 2005, the fuel-stealing scheme was discovered and the Montgomery police began investigating. On October 31, 2005, Rogers was arrested by the Montgomery police for theft of fuel based on receipts found in Bibb’s truck that bore Rogers’s initials and employee-authorization code. On the afternoon of Rogers’s arrest, Penske fired him for his alleged participation in Bibb’s scheme to steal fuel from Penske. Rogers denied that he had participated in stealing any fuel from Penske.

In January or February 2006, the charges against Rogers were nol-prossed. In January 2007, Rogers was indicted for theft of fuel in connection with the events of October 2005. In June 2007, Rogers was tried on the theft charges and was acquitted.

After Rogers was fired, he filed a claim for unemployment-compensation benefits with the Alabama Department of Industrial Relations (“DIR”). Penske challenged the claim on the basis that Rogers had been discharged for a dishonest and criminal act and was therefore disqualified from receiving unemployment-compensation benefits. The claims examiner awarded benefits to Rogers and stated that “[t]he employer has failed to provide sufficient evidence to substantiate actual misconduct.” Penske appealed and DIR’s hearing officer affirmed the award of benefits.

Penske appealed to the Montgomery Circuit Court. Before the circuit court, the parties allowed the court to decide the case based on the evidence previously filed by the parties. The circuit court denied benefits, stating that

“[w]hen, as here, an employee is terminated for misconduct, he bears the burden of proving he is not subject to the disqualification for benefits. Wal-Mart Stores, Inc. v. Hepp, 882 So.2d 329, 333 (Ala.2003).
“The Court further finds that [Rogers] failed to meet his burden of proof.”

(Emphasis added.) Rogers appealed.

The Court of Civil Appeals affirmed the circuit court’s judgment, without an opinion, apparently concluding that it was bound by decisions of this Court that place on the claimant the burden of proving the absence of a disqualification for unemployment-compensation benefits. Rogers v. Penske Truck Leasing Co. (No. 2070985, April 3, 2009), 51 So.3d 1128 (Ala.Civ.App. 2009) (table). This Court granted Rogers’s petition for the -writ of certiorari.

Standard of Review

“An appellate court reviews the burden of proof applied at trial and other legal issues ... without a presumption of correctness.” Ex parte USX Corp., 881 So.2d 437, 441 (Ala.2003).

Legal Analysis

In affirming the decision of the circuit court, the Court of Civil Appeals apparently considered itself bound by prior Alabama decisions that appear to indicate that the burden is on the unemployment-compensation claimant to prove the absence of a disqualification. In this regard, the cases cited by the Court of Civil Appeals in its order affirming the circuit court’s judgment include Wal-Mart Stores, Inc. v. Hepp, 882 So.2d 329, 333 (Ala.2003); Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 445-47 (Ala.1999); and Department of Industrial Relations v. Jaco, 337 So.2d 374, 376-77 (Ala.Civ.App.1976).

As discussed in more detail below, the prior Alabama cases provide little support for a rule that is contrary to the rule in most or all the other states that have addressed the issue before us. The Alabama rule referenced in these cases would require the claimant to prove a negative, a requirement the law generally is reluctant to impose. It is a rule that is inconsistent with the treatment of affirmative defenses generally and ultimately with the beneficent purposes of the unemployment-compensation act.

I. The Relevant Provisions of the Unemployment-Compensation Act

Section 25-4-77, Ala.Code 1975, sets forth the eligibility requirements for receiving unemployment-compensation benefits and provides, in pertinent part:

“(a) An unemployed individual shall be eligible to receive benefits ... only if the director finds that:
“(1) He has made a claim for benefits with respect to such week in accordance with such regulations as the director may prescribe.
“(2) He has registered for work at, and thereafter continued to report at, a state employment office....
“(3) He is physically and mentally able to perform work of a character which he is qualified to perform by past experience or training, and he is available for such work....
“(4) He has been totally or partially unemployed in such week.
“(5) He has made a reasonable and active effort to secure work which he is qualified to perform by past experience and training....”

Section 25-4-78, Ala.Code 1975, sets forth various disqualifications and provides, in part, as follows:

“An individual shall be disqualified for total or partial unemployment:
“(1) Labor dispute in place of employment. For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed....
“(2) Voluntarily quitting work. If he has left his most recent bona fide work voluntarily without good cause connected with such work.
“(3) Discharge for misconduct.
“a. If he was discharged or removed from his work for a dishonest or criminal act committed in connection with his work or for sabotage or an act endangering the safety of others or [drug-related misconduct].
“b. If he was discharged from his most recent bona fide work for actual or threatened misconduct committed in connection with his work (other than acts mentioned in paragraph a. of this subdivision (3)) repeated after previous warning to the individual....
“c. If he was discharged from his most recent bona fide work for misconduct connected with his work [other than acts mentioned in paragraphs a. and b. of this subdivision (3) ]....”

Sections 25-4-77 and -78 do not address the allocation of the burden of proof.

II. Prior Alabama Cases Suggesting That the Claimant Bears the Burden of Proof as to the Absence of a Disqualification

At best, Smitherman and Hepp, cited by the Court of Civil Appeals, provide only weak support for a rule allocating to the claimant the burden of proof as to the absence of a disqualification. Neither Smitherman nor Hepp, nor the cases on which they rely, contain any substantial legal analysis or discussion of applicable principles, and most of the cases they cite fail to distinguish between eligibility, disqualifying circumstances, and justifications or excuses for a disqualifying circumstance.

Moreover, Smitherman and Hepp did not directly involve an unemployment-compensation appeal, and the comments in those cases as to the allocation of the burden of proof appear to be dicta. The issue in both Smitherman and Hepp was whether the doctrine of collateral estoppel barred a retaliatory-discharge action brought pursuant to a provision of the Workers’ Compensation Act, Ala.Code 1975, § 25-5-11.1, when an unemployment-compensation claim had previously been adjudicated against the employee in an administrative proceeding. In Smith-erman, this Court stated:

“Under Alabama’s Unemployment Compensation Act, a claimant has the burden of proving that he or she is eligible to receive benefits under Ala.Code 1975, § 25-4-77, and that he or she is not disqualified from receiving benefits by § 25-4-78. See Davenport v. State Dep’t of Indus. Relations, 692 So.2d 851, 852 (Ala.Civ.App.1997). ‘ “The claimant assumes the risk of nonpersuasion.” ’ State Dep’t of Indus. Relations v. Downey, 380 So.2d 906, 908 (Ala.Civ.App.1980) (quoting Department of Indus. Relations v. Tomlinson, 251 Ala. 144, 145, 36 So.2d 496, 497 (1948)).”

743 So.2d at 445-46. The Smitherman Court noted that, in the related unemployment-compensation case, it had been determined that the claimant was partially disqualified from receiving unemployment-compensation benefits because of misconduct. It held that that determination barred the claimant from relitigating in the retaliatory-discharge action the reason for her termination. Thus, the decision in Smitherman did not turn on which party had the burden of proof in the unemployment-compensation case, but simply on the fact that the issue had been litigated to a conclusion.

Further, the cases cited by Smitherman with respect to the burden of proof address only the eligibility for unemployment-compensation benefits, and not disqualification. Consequently, Smitherman provides little, if any, guidance for an allocation of the burden of proof on issues other than eligibility.

Smitherman indirectly quoted Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 (1948), for the proposition that a claimant “ “assumes the risk of nonpersuasion.” ’ ” 743 So.2d at 445. Tomlinson, however, addressed only eligibility for benefits under the predecessor to § 25-4-77 and did not address disqualification under the predecessor to § 25-4-78. The Tomlinson Court concluded that the claimant was not eligible for unemployment-compensation benefits because he did not make a reasonable effort to find new employment and was not available for work.

Similarly, in Department of Industrial Relations v. Downey, 380 So.2d 906, 908 (Ala.Civ.App.1980), the court, applying Tomlinson, held that the claimant had failed to meet her burden of proof because she had not established her eligibility for benefits. Specifically, the court concluded that “[t]he record is devoid of any evidence that appellee was available for work as required by the statute, nor is there any evidence that appellee made any effort to comply with the unemployment qualification statutes.” 380 So.2d at 908. Thus, neither Doumey nor Tomlinson addressed the burden of proof as to the issue of disqualification or made any distinction between eligibility and disqualification.

In Jaco, the other case cited by the Court of Civil Appeals, the issue was whether the claimant left his employment voluntarily without good cause when he was discharged for excessive absences after a warning (one of the disqualifying circumstances set forth in § 25^-78). The Jaco court affirmed the trial court’s judgment that the claimant was partially disqualified from receiving unemployment-compensation benefits by reason of misconduct that was not deliberate, but declined to conclude that excessive absences were tantamount to leaving the job voluntarily. With respect to the burden of proof, the court stated merely that “[t]he claimant has the burden of proving he is eligible under Sec. 213 and not disqualified under Sec. 214 [Code of Alabama (1940) ].” Jaco, 337 So.2d at 376-77.

The decision in Jaco cited only a single case regarding the burden of proof: Department of Industrial Relations v. Thomas, 55 Ala.App. 712, 318 So.2d 739 (1975). Thomas concerned only the issue of eligibility; the references in that opinion to the burden of proof as to disqualification must be considered dicta. In Thomas, the circuit court found that the claimant was eligible for unemployment-compensation benefits and that she was not disqualified. On appeal, the Court of Civil Appeals stated that the claimant has the burden of proving both eligibility for benefits and lack of disqualification, but it reversed the circuit court’s judgment based only on lack of eligibility. Significantly, the only authority cited by the Court of Civil Appeals in Thomas was Southern Bell Telephone & Telegraph Co. v. Department of Industrial Relations, 42 Ala.App. 351, 165 So.2d 128 (1964), an eligibility case that did not squarely address the burden of proof and that involved a statutory provision specifically addressing maternity leave.

In summary, the decisions in Smither-man, Hepp, Jaco, and the other Alabama eases cited by Penske do not provide an adequate legal analysis of why the burden of proof in unemployment-compensation cases should be allocated as those cases suggest. Such discussion as is provided by those cases suffers in some instances from being dicta. Further, those cases do not address, or even acknowledge, any distinctions as to the burden of proving eligibility, disqualifying circumstances, and justifications or excuses for what would otherwise be disqualifying circumstances.

III. A Contrary Line of Alabama Cases

In addition to the above-described shortcomings, the cases discussed in Part II fail to discuss — and are inconsistent with — a different line of Alabama cases. This other line of cases places on the employer the burden of proof as to whether an employee is disqualified from receiving unemployment-compensation benefits under § 25-4-78(1) because the claimant’s unemployment “is directly due to a labor dispute.” This was true for example in United States Steel Corp. v. Wood, 40 Ala.App. 431, 433, 114 So.2d 533, 535 (1958), rev’d on other grounds, 269 Ala. 5, 114 So.2d 551 (1959), in which the Court of Appeals premised its discussion as follows:

“[W]e take it that Wood met the burden of showing himself eligible for each week for which he has filed a claim (see Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 [ (1948) ]), and that the burden of persuasion has shifted to his employer or the Director of Industrial Relations (as trustee of the Unemployment Compensation Fund) to show he is disqualified, if he is to be denied benefits because of a disqualification.”

(Emphasis added.) See also United States Steel Corp. v. Glasgow, 40 Ala.App. 424, 427, 114 So.2d 565, 567 (1958), rev’d on other grounds, 269 Ala. 8, 114 So.2d 567 (1959) (“[T]he claimant is required to show himself eligible. Under § 214, subd. A, [Code of Alabama (1940),] the burden falls on either the Director of Industrial Relations, as trustee, or the employer with an adverse interest to show that an eligible claimant is disqualified.”).

In Ex parte Flowers, 435 So.2d 76, 78 (Ala.1983), this Court held, consistent with the holding in Wood, as follows in a case addressing disqualification under § 25-4-78(1):

“Also relevant, is the rule in Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (1970), that the ‘provisions of disqualification from benefits [in the Unemployment Act] should be narrowly construed.’ A further guideline for our consideration of these claims is the procedural rule which provides that the employer has the burden of proving any disqualification under [§ 25-4-78(1) ] of the Unemployment Compensation Act. See United States Steel Corp. v. Glasgow, 40 Ala.App. 424, 114 So.2d 565 (1958), rev’d on other grounds, sub nom. United States Steel Corp. v. Curry, 269 Ala. 8, 114 So.2d 582 (1959).”

435 So.2d at 78 (emphasis added). See also Hilley v. General Motors Corp., 800 So.2d 167, 169 (Ala.Civ.App.2000) (“The employer has the burden of proving any disqualification under section § 25-4-78(1).” (citing Flowers)).

The parties do not identify, and we have not located, any cases attempting to reconcile the Smitherman/Tomlinson line of cases and the Wood/Flowers line of cases, or to make a principled distinction among disqualifications under the various subsections of § 25-4-78.

TV. Alabama’s Position on the Burden of Proof Is Contrary to That of Other States That Have Considered the Issue

Alabama’s position on the burden of proof for disqualification is contrary to the approach adopted by most or all the other states that have addressed the specific issue. See, e.g., City & County of Denver v. Industrial Comm’n of the State of Colorado, 756 P.2d 873 (Colo.1988) (applying the following burden-shifting scheme to unemployment-compensation cases: the burden is initially on the claimant to establish a prima facie case of eligibility; the burden then shifts to the employer to prove that the claimant was discharged for misconduct; the claimant may present evidence to justify the acts that led to the discharge).

Many of these cases recognize that placing the burden of proving a disqualification on the employer has the advantage of imposing the burden of proof on the party that generally has better access to the relevant evidence. The employer obviously is the party with the best knowledge of the reasons for the claimant’s discharge from employment, and it has equal or better knowledge of any policies and rules allegedly violated, as well as information relevant to whether the asserted basis for the discharge was equitably applied. As the Idaho Supreme Court explained in Parker v. St. Maries Plywood, 101 Idaho 415, 419, 614 P.2d 955, 959 (1980):

“The employer is in a unique position to know the reasons for his employee’s discharge and access to the facts relating to that discharge will be more readily obtained by the employer than the employee. Further, as a practical matter, the task of proving the existence of employee misconduct will be much easier for the employer than would be the employee’s task of disproving a charge of employee misconduct. The employee may not always know what the employer’s reasons were for discharging him.”

See also Bean v. Montana Bd. of Labor Appeals, 290 Mont. 496, 503, 965 P.2d 256, 260-61 (1998) (quoting Parker to the same effect); Clark County Sch. Dist. v. Bundley, 122 Nev. 1440, 1447-48, 148 P.3d 750, 755-56 (2006) (“[The] employer is in the ‘ “unique position to know the reasons for [the] employee’s discharge.” ’ Further ‘“access to the facts relating to that discharge will be more readily obtained by the employer than the employee.”’ The practical result is that the employer can usually more easily prove employee misconduct than the employee can disprove the employer’s assertion that she engaged in such misconduct.” (footnotes omitted)).

V. The Beneficent Policy Underlying the Unemploymentr-Compensation Act and Other Considerations

Imposing on the employer the burden of proof as to a claimant’s disqualification for unemployment-compensation purposes is consistent with the general principle that the proponent of an affirmative defense or similar position has the burden of proof as to that position as well as with the disinclination of the law to place upon a party the burden to prove a negative. This Court stated in Ex parte Ramsay, 829 So.2d 146, 152 (Ala.2002):

“The proponent of an affirmative defense ‘bears the burden of proving the essential elements of his affirmative defenses.’ Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475, 478 (Ala.2000); and see Ely v. Pace, 139 Ala. 293, 298, 35 So. 877, 878 (1904) (‘Ei incumbit probatio qui dicit.’).”

The Sixth Edition of Black’s Law Dictionary explained the parenthetical maxim as follows:

“Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit.... The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.”

Black’s Law Dictionary 516 (6th ed.1990).

Finally, to the extent that, after considering all the foregoing, any uncertainty remains as to who should bear the burden of proving the existence of a disqualifying condition, we note that the “Unemployment Compensation Act is in the nature of insurance for the unemployed worker and is intended to be a remedial measure for his benefit [and] should be liberally construed in favor of the claimant and the disqualifications from benefits should be construed narrowly.” Jaco, 337 So.2d at 376. See also Ex parte Sargent, 634 So.2d 1008, 1009 (Ala.1993) (“Disqualification provisions in the Unemployment Compensation Act should be narrowly construed.”); Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (1970); and Boynton Cab Co. v. Neubeck, 237 Wis. 249, 258, 296 N.W. 636, 640 (1941) (mere mistakes, errors of judgment, etc., do not constitute “misconduct”; otherwise, the benefit of the unemployment-compensation statute would be defeated as to many of “the less capable industrial workers, who are in the lower income brackets and for whose benefit the act was largely designed.... ”).

Conclusion

Based on the foregoing, we conclude that the circuit court and the Court of Civil Appeals erred in imposing on the claimant the burden of disproving his disqualification from unemployment compensation on the basis of misconduct. We hold that the employer has the burden of proving that the employee is disqualified for reasons of misconduct, and we overrule prior cases, including Hepp, Smitherman, and Jaco, to the extent that they are inconsistent with this opinion.

We reverse the judgment of the Court of Civil Appeals and remand the cause to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

      . Between January 2006 and January 2007, Bibb pleaded guilty and agreed to testify against Rogers.

      . In February 2006, Rogers filed a malicious-prosecution action against Penske and one of its supervisory employees. A summary judgment was entered for the defendants; that judgment was affirmed on appeal. Rogers v. Penske Truck Leasing Co., L.P., 37 So.3d 780 (Ala.Civ.App.2009).

      .Section 25-4-95, Ala.Code 1975, provides that on appeal to the circuit court the case is tried de novo.

      . Other disqualifying circumstances set forth in the statute include: revocation or suspension of a required license; failure to accept available suitable work; receipt of backpay award; receipt of, or application for, workers’ compensation benefits; employment by public-works agency, etc.; self-employment; receipt of, or application for, training allowance under various governmental retraining programs; and participation in professional sports.

      . With respect to the administrative-review process, regulations issued by DIR pursuant to Ala.Code 1975, § 25-4-111, impose on the claimant the burden of proving availability for work, Ala. Admin. Code (Department of Industrial Relations), r. 480-4-3-, 15, and on the employer the burden of proving, for purposes of disqualification for testing positive for illegal drugs, that a drug policy is "otherwise reliable.” Ala. Admin. Code (Department of Industrial Relations), r. 480-4-3-.28. Neither of those regulations is directly relevant to the present case. The administrative regulations do not address the burden of proof as to disqualification for misconduct generally.

        . We pretermit any further discussion of Hepp because Hepp merely quoted Smitherman with respect to the allocation of the burden of proof and reached the same result. Hepp, 882 So.2d at 333.

      . Eligibility is not an issue in the present case, only disqualification.

      . In Wood, the Court of Appeals held that the claimants were not disqualified under § 25-4-78(1) because their local union was not directly involved in the strike. This Court reversed the decision of the Court of Appeals based on its interpretation of the statute as to the scope of labor disputes within the meaning of the statute. This Court’s opinion did not address the burden of proof.

      . See, e.g., 81A C.J.S. Social Security and Public Welfare § 482 (2004) ("Under a statute which disqualifies a claimant for benefits if he or she has been discharged for job-related misconduct, the employer has to prove misconduct by a preponderance of the evidence.”); Defense Against a Prima Facie Case § 5:11 (Rev. ed.) ("Misconduct, as a disqualification, is to be narrowly construed, and the employer has the burden of proof.”); Bean v. Montana Bd. of Labor Appeals, 290 Mont. 496, 503, 965 P.2d 256, 260-61 (1998); Jamal v. Thurmond, 263 Ga.App. 320, 321, 587 S.E.2d 809, 811 (2003) ("Disqualification is an exception to the statutory scheme for unemployment benefits and the employer must show by a preponderance of the evidence that disqualification is appropriate.”); Clark County School Dist. v. Bundley, 122 Nev. 1440, 1447-48, 148 P.3d 750, 755-56 (2006); and Brown Hotel Co. v. Edwards 365 S.W.2d 299, 301 (Ky.1962).
      Rogers cites cases from 44 other states that appear to place on the employer the burden of proving misconduct justifying disqualification. Penske does not contend that any of the cases cited by Rogers do not support Rogers's contention. It does not address the law of other states except to note that, although decisions from other states may be persuasive authority, they are not binding. Penske also asks this Court to disregard the law of other states "since Alabama law has already settled the issue raised by Rogers....” Penske’s brief, at 22.

      . See also Peery v. Rutledge, 177 W.Va. 548, 552, 355 S.E.2d 41, 45 (1987) (“If the former employer establishes that the unemployment compensation claimant has violated an ordinarily reasonable job assignment directive or work rule, the burden of going forward with the evidence shifts to the claimant to show that he or she was justified, or at least exercised good faith, in not complying with the directive or rule.”); In re Therrien, 132 Vt. 535, 537, 325 A.2d 357, 358 (1974) ("The claimant has the burden of showing his initial eligibility for benefits. That eligibility is not in issue here, and once established, the employer has the burden of showing the claimed disqualification for misconduct.” (citation omitted)).

      . In the present case, there does not appear to be any dispute that theft, if proven, would constitute misconduct that would disqualify Rogers from receiving unemployment-compensation benefits. See Scott v. Scott Paper Co., 280 Ala. 486, 195 So.2d 540 (1967) (circuit court did not err in determining that employee was disqualified for theft of company property; dishonest act need not be criminal to warrant disqualification). In many other cases, however, the employer’s reasons for discharging the employee may be mixed, or the employer may not have clearly identified the conduct that led to the termination. In such a case, the employee could be at a serious disadvantage in attempting to prove that he or she did not violate any of the (possibly numerous) rules that might be at issue or to prove that he or she did not commit some vaguely defined bad act.

      . Alabama's unemployment-compensation act was modeled on the Wisconsin statute, and the Wisconsin court’s interpretation is persuasive authority. Ex parte Williams, 646 So.2d 22, 26-27 (Ala.1994).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Anthony ROGERS v. PENSKE TRUCK LEASING CO., L.P.
    2070985.
    Court of Civil Appeals of Alabama.
    Feb. 11, 2011.
    George B. Azar and Elizabeth C. Wible of Azar, Azar & Moore, LLC, Montgomery, for appellant.
    Patricia J. Ponder of Hand Arendall, LLC, Mobile; and Leanna Bankester Pit-tard of Hand Arendall, LLC, Birmingham, for appellee.
   After Remand from the Alabama Supreme Court

THOMPSON, Presiding Judge.

On certiorari review in this case, the Alabama Supreme Court overruled Wal-Mart Stores, Inc. v. Hepp, 882 So.2d 329 (Ala.2003), Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442 (Ala.1999), and Department of Industrial Relations v. Jaco, 337 So.2d 374 (Ala.Civ.App.1976)—cases upon which this court relied in affirming the trial court’s judgment — to the extent that they hold that, when an employer terminates an employee’s job on the asserted basis of misconduct by the employee, the employee bears the burden of proof on the question whether he is disqualified from obtaining unemployment-compensation benefits. Ex parte Rogers, 68 So.3d 773, 774 (Ala.2010). Based on the supreme court’s opinion, the judgment of the trial court is hereby reversed and the cause remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.


author: PARKER, Justice.

text:
    Ex parte BESSEMER BOARD OF EDUCATION et al. (In re Bessemer Board of Education et al. v. Jean Minor). Ex parte Ed Richardson, as superintendent of the Alabama Department of Education, et al. (In re Ed Richardson, individually and as superintendent of the Alabama Department of Education, et al. v. Jean Minor).
    1041932 and 1050037.
    Supreme Court of Alabama.
    Feb. 4, 2011.
    See also, 893 So.2d 277.

      David A. Sullivan, Birmingham, for petitioner Bessemer Board of Education.
    Troy King, atty. gen.; Reginald L. Sor-rells, gen. counsel and deputy atty. gen., Alabama Department of Education; and Carl Johnson, deputy atty. gen., of Bishop, Colvin, Johnson & Kent, Birmingham, for petitioners Ed Richardson, Alabama Department of Education, Wayland Blake, Marvin Taylor, Sr., Marvin Taylor, Jr., Michael Taylor, and Alan Stevens.
    Charles Norton, Alabama Education Association, Montgomery; J. Cecil Gardner of Gardner, Middlebrooks, Gibbons, Kitt-rell, Olsen, Walker & Hill, P.C., Mobile; Candis A. McGowan of John Saxon, P.C., Birmingham; and Sam Heldman of Gardner, Middlebrooks, Gibbons, Kittrell, Olsen, Walker & Hill, P.C., Washington, D.C., for respondents.
   PARKER, Justice.

The Aabama Department of Education (“the Department”); Ed Richardson, as superintendent of the Department; Way-land Blake, as the appointed chief financial officer of the Bessemer School System; Marvin Taylor, Sr., Marvin Taylor, Jr., and Michael Taylor, as appointed financial officers of the Bessemer School System; and Alan Stevens, as the appointed chief administrative officer of the Bessemer School System (hereinafter collectively referred to as “the State defendants”) (case no. 1050037), and the Bessemer Board of Education (“the Bessemer Board”) and its members in their official capacities (hereinafter collectively referred to as “the Bessemer Board defendants”) (case no. 1041932) separately appealed the trial court’s order in favor of Jean Minor, a teacher in the Bessemer School System. Because the trial court’s order is not final and the Bessemer Board defendants and the State defendants are seeking review of an order denying their claims of immunity, we treat the appeals as petitions for a writ of mandamus. In case no. 1041932, we deny the Bessemer Board defendants’ petition in part and grant it in part, and, in case no. 1050037, we deny the State defendants’ petition in part and grant it in part.

Facts and Procedural History

In March 2000, the Alabama State Board of Education assumed control over the finances of the Bessemer School System. The State Board of Education authorized Richardson, as superintendent of the Department, to appoint a chief financial officer for the Bessemer School System under § 16-6B-4, Ala.Code 1975. Richardson appointed Blake to that position. In May 2000, the Alabama Legislature enacted § 16-22-13.1, Ala.Code 1975, which provided percentage pay increases for public-education employees based on the employee’s number of years of experience. The pay increases were effective for the fiscal year beginning October 1, 2000. At that time, Minor was employed as a teacher by the Bessemer Board. Under the statute, Minor’s years of experience entitled her to a 5.5% pay increase. Marvin Taylor, Sr., an appointed financial officer of the Bessemer School System, determined the method to be used in calculating the salary increases for the teachers employed by the Bessemer Board, and the teachers were paid accordingly. On March 11, 2004, the State Board of Education returned all financial control of the Bessemer School System to the Bessemer Board.

In 2001, Minor, individually and on behalf of other similarly situated employees, sued the State defendants and the Bessemer Board defendants, claiming that her statutory pay raise had been miscalculated. Minor sought backpay for the 2000-2001 fiscal year and sought to have the amount of her pay recalculated for ensuing years. Minor also made a general allegation that she had been denied “due process of law” and requested “relief pursuant to 42 U.S.C. § 1983, including attorneys’ fees per 42 U.S.C. § 1988.”

The Bessemer Board defendants and the State defendants moved to dismiss the complaint or for a summary judgment. They contended that they are entitled to immunity from Minor’s action and that the teachers’ pay increase was computed correctly. Minor also moved for a summary judgment.

On March 8, 2005, the trial court entered an order dismissing all claims against the Bessemer Board defendants on the basis of sovereign immunity. On March 11, 2005, the trial court entered a summary judgment in favor of Marvin Taylor, Sr., Marvin Taylor, Jr., Michael Taylor, and Wayland Blake on the bases of sovereign immunity and qualified immunity. On March 29, 2005, the trial court entered an order in the case-action summary declaring that the March 8, 2005, order should be considered a “final order” as to all claims and all parties.

On April 6, 2005, Minor moved “to alter or amend the judgment.” On April 23, 2005, the trial court granted Minor’s motion, entered a judgment in favor of Minor, and vacated “the judgment(s) previously entered in this case during March 2005.”

In the April 23, 2005, order, the trial court recognized that “the [Bessemer Board] as a legal entity is and always has been the employer and the entity with the legal obligation to pay [Minor] the correct salary.” The trial court explained that based on Alabama Agricultural & Mechanical University v. Jones, 895 So.2d 867 (Ala.2004), the Bessemer Board defendants were not entitled to immunity because, it reasoned, the Bessemer Board had no discretion to refuse to pay Minor the appropriate salary increase under § 16-22-13.1, Ala.Code 1975, and because Minor was seeking “a liquidated measure of money.” The trial court held that “the claims against the individual defendants in their individual capacities do not need to be addressed; those claims are moot, in that no additional relief would be awarded against the individual-capacity defendants that is not being awarded against the [Bessemer Board] and the defendants in their official capacities.” The trial court ordered

“[the Bessemer Board], and the individual defendants in their official capacities, to pay Plaintiff Jean Minor the correct salary (i.e., calculated in the manner that Plaintiffs seek) for fiscal years 2000-2001 and 2001-2002, plus interest from the date such money was owed. It is the Court’s understanding from the summary judgment submissions that the principal amount for each of those years is approximately $552; if the parties are unable to agree on the calculation of the exact amount, and the amount of interest, the Court will resolve that dispute on appropriate motion.”

The trial court also noted that

“the issue of class certification is pending for decision.[] In expectation of a decision on that issue, and in order to expedite a final judgment in this case, the court orders the parties to promptly engage in the necessary discovery and exchange of information necessary to reach a stipulation, if at all possible, on the amount of relief that would be awarded to other class members if the class is certified.”

The order did not specifically mention the State defendants.

On May 9, 2005, the Bessemer Board defendants filed a motion to alter, amend, or vacate the April 23, 2005, order. On May 23, 2005, the State defendants filed a motion to alter, amend, or vacate the April 23, 2005, order. The trial court did not rule on either motion.

On September 23, 2005, the State defendants moved to amend the trial court’s April 23, 2005, order nunc pro tunc to reflect whether the trial court’s March 11, 2005, order remained a final order as to the State defendants. That motion stated that the April 23, 2005, order appeared to enter a judgment against only the Bessemer Board defendants. The trial court did not rule on that motion.

On September 21, 2005, the Bessemer Board defendants filed a notice of appeal to this Court from the trial court’s April 23, 2005, order (case no. 1041932). The State defendants filed a notice of appeal to this Court from that same order on September 30, 2005 (case no. 1050037). We have consolidated those appeals for the purpose of writing one opinion, and as stated earlier we are treating the appeals, which challenge an order denying claims of immunity, as petitions for a writ of mandamus.

Standard of Review

The standard of review applicable to a petition for a writ of mandamus is well settled:

“ ‘Mandamus is an extraordinary remedy and requires a showing that 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 Edgar, 543 So.2d 682, 684 (Ala.1989); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991); Ex parte Johnson, 638 So.2d 772, 773 (Ala.1994).’ Ex parte Gates, 675 So.2d 371, 374 (Ala.1996). See also Ex parte Waites, 736 So.2d 550, 553 (Ala.1999).”

Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000). In reviewing a trial court’s application of the law to undisputed facts, we apply a de novo standard of review. Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008).

Discussion

The Bessemer Board defendants and the State defendants argue that the trial court erred in refusing to grant them immunity from liability in Minor’s action against them. Minor responds that the appeals should be dismissed because, she says, the trial court’s April 23, 2005, order did not constitute a final judgment and, thus, was not appealable.

We agree that the trial court’s April 23, 2005, order did not constitute a final judgment, but, because they challenge an order denying a claim of immunity, we are treating the appeals as petitions for a writ of mandamus.

This Court has held that the manner in which a party styles its request for relief is not determinative, and, when appropriate, we have treated a filing, although in the form of an appeal, as a petition for a writ of mandamus. See, e.g., Morrison Rests., Inc. v. Homestead Village of Fairhope, Ltd., 710 So.2d 905 (Ala.1998). Furthermore, “a petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity.” Ex parte Butts, 775 So.2d 173, 176 (Ala.2000) (citing Ex parte Alabama Dep’t of Forensic Sciences, 709 So.2d 455 (Ala.1997)). Accordingly, in the present case, we treat the appeals as petitions for a writ of mandamus.

The Bessemer Board defendants and the State defendants argue that under Art. I, § 14, Ala. Const. 1901, they are entitled to immunity from Minor’s state-law claim that her statutory pay increase was miscalculated. Article I, § 14, Ala. Const. 1901, provides that “the State of Aabama shall never be made a defendant in any court of law or equity.” “Under Ala. Const. of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state.... ” Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000). Local school boards are agencies of the State, not of the local governmental units they serve, and they are entitled to the same absolute immunity as other agencies of the State. Ex parte Hale County Bd. of Educ., 14 So.3d 844, 848-49 (Ala.2009).

In Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831 (Ala.2008), this Court held: “Not only is the State immune from suit under § 14, but ‘[t]he State cannot be sued indirectly by suing an officer in his or her official capacity....’” 990 So.2d at 839 (quoting Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003)). This Court further held:

“The immunity afforded State officers sued in their official capacities, however, is not unlimited:
“ ‘[Section 14] immunity from suit does not extend, in all instances, to officers of the State acting in their official capacity. Unzicker v. State, 346 So.2d 931 (Ala.1977). In limited circumstances the writ of mandamus will lie to require action of state officials. This is true where discretion is exhausted and that which remains to be done is a ministerial act. See Hardin v. Fullilove Excavating Co., Inc., 353 So.2d 779 (Ala.1977); Tennessee & Coosa R.R. Co. v. Moore, 36 Aa. 371 (1860). Action may be enjoined if illegal, fraudulent, unauthorized, done in bad faith or under a mistaken interpretation of law. Wallace v. Board of Education of Montgomery Co., 280 Aa. 635, 197 So.2d 428 (1967). If judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof. The writ will not lie to direct the manner of exercising discretion and neither will it lie to compel the performance of a duty in a certain manner where the performance of that duty rests upon an ascertainment of facts, or the existence of conditions, to be determined by an officer in his judgment or discretion. See Barnes v. State, 274 Ala. 705, 151 So.2d 619 (1963).’
“McDowell-Purcell, Inc. v. Bass, 370 So.2d 942, 944 (Ala.1979).
“Moreover, certain causes of action are not barred by § 14:
“ ‘ “There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory-Judgments Act ... seeking construction of a statute and its application in a given situation. 287 Ala. at 229-230, 250 So.2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law. Wallace v. Board of Education of Montgomery County, ... 280 Ala. [635] at 639, 197 So.2d 428 [ (1967) ]; Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962).” ’
“Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 58 (Ala.2006) (quoting [Ex parte ] Carter, 395 So.2d [65,] 68 [ (Ala.1980) ]) (emphasis omitted). These actions are sometimes referred to as ‘exceptions’ to § 14; however, in actuality these actions are simply not considered to be actions ‘“against the State” for § 14 purposes.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). This Court has qualified those ‘exceptions,’ noting that ‘ “[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 plaintiffs recovery of money from the [S]tate.”’ Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)) (emphasis added in Jones).”

Alabama Dep’t of Transp., 990 So.2d at 839-40. Furthermore, the “exceptions” to § 14 immunity extend only to suits against a proper State official in his or her representative capacity, not the State agency. Id. at 840-41.

In the present case, the Bessemer Board is an agency of the State and is entitled to absolute immunity. No “exception” to § 14 immunity applies to the Bessemer Board itself. Therefore, in the present situation, the trial court did not have jurisdiction to enter a judgment against the Bessemer Board concerning Minor’s state-law claim that her statutory pay increase was miscalculated. Therefore, in case no. 1041932, we grant the petition as to the Bessemer Board and issue the writ directing the trial court to dismiss Minor’s state-law claim against the Bessemer Board.

However, regarding the Bessemer Board members in their official capacities, Minor is entitled to bring an action to compel them to perform their legal duty or to perform a ministerial act. In the present case, it is undisputed that the Bessemer Board members have a statutory duty to pay Minor the appropriate salary increase under § 16-22-13.1, Ala.Code 1975. That statute specifically provides that a public school teacher with Minor’s years of experience being paid under the State minimum-salary schedule shall receive a 5.5% increase in salary beginning with the fiscal year 2000-2001. The basis for this calculation is at issue in this lawsuit. The amount of the salary increase the Bessemer Board members must pay Minor involves obedience to the statute; it does not involve any discretion. The Bessemer Board members have a legal duty to pay Minor the correctly calculated salary increase under the statute and in doing so they are performing a ministerial act. Therefore, Minor’s action against the Bessemer Board members in their official capacities is not an action “against the State” for § 14 purposes; thus, the Bessemer Board members are not entitled to § 14 immunity from Minor’s action to compel them to fulfill their statutory duty to pay her the appropriate salary increase. Accordingly, we deny the petition for a writ of mandamus as to the Bessemer Board members in their official capacities.

Regarding the State defendants, it is unclear whether the trial court’s April 23, 2005, order entered a judgment against them. As the trial court correctly recognized, “the [Bessemer Board] as a legal entity is and always has been the employer and the entity with the legal obligation to pay [Minor] the correct salary.” Furthermore, it is undisputed that the State Board of Education has returned all financial control of the Bessemer School System to the Bessemer Board. Like the Bessemer Board, the Department, as an arm or agency of the State, is clearly entitled to absolute immunity. Concerning the individual State defendants, they do not have any power or any legal duty to provide Minor with the relief she requests; thus, they cannot be compelled to do so. They do not fall within any of the “exceptions” to § 14 immunity. Minor cannot sue the State indirectly by suing the individual State defendants in their official capacities. Therefore, the individual State defendants are entitled to immunity from Minor’s state-law claim that her statutory pay increase was miscalculated. Accordingly, to the extent that the trial court’s order entered a judgment against the State defendants, we grant the State defendants’ petition and issue the writ directing the trial court to dismiss Minor’s state-law claim against the State defendants.

The Bessemer Board members also ask this Court to determine the correct amount of the statutory pay increase if we conclude that they are not immune from Minor’s action. However, the Bessemer Board members’ petition for a writ of mandamus is not an appropriate means for seeking such a determination. As noted earlier, the trial court has not entered a final judgment regarding that issue (see supra note 5); thus, an appeal of the trial court’s judgment concerning that issue cannot lie. At this time, we decide only the immunity issues and make no determination concerning the proper amount of Minor’s statutory pay increase. A direct appeal from the trial court’s judgment when it becomes final is an adequate remedy for an adverse ruling concerning that issue.

Finally, a general, undefined 42 U.S.C. § 1983 claim was included in the original complaint. In the trial court’s April 23, 2005, order, the trial court stated that the “defendants” are not immune from the nonspecific § 1983 claim; however, the order only compelled the fulfillment of a statutory duty and did not ground any relief on the § 1983 claim; thus, the trial court did not reach the § 1983 claim. Therefore, that claim, apparently still pending, is not before us on the State defendants’ and the Bessemer Board defendants’ petitions for a writ of mandamus concerning the trial court’s April 23, 2005, order. To the extent either set of petitioners request relief from this Court at this time concerning this claim, the petitions are denied.

Conclusion

Based on the foregoing, in case no. 1041932, we deny the petition as to the Bessemer Board members in their official capacities and to the extent the Bessemer Board itself requests relief from Minor’s § 1983 claim. However, the Bessemer Board has established that it is entitled to immunity on Minor’s claim that her statutory pay increase was miscalculated; therefore, we grant the petition as to the Bessemer Board and direct the trial court to dismiss that claim against the Bessemer Board.

In case no. 1050037, the State defendants have established that they are entitled to immunity on Minor’s claim that her statutory pay increase was miscalculated; therefore, we grant the petition as to the State defendants and direct the trial court to dismiss that claim against the State defendants. However, we deny the petition to the extent it requests relief from Minor’s § 1983 claim.

1041932 — PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

1050037 — PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

COBB, C.J., and WOODALL, STUART, BOLIN, MURDOCK, and SHAW, JJ., concur.

      . Dr. Joseph B. Morton succeeded Ed Richardson as superintendent of the Department in 2004; it is unclear whether the named officials of the Bessemer School System still occupy those positions. However, Rule 25(d), Ala. R. Civ. P., and Rule 43(b), Ala. R.App. P., provide that if a public officer is a party to an action or an appeal in an official capacity and the officer ceases to hold office during the pendency of the action or the appeal, the officer’s successor is automatically substituted as a party.

      . Originally, this lawsuit involved other plaintiffs and raised issues concerning transfer, termination, and tenure of teachers in the Bessemer School System. This Court decided those issues in Richardson v. Terry, 893 So.2d 277 (Ala.2004). The claim involving the calculation of the pay increase is the only claim that remains to be resolved.

      . Contra Rule 23(c)(1), Ala. R. Civ. P. ("As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.").

      . Minor’s Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the judgment was filed by "Plaintiff Jean Minor, on behalf of herself and others similarly situated,” i.e., the purported class. The trial court’s last order provided relief for Minor alone, while purporting to hold the issue of class certification for further resolution. Thus, Minor alone, out of the named plaintiffs in the original complaint, is the only plaintiff before this Court.

      . To constitute a final judgment:
      "All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own. A judgment for damages to be final must, therefore, be for a sum certain determinable without resort to extraneous facts. Gandy v. Hagler, [245 Ala. 167, 16 So.2d 305 (1944)]; Drane v. King, 21 Ala. 556 [(1852)] (‘Without resort to any extraneous fact, we can ascertain the precise amount of this recovery. It is therefore certain; for "id cerium est quod certum reddi potest " [that is certain which may be rendered certain].') ]."

        Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala.1976); see also Certain Underwriters at Lloyd's, London v. Southern Natural Gas Co., 939 So.2d 21, 27-28 (Ala.2006) (holding that a judgment is not final when the amount of damages has not been fixed).
      In the present case, the trial court’s April 23, 2005, order does not specifically establish the amount due under the statute, and it explicitly states that "if the parties are unable to agree on the calculation of the exact amount, and the amount of interest, the Court will resolve that dispute on appropriate motion”; thus, it leaves the parties with something to determine on their own and leaves open the possibility of further action by the trial court. Furthermore, the order awarded prejudgment interest but did not set the amount of interest or the specific date from which the interest was awarded. See Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 69 (2d Cir.1973) (holding that a judgment that determined part of the damages (the principal amount) but did not determine the amount of prejudgment interest was not a final judgment) (cited with approval in Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 381-82 (Ala.1987)). Therefore, the trial court’s April 23, 2005, order did not constitute a final judgment.


author: PER CURIAM. MURDOCK, Justice

text:
    Ex parte NORTHWEST ALABAMA MENTAL HEALTH CENTER and Skip Newman. (In re Sheila Yaw, as mother and next friend of Lawrence Neil Broadhead, an incapacitated person v. Northwest Alabama Mental Health Center et al.).
    1090629.
    Supreme Court of Alabama.
    Feb. 25, 2011.

      M. Jansen Voss of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for petitioners.
    Thomas E. James of Morris, Haynes & Hornsby, Birmingham, and Frank G. Alfa-no of Waldrep, Stewart & Kendrick, Birmingham, for respondent.
   PER CURIAM.

Northwest Alabama Mental Health Center, a public corporation (“Northwest”), and its executive director, Skip Newman, petition this Court for a writ of mandamus seeking the vacation of an order of the Lamar Circuit Court that required them to produce the mental-health records of Northwest patient Dimoris Johnson. We grant the petition.

I. Facts and Procedural History

In the fall of 2007, Lawrence Neil Broadhead was admitted to Bryce Hospital, a State-operated mental-health facility, for treatment of depression and drug abuse. Broadhead remained a patient of Bryce Hospital until February 19, 2008, when he was transferred to a mental-health facility operated by Northwest and known as The Hope Residential Facility. Johnson was also a patient at The Hope Residential Facility. Broadhead remained at The Hope Residential Facility from February 19, 2008, through February 29, 2008. During that time, Johnson allegedly beat Broadhead so severely that, since the alleged assault, Broadhead has remained in a semi-comatose condition.

In October 2008, Broadhead, through Sheila Yaw, his mother and next friend, sued Northwest and Newman, among others. Yaw asserted that the defendants had negligently or wantonly breached certain duties allegedly owed Broadhead, including, among other things, the duty to take proper security measures to ensure Broadhead’s safety, the duty to properly supervise Johnson, and the duty to properly train, monitor, and supervise Northwest’s employees. Johnson was not named as a party to the action.

During discovery, Yaw filed a request for the production of Northwest’s records pertaining to Johnson. Northwest and Newman objected to the request, asserting that the requested materials were subject to the psychotherapist-patient privilege. See Ala.Code 1975, § 34-26-2; Rule 503, Ala. R. Evid. In response, Yaw filed a motion to compel Northwest and Newman to produce the records. Northwest and Newman filed a brief in support of their argument that Johnson’s records were privileged; that brief, however, is not included in the materials before us on this petition for the writ of mandamus. In response to the trial court’s request that Yaw provide it with a memorandum explaining why she believed the records at issue were discoverable, Yaw filed a “letter brief’ in which she stated:

“The only issue before this court is whether the records kept by Defendant [Northwest] while Mr. Johnson was in its custody are privileged and therefore non-discoverable. Because the Defendant has objected to the discovery of Mr. Johnson’s mental health records, it must establish that all of the records withheld from discovery are in fact privileged. See Swain v. Terry, 454 So.2d 948, 953 (Ala.1984) (‘The burden of showing the confidential character of a communication rests on the party objecting to the introduction of the evidence.’). In an attempt to meet this burden, Defendant has asserted the psychotherapist-patient privilege found under Rule 503 of the Alabama Rules of Evidence.
“Rule 503(b) of the Alabama Rules of Evidence states the general psychotherapist-patient privilege:
“ ‘A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient’s mental or emotional condition, including alcohol or drug addiction, among the patient, the patient’s psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.’
“As the leading treatise on Alabama evidence explains:
“ ‘This privilege is intended, as its underlying purpose, to: [I]nspire confidence in the patient and encourage him in making a full disclosure to the physician as to his symptoms and condition, by preventing the physician from making public information that would result in humiliation, embarrassment, or disgrace to the patient, and [is] thus designed to promote the efficacy of the physician’s advice or treatment. The exclusion of the evidence rests in the public policy and is for the general interest of the community.’
“C. Gamble, McElroy’s Alabama Evidence § 414.01(1) (5th ed.1996) (quoting Ex Parte Rudder, 507 So.2d 411, 413 (Ala.1987) (emphasis added) (citation omitted). This being true, the question as to when the privilege can be properly invoked must necessarily depend on ‘public policy’ and ‘the general interest of the community'; or rather, the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield when its disclosure is essential to protect the public interest of the community.”

(First emphasis in Yaw’s brief; second emphasis added.) Yaw then proceeded to make a “public policy” argument that “Mr. Johnson’s right to have his mental health records concealed” must yield to “the public interest in safety.” She also argued that the records should be discoverable because, she argued, they were “essential to a just determination of the present case” and because, according to Yaw, an insanity defense had been raised by Johnson in a collateral criminal proceeding and the raising of that defense had effected a waiver of the privilege.

In September 2009, the trial court issued a protective order requiring Northwest to submit the records at issue to the court for an in camera inspection. The protective order provided:

“After conducting an in camera review, the Court shall designate which portions, if any, of said records are material and relevant to the issues of this cause, and are not otherwise available to [Yaw], Only those portions of said records which are designated by the Court shall be made available to the parties.”

Northwest and Newman filed a motion requesting that the trial court reconsider its September 2009 protective order and that the court issue an order protecting the records at issue from disclosure or production. The trial court denied the motion.

At some point after the entry of the September 2009 protective order, Northwest apparently submitted Johnson’s records to the trial court for an in camera review in response to the protective order. In January 2010, after reviewing the records, the trial court entered an order finding that “all records are materially relevant to the issues pending herein” and ordering that Johnson’s records be provided to Yaw for inspection and copying. The trial court further ordered that “the disclosure of these otherwise confidential materials shall be restricted to this litigation as permitted by the [September 2009] Protective Order,”

Northwest and Newman filed the present petition for a writ of mandamus in response to the trial court’s January 2010 order.

II. Standard of Review

This Court has held that it reviews by petition for a writ of mandamus a trial court’s discovery orders only “[i]n certain exceptional cases”; one of those circumstances is “when a privilege is disregarded,” or allegedly so. Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 818 (Ala.2003).

“ ‘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).... 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.1998).

The issues presented in this case concern the parameters of an evidentiary privilege and, in particular, whether the law recognizes contended-for exceptions to that privilege. Such questions are matters of law. See, e.g., Hutchinson v. Farm Family Cas. Ins. Co., 273 Conn. 33, 38, 867 A.2d 1, 4-5 (2005) (“Whether the trial court properly concluded that there is an exception to the attorney-client privilege when an insured has made an allegation of bad faith against an insurer ... and, if so, whether it properly delineated the scope_ and contours of such an exception, are questions of law.”); State v. Gianakos, 644 N.W.2d 409, 415 (Minn.2002) (“The determination whether a particular testimonial privilege or exception exists ... is a question of law which this court reviews de novo.”). Accordingly, we apply a de novo standard of review. Regions Bank v. Reed, 60 So.3d 868, 877 (Ala.2010) (explaining that when a petition presents only questions of law, this Court applies “a de novo standard”); see also Gianakos, supra.

III. Analysis

The psychotherapist-patient privilege, as adopted by the legislature, provides, in pertinent part, that “the confidential relations and communications between licensed psychologists, licensed psychiatrists, or licensed psychological technicians and their clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.” Ala.Code 1975, § 34-26-2. Rule 503, Ala. R. Evid., “Psychotherapist-Patient Privilege,” provides further explication of this privilege, providing, in pertinent part:

“(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient’s mental or emotional condition, including alcohol or drug addiction, among the patient, the patient’s psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.
“(c) Who May Claim the Privilege. The privilege may be claimed by the patient, the patient’s guardian or conservator, or the personal representative of a deceased patient. The person who was the psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.
“(d) Exceptions.
“(1) Proceedings for Hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist has determined, in the course of diagnosis or treatment, that the patient is in need of hospitalization.
“(2) Examination by Order of Court. If the court orders an examination of the mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.
“(3) Accused in Criminal Case. There is no privilege under this rule as to an accused in a criminal case who raises the defense of insanity.
“(4) Breach of Duty Arising Out of Psychotherapist-Patient Relationship. There is no privilege under this rule as to an issue of breach of duty by the psychotherapist to the patient or by the patient to the psychotherapist.
“(5) Child Custody Cases. There is no privilege under this rule for relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.”

As noted, Yaw argued to the trial court that there should be a “public policy” exception to the psychotherapist-patient privilege in cases where such an exception is “essential to protect the public interest of the community,” i.e., the public interest in safety. Northwest and Newman reject this position and argue that “public policy” actually supports the application of the privilege in a case such as this.

“The strength of the public policy on which the statutory psychotherapist-patient privilege is based has been well recognized by this Court. It follows that the privilege is not easily outweighed by competing interests.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 504 (Ala.1993). The Court has explained the public policy that supports the privilege as follows:

“Statutes such as § 34-26-2 are intended to inspire confidence in the patient and encourage him in making a full disclosure to the physician as to his symptoms and condition, by preventing the physician from making public information that would result in humiliation, embarrassment, or disgrace to the patient, and are thus designed to promote the efficacy of the physician’s advice or treatment. The exclusion of the evidence rests in the public policy and is for the general interest of the community. See 81 Am.Jur.2d Witnesses § 231 at 262 (1976); Annot., 44 A.L.R.3d 24 Privilege, in Judicial or Quasi-judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient (1972).
“ ‘[A] psychiatrist must have his patient’s confidence or he cannot help him. “The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition.... It would be too much to expect them to do so if they knew that all they say — and all that the psychiatrist learns from what they say — may be revealed to the whole world from a witness stand.” ’
“Taylor v. United States, 222 F.2d 398, 401 (D.C.Cir.1955), quoting Guttmacher and Weihofen, Psychiatry and The Law (1952), p. 272.”

Ex parte Rudder, 507 So.2d 411, 413 (Ala.1987).

As important as maintaining the psychotherapist-patient privilege is to patients and the public, this Court has recognized that “this psychiatrist-patient privilege may not in all cases be an impenetrable shield.” Rudder, 507 So.2d at 417. Yaw cites one case from another jurisdiction that appears to allow an exception to the privilege for a situation involving “[a] mental patient’s threat of serious harm to an identified victim.” At least one other jurisdiction allows an exception to the privilege in a situation “where the public interest in safety from violent assault is threatened.” No Alabama case has been brought to our attention creating such an exception, however, and we are aware of none.

In Ex parte Pepper, 794 So.2d 340, 343 (Ala.2001), this Court declined an invitation to create “an exception to the privilege applicable when a party seeks information relevant to the issue of the proximate cause of another party’s injuries.” 794 So.2d at 343. The Court explained:

“ ‘There is no implication in the language of § 34-26-2 that the legislature intended an exception to the privilege where the issue of a party’s mental condition is raised in a civil proceeding. Given the first rule of statutory construction, that where the meaning of the plain language of the statute is clear, it must be construed according to the plain language, see, e.g., King v. National Spa & Pool Inst., 607 So.2d 1241, 1246 (Ala.1992), this Court will not create such an exception. Moreover, such an exception would conflict with the public policy underlying the psychotherapist-patient privilege noted above.’
“[Ex parte United Serv. Stations, Inc.,] 628 So.2d [501,] 504 [ (Ala.1993) ]. We do not believe that [the defendant’s] competing interest outweighs the public policy on which the psychotherapist-patient privilege is based, nor do we find any implication that the Legislature intended an exception to the psychotherapist-patient privilege to be applied where a party seeks information relevant to the issue of the proximate cause of another party’s injuries. Thus, we are unwilling to adopt such an exception.”

Pepper, 794 So.2d at 343-44.

Northwest and Newman argue that the Alabama Rules of Evidence state five exceptions to the psychotherapist-patient privilege, see Rule 503(d), and that the situation presented here falls into none of those five exceptions. In the face of those five exceptions, we decline to use our adjudicatory authority over an individual case such as this to create an additional exception in the interest of “public policy.” “‘“The term ‘public policy’ is inherently not subject to precise definition- ‘Public policy is a vague expression, and few cases can arise in which its application may not be disputed....”” ... Such creations are best left to the legislature.” Hinrichs v. Tranquilaire Hosp., 352 So.2d 1130, 1131 (Ala.1977) (quoting Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 188, 344 P.2d 25, 27 (1959)). We agree that such creations are best left to the legislature, or perhaps to the normal rule-making authority of this Court. See 25 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5542 (1989) (“If there is not an applicable exception to a statutory patient’s privilege, courts have no power to create exceptions by judicial decision.”).

Yaw also argued in the trial court that Johnson’s medical records should be discoverable because, she argued, they are “the only source of relevant evidence” for her legal action and their release is “essential to a just determination of the present case.” In their petition, Northwest and Newman argue that the privilege, as articulated by the legislature and by Rule 503, Ala. R. Evid., does not contemplate such an exception.

The legislature has established parameters for the psychotherapist-patient privilege, namely, that “the confidential relations and communications between licensed psychologists, licensed psychiatrists, or licensed psychological technicians and their clients are placed upon the same basis as those provided by law between attorney and client.” Ala.Code 1975, § 34-26-2. We have been directed to no Alabama statute, rule, or precedent that recognizes, or impels us to recognize in this case, an exception to the privilege that would narrow those parameters by making the privilege inapplicable when a plaintiff establishes that privileged information is “necessary” to proving a cause of action. Such an exception might be compared to the exception recognized in Rule 26(b)(3), Ala. R. Civ. P., for the discovery by one party of another party’s work-product. Obviously, however, there are differences in the policies that underlie the psychotherapist-patient privilege and the work-product privilege, and overriding the former, we think, arguably has more serious ramifications than overriding the latter. Moreover, we note with approval the special writing of Justice Lyons, joined by Justices Houston, See, and Brown, in Ex parte Etherton, 773 So.2d 431, 436 (Ala.2000) (plurality opinion):

“While work-product materials are subject to a qualified privilege, so that discovery is permitted upon a showing of substantial need and undue hardship, the attorney-client privilege is almost absolute, subject to certain narrow exceptions that have nothing to do with undue hardship and substantial need. Ex parte Great American Surplus Lines Ins. Co., 540 So.2d 1357 (Ala.1989). I am therefore unwilling to adopt a qualification of the psychotherapist-patient privilege, because § 34-26-2, Ala.Code 1975, requires that that privilege be placed on the same basis as the attorney-client privilege.”

(Lyons, J., concurring in the result); see also Wright & Graham, § 5542 (“If there is not an applicable exception to a statutory patient’s privilege, courts have no power to create exceptions by judicial decision.”).

Having concluded that none of the recognized exceptions to the privilege apply here and that this Court should not in this proceeding create a new exception to the privilege, the only remaining question is whether Johnson waived the privilege. Yaw notes that one of the recognized exceptions to the psychotherapist-patient privilege is that the privilege is waived by implication when a criminal defendant raises the defense of insanity. See Rule 503(d)(3), Ala. R. Evid. (“There is no privilege under this rule as to an accused in a criminal case who raises the defense of insanity.” (emphasis added)). Yaw contends that Johnson waived the psychotherapist-patient privilege by raising the issue of his sanity in the criminal case pending against Johnson for his alleged assault of Broadhead. Assuming without deciding that a defendant’s raising the defense of insanity in a criminal proceeding effects a waiver of the psychotherapist-patient privilege in a related, but collateral, civil proceeding, Yaw’s argument must be rejected because it does not appear that Johnson did in fact assert an insanity defense in ally criminal proceedings arising out of the alleged assault of Broadhead.

Yaw relates in her brief to this Court that the trial court stated at a hearing in this case that, in the related criminal case against Johnson, it had ruled that Johnson was incompetent to stand trial and had ordered that he be committed to Taylor Hardin Secure Mental Facility for evaluation. We note, however, that “[t]he [defendant’s] sanity at the time of the offense and his competency to stand trial are two distinct issues.” Frazier v. State, 758 So.2d 577, 584 (Ala.Crim.App.1999). We are presented here with no argument that an inquiry into the competency of a defendant to stand trial in a criminal proceeding has any bearing on the availability of the psychotherapist-patient privilege in a collateral civil proceeding. See generally Rule 11.2(b)(1), Ala. R.Crim. P. (results of mental examinations as to competency to stand trial are inadmissible in a trial for the offense charged).

As noted above, although Rule 503(c) authorizes the patient and certain other persons to invoke the psychotherapist-patient privilege, “only the client may waive the privilege.” Watson v. State, 504 So.2d 339, 344 (Ala.Crim.App.1986). Moreover, the patient must “objectively manifest a clear intent not to rely upon the privilege” in order to waive it. Ex parte United Serv. Stations, Inc., 628 So.2d at 505. The materials before us do not support the conclusion that Johnson waived the privilege. Therefore, the trial court’s order requiring Northwest and Newman to produce Johnson’s medical records cannot be justified on this basis.

IV. Conclusion

Based on the arguments and materials that were presented to the trial court and that are properly before us, we conclude that the trial court’s order requiring the production of Johnson’s medical records was entered in error. We therefore grant Northwest and Newman’s petition and order the trial court to vacate that order.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and WOODALL, BOLIN, and MAIN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I write separately to comment on the presumption that, when a psychotherapist invokes the privilege, he or she has the “authority” to do so: “The person who was the psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.” Ala. R. Evid. 503(c). In an argument made by Sheila Yaw in her brief to this Court, but not made to the trial court, see 68 So.3d at 801 n. 11, Yaw argues that Northwest Alabama Mental Health Center and Skip Newman’s invocation of the privilege in this case was not done on behalf of Dimoris Johnson, the patient. This argument is premised on the notion that the last clause of Rule 503(c), “but only on behalf of the patient,” contemplates a different issue than whether the psychotherapist has “authority” to invoke the privilege. In particular, Yaw argues that in order for Northwest and Newman to invoke the privilege “on behalf of Johnson” the disclosure prevented by the invocation of the privilege must be “prejudicial” in some way (exactly how is not explained), other than prejudicing the confidence of members of the community in their ability to make confidential disclosures to their physicians and the efficacy of the physicians’ advice or treatment, and the general interest of the community as a whole in the efficacy of that treatment. As stated in the opinion, however, whether the “on behalf of the patient” requirement (which presumably could be refuted by the production of a waiver from the patient) does in fact contemplate something more than the general presumption of authority (see generally 25 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5541 (1989) (questioning whether the “on behalf of the patient” requirement fails only where the patient has waived the privilege or is deceased); see also id. at § 5553 (“[I]t is generally held that the court can assert the privilege on behalf of an absent patient, either on its own motion or that of a party.”)) is not an issue properly before us.

      . The complaint also asserted claims against the State Department of Mental Health and Mental Retardation, which operated Bryce Hospital; John Houston, who was the commissioner of the Department; and Charles Cutts, who was the director of Bryce Hospital when the incident involving Johnson occurred.

      . Yaw also had subpoenaed similar records pertaining to Johnson from the State Department of Mental Health and Mental Retardation.

      . In her letter brief, Yaw did not contend that Northwest and Newman lacked authority to assert the psychotherapist-patient privilege on behalf of Johnson or that the assertion of the privilege by Northwest and Newman was not being made on behalf of Johnson. See infra note 11.

      . The order also required the submission of records pertaining to Johnson that were maintained by the State Department of Mental Health and Mental Retardation. See supra note 2.
      Further, the order provided that the parties must "maintain the confidentiality of” the records, and it limited disclosure of the records to the court, the parties’ respective counsel, persons with prior legal access to the records, "court officials involved in the litigation,” and "persons designated as trial witnesses ... to the extent reasonably necessary in preparing to testify or actually giving testimony, provided such persons are directed to keep confidential the matters protected by this order.” The order also stated that any of the records that were "admitted into evidence or otherwise made a part of the record in this case shall be placed under seal and shall not be made a part of the public records of this case.”

      .The State Department of Mental Health and Mental Retardation joined in the motion to reconsider.

      . In Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 67, 499 A.2d 422, 426 (1985), the Vermont Supreme Court concluded:
      "A mental patient’s threat of serious harm to an identified victim is an appropriate circumstance under which the physician-patient privilege may be waived. This exception to the physician-patient privilege is similar to that recognized in the attorney-client relationship when a client informs an attorney of his or her intent to commit a crime.”

      . In Schuster v. Altenberg, 144 Wis.2d 223, 249, 424 N.W.2d 159, 170 (1988), the Wisconsin Supreme Court concluded that "[t]he concern regarding the preservation of patient trust in the confidentiality of communications is legitimate, yet one which must yield in those limited circumstances where the public interest in safety from violent assault is threatened.”

      . In Ex parte Western Mental Health Center, 884 So.2d 835, 843 (Ala.2003) (plurality opinion), two members of the Court concluded that the psychotherapist-patient privilege could potentially run afoul of federal and state constitutional due-process protections, but the respondents in that case had failed to submit any evidence that would support the conclusion that the denial of access to the privileged materials prevented them from defending themselves. Federal and state constitutional due-process arguments have not been presented in the case now before us.

      . We recognize that, in the context of criminal prosecutions, "[a] witness’s claim of a statutory privilege may, under certain circumstances, violate a defendant’s Sixth Amendment rights of confrontation and cross-examination.” Schaefer v. State, 676 So.2d 947, 948 (Ala.Crim.App.1995). Similar concerns are not presented here.

      . Yaw also attaches to her brief in this Court a copy of an order from the Montgomery Circuit Court in a case in which Johnson has been charged with possession of marijuana. The order requires Johnson to undergo an inpatient evaluation of his mental health; it states, in pertinent part, that
      ”[t]he Court received information that [Johnson] may lack sufficient present ability to assist in [his] defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings; and the Court finding that reasonable grounds exist to question [Johnson's] competency; and the court having been informed by officials at Taylor Hardin Secure [Mental Facility] that [Johnson] has been committed to the custody of the Alabama Department of Mental Health by Judge James W. Moore, Lamar County, Alabama, for evaluation and/or treatment....”
      (Emphasis added.) Although the order also directs the examiner to address Johnson’s mental condition at the time of the alleged offense, i.e., the marijuana possession, there is no indication in the order (1) that the offense at issue had any relation to Johnson’s alleged assault of Broadhead or (2) that Johnson asserted an insanity defense in relation to any such assault charge.

      . In her brief to this Court, Yaw also argues that this Court should deny Northwest and Newman’s petition and effectively uphold the trial court’s order because, she says, (1) Northwest and Newman failed to establish that "every item contained in the medical records [was] the result of confidential communications between Johnson and a psychotherapist,” and (2) Northwest and Newman did not assert the privilege "on behalf of” Johnson. See Ala. R. Evid. 503(c) (describing those persons who may assert the privilege). It does not appear, however, that Yaw argued to the trial court either of these particular grounds. Had Northwest and Newman been made aware of these contentions, they might have presented evidence and legal arguments to address them. Instead, it appears that the matter was treated as if the records contained confidential communications and that the privilege had been properly invoked but for the public-policy exceptions to the privilege urged by Yaw. We therefore decline to consider these issues in this proceeding.