author: THOMPSON, Presiding Judge.

text:
    CITY OF MOBILE v. Fred Wayne LAWLEY, Jr.
    2160003
    Court of Civil Appeals of Alabama.
    March 17, 2017 Rehearing Denied June 9, 2017 Certiorari Denied August 11, 2017
    Alabama Supreme Court 1160841
    E. Erich Bergdolt, asst. city atty., Mobile, for appellant.
    Henry Brewster, Mobile, for appellee.
   THOMPSON, Presiding Judge.

The City of Mobile ("the city") appeals from a judgment of the Mobile Circuit Court ("the circuit court") affirming an order of the Mobile County Personnel Board ("the board"). The board's order reversed a decision by the city terminating the employment of Fred Wayne Lawley, Jr., a Mobile police officer. Lawley's employment was terminated in February 2015, after he was charged with stealing $2,050 worth of property while responding to a reported burglary.

The record indicates the following. At a hearing before the board on March 15, 2016, the attorney for Lawley moved to dismiss the matter on the ground that, at the predisciplinary hearing held before a disciplinary trial board ("the trial board") of the Mobile Police Department on February 18, 2015, Lawley "was not permitted to sit in on the predisciplinary hearing other than when his testimony was given." Lawley argued to the board that the trial board's refusal to allow him to be present for the questioning of other witnesses deprived him of due process and violated the board's procedural rules that, he said, required that an employee be given the opportunity to observe all witnesses called to testify in a predisciplinary hearing such as that held by the trial board. In presenting his argument to the board, Lawley relied at least in part on a July 2015 order of the board in which the board concluded that a Mobile public-works employee had been denied his due-process rights by the Public Works Department because, the board said, the predisciplinary hearing was held without allowing the employee to be present in the hearing room during the testimony of other witnesses. The city argued that the law is well settled that the board could not dismiss the matter on due-process grounds because, it said, constitutional questions are beyond the scope of the board's authority or jurisdiction to decide. After hearing the arguments of the parties, but without taking any testimony, the board dismissed the matter in an order dated March 29, 2016.

The city filed a timely appeal to the circuit court. Upon consideration of the parties' briefs, the circuit court recognized that the board and, on appeal, the circuit court, did not have the authority to decide constitutional questions because such decisions are beyond the board's administrative capacity. See Wright v. City of Mobile, 170 So.3d 656 (Ala. Civ. App. 2014). Nonetheless, the circuit court stated, the board had the right to interpret its own rules and regulations. The board interpreted Personnel Board Rule 14.3(a) regarding the dismissal, suspension, or demotion of city employees to require that an employee must be given the opportunity to observe all witnesses called to testify in a predisciplinary hearing. The circuit court concluded that, in giving deference to the board's interpretation of Rule 14.3, it found that the interpretation was not unlawful or unreasonable, and it therefore dismissed the city's appeal to that court. The city filed a timely appeal to this court.

The city first contends that the board did not have jurisdiction to consider a question of constitutional law, that is, whether Lawley's right to due process was violated. See Wright v. City of Mobile, 170 So.3d at 661 (holding that the board's authorizing statute did "not authorize the [b]oard to decide questions of constitutional law, which is beyond its administrative capacity").

In his appellate brief, Lawley concedes that the city's argument is legally correct. However, he contends that the reason the board dismissed his appeal was not based on a constitutional violation; instead, he says, the board's decision to dismiss the appeal was based on its interpretation of its own rules. In its judgment affirming the dismissal, the circuit court also agreed that the board did not have jurisdiction to address questions of constitutional law. However, it said, "the issue before this court is whether [the board] has the right to interpret its own rules."

The board's order does not expressly state a reason for its decision. The board made no factual findings. Without stating a reason, the board determined "that the termination is void and of no force and affect," and it ordered that Lawley be reinstated with back pay. Because the parties-and the circuit court-agree that the board did not have jurisdiction to consider constitutional issues, including whether the trial board violated Lawley's right to due process, and because the basis for the board's decision is not clear, we turn to the city's second issue, i.e., whether the board correctly determined that the appeal was void based on its own rules.

"The standard of appellate review to be applied by the circuit courts and by this court in reviewing the decisions of administrative agencies is the same. See Alabama Dep't of Youth Servs. v. State Pers. Bd., 7 So.3d 380, 384 (Ala. Civ. App. 2008). That prevailing standard is deferential toward the decision of the agency:
" 'Judicial review of an agency's administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency's actions were reasonable, and whether its actions were within its statutory and constitutional powers.... Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.'
" Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala. Civ. App. 1989)."

Alabama State Pers. Bd. v. Dueitt, 50 So.3d 480, 482 (Ala. Civ. App. 2010).

At issue is Mobile County Personnel Board Rule 14.3(a), a copy of which is included in the record. Rule 14.3 sets forth the procedure to be followed before a permanent employee can be dismissed, suspended, or demoted. The rule provides:

"Before any permanent employee is dismissed, suspended or demoted for cause, the Appointing Authority or his designated representative shall afford the employee due process in the form of a pre-disciplinary hearing. Written notice of the reasons for termination, suspension or demotion must be given the employee at least twenty-four (24) hours prior to the pre-disciplinary hearing, at which time the employee must be given the opportunity to respond orally and/or in writing to the charges made before the official, or the designated representative of the official, charged with the responsibility of making the disciplinary decision. The pre-disciplinary hearing must be held within seven (7) days after written notice to the employee. The determination as a result of the pre-disciplinary hearing must be communicated to the employee in writing within fourteen (14) days of the hearing. Circumstances that prevent adherence to these timeframes must have approval of the Director. The dismissal, suspension, or demotion of an employee by an Appointing Authority without having first accorded the employee a pre-disciplinary hearing in accordance with this Rule shall be void and of no force and effect, and shall not be recognized by the Board, except in extraordinary situations as hereinafter specified."

In affirming the board's decision to dismiss Lawley's appeal, the circuit court stated that it must give deference to an agency's interpretation of its own rules.

"Although a court should give deference to an agency's interpretation of an agency rule or a statute implemented by the agency, that deference has limits. When it appears that the agency's interpretation is unreasonable or unsupported by the law, deference is no longer due. Ex parte State Dep't of Revenue, 683 So.2d 980, 983 (Ala. 1996) ('[A] court accepts an administrative interpretation of the statute by the agency charged with its administration, if the interpretation is reasonable.' (emphasis added)). As our supreme court has explained:
" 'The correct rule is that an administrative interpretation of the governmental department for a number of years is entitled to favorable consideration by the courts; but this rule of construction is to be laid aside where it seems reasonably certain that the administrator's interpretation has been erroneous and that a different construction is required by the language of the statute.'
" Boswell v. Abex Corp., 294 Ala. 334, 336, 317 So.2d 317, 318 (1975)."

Alabama Dep't of Revenue v. American Equity Inv. Life Ins. Co., 169 So.3d 1069, 1074 (Ala. Civ. App. 2015).

"[T]he construction of administrative rules is governed by the same basic rules as those applicable to the construction of statutes; that is, we are bound to look to the plain meaning of the language used in the rule when construing it. See Alabama Medicaid Agency v. Beverly Enters., 521 So.2d 1329, 1332 (Ala. Civ. App. 1987) ('The language used in an administrative regulation should be given its natural, plain, ordinary, and commonly understood meaning, just as language in a statute.')."

Brookwood Health Servs., Inc. v. State Health Planning & Dev. Agency, 202 So.3d 345, 351 (Ala. Civ. App. 2016).

Furthermore, in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the United States Supreme Court recognized a difference in the procedural safeguards required at a "pretermination" hearing as opposed to a "posttermination" hearing. In that case,

"[t]he Supreme Court held that tenured government employees almost always must be afforded at least a limited pretermination hearing before they can be constitutionally terminated. 470 U.S. at 542-43, 105 S.Ct. 1487.... The Supreme Court, however, held that the pretermination hearing need not be elaborate and need not be a full evidentiary hearing. Id. at 545, 105 S.Ct. 1487.... The Supreme Court reasoned that the purpose of a pretermination hearing is not to 'definitively resolve the propriety of the discharge,' but, rather, to 'be an initial check against mistaken decisions-essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.' Id. at 545-46, 105 S.Ct. 1487.... The Supreme Court also noted that under state law the terminated government employee was later entitled to a full and adequate administrative posttermination hearing and judicial review. Id. at 545, 105 S.Ct. 1487.... Therefore, the Supreme Court concluded that under federal procedural-due-process law all that is required in a pretermination hearing is 'oral or written notice of the charges against [the employee], an explanation of the employer's evidence, and an opportunity [for the employee] to present his side of the story.' Id. at 546, 105 S.Ct. 1487.... The Supreme Court then stated that '[t]o require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.' Id."

City of Orange Beach v. Duggan, 788 So.2d 146, 152 (Ala. 2000).

In City of Orange Beach, our supreme court relied on Loudermill to hold that a "pretermination hearing functions merely as an 'initial check against mistaken decisions' and a posttermination hearing provides an extensive adjudicatory hearing adequately addressing all of the employee's concerns, [therefore] having a pretermination hearing officer who is familiar with the case and who was involved in the investigation" does not deny the employee his or her procedural due-process rights. Id. at 153. The same rationale holds true in this case. Because Lawley is entitled to a de novo hearing before the board to review the trial board's decision to terminate his employment, Lawley's procedural due-process concerns would be adequately addressed by a hearing before the board. The trial board's proceeding, however, functioned "merely as an 'initial check against mistaken decisions.' " Id.

After carefully reviewing the rule at issue in this case, we conclude that there is no language in Rule 14.3 requiring the "Appointing Authority," in this case the Mobile Police Department, to allow the employee to be present at a predisciplinary hearing while other witnesses are being questioned. The board goes beyond merely interpreting the rule and, instead, adds a requirement to the rule that is not suggested in the existing language of the rule. To the extent Lawley asserts that the use of the phrase "due process" in the rule entitled him to be present during the testimony of other witnesses at the predisciplinary hearing, for the reasons set forth in Loudermill and City of Orange Beach, supra, we again disagree. The "due process" to which Lawley or any employee is entitled is set forth in Rule 14.3. Specifically, the rule provides that Lawley was entitled to notice of the reasons for possible action against him at least 24 hours before the predisciplinary hearing, and he was entitled to present a written or oral response to those reasons. The rule does not provide that Lawley was entitled to be present during the questioning of witnesses at the predisciplinary hearing.

For the reasons set forth above, we hold that the circuit court erred in affirming the board's order dismissing Lawley's appeal. Accordingly, the judgment is reversed and the cause is remanded to the circuit court for it to enter an order reversing the board's order and reinstating Lawley's appeal.

REVERSED AND REMANDED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      The board delayed hearing Lawley's appeal until after the resolution of the criminal charges against Lawley. The record does not indicate what resolution was reached in the criminal matter.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Felicia D. HUTCHINS v. ALABAMA STATE DEPARTMENT OF EDUCATION
    2160287
    Court of Civil Appeals of Alabama.
    June 30, 2017 Rehearing Denied August 25, 2017
    Felicia D. Hutchins, pro se.
    James R. Ward III, Montgomery, for appellee.
   THOMAS, Judge.

Felicia D. Hutchins was employed by Bullock County High School as a science teacher. In February 2015, a student in Hutchins's class recorded a video on her cellular telephone of the behavior occurring during class. The video showed a male student behaving inappropriately with both a female student and another male student and that same male student grabbing another male student by the neck and laughing loudly. The video was furnished to Derrick Harris, the principal of the high school, and to Keith Stewart, who was, at that time, the superintendent of the Bullock County School Board. Hutchins was placed on administrative leave, and, ultimately, she was terminated from her employment as a teacher.

In addition, the video was provided to the State Department of Education ("the department"), which, after an investigation, recommended that Hutchins's teaching certificate be suspended or revoked. After an administrative hearing requested by Hutchins, an administrative-law judge ("the ALJ") recommended revocation of Hutchins's teaching certificate. Dr. Phillip Cleveland, the superintendent of the department ("the superintendent"), accepted the ALJ's recommendation and revoked Hutchins's certificate by an amended order dated August 8, 2016. Hutchins sought a rehearing before the ALJ and then filed in the Montgomery Circuit Court ("the circuit court") on August 17, 2016, a notice of appeal and petition for judicial review, seeking review under Ala. Code 1975, § 41-22-20, a part of the Alabama Administrative Procedure Act ("the AAPA"), Ala. Code 1975, § 41-22-1 et seq. She named the department as a respondent but did not name or serve the superintendent.

The department moved to dismiss Hutchins's petition for judicial review in the circuit court, arguing that Hutchins had not named the superintendent, who, the department argued, was the "agency" that had rendered the decision under review and therefore the proper respondent. See Ala. Code 1975, § 41-22-20(h) (requiring that the petition for judicial review name as a respondent the agency that rendered the decision under review). The circuit court denied the department's motion but affirmed the decision of the superintendent to revoke Hutchins's teaching certificate. Hutchins filed a petition for the writ of mandamus, seeking this court's review of the circuit court's judgment. Because a petition for the writ of mandamus is not the proper method of reviewing a final judgment, we have treated Hutchins's petition as an appeal. See Price v. Clayton, 18 So.3d 370 (Ala. Civ. App. 2008) (explaining that this court has discretion to treat a petition for the writ of mandamus as an appeal when appeal is the appropriate vehicle for review).

The department again argues on appeal that Hutchins's appeal to the circuit court should have been dismissed because Hutchins did not name the superintendent, who, the department contends, is the proper respondent under § 40-22-20(h). The department relies on Ex parte Sutley, 86 So.3d 997 (Ala. 2011), as authority for its argument that Hutchins's appeal to the circuit court should have been dismissed. We agree that the reasoning in Ex parte Sutley applies here.

In Ex parte Sutley, our supreme court explained that a party seeking review of an agency decision under Ala. Code 1975, § 41-22-20, must name as a respondent in the circuit court the agency that rendered the final decision under review. 86 So.3d at 1000. Sutley had been employed by the Department of Public Safety ("DPS") as a state trooper. Id. at 998. DPS terminated his employment, and Sutley appealed to the Alabama State Personnel Board ("the personnel board"), which, after hearings before an ALJ and the personnel board, upheld DPS's order terminating Sutley's employment. Id. Sutley sought further review of the personnel board's decision under the AAPA. Id.

On August 19, 2010, Sutley filed a notice of appeal with DPS, naming only DPS as the appellee. Id. He then filed, on September 16, 2010, a petition for judicial review in the circuit court, in which he named only DPS as the respondent. Id. DPS moved to dismiss Sutley's appeal, but, in November 2010, Sutley moved to add the personnel board as a respondent to his petition for judicial review, which the circuit court permitted. Id. The personnel board sought review in this court, by petition for the writ of mandamus, of the circuit court's order naming it as a respondent, and this court granted the petition and issued the writ. Ex parte AlabamaState Pers. Bd., 86 So.3d 993 (Ala. Civ. App. 2011). Sutley sought review of this court's issuance of the writ by filing a petition for the writ of mandamus in our supreme court. Ex parte Sutley, 86 So.3d at 1000.

Sutley argued before our supreme court that DPS, the agency with which he had been employed and that had initially terminated his employment, was the proper party to name as respondent under § 41-22-20(h). Id. Our supreme court disagreed, explaining that the "agency" referred to in § 41-22-20 refers to the agency that rendered the final decision from which the appeal is taken, which, in Sutley's case, was the personnel board. Id. Sutley's late attempt to add the personnel board as a respondent as required by § 41-22-20(h) was to no avail, our supreme court explained, because Sutley had failed to name the personnel board as a respondent within the 30-day period required by the AAPA. Id. Our supreme court determined that Sutley had not complied with the statutory requirements for perfecting an appeal, noting that " '[a]ppeals from decisions of administrative agencies are statutory, and the time periods provided for the filing of notice[s] of appeal[ ] and petitions must be strictly observed.' " Id. (quoting Eitzen v. Medical Licensure Comm'n of Alabama, 709 So.2d 1239, 1240 (Ala. Civ. App. 1998) ). Thus, our supreme court concluded, Sutley's failure to properly appeal resulted in "a waiver of his right to a review" of the agency's decision. Id.

Like Sutley, Hutchins failed to name as a respondent in the circuit court the "agency" that made the final decision from which she appealed-the superintendent. Instead, she named only the department as the respondent. Hutchins does not dispute that the superintendent, and not the department, rendered the decision to revoke Hutchins's teaching certificate. See Ala. Code 1975, § 16-23-5(a) ;

Ala. Admin. Code (Bd. of Educ.), Rule 290-3-2-.04. Although Hutchins admits that § 41-22-3(1) defines "agency" as "[e]very board, bureau, commission, department, officer, or other administrative office or unit of the state" (emphasis added) and that, therefore, the superintendent is an "agency" under the statute, she complains that she failed to name the superintendent as a respondent because she detrimentally relied on the fact that the superintendent was never listed as a party in the administrative proceedings.

Of course, the superintendent is not a proper party to the administrative proceedings. Rule 290-3-2-.04(3)(e) indicates that, after information indicating that a teacher is unsuitable or unfit to teach is received by the department, the department is to conduct an investigation and recommend a proposed action on a teacher's certificate to the superintendent. That is, the department is the body charged with choosing whether to seek the suspension or revocation of a teacher's certificate. The department must then send the teacher a notice of the proposed action on his or her certificate. Rule 290-3-2-.04(4)(a). If the teacher requests a hearing, as Hutchins did, see Rule 290-3-2-.04(4)(c), a hearing officer or an ALJ conducts a hearing and prepares a written recommendation for submission to the superintendent. Rule 290-3-2-.04(4)(i)1. The superintendent is the final decision maker, who may choose to accept the recommended action or impose a different sanction than that recommended by the hearing officer or the ALJ. Rule 290-3-2-.04(4)(i)2.

Hutchins was entitled to appeal the superintendent's revocation of her teaching certificate under § 41-22-20. However, in order to properly perfect her appeal, Hutchins must follow the procedure mandated by the AAPA. Ex parte Sutley, 86 So.3d at 1000. Hutchins failed to name the superintendent as a respondent within the period allowed by the AAPA, and she therefore waived her right to review of the decision to revoke her teaching certificate. Id.

We find this case to be similar in posture to Ingram v. Alabama Peace Officers' Standards & Training Commission, 148 So.3d 1089, 1090 (Ala. Civ. App. 2014), in which we dismissed the appeal from a circuit-court judgment affirming an agency action revoking the law-enforcement certification of Frankie Eddie Ingram, Jr. The circuit court in Ingram had allowed Ingram's petition for judicial review to proceed despite the fact that he had not timely named the Alabama Peace Officers' Standards and Training Commission ("the commission") as a respondent. 148 So.3d at 1090. On appeal, this court concluded that the circuit court's judgment was void because the failure to timely name the commission as a respondent had deprived the circuit court of subject-matter jurisdiction over Ingram's petition for judicial review. Id. at 1093.

In accordance with Ex parte Sutley and our holding in Ingram, we conclude that the circuit court in the present case "failed to acquire subject-matter jurisdiction to hear [Hutchins's] petition for judicial review" because Hutchins did not properly name the superintendent as a respondent. Id. We further conclude that the circuit court's judgment affirming the superintendent's order revoking Hutchins's teaching certificate is therefore void. Id. (explaining that a judgment entered by a court without subject-matter jurisdiction is void). As we did in Ingram, "we dismiss this appeal, albeit with instructions to the [circuit] court to vacate its void judgment and to dismiss [Hutchins's] petition for judicial review based on its lack of subject-matter jurisdiction." Id. at 1094.

APPEAL DISMISSED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.


text:
    EX PARTE Cherry Grace SIMS and Sharon K. Doviet, as guardian ad litem for D.S. and L.S., minor children
    (In re: Cherry Grace Sims v. Douglas Lawrence Sims)
    2160753
    Court of Civil Appeals of Alabama.
    August 25, 2017
    Dinah P. Rhodes; Huntsville; Joan-Marie Sullivan; and Emily G. Peake, Huntsville, and Sharon K. Doviet, guardian ad litem, Huntsville, for petitioner.
    William B. Burgess, Jr., of Maynard, Cooper & Gale, P.C., Huntsville, for respondent.
   THOMPSON, Presiding Judge.

Cherry Grace Sims ("the mother") and Sharon K. Doviet filed a petition for a writ of mandamus regarding a May 19, 2017, order of the Madison Circuit Court ("the trial court").

The materials submitted in support of the petition for a writ of mandamus indicate the following facts and procedural history. The mother was divorced in 2012 from Douglas Lawrence Sims ("the father"). Two children were born of the parties' marriage, and, as a result of the 2012 divorce judgment, the mother and the father shared joint legal and joint physical custody of the children. At the time of the entry of the order that is the subject of this mandamus petition, the two children, who are twins, were 10 years old.

On August 29, 2016, the mother filed a petition to modify custody of the parties' children in which she sought an award of sole physical custody of the children. In September 2016, the father answered and counterclaimed, also seeking an award of sole physical custody of the parties' children.

On January 12, 2017, the mother filed a motion for the appointment of a guardian ad litem to represent the children. In that motion, the mother alleged that the children were being treated by a psychologist. She argued that the children's records of treatment with the psychologist are privileged and that the children lack the authority to waive that privilege because they are minors. The mother sought the appointment of a guardian ad litem for the purpose of determining whether the children could or should waive that privilege. On that same day, January 12, 2017, the trial court entered an order in which it granted the mother's motion and appointed Doviet to serve as the children's guardian ad litem. The trial court also ordered the parties to share in the cost of paying Doviet's fees in serving as the guardian ad litem.

On May 18, 2017, the mother filed a motion to continue the hearing on the merits, which was scheduled for four days later, on May 22, 2017. In that motion to continue, the mother alleged that, two days earlier, she had spoken with Doviet and had learned that Doviet "had not made any attempt" to obtain or review the psychologist's records pertaining to the children and that, therefore, Doviet was "unable to make any informed decision whether to waive the psychologist-patient privilege" for the children so that the mother could present evidence to the trial court regarding "the treatment of the children, the children's diagnoses, and the parents' interaction with the psychologist."

The mother argued that the May 22, 2017, hearing on the merits should be postponed so that Doviet could have time to make a determination regarding whether to waive the privilege; the mother maintained that she was "unable to properly prepare for trial" unless Doviet, as the children's guardian ad litem, made the determination that the privilege should be waived.

On May 19, 2017, the trial court entered an order denying the mother's motion to continue the May 22, 2017, hearing. In that order, the trial court stated, among other things, that it would "not allow a guardian ad litem to waive a minor's privilege" and that it could not find authority that would permit a guardian ad litem to be allowed access to a child's confidential records.

The mother then filed, on May 19, 2017, a motion to stay the scheduled hearing "pending the [mother's] filing a petition for a writ of mandamus" in this court from the trial court's May 19, 2017, order. On that same day, the trial court granted the mother's motion to stay.

On June 30, 2017, the mother and Doviet (hereinafter referred to as "the petitioners") timely filed in this court a joint petition for a writ of mandamus.

"We first note that mandamus is an extraordinary remedy. It 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 Alfab, Inc., 586 So.2d 889 (Ala. 1991).
"It is well settled that '[i]n cases involving the exercise of discretion by a lower court, a writ of mandamus may issue to compel the exercise of that discretion; however, it may not issue to control the exercise of discretion except in a case of abuse.' Ex parte Ben-Acadia, Ltd., 566 So.2d 486, 488 (Ala. 1990) (emphasis added)."

Ex parte Allen, 655 So.2d 962, 963 (Ala. 1995).

The issues the mother and Doviet identify in their petition for a writ of mandamus relate to the children's psychotherapist-patient privilege. See § 34-26-2, Ala. Code 1975 (providing that communications between a client and certain mental-health professionals are confidential and privileged). A child, the child's parent, or the child's psychotherapist may assert the psychotherapist-patient privilege, but only the child may waive the privilege. Ex parte T.O., 898 So.2d 706, 711 (Ala. 2004). In their brief submitted to this court, the petitioners question whether a guardian ad litem can access the psychological records of a child he or she is appointed to represent and whether a guardian ad litem may waive, on behalf of his or her client (i.e., the child), the child's psychotherapist-patient privilege. The petitioners seek from this court a writ of mandamus directing the trial court to enter an order allowing Doviet to access the children's confidential psychological/counseling records to determine whether the privilege should be waived and allowing Doviet to waive the privilege on behalf of the children if she concludes that it is in the children's best interests to do so.

The petitioners fail to demonstrate, however, that they sought in the trial court the relief requested in this court. There is nothing in the materials submitted to this court indicating that either or both of the children, their psychologist, or either parent had asserted the psychotherapist-patient privilege. Ex parte Kimbrell, 180 So.3d 30, 36 (Ala. Civ. App. 2015) (the petitioner must include in support of a petition for a writ of mandamus evidence necessary for review of the issue).

In addition, the materials the petitioners presented to this court do not demonstrate that Doviet was, or would have been had she asked, denied the opportunity to review the children's psychological/counseling records, and there is no indication that the privilege was asserted or that Doviet attempted to waive it on behalf of the children. Rather, in denying the mother's motion for a continuance, the trial court merely indicated that it would not allow a guardian ad litem to waive the psychotherapist-patient privilege on behalf of a minor child and that it was not certain there was a basis to allow a guardian ad litem access to confidential medical records. That ruling indicates the trial court's opinion on an issue that might be presented to it in the future. Thus, the petitioners have not demonstrated that there was any controversy before the trial court pertaining to the privilege that might be asserted with regard to the children's psychological/counseling records. Our supreme court has stated that "[m]atters that may or may not occur in the future are not matters in controversy." Case v. Alabama State Bar, 939 So.2d 881, 884-85 (Ala. 2006).

The comments the trial court made in its May 19, 2017, order denying the mother's motion to continue merely advised the parties and Doviet of its anticipated ruling on an issue that might be presented to it in the future. Our supreme court has held, however, that " 'the judiciary of Alabama is not empowered " 'to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.' " ' " Case v. Alabama State Bar, 939 So.2d at 885 (quoting Ex parte Connors, 855 So.2d 486, 488 (Ala. 2003), quoting in turn Stamps v. Jefferson Cty. Bd. of Educ., 642 So.2d 941, 944 (Ala. 1994) ). " 'This Court does not issue the writ of mandamus based on mere speculation as to the possible occurrence of future events.' " Ex parte Flexible Prods. Co., 915 So.2d 34, 41 (Ala. 2005) (quoting Ex parte Vance, 900 So.2d 394, 399 (Ala. 2004) ). See also Ex parte Par Pharm., Inc., 58 So.3d 767, 775 (Ala. 2010) (same). In this case, " 'mandamus will not lie, since the courts will not permit the use of the writ upon merely speculative grounds, or to gratify a spirit of curiosity.' "

Foster v. White, 86 Ala. 467, 470, 6 So. 88, 90 (1889) (quoting High on Extraordinary Legal Remedies, § 310).

The petitioners have failed to demonstrate a clear legal right to the relief they have requested, i.e., an opinion providing guidance on the issues of access to and the waiver of the privilege regarding a child's privileged psychological records.

PETITION DENIED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      The petitioners have not briefed the issue whether the mother can raise issues pertaining to a guardian ad litem's access to the a child's confidential records or whether a guardian ad litem may waive a child's privilege. Doviet has joined the mother's petition for a writ of mandamus; the two filed a joint brief in this court. In addressing the issues raised in that petition for a writ of mandamus, this court does not decide the mother's authority to raise those issues.

      To the extent that the petitioners might be arguing that the mother's motion for a continuance asked the trial court to allow Doviet to examine the records or waive the privilege, we note that the mother is not allowed to direct the manner in which a guardian ad litem represents his or her client.

      The petitioners have not argued that the assertion of that privilege was not necessary.

      We note that, had a request pertaining to the psychotherapist-patient privilege been properly made and argued to the trial court, the trial court might have reached a different decision on the issue, thereby mooting the need for the current petition.


author: WELCH, Judge.

text:
    Demetric Devon SMITH v. STATE of Alabama
    CR-14-1290.
    Court of Criminal Appeals of Alabama.
    April 29, 2016.
    Robert Troy Teague, Montgomery, for appellant.
    Luther Strange, atty. gen., and Ferris Stephens, asst. atty. gen. for appellee.
   WELCH, Judge.

Demetric Devon Smith appeals the circuit court's denial of his motion to withdraw his guilty pleas.

On April 8, 2015, Smith entered blind guilty pleas to first-degree robbery, a violation of § 13A-8-41, Ala.Code 1975, and to reckless endangerment, a violation of § 13A-6-24, Ala.Code 1975. On May 6, 2015, the circuit court held a sentencing hearing and sentenced Smith to 30 years' imprisonment for his robbery conviction and to 1 year in jail for his reckless-endangerment conviction. The sentences were to run concurrently.

On June 3, 2015, Smith, through new counsel, filed a motion to withdraw his guilty pleas. In that motion, Smith argued that he should be allowed to withdraw his guilty pleas because, he said, the pleas were not voluntarily and intelligently made. Specifically, Smith contended that, although he did not enter his guilty pleas pursuant to a plea agreement, his attorney had represented to him that he would receive either probation or a split sentence in exchange for his guilty pleas. Along with his motion, Smith filed an accompanying affidavit in which he stated that his trial counsel told him that he would receive either probation or a sentence of 15 years in prison, which would be split, and he would serve two years. Smith averred that he would not have pleaded guilty but for that representation by his trial counsel.

On June 15, 2015, the circuit court, without receiving a response from the State or holding a hearing, denied Smith's motion to withdraw his guilty pleas. In its order, the circuit court stated:

"This matter is before the Court on the DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA filed by DEMETRIC DEVON SMITH. The matter came to be heard for jury trial on April 8, 2015, and prior to opening statements, the Defendant entered a blind plea which the court accepted. The Court conducted a colloquy with the Defendant and his counsel in open court and the Court finds that the plea was entered into voluntarily, and that the denial of the request would not render a manifest injustice; therefore, it is ORDERED that the REQUEST TO WITHDRAW GUILTY PLEA is hereby DENIED."

(C. 58.) This appeal follows.

On appeal, Smith argues that the circuit court erred when it denied his motion to withdraw his guilty pleas without first conducting a hearing and requests that we remand this cause for the circuit court to hold a hearing at which he is afforded an opportunity to present evidence. The State argues that remand is not necessary because, it says, Smith did not "even meet a threshold burden to necessitate an evidentiary hearing." (State's Brief, pp. 4, 6.) The State contends that the record does not indicate, and that Smith did not aver, that the circuit court indicated to Smith that he would receive probation or a split sentence and that, therefore, Smith cannot claim that he did not voluntarily enter his guilty pleas. The State points to the guilty-plea colloquy in support of its position that even if Smith's trial counsel told Smith that he would receive probation or a split sentence, the circuit court "took any certainty of that off the table." (State's brief, pp. 11-12.)

Generally, the mere hope for a specific sentence is not sufficient to warrant setting aside a guilty plea. See State v. Holman, 486 So.2d 500, 503 (Ala.1986). Smith's claim, however, is that he was informed by his counsel that he would be sentenced either to probation or to a split sentence. "[A] misrepresentation by a defendant's counsel, if material, may render a guilty plea involuntary." Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999). In Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001), this Court held that an evidentiary hearing was warranted when a petitioner challenged the voluntariness of his guilty plea on the ground that his trial counsel allegedly misrepresented that he would receive a split sentence if he pleaded guilty. Here, as in Ford, Smith has satisfied his burden of pleading. Absent the opportunity to present evidence to prove Smith's claim, the Ireland form and guilty-plea colloquy transcript are not sufficient to refute his claim.

Therefore, we must remand this case to the circuit court to allow Smith an opportunity to present evidence to support his claim that his guilty pleas were involuntary because of his counsel's alleged misrepresentation that he would receive either probation or a 15-year split sentence if he pleaded guilty. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Smith's claim and may grant whatever relief it deems necessary. Due return shall be filed with this Court within 56 days of the release of this opinion and shall include the circuit court's written findings of fact, a transcript of the evidentiary hearing, and any other evidence received or relied on by the court in making its findings.

REMANDED WITH DIRECTIONS.

WINDOM, P.J., and KELLUM and BURKE, JJ., concur.

JOINER, J., concurs specially, with opinion.

JOINER, Judge, concurring specially.

Our caselaw requires this Court to remand this case for Demetric Devon Smith to receive an evidentiary hearing on his motion to withdraw his guilty plea. In a case such as this, it seems to be a waste of scarce judicial resources to require the circuit court to conduct a hearing. Smith's claim is clearly refuted by the record:

"THE COURT: So, Mr. Smith, has anybody tried to force you to plead guilty?
"....
"THE DEFENDANT: No, ma'am.
"THE COURT: Has anybody promised you anything in order to get you to enter a plea today?
"THE DEFENDANT: No, ma'am."

(R. 4; emphasis added.)

Smith had an obligation to be truthful with the circuit court, and his defense counsel had an ethical duty to correct any material misrepresentation he made to Smith. Defense counsel's silence in response to Smith's statement is evidence that counsel made no promises to Smith. Therefore, I urge the Alabama Supreme Court to revisit the line of decisions that requires this outcome.

      Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (Ala.Crim.App.1971).

      Note from the reporter of decisions: On April 21, 2017, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On May 19, 2017, that court denied rehearing, without opinion. On August 11, 2017, the Supreme Court denied certiorari review, without opinion (1160771).