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ELECTRONICALLY FILED
4/7/2017 4:36 PM
03-CV-2017-900286.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
TIFFANY B. MCCORD, CLERK
IN THE CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
Sometime on February 12, 2016, an unknown and unseen person placed a letter on the
desks of various members of the Alabama State Board of Education. The mysterious letter claimed
that Plaintiff, Dr. Craig Pouncey, had cheated in graduate school and had violated state law by
using his office for perceived personal gain. Like the unknown person who placed the letters, the
author of the letter was anonymous. The letter had no signature, no return address and no marks
that would indicate who wrote the letter exactly when the letter was written and why the letter
Dr. Pouncey, who was a candidate for the position of State Superintendent, which position
brings with it, a salary of hundreds of thousands of dollars and prestige, felt that the letter had
permanently stained his career and that he was humiliated and embarrassed. So, Dr. Pouncey
sought the assistance of a lawyer to seek retribution against the person that distributed the letter
Now, the facts alleged by Plaintiff would make for an interesting lawsuit and perhaps a
great legal thriller novel. However, the individuals that are actually sued in this lawsuit are not
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the unseen person that distributed the letter and not the author of the anonymous letter. Instead,
Plaintiff has chosen to sue those folks who merely read the letter and tried to deal with the
aftermath of the allegations contained in the letter. So, in an apparent attempt to sue somebody
for something, Plaintiff has chosen to name as defendants various persons who work part-time or
full-time for the State of Alabama Department of Education claiming that they are at fault for their
role in trying to clean up the mess that the anonymous letter created.
The Defendant, Mary Scott Hunter, is one of the eight board members who are elected to
the State Board of Education. Ala. Code 16-3-1. Hunters position was created by Alabamas
Constitution. Ala Const. Art. XIV, 262. As a constitutional officer, Hunter enjoys absolute and
complete immunity from lawsuits while performing her formal and official duties. See Ret. Sys.
of Ala., 182 So. 3d at 53334; Wheeler v. George, 39 So. 3d 1061, 109293 (Ala. 2009). The
reason the framers of the constitution gave this extraordinary immunity to state officers was so
that they would not be continually harassed by time-consuming and expensive lawsuits such as the
one brought by Dr. Pouncey. There is no bad faith exception to absolute immunity, and Ms.
Even if absolute immunity (by some unforeseeable, unknown and impossible stretch of the
imagination) does not end the inquiry, Ms. Hunter is entitled to state agent immunity. This
immunity, which finds its source in both the common law, Ex parte Cranman, 792 So. 2d 392
(Ala. 2000), and by a specific state statute, Ala. Code 36-1-12, mandates that a state official
performing duties consistent with their office, are immune from lawsuits such as the one Plaintiff
has brought. Although there exists exceptions to the general rule of state agent immunity, none of
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Finally, it should be noted that nothing argued in this motion is novel or new. The
constitutional provisions are clear. The statutes are clear. The case law is clear, and has been clear
for decades and decades. Simply, this case cannot be brought against Defendant Mary Scott
STANDARD OF REVIEW
Pursuant to Rule 12(b)(1) of the Alabama Rules of Civil Procedure, this Court cannot
exercise subject matter jurisdiction if Hunter is immune from suit. Alabama State Docks Terminal
Ry. v. Lyles, 797 So. 2d 432, 435 (Ala. 2001) (holding that sovereign immunity bars a civil action
and prevents a court from exercising subject-matter jurisdiction). This Court must first determine
whether Hunter is entitled to either absolute immunity or state-agent immunity that shields her
from civil liability. If Hunter is immune from suit, this Court must dismiss Pounceys claims.
Pounceys claims should be dismissed for lack of subject matter jurisdiction because of
immunity. However, as an alternative, Plaintiffs claims may also be dismissed pursuant to Rule
12(b)(6) of the Alabama Rules of Civil Procedure for failure to state a claim upon which relief
may be granted. The allegations of a complaint must be viewed in a plaintiffs favor, but a Rule
12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set
of facts in support of the claim that would entitle the plaintiff to relief. Ex parte Walker, 97 So.
[T]he State of Alabama shall never be made a defendant in any court of law or equity.
Article I, 14, Const. of Ala. 1901. Section 14 affords the State and its agencies an absolute
immunity from suit in any court. Board of School Comrs of Mobile Cnty v. Weaver, 99 So. 3d
1210, 1216 (Ala. 2012). Likewise, Ala. Const. Art. XIV, 262 provides that [g]eneral
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supervision of the public schools in Alabama shall be vested in a state board of education, which
shall be elected in such manner as the legislature may provide. Based on 14 and 262 of the
Even though Plaintiff sues Hunter in her individual and personal capacity, the touchstone
event that Plaintiff seizes upon is Hunters role in selecting a new State Superintendent. The
process of hiring a new State Superintendent is consistent with her role as a Board member and is
a legitimate state interest. Thus, Art. I, 14 of the Alabama Constitution immunizes Hunter from
individual civil liability. See Ex parte Hale, 6 So. 3d 452, 456-57 (Ala. 2008) (holding that Art. I,
14 of the Alabama Constitution gives an officer of the State of Alabama with absolute immunity
even though the officer is sued in his individual capacity when the officers actions involve a State
interest).
Pounceys claim for relief seeks fair and just amount of compensatory and punitive
damages to be determined by a jury, plus interests and costs. Compl. 93. Although Pouncey
states conclusory allegations against Hunter for malice and bad faith, there is no bad-faith
exception under absolute immunity in suits for monetary damages against constitutional officers.
See Ret. Sys. of Ala., 182 So. 3d 527, 533-34; Wheeler v. George, 39 So. 3d 1061, 1092-93. On
this basis, Pounceys claims cannot survive, and the inquiry ends.
Even if this Court does not dismiss Plaintiffs claim on the basis of sovereign immunity,
this Court should dismiss Plaintiffs claim on the basis of a second, different type of immunity,
that is, state-agent immunity. The Alabama Supreme Court set forth principles establishing state-
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A State agent shall be immune from civil liability in his or her personal capacity
when the conduct made the basis of the claim against the agent is based upon the
agents...
792 So. 2d 392, 405 (emphasis added). The state agent cases demonstrate that if a plaintiffs claim
arises from a function that entitles the particular agent to state-agent immunity; then the burden
shifts to the plaintiff to show that one of the two exceptions found in Cranman applies. Ex parte
Hugine, 2017 WL 1034467, *18 (Ala. 2017). State-agent immunity applies whenever a state-
agent is performing decisions or actions that are discretionary. See Ex parte Estate of Reynolds,
946 So. 2d 450, 454 (holding that immunity from tort liability must be afforded to public officials
acting within the general scope of their authority in performing functions that involve a degree of
discretion). Discretionary actions are those acts as to which there is no hard and fast rule as to
the course of conduct that one must or must not take and those acts requiring exercise in judgment
and choice and involving what is just and proper under the circumstances. Thurmond v. City of
Huntsville, 904 So. 2d 314, 319 (Ala. Civ. App. 2004) (quoting Ex parte City of Gadsden, 781 So.
2d 936, 983 (Ala. 2000). Here, there is no question the hiring of a new Superintendent and the
investigation into the candidates good moral character 1 are functions that require indemnity.
malice or bad faith by Hunter. Plaintiff must have factual allegations of bad faith because legal
conclusions do not qualify as an exception under Cranman for state-agent immunity. See Ala. R.
1
Hunters task, as a member of the Board of Education, was to select a State Superintendent of good moral character
as well as a person with academic and professional education...to qualify him to perform the duties of his office.
Ala. Code 16-4-1.
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Civ. P. 8, Committee Comments on 1973 Adoption; see also Segrest v. Lewis, 907 So. 2d 452,
456-57 (Ala. 2005) (holding that a plaintiff must provide something more than just an innocent
misrepresentation by a state agent); see also Bayles v. Marriott, 816 So. 2d 38, 42 (Ala. Civ. App.
2011) (holding that wanton or malicious behavior abrogating state-agent immunity must be shown
by a reckless or conscious disregard of the rights or safety of others.). Based upon Plaintiffs
allegations, Hunters actions do not amount to bad faith. Thus, Plaintiff has failed to provide any
CONCLUSION
For the aforementioned reasons, Plaintiffs claims must be dismissed for lack of subject
s/ Lee H. Copeland
Lee H. Copeland (COP004)
Joel Caldwell (CAL075)
Copeland, Franco, Screws & Gill, P.A.
444 South Perry Street (36104)
Post Office Box 347
Montgomery, AL 36101-0347
T: 334/834-1180 F: 334/834-3172
Email: copeland@copelandfranco.com
Email: caldwell@copelandfranco.com
Counsel for Defendant, Mary Scott Hunter
2
Hunter also adopts all grounds for dismissal made by each of the named defendants in their motions to dismiss and
briefs in support thereof.
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CERTIFICATE OF SERVICE
I hereby certify that on the 7th day of April, 2017, I electronically filed the foregoing with
the Clerk of the Court using the AlaFile system which will send notification of such filing to the
following:
Kenneth J. Mendelsohn
JEMISON & MENDELSOHN
1772 Platt Place
Montgomery, Alabama 36117
Samuel H. Franklin
R. Ashby Pate
Rachelle E. Sanchez
LIGHTFOOT, FRANKLIN & WHITE, L.L.C.
The Clark Building
400 North 20th Street
Birmingham, AL 35203-3200
Dorman Walker
David R. Boyd
G. Lane Knight
Balch & Bingham LLP
105 Tallapoosa Street, Suite 200
Montgomery, AL 36104
Ham Wilson
Ball, Ball, Matthews & Novak
445 Dexter Avenue, Suite 9045
Montgomery, AL 36104
s/ Lee H. Copeland
Of Counsel