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ELECTRONICALLY FILED
5/23/2016 4:36 PM
03-CV-2016-900538.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
TIFFANY B. MCCORD, CLERK

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

SPENCER COLLIER,

Plaintiff,
vs.
ROBERT BENTLEY, et al.
Defendant.

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Civil Action No: 03-CV-2016-900538

ORAL ARGUMENT REQUESTED

GOVERNOR BENTLEYS MOTION TO DISMISS

AND BRIEF IN SUPPORT THEREOF
Governor Robert Bentley respectfully moves this Court to dismiss the claims against him
under Rule 12(b)(1) of the Alabama Rules of Civil Procedure for lack of subject-matter
jurisdiction. Alternatively, the Governor moves this Court to dismiss the claims against him for
failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Alabama
Rules of Civil Procedure. In further support of this motion, the Governor offers the following
considerations.
INTRODUCTION
Plaintiff Spencer Collier is suing Governor Bentley because of the Governors decision to
terminate Collier as Secretary of the Alabama Law Enforcement Agency (ALEA). These acts
indisputably occurred while the Governor was exercising the duties of his office. As a result, the
Governor has absolute sovereign immunity from Colliers claims in this lawsuit. Collier distorts
the issues by including irrelevant and misleading information in his Complaint, and his factual
allegations would be proved false if this case proceeded to discovery. But this Court can dismiss
this case in its entirety with respect to the Governor at the pleading stage, solely by reviewing the
allegations in the Complaint and the clear and unambiguous laws of this State.

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STANDARD OF REVIEW
This Court should dismiss all of Colliers claims against the Governor if Collier could
prove [no] set of circumstances that would entitle [him] to relief. Liberty Nat. Life Ins. v. Univ.
of Ala. Health Servs. Found., 881 So. 2d 1013, 1017 (Ala. 2013); accord Exparte Alabama
Dept of Transp., 978 So. 2d 718, 720 (Ala. 2007) (applying the same standard of review to a
motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction). If the Governor is
immune from suit, then there would necessarily be no set of circumstances under which Collier
could recover. Accordingly, the initial inquiry is whether the Governor is entitled to sovereign
immunity as a constitutional officer of the State, and thus whether this Court must dismiss the
claims against the Governor for lack of subject-matter jurisdiction under Rule 12(b)(1) of the
Alabama Rules of Civil Procedure. But even if the Governor were not entitled to sovereign
immunity, this Court should still determine whether the allegations of the Complaint, even if
taken as true, state a claim upon which relief can be granted. If they do not, this Court must
dismiss the case against the Governor for failure to state a claim upon which relief can be
granted under Rule 12(b)(6) of the Alabama Rules of Civil Procedure.

FACTUAL ALLEGATIONS
This lawsuit arises out of actions the Governor took, by Colliers own allegations and
admission, in the line and scope of [the Governors] employment. Compl. 14. On April 5,
2013, the Governor appointed Collier as Secretary of ALEA. Id. 21. The ALEA Secretary
oversees the Department of Public Safety and the State Bureau of Investigations. See ALA. CODE
41-27-2. More importantly, the ALEA Secretary serves at the pleasure of the Governor, and

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remains the Secretary only until his or her successor is appointed. Id.

According

to

the

Complaint, Collier met with the Governor in February 2016 to discuss an ALEA investigation.
Compl. 31. Collier alleges that, at this meeting, the Governor ordered him not to execute an
affidavit in connection with the ALEA investigation. Id. 32. However, in Colliers words, he
then disobeyed the Governors order and submitted an affidavit anyways. Id. 34. Collier
alleges that he was subsequently placed on medical leave, and the Governor appointed Defendant
Stan Stabler as acting Secretary of ALEA. Id. 3637. Collier alleges that after an investigation,
the Governor relieved Collier of his duties as ALEA Secretary. Id. 39. Collier alleges that the
Governor later explained the circumstances surrounding Colliers departure to the press,
including that Collier had disobeyed the Governors orders and that there had been an
investigation. Id. 39, 62, 66.
Collier later filed this civil action, seeking monetary damages against the Governor and
others because of the Governors decision to dismiss Collier as ALEA Secretary. More
specifically, although Collier served as a political appointee at the pleasure of the Governor, he
alleges that the Governor wrongfully terminated him and that the Governor violated 36-25-24
of the Alabama Code. Id. 4348, 8799. Collier also takes issue with the Governors
subsequent public explanations for his decision to appoint a new ALEA Secretary, alleging that
the Governors statements were defamatory and an invasion of Colliers privacy. Id. 50, 55,
62, 66.

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ARGUMENT
I.

The Governor is entitled to sovereign immunity because Collier bases his

claims entirely on acts that occurred while the Governor was executing the
duties of his office.
As an initial matter, this Court should dismiss the claims against the Governor for lack of

subject-matter jurisdiction because, as a constitutional officerand unlike other, nonconstitutional officers within the executive branchthe Governor has absolute immunity from
suit for actions taken while executing the duties of his office. See Exparte Retirement Sys. of
Ala., 182 So. 3d 527, 53334 (Ala. 2015); Wheeler v. George, 39 So. 3d 1061, 109293 (Ala.
2009); Exparte Davis, 9 So. 3d 480, 483 (Ala. 2008); Exparte Blankenship, 893 So. 2d 303, 305
(Ala. 2004); Exparte Purvis, 689 So. 2d 794, 79596 (Ala. 1996); Alexander v. Hatfield, 652 So.
2d 1142, 1144 (Ala. 1994); Boshell v. Walker County Sheriff, 598 So. 3d 843, 844 (Ala. 1992);
Hereford v. Jefferson Cnty., 586 So. 2d 209, 210 (Ala. 1991). Article 1, 14 of the Alabama
Constitution grants sovereign immunity to the State of Alabama. ALA. CONST. Art. I, 14
([T]he State of Alabama shall never be made a defendant in any court of law or equity.).
Constitutional officersthe executive officers specifically mentioned in the Alabama
Constitutionalso enjoy the same absolute sovereign immunity for actions taken in executing
their official duties because a suit against them is a de facto suit against the State of Alabama.
See Retirement Sys. of Ala., 182 So. 3d at 53334; Wheeler, 39 So. 3d at 109293; Davis, 9 So.
3d at 483; Blankenship, 893 So. 2d at 305; Purvis, 689 So. 2d at 79596; Alexander, 652 So. 2d
at 1144; Boshell, 598 So. 3d at 844; Hereford, 586 So. 2d at 210. The Governor is a
constitutional officer. See ALA. CONST. Art. V, 112 (The executive department shall consist of
a governor, lieutenant governor, attorney-general, state auditor, secretary of state, state treasurer,
superintendent of education, commissioner of agriculture and industries, and a sheriff for each

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county.). Therefore, the Governor is entitled to sovereign immunity for any claims arising from
actions taken while executing the duties of his office. See,e.g., Wheeler, 39 So. 3d at 109293.
The Alabama Supreme Court set forth the principles establishing the Governors absolute
sovereign immunity from these types of claims in Wheeler. See Wheeler, 39 So.3d at 109293.
Several landowners in that case brought claims against Governor Siegelman, alleging that they
received inadequate compensation when the State purchased their land for the development of
the Hyundai plant outside of Montgomery. Id. at 106975. The Wheeler plaintiffs sued Governor
Siegelman both in his individual capacity and as the president of the Alabama Incentives Finance
Authority (AIFA), since he acted through that entity to purchase the plaintiffs property on
behalf of the State. Id. at 1091, 1093. The Alabama Supreme Court recognized that the plaintiffs
complaint was directed solely at actions taken while [Governor Siegelman] was executing the
duties of his office. Id. at 1092. As a result, the court held that even though the plaintiff
purported to sue the Governor in his personal capacity, the Governor still was entitled to absolute
sovereign immunity:
Alabama courts have consistently held that a claim for monetary damages
made against a constitutional officer in the officers individual capacity is
barred by State immunity whenever the acts that are the basis of the
alleged liability were performed within the course and scope of the
officers employment. Consequently, then Governor Siegelman is entitled,
on the facts here presented, to State immunity in his individual capacity
and in his capacity as the former president of the AIFA.
Id. at 109293.
To be clear, the absolute sovereign immunity of the Governor and other constitutional
officers is distinct from the state-agent immunity that serves as a defense for other, nonconstitutional officers within the executive branch. See Suttlesv. Roy, 75 So. 3d 90, 9394 (Ala.
2010) (noting that sheriffs, who are constitutional officers, and municipal police officers, who

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are non-constitutional officers, are protected by two different forms of immunity); see also
Wheeler, 39 So. 3d at 1093; Brown v. Greater Mobile-Washington Cnty. Mental Health-Mental
Retardation Bd.,Inc., 944 So. 2d 954, 955 (Ala. 2006); Wilson v. Manning, 880 So. 2d 1101,
1109 n.10 (Ala. 2003); LeFrere v. Quezada, 582 F.3d 1260, 1265 (11th Cir. 2009) (Alabama
law recognizes two categories of immunity: state-agent immunity and sovereign immunity.).
Sovereign immunity applies only to constitutional officers, such as the Governor or sheriffs. See
Retirement Sys. of Ala., 182 So. 3d at 53334; Wheeler 39 So. 3d at 109293; Davis, 9 So. 3d at
483; Blankenship, 893 So. 2d at 305; Purvis, 689 So. 2d at 79596; Alexander, 652 So. 2d at
1144; Boshell v., 598 So. 3d at 844; Hereford, 586 So. 2d at 210. Sovereign immunity does not
apply to non-constitutional officers, such as cabinet officials, who instead enjoy state-agent
immunity. See,e.g., Wheeler, 39 So. 3d at 1093 (granting state-agent immunity, but not
sovereign immunity, to the former secretary of AIFA). Under state-agent immunity, a nonconstitutional officer has immunity from suit for money damages relating to their exercise of
discretionary functions unless the non-constitutional officer acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the
law. Exparte Butts, 775 So. 2d 173, 17778 (Ala 2000). A plaintiff can overcome state-agent
immunity by showing that the non-constitutional officer acted in bad faith, but the sovereign
immunity of constitutional officers like the Governor is absolute and admits of no exceptions in
cases where the plaintiff is seeking money damages. See Exparte Bronner, 171 So. 3d 614, 627
(Ala. 2014) ([E]ven if we could overcome the bar of sovereign immunity in order to rule in
favor of the plaintiffs on the issue of liability, it is not within the subject-matter jurisdiction of
the courts to grant the relief requested here.); see also Wheeler, 39 So. 3d at 109293; Davis, 9
So. 3d at 483; Boshell, 598 So. 3d at 844.

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The sovereign immunity defense applies with full force to Colliers claims against
Governor Bentley. Collier admits that he is challenging actions that the Governor made in the
line and scope of [his] employment. Compl. 14; see Blankenship, 893 So. 2d at 305 (granting
sovereign immunity where it was alleged in the complaint . . . that [the deputy sheriff] was
acting in the line and scope of his duties). Collier also concedes that [a]ll claims in this lawsuit
are made against [the Governor] . . . personally and individually, and all of Colliers prayers for
relief ask this Court for a fair and just amount of compensatory and punitive damages. Id.
14, 48. Therefore, it is undisputed that Colliers claims are claims for monetary damages made
against a constitutional officer in the officers individual capacity, and that the challenged
actions occurred within the course and scope of the [Governors] employment. Wheeler, 39 So.
3d at 1092. Furthermore, like Governor Siegelmans decision to purchase property for the
development of the Hyundai plant, the Governors decision to terminate a cabinet official and
offer his reasons is textually committed to him under Alabama law. See ALA. CODE 41-27-2
(The [ALEA] secretary shall be appointed by and hold office at the pleasure of the Governor,
and shall serve until his or her successor is appointed.).
Collier attempts to plead his way around state-agent immunity by alleging that the
Governors actions were willful, malicious, fraudulent, in bad faith and/or beyond [his]
authority. Compl. 14. But the absolute sovereign immunity of constitutional officers does not
have a bad-faith exception in suits for monetary damages. See Retirement Sys. of Ala., 182 So.
3d at 53334; Wheeler, 39 So. 3d at 109293; Davis, 9 So. 3d at 483; Blankenship, 893 So. 2d at
305; Purvis, 689 So. 2d at 79596; Alexander, 652 So. 2d at 1144; Boshell, 598 So. 3d at 844;
Hereford, 586 So. 2d at 210. Colliers claims fall squarely within the ambit of claims that are

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barred by sovereign immunity. On that basis alone, this Court should dismiss all of Colliers
claims against the Governor with prejudice for lack of subject-matter jurisdiction.

II.

Colliers claims for defamation, false-light invasion of privacy, wrongful

termination, and violation of 36-25-24 have no merit.
Even if this Court were to hold that the Governor was not entitled to sovereign immunity,

it should still dismiss each of the counts Collier asserts against the Governor for failure to state a
claim upon which relief may be granted. See ALA. R. CIV. P. 12(b)(6).

A. Colliersdefamation claim should be dismissed because it isbased on

factsthat Collier allegesto be truthful.
First, Collier cannot succeed on his defamation and false-light invasion-of-privacy claims
because he cannot satisfy his burden of showing that the Governor made a statement that was
false. See Federal Credit,Inc. v. Fuller, 72 So. 3d 5, 10 (Ala. 2011) (noting that truth is an
absolute defense to a defamation claim); RegionsBankv. Plott, 897 So. 2d 239, 244 (Ala. 2004)
(noting that falsity is an element of any false-light invasion-of-privacy claim). Collier bases his
defamation claims on supposed statements by the Governor that Collier himself alleges are
truthful. For instance, Collier alleges that the Governor published to the media and to the public
that [Collier] had disobeyed a direct order by the Governor, Compl. 34, but Collier himself
alleges that Collier disobeyed [the Governors] orders. Id. 62. Additionally, Collier claims
that the Governor defamed him by disclosing that ALEA was conducting a criminal
investigation of [Collier], id. 38, but Collier also alleges that ALEA did conduct an
investigation of him in February 2016. Id. at 66. Collier cannot base a defamation claim on
statements that he himself alleges to be true. See Blankenship, 893 So. 2d at 306 (A plaintiff can

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plead himself out of court by alleging facts which show that he has no claim, even though he
was not required to allege those facts.) (quoting Soo Line R.R. v. St. LouisSw. Ry., 125 F.3d
481, 483 (7th Cir. 1997)). Therefore, Collier has not even stated a meritorious defamation claim.
Collier cannot establish any other set of circumstances that would show that any other
statements he attributes to the Governor were false. Although he claims that the Governor stated
that he had misused state funds, he has not identified the precise statements that he claims the
Governor made to that effect. If he is referring to the Governors press release of March 22,
2016, he has not attached that press release to his complaint, but the Governor has attached it as
Exhibit A to this opposition. This Court may properly consider it for the purposes of this motion
to dismiss. See Jackson v. WAFF,LLC, 109 So. 3d 1123, 112526 (Ala. Civ. App. 2012) (noting
that a television station sued for defamation could include DVD recordings of the broadcasts at
issue as exhibits to their motions to dismiss because the broadcasts were referred to in, and are
central to, [the plaintiffs] complaint). This press release does not, as Collier alleges, state that
he had misused state funds or that Collier had committed a crime. Compl. 55. This press
release instead states that the ALEA Integrity Unit had conducted an internal review of the
agency and had found a number of issues, including possible misuse of state funds. Ex. A.
Collier does not allege and cannot allege that the information in this press release was false.
In addition, specifically with respect to the false-light invasion-of-privacy claims, Collier
cannot succeed for an independent reason: it is black-letter law that [a]n action for invasion of
privacy based on false light cannot relate to any matter which is inherently public or of
legitimate interest to the public. 2 ALA. PERS. INJ. & TORTS 12:28 (2014 ed.); 62A AM. JUR.
2D PRIVACY 6; accord Minnifield v. Ashcraft, 903 So. 2d 818, 82223 (Ala. Civ. App. 2004)
(There is a legitimate public interest exception to the right to privacy.). Consistent with this

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principle, numerous courts have held that there can be no false light invasion of privacy for
matters involving official acts or duties of public officers. Godbehere v. PhoenixNewspapers,
Inc., 783 P.2d 781, 789 (Ariz. 1989). Where the operation of laws and activities of the police or
other public bodies are involved, the matter is within the public interest. Hagler v. DemocratNews,Inc., 699 S.W. 2d 96, 99 (Mo. Ct. App. 1985). This is particularly so with respect to
governmental investigations: where an incident is a matter of public interest, or the subject
matter of a public investigation, a publication in connection therewith can be a violation of no
one's legal right of privacy. Wilson v. Thurman, 445 S.E. 2d 811, 814 (Ga. Ct. App. 1994).
These principles mean that, even assuming the facts asserted in the complaint were true, Collier
cannot show any circumstances that would entitle him to relief for false-light invasion of
privacy. The alleged statements concerned the subject matter of a public investigation, so the
incident was inherently a matter of public interest and thus not within Colliers legal right of
privacy. Id.

B.

Colliersclaimsfor wrongful termination and violation of 36-25-24should be

dismissed because the ALEA Secretary servesat the pleasure of the Governor.

Collier also cannot bring a wrongful termination claim because the Governor could
terminate him at will. The ALEA Secretary is appointed by and hold[s] office at the pleasure of
the Governor, and [serves] until his or her successor is appointed. ALA. CODE 41-27-2. Thus,
although the Governor denies Colliers allegations about the reasons for Colliers departure,
those allegations are immaterial because he served at the pleasure of the Governor. Similarly,
Colliers claim for violation of 36-25-24 of the Alabama Code erroneously presumes that the
statute allows a member of the Governors cabinetwho serves at the pleasure of the
Governorto maintain a claim related to his termination. It does not. Cf. Thompson v. Colbert

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Cnty. Tourism and Convention Bureau, 782 So. 2d 313, 318 (Ala. Civ. App. 2000) (holding that
a former county employee could not maintain a claim under Ala. Code 36-25-24 because the
Legislature elsewhere had immunized the defendants from suit). Accordingly, this Court should
dismiss Colliers claims for wrongful termination and violation of 36-25-24 for failure to state
a claim upon which relief can be granted.
Moreover, specifically as to the count for violation of 36-25-24, Collier cannot succeed
because the facts pleaded in his complaint do not implicate that statute. Section 36-25-24
prohibits a supervisor from discharging a public employee on the basis of the public employee
giving truthful statements or truthful testimony concerning an alleged ethics violation. ALA.
CODE 36-25-24. Collier does not allege that he was terminated for giving statements regarding
the ethics charges made against Speaker Hubbard. Collier instead alleges that he offered an
affidavit relating to whether a prosecutor in Speaker Hubbards case had illegally leaked Grand
Jury testimony. Compl. 29. Allegations of grand-jury leaks do not implicate the Ethics Act at
all, but rather issues arising under the Grand Jury Secrecy Act, an entirely separate statute in a
different title of the Alabama Code. See ALA. CODE 12-16-214 et seq. Colliers allegations thus
make clear that he cannot establish that he was offering testimony concerning an alleged ethics
violation, and Colliers count alleging a 36-25-24 violation has no legal foundation.

CONCLUSION
The Governor respectfully requests that this Court dismiss all the claims against him with
prejudice because he is entitled to sovereign immunity. Alternatively, even if this Court finds
that he is not entitled to sovereign immunity, the Governor hereby moves this Court to dismiss

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Colliers claims against the Governor for failure to state a claim upon which relief can be
granted.

Respectfully submitted,
/
s/John C. Neiman,Jr.
John C. Neiman, Jr.
Stephanie Houston Mays
Mark D. Foley, Jr.
Attorneysfor Governor Robert Bentley

OF COUNSEL:
MAYNARD, COOPER & GALE, P.C.
1901 Sixth Avenue North
2400 Regions/Harbert Plaza
Birmingham, Alabama 35203-2618
Telephone: 205.254.1000
Fax: 205.254.1999

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CERTIFICATE OF SERVICE
I certify that on May 23, 2016, a copy of the foregoing has been served on all counsel of
record via the Courts Alafile system:

Kenneth J. Mendelsohn
Jemison & Mendelsohn
1772 Platt Place
Montgomery, AL 36117
kenny@jmfirm.com
Thomas E. James
Law Offices of Tommy James
2700 Corporate Drive, Suite 200
Birmingham, AL 35242
tjameslaw1@gmail.com
Respectfully submitted,
/
s/John C. Neiman,Jr.
OF COUNSEL

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