
    Ex parte Robert BENTLEY, as Governor of the State of Alabama, et al. (In re Hugh McInnish v. Governor Robert Bentley et al.). Robert Bentley, as Governor of the State of Alabama, and Young Boozer III, as State Treasurer v. Hugh McInnish. Marquita Davis, as State Finance Director, and Tom White, as State Comptroller v. Hugh McInnish. Joint Fiscal Committee v. Hugh McInnish.
    1110321, 1110325, 1110330, and 1110506.
    Supreme Court of Alabama.
    Aug. 24, 2012.
    Special Writings issued on Overruling of Rehearing Applications Dec. 7, 2012.
    
      Luther Strange, atty. gen., and James W. Davis, Joshua K. Payne, and J. Matt Bledsoe, asst, attys. gen., for petitioners/appellants Governor Robert Bentley, Young Boozer III, as State Treasurer, and the Joint Fiscal Committee.
    Richard H. Cater and Mose W. Stuart IV, Alabama Department of Finance, Legal Division, for appellants Marquita Davis, as State Finance Director, and Tom White, as State Comptroller.
    Mark G. Montiel, Sr., Montgomery, for respondent/appellee Hugh Mclnnish.
   WOODALL, Justice.

These proceedings (one petition for the writ of mandamus and three appeals) were brought in this Court to challenge a judgment of the Montgomery Circuit Court awarding Hugh Mclnnish $196,625 in attorney fees and costs in his action against (1) the Governor of the State of Alabama, (2) the State finance director, (8) the State comptroller, and (4) the State treasurer, all in their official capacities (referred to collectively as “the State officials”), in which the Joint Fiscal Committee of the Alabama Legislature (“the committee”) intervened. As to cases no. 1110325, no. 1110330, and no. 1110506, we reverse; as to case no. 1110321, we dismiss the petition as moot.

This case has previously been before this Court. See McInnish v. Riley, 925 So.2d 174 (Ala.2005). McInnish involved a challenge to the constitutionality of the community-services grant-making process set forth in Ala.Code 1975, § 29-2-123. There, we held that “ § 29-2-123, which authorizes a permanent joint legislative committee to award community-services grants, [as well as that portion of the annual education-appropriations act] by which those grants are funded,” violated the separation-of-powers provisions of the Alabama Constitution of 1901, 925 So.2d at 188, and we reversed the trial court’s judgment and remanded the case.

Subsequently, Mclnnish filed a series of motions in the trial court, seeking “an award of attorney fees, reasonable expenses, and costs against the [State officials].” He also sought an order declaring that he was “a prevailing party, that this litigation provided a common benefit to all taxpayers of the state of Alabama, and that the amount that was prohibited from being disbursed illegally was in an amount of approximately $13.4 million.” (Emphasis added.) The State officials opposed McInnish’s motions, arguing that “[t]he clear holding in Ex parte Town of Lowndesboro [, 950 So.2d 1203 (Ala.2006),] is that § 14 of the Alabama Constitution prohibits the awarding of attorney fees and expenses in any state court action against the State of Alabama or against state officials in their official capacities.” (Emphasis added.) On December 8, 2011, the trial court entei-ed a judgment awarding “counsel for Plaintiff Mclnnish a judgment for attorney’s fees and costs in the amount of $196,625.00 to be paid by the [State officials].”

These appellate proceedings followed the entry of that judgment. Each one presents the single legal question — as Mclnnish prefers to state it: “[W]hether an award of attorney fees is proper when a plaintiff has prevailed on a claim against state officials [in their official capacities] for a violation of the state constitution that results in preservation of significant funds in the state treasury.” Mclnnish’s brief, at 4.

In Ex parte Town of Lowndesboro, 950 So.2d 1203 (Ala.2006), this Court, for the first time, declared unequivocally that an award of attorney fees and expenses to be paid by the State to a successful litigant under the common-benefit doctrine in a declaratory-judgment action violated Ala. Const. 1901, § 14, which states: “That the State of Alabama shall never be made a defendant in any court of law or equity.” In so doing, we noted that “[t]he appellate courts of this State have generally held that an action may be barred by § 14 if it seeks to recover damages or funds from the State treasury.” 950 So.2d at 1206 (emphasis added).

For that proposition, we cited, among other cases, (1) Lyons v. River Road Construction, Inc., 858 So.2d 257, 262 (Ala.2003), as “noting that a party could not bring an action against a State official, because ‘[s]uch an action impermissibly seeks funds from the State treasury,’ ” 950 So.2d at 1206 (emphasis added); (2) Armory Commission of Alabama v. Staudt, 388 So.2d 991, 993-94 (Ala.1980), as “stating that an action against the Armory Commission of Alabama was barred by § 14 because a judgment against it ‘would adversely affect the state treasury,’ ” 950 So.2d at 1206 (emphasis added); and (3) Moody v. University of Alabama, 405 So.2d 714, 717 (Ala.Civ.App.1981), as “noting that an action was barred because a result in the plaintiffs favor ‘could ultimately “touch” the state treasury by requiring the disbursement of state funds,’ 950 So.2d at 1206 (emphasis added). We then explained “that an award of ... attorney fees and expenses impacts the State treasury and divests it of funds in the very way forbidden by § 14.” 950 So.2d at 1211-12 (emphasis added).

The State officials and the committee argue that Lowndesboro controls this case. In response, Mclnnish takes the position that to apply the holding in Lowndesboro to this case is bad public policy. Specifically, he states:

“While it is true that a private litigant can bear the costs of the litigation himself, the logical result of such a rule means that only the wealthy may take up the public sword and defend the Constitution where the government itself refuses to abide by or defend the Constitution. This Court should not stand for such a result.”

McInnish’s brief, at 40.

However, public policy is primarily declared by the people and their representatives in their constitution and statutes. See Jensen v. Traders & General Ins. Co., 52 Cal.2d 786, 794, 345 P.2d 1, 5 (1959) (“The determination of public policy of states resides, first, with the people as expressed in their Constitution and, second, with the representatives of the people — the state Legislature.”). As this Court has often stated: “ ‘The wall of immunity erected by § 14 is nearly impregnable.’ ” Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872 (Ala.2004) (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002)). The State officials and the committee argue that “[ojnly the people, through the amendment process, may overturn a provision of the Constitution on policy grounds.” Reply brief, at 11. We agree. Section 14 having enshrined the public-policy considerations of the people of Alabama, this Court is bound thereby. “Public policy considerations cannot override constitutional mandates.” Camp v. Kenney, 673 So.2d 436, 438 (Ala.Civ.App.1995).

Mclnnish also attempts to distinguish Lowndesboro on the ground that the declaratory-judgment action in Lowndesboro alleged only “ ‘statutory and regulatory violations,’ ” while this case “involves a claim for violations of provisions of the Alabama Constitution.” Mclnnish’s brief, at 18. This is a distinction without a difference and is, in reality, nothing but the recasting of a policy argument. As to the payment of fees and expenses from the State treasury, it matters not a whit whether the action was based on statutory or constitutional provisions.

Along similar lines, Mclnnish asserts that Lowndesboro should not control this case, because, he asserts, his action “resulted in a judgment that benefitted the entire citizenry of the State of Alabama to the tune of over $12 million.” Mclnnish’s brief, at 19. However, the immunity afforded the State is absolute, Ex parte Mobile Cnty. Dep’t of Human Res., 815 So.2d 527, 580 (Ala.2001), such that it does not resolve itself to a balance-sheet approach. State immunity is not a rule of relativity. Simply put, § 14 bars access to the State coffers, regardless of the amounts involved. This rule was properly recognized and applied in Lowndesboro, and it is the rule of this case.

In short, we hold that § 14 bars an award of attorney fees and costs even if a plaintiff has prevailed on a claim against State officials in their official capacities for a violation of the State constitution that results in preservation of significant funds in the State treasury. The trial court lacked authority to award such attorney fees and costs. Consequently, the judgment is reversed.

1110321—PETITION DISMISSED AS MOOT.

1110325—REVERSED.

1110330—REVERSED.

1110506—REVERSED.

STUART, BOLIN, PARKER, MURDOCK, SHAW, and WISE, JJ., concur.

MALONE, C.J., recuses himself.

Applications for Rehearing

WOODALL, Justice.

APPLICATIONS OVERRULED. NO OPINION.

STUART, BOLIN, MURDOCK, and SHAW, JJ., concur.

PARKER and WISE, JJ., concur specially.

MALONE, C.J., recuses himself.

PARKER, Justice

(concurring specially).

In Ex parte Bentley, 116 So.3d 201 (Ala.2012), this Court reversed a judgment of the Montgomery Circuit Court awarding Hugh Mclnnish $196,625 in attorney fees and costs in his action against the governor, the finance director, the comptroller, and the treasurer of the State of Alabama, all in their official capacities. In reversing the circuit court’s judgment, this Court reaffirmed the rule previously announced in Ex parte Town of Lowndesboro, 950 So.2d 1203, 1211-12 (Ala.2006), in which we stated that “ ‘an award of ... attorney fees and expenses impacts the State treasury and divests it of funds in the very way forbidden by [Ala. Const. 1901,] § 14.’” 116 So.3d at 203 (quoting Lowndesboro, 950 So.2d at 1211-12). Mclnnish filed applications for rehearing in three of the four cases decided in Ex parte Bentley, seeking review of our decision; this Court now overrules Mclnnish’s applications for rehearing, and I concur in that decision. I write specially to note the following.

The Eleventh Amendment to the United States Constitution provides:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The United States Supreme Court has held that the Eleventh Amendment bars a citizen from bringing a suit in federal court against any state. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The Eleventh Amendment also bars a citizen from bringing a suit against state officers in federal court if, among other reasons, “ ‘ “the judgment sought would expend itself on the public treasury. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 n. 11, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (quoting Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963)).

There are, however, two exceptions to the protection from suit afforded states and state officers by the Eleventh Amendment. Congress can abrogate the Eleventh Amendment without the consent of the states in certain instances, or a state may waive its immunity by consenting to suit in federal court. See Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 473-74, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). One example of congressional abrogation of the states’ Eleventh Amendment immunity is set forth in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), in which the United States Supreme Court held that the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988, constituted a congressional abrogation of the states’ Eleventh Amendment immunity with respect to the payment of attorney fees in civil-rights actions.

Although Congress may in some circumstances abrogate the immunity afforded the states and state officials by the Eleventh Amendment with respect to awards of attorney fees in federal court actions, our legislature does not have similar authority to abrogate the sovereign immunity afforded this State and its officers in their official capacities by § 14 of the Alabama Constitution with respect to awards of attorney fees in state court actions. See Armory Comm’n of Alabama v. Staudt, 388 So.2d 991, 992 (Ala.1980) (“Since our Constitution unqualifiedly prohibits suits against the state, the legislature may not consent to such a suit.” (citing Dunn Constr. Co. v. Board of Adjustment, 234 Ala. 372, 175 So. 383 (1937))); Aland v. Graham, 287 Ala. 226, 231, 250 So.2d 677, 681 (1971) (“Sec. 14 ‘wholly withdraws from the Legislature, or any other state authority, the power to give consent to a suit against the state,’ Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 175 So. 383 [ (1937) ], and no individual has authority to waive this immunity. State Tax Commission v. Commercial Realty Co., 236 Ala. 358, 182 So. 31 [ (1938) ].”). Simply put, there is no basis in the law of this State as it currently stands on which an award of attorney fees (or any other award of monetary damages) against the State or its officers in their official capacities may be authorized, even in those cases in which the plaintiffs’ efforts result in a common benefit to the general public. But see Alabama Dep’t of Envtl. Mgmt. v. Town of Lowndesboro, 950 So.2d 1180, 1202 (Ala.Civ.App.2005) (Crawley, P.J., concurring specially) (“The compelling reason for an award of an attorney fee in this case can be addressed ... by our citizens in amending § 14.”). Accordingly, because the judgment of the Montgomery Circuit Court is due to be reversed, I concur in denying the applications for rehearing.

WISE, Justice

(concurring specially).

I write specially to acknowledge the inherent inequity that results from the application of § 14 of the Alabama Constitution, which bars an award of attorney fees and expenses in a case where an individual has successfully pursued a claim that benefits the common good. I fear that, if individuals are not allowed to recover attorney fees and expenses in these types of cases, attorneys will be hesitant or even unwilling to represent an individual in such a case. If individuals are required to bear the burden of attorney fees and expenses in such cases, with no type of an award of such fees and expenses following a successful outcome, who will want to expend the time, effort, and money required to pursue these cases? However, because § 14 of the Alabama Constitution clearly bars an award of attorney fees and expenses in actions against the State of Alabama or against State officials in their official capacities, I have no choice but to concur in the decision to overrule the applications for rehearing. 
      
      . For purposes of these proceedings, we will assume that Mclnnish’s action actually resulted in the "preservation of significant funds in the state treasury.”
     