Alabama Real Estate Appraisers Bd. v. Walker

739 So. 2d 8, 1997 Ala. Civ. App. LEXIS 975, 1997 WL 754803
CourtCourt of Civil Appeals of Alabama
DecidedDecember 5, 1997
Docket2960804
StatusPublished
Cited by6 cases

This text of 739 So. 2d 8 (Alabama Real Estate Appraisers Bd. v. Walker) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alabama Real Estate Appraisers Bd. v. Walker, 739 So. 2d 8, 1997 Ala. Civ. App. LEXIS 975, 1997 WL 754803 (Ala. Ct. App. 1997).

Opinion

739 So.2d 8 (1997)

ALABAMA REAL ESTATE APPRAISERS BOARD and the State of Alabama
v.
James WALKER.

2960804.

Court of Civil Appeals of Alabama.

December 5, 1997.
Rehearing Denied January 30, 1998.

*9 Bill Pryor, atty. gen., and Tori L. Adams-Burks, asst. atty. gen., for appellants.

E. Allen Dodd, Jr., of Scruggs, Jordan, Dodd & Dodd, P.A., Fort Payne, for appellee.

ROBERTSON, Presiding Judge.

The Alabama Real Estate Appraisers Board (hereinafter "the Board") and the State of Alabama appeal from a judgment of the DeKalb County Circuit Court finding that the Board's use of an assistant attorney general as its hearing officer and a different assistant attorney general as its prosecutor violates § 41-22-18(a), Ala. Code 1975. We dismiss the appeal as to the State of Alabama; as to the Board, we affirm.

In 1995, the Board initiated disciplinary proceedings against James Walker, alleging that Walker had committed various violations of Board-approved standards and of rules of professional conduct governing real estate appraisers. After notice of these proceedings was given to Walker, the Board conducted a hearing on the charges against him, and it subsequently entered an order subjecting Walker to various disciplinary sanctions, including a fine and a suspension of his license. At Walker's hearing, an assistant attorney general acted as the prosecuting attorney for the Board. The "prosecutor" was responsible for presenting evidence at the hearing tending to show Walker's culpability. Another assistant attorney general was assigned by the attorney general to serve as a hearing officer in contested cases before the Board, ruling upon legal, evidentiary, and procedural issues arising during the hearing. The hearing officer did not participate in the Board's deliberations, nor did he prepare a proposed order or proposed findings of fact.

Walker appealed from the Board's decision by filing a petition for judicial review in the DeKalb County Circuit Court. Named as defendants in Walker's petition were the Board and the State of Alabama. In his petition for judicial review, Walker alleged, among other things, that the Board's ruling was unreasonable, arbitrary, and capricious, because the Board had permitted an attorney employed by the attorney general to act as the Board's hearing officer while employing as prosecutor another attorney employed by the attorney general. The trial court granted the State's motion to dismiss it as a party, based upon § 14 of the Alabama Constitution of 1901, but denied the Board's motion to dismiss the appeal in its entirety or, in the alternative, to change venue.

The trial court received briefs from the parties and, thereafter, it entered a judgment in favor of Walker on the basis that the Board "violated the requirements of the [Alabama] Administrative Procedures Act and also violated [Walker]'s due process rights by permitting a representative from the Attorney General's Office to serve as the hearing officer while another *10 representative of the Attorney General's Office was serving as the prosecuting attorney for the Board." The trial court concluded that it was "immaterial" that two different assistants performed these duties, citing § 36-15-17, Ala.Code 1975, which provides, among other things, that the performance of the attorney general's duties by assistant attorneys general "shall have the same force and effect as if performed by the attorney general."

The Board moved to amend or to vacate this judgment, attaching evidentiary exhibits to, and presenting legal authorities in, its motion. The Board's motion cited, among other cases, this court's opinion in Horn v. Board of Examiners in Counseling, 689 So.2d 93 (Ala.Civ.App.1996), for the proposition that the employment by an administrative agency of two different attorneys from the office of the attorney general, one as prosecutor and the other as hearing officer, did not constitute a conflict of interest that violated the guarantee of due process. The trial court amended its judgment so as to delete its finding of a due process violation, citing Horn.[1] However, the trial court reaffirmed its finding that the Board's practice of employing two assistant attorneys general to serve in each case, one as a prosecutor and the other as a hearing officer, violates § 41-22-18(a), a portion of the Alabama Administrative Procedure Act ("AAPA"). The Board and the State appeal from the judgment as amended.

Although the State is named as an appellant in the notice of appeal, we can discern no adverse ruling made by the trial court as to it that would support an appeal; its pre-answer motion to dismiss was granted by the trial court. As this court stated in Mobile Fuel Shipping, Inc. v. Scott, 375 So.2d 796 (Ala.Civ.App.1979), "The dismissal of the plaintiff's case, in this instance, was clearly in favor of the defendant such that the defendant was not aggrieved or prejudiced in any way thereby. Thus, there is no adverse ruling about which the defendant can complain [, and] there is no justiciable controversy for this court to decide." 375 So.2d at 797. The appeal, therefore, is dismissed as to the State.

The Board contends that the trial court erred in (1) declaring that the Board's practice of employing two assistant attorneys general as prosecutor and hearing officer violates § 41-22-18(a), and (2) concluding that Walker had properly raised in the Board hearing the impropriety of this practice. That the Board followed this practice in Walker's case is not in dispute, and there is likewise no dispute as to the contents of Walker's transcribed objection in the Board proceedings. "Because the trial court's [rulings were] not dependent on any findings of fact, the ore tenus standard of review is not applicable.... Thus, our review involves a pure question of law, and our review is de novo." Roberts Health Care, Inc. v. State Health Planning & Dev. Agency, 698 So.2d 106, 109 (Ala.1997); see also Ala. Code 1975, § 34-27A-22(b) (final decisions and orders of the Board are "reviewable by a court of appropriate jurisdiction as to the questions of law only").

Ala.Code 1975, § 41-22-18(a), provides:

"No individual who participates in the making of any proposed order or final decision in a contested case shall have prosecuted or represented a party in connection with that case, the specific controversy underlying that case, or another pending factually related contested case, or pending factually related controversy that may culminate in a contested case involving the same parties. Nor shall any such individual be subject *11 to the authority, direction or discretion of any person who has prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy, involving the same parties."

(Emphasis added.) Thus, in contested cases before administrative agencies, the AAPA forbids an "individual" who (1) has prosecuted or represented a party in the same proceeding or in related proceedings, or (2) is subject to the control of another person who has prosecuted or represented a party in the same proceeding or in related proceedings, from participating in the making of proposed orders or in the rendering of final decisions of an administrative agency.

In Walker's disciplinary proceeding, the Board employed an assistant attorney general as its hearing officer and another assistant attorney general as its prosecutor.

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739 So. 2d 8, 1997 Ala. Civ. App. LEXIS 975, 1997 WL 754803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alabama-real-estate-appraisers-bd-v-walker-alacivapp-1997.