Ex Parte Paul BURKS.
(Re Paul BURKS v. George PHYFER, Director of Department of Youth Services).
Supreme Court of Alabama.
*906 Theodore L. Hall, Mobile, for petitioner.
Robert Childers of Turner, Wilson & Christian and William J. Samford II, Legal Counsel, Ala. Dept. of Youth Services, Montgomеry, for respondent.
Charles A. Graddick, Atty. Gen., and Richard N. Meadow, Asst. Atty. Gen., amicus curiae.
ADAMS, Justice.
We granted the petition for writ of certiorari in this cаse to decide the following issue:
Does the amendment to Code 1975, § 36-26-27(a), effective July 28, 1983, which allows the State Personnel Board to impоse discipline less severe than termination upon a state merit system employee, apply retroactively to the review of a Board determination to terminate a state employee if the review was pending before the circuit court at the effеctive date of the amendment?
The Court of Civil Appeals,
The petitioner, Paul Burks, worked for the Alabama Department of Youth Services from 1978 until his termination in 1981. At the time of Burks's discharge, Code 1975, § 36-26-27(a), allowed the Personnel Board to rеview the termination decision of the appointing authority and to either affirm the dismissal or, "if the charges are proved unwarranted, оrder the reinstatement of the employee under such conditions as the Board may determine." Under that statute the Board could only sustain the discharge decision or reinstate the employee, but could not ameliorate the punishment imposed by the appointing аuthority by imposing less drastic remedies than dismissal. See Hilyer v. Blackwell,
The Personnel Board's order sustaining Burks's termination was rendered on September 15, 1982, and the Circuit Court оf Montgomery County granted Burks's writ of certiorari to review the decision of the Personnel Board. The circuit court, on June 11, 1984, upheld the Personnel Board's decision. On January 30, 1985, the Court of Civil Appeals affirmed the judgment of the circuit court, and Burks's application for rehearing wаs denied on March 6, 1985.
*907 During the time that petitioner Burks's writ of certiorari was pending in the circuit court, the legislature amended Code 1975, § 36-26-27(a), to аdd the following:
Upon a majority vote of the board, the board may impose a punishment other than termination including but not limited to a reinstatement with forfeiture of back wages and benefits between the date of termination and the date of the board's order reinstating the еmployee, or a suspension up to and including 30 days.
Act of July 28, 1983, No. 83-673, 1983 Ala. Acts 1060 (codified at Code 1975, § 36-26-27(a) (cum.supp.1984). Burks contends that the Court of Civil Aрpeals incorrectly decided that this amendment, which became effective during the pendency of his writ of certiorari in the cirсuit court, should not have retroactive application. Burks argues that the statute is "remedial" in nature and should be applied retroactively. Therefore, Burks asserts that his case should have been remanded to the Personnel Board for the Board to determine whether his conduct warranted discipline less harsh than dismissal, as is now authorized by the amended statute. We agree.
In Jones v. Casey,
In Alabama, retrospeсtive application of a statute is generally not favored, absent an express statutory provision or clear legislative intent that the enactment apply retroactively as well as prospectively. See Kittrell v. Benjamin,396 So.2d 93 , 94 (Ala.1981) (citing City of Brewton v. White's Auto Store, Inc.,362 So.2d 226 (Ala.1978). Remedial statutes, however, are not within the domain of retrospective laws, and do operate retroactively, absent clear language to the contrary. Street v. City of Anniston,381 So.2d 26 (Ala.1980).
See also, Sills v. Sills,
Remediаl statutesthose which do not create, enlarge, diminish, or destroy vested rightsare favored by the courts, and their retrospective operation is not obnoxious to the spirit and policy of the law.
The amended statute at issue here does not expressly contain аny provision for retroactive application, nor is there a clear legislative intent that the statute so operate. Therefore, the amended provision may operate retroactively only if it is found to be "remedial."
Remedial statutes are thosе relating to remedies or modes of procedure. Street v. City of Anniston,381 So.2d 26 (Ala. 1980); Harlan v. State,31 Ala.App. 478 ,18 So.2d 744 (1947). In Jones v. Casey, supra, we reiterated the definition of "remedial statutes"
... as those "which impair no contract or vested right, and do not disturb past transaсtions, but preserve and enforce the right and heal defects in existing laws prescribing remedies." Dickson v. Alabama Mach. and Supply Co.,18 Ala. App. 164 , 165,89 So. 843 , 844, cert. denied,206 Ala. 698 ,89 So. 922 (1921).
We believe that the amendment to Codе 1975, § 36-26-27(a), is remedial in nature, touching upon matters of procedure rather than substantive rights, and corrects what may be perceived as a defect in the original statute. Moreover, no substantial right is impaired by the expanded remedies granted to the Personnel Board to be applied in reviewing disciplinary measures against state merit employees. This is not to say that substantial rights may not be affected by thе application of the statutory change, but that this effect is only the result of the utilization of what is essentially a matter of Personnel Bоard procedure.
Although not central to our holding, we note that a remedial statute should receive a liberal interpretatiоn if necessary to effectuate its purpose or objective. See Blakeney v. Blakeney,
Having determined that the amendment to Code 1975, § 36-26-27(a), is remedial, we apply the rule which is followеd in Alabama that:
... if a statute is procedural in nature, it may be applied on appeal even if the effective date of that statute occurred while the appeal was pending, and even if the effective date of the statute was after the judgment in the triаl court.
Kittrell v. Benjamin,
Since Burks's writ of certiorari was pending before the circuit court when the amendment to the statute became effective, we find that the statute should have been applied.
For the foregoing reasons, we reverse the judgment of the Court of Civil Appeals and hold that Code 1975, § 36-26-27(a), as amended, does apply retrospectively to those cases decided by the Personnel Board for whiсh an appeal was pending on the date the amendment became effective. The judgment is reversed and the case remanded to the circuit court with instructions for that court to enter an order directing the Personnel Board to hold a hearing on the question of proper punishment.
REVERSED AND REMANDED WITH DIRECTIONS.
FAULKNER, JONES, SHORES and BEATTY, JJ., concur.
TORBERT, C.J., and MADDOX, J., dissent.
ALMON, J., not sitting.
MADDOX, Justice (dissenting).
I believe that the opinion of the Court of Civil Appeals correctly interprets the law with regard to this particular statute.
TORBERT, C.J., concurs.