Alabama Attorney General Steve Marshall asked Montgomery County Circuit Judge James Anderson on Monday to dismiss a lawsuit recently filed by Birmingham-Southern College (BSC) against Alabama State Treasurer Young Boozer for denying the private school a $30 million state loan last week. 

BSC officials filed a lawsuit last Wednesday against Boozer after he notified them he was denying the loan.

Legislators passed the Distressed Institutions of Higher Education Revolving Loan Program and appropriated $30 million in the 2023 legislative session. The Alabama State Treasurer’s Office administers the program.

Marshall said in a motion to dismiss filing on Monday, “(BSC) seeks to have this Court restrain an elected constitutional officer from exercising discretion explicitly granted by law. It cannot. Though the Legislature heard Plaintiff’s pleas for help, it did not respond by writing a check or directing anyone else to do so.” 

Marshall argued in the filing Boozer had the discretion to deny BSC the state loan.

“The law does not say that the Treasurer 'shall' provide a loan to an applicant that meets the requirements. Rather, it says that '[t]he State Treasurer may, in his or her judgment, award a loan to any eligible institution that meets the requirements provided in this section.' The Treasurer strenuously disputes many of the facts alleged in Plaintiff’s complaint,” Marshall said in the filing.

“He disputes the claim that Plaintiff met the requirements of the law (it did not). He disputes that he has a grudge against Plaintiff or Plaintiff’s primary creditor (he does not). He disputes that he has ever acted in bad faith, arbitrarily, or capriciously (he has not). The Treasurer has faithfully performed the job the Legislature gave him—he established an application process, reviewed Plaintiff’s application, made a careful and thorough investigation of Plaintiff’s ability to repay a taxpayer-backed loan, and concluded that Plaintiff’s requested loan should not be awarded.” 

Despite the recent denial and lawsuit, BSC president Daniel Coleman encouraged the “BSC family” on Monday to keep up lobbying efforts in favor of the state loan being issued to the college.

“I can’t thank you enough for your tireless efforts in support of BSC so far. Together, we’ve once again made key figures in Montgomery aware of the College’s immeasurable value to Alabama, but we’re not done yet,” Coleman said in a statement. “Keep contacting Treasurer Boozer, Governor Ivey, and your state senator and representative. Even if you’ve already sent an email or made a phone call, do it again today, and every day if you can. We want the Treasurer, the Governor, and your legislators to hear from us as often as possible.”

Marshall also said the lawsuit should be dismissed because Boozer is protected by sovereign immunity. 

“But this motion does not require this Court to resolve disputed facts. Rather, the Treasurer will show that even if Plaintiff’s allegations are true, this case is barred by sovereign immunity and this Court does not have jurisdiction to order the State Treasurer to enter into a contract and provide a loan,” Marshall said in the filing. “Because this case affects a property right and a contract right of the State, none of the 'exceptions' to sovereign immunity apply or need be considered. Just as importantly, sovereign immunity prohibits courts from directing state officials (much less constitutional officers) to exercise lawful discretion in any particular way. Plaintiff is wrong on the facts, but this case is barred by sovereign immunity regardless. This Court should thus dismiss this case.”

A hearing on the motion to dismiss is scheduled for Wednesday at Montgomery County Courthouse.

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