Bell v. Strange
| Decision Date | 22 November 2013 |
| Docket Number | 1120603. |
| Citation | 143 So.3d 668 |
| Parties | Sandra BELL v. Luther STRANGE, as Attorney General of the State of Alabama, et al. |
| Court | Alabama Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Montgomery Circuit Court (CV–12–1146); Eugene W. Reese, J.Sandra Bell, pro se.
Luther Strange, atty. gen., and Andrew L. Brasher, deputy atty. gen., and Margaret L. Fleming and Laura E. Howell, asst. attys. gen., for appellees.
AFFIRMED. NO OPINION.
On April 28, 2011, the Alabama Legislature passed Act No. 2011–197 (“Act No. 197”), a Senate Joint Resolution, creating the “Constitutional Revision Commission” (“the commission”). Act No. 197 charged the commission with reviewing certain articles of the Alabama Constitution and with recommending amendments to that document to the legislature.
On November 5, 2012, Sandra Bell filed a declaratory-judgment action, naming as defendants in their official capacities Attorney General Luther Strange, Lieutenant Governor Kay Ivy, President Pro Tempore of the Alabama Senate Del Marsh, Speaker of the Alabama House Mike Hubbard, and Secretary of State Beth Chapman. In her complaint, Bell asked the trial court to declare Act No. 2012–275 (“Act No. 275”) and Act No. 2012–276 (“Act No. 276”), Ala. Acts 2012, violative of Art. XVIII, § 286, Ala. Const.1901, which provides the exclusive means of rewriting the Alabama Constitution. According to Bell, Act No. 197 circumvented the exclusive procedure for proposing a new constitution, as provided in § 286, by establishing the commission to recommend changes in the Alabama Constitution article by article. She also asked the trial court to declare that the legislature exceeded its constitutional authority by enacting Act No. 275 and Act. No. 276. She further sought an injunction prohibiting the secretary of state from certifying the results of the November 2012 vote on Amendments 9 (Act No. 275) and 10 (Act No. 276), which propose repealing and replacing certain sections of the Alabama Constitution.
On January 16, 2013, the trial court dismissed Bell's complaint on the basis that her complaint failed to state a justiciable controversy. On February 21, 2013, Bell filed her notice of appeal. On appeal, Bell addresses her arguments exclusively to Act No. 197, the joint resolution establishing the commission, instead of to Act No. 275 and Act No. 276, the acts proposing article by article constitutional amendments to a vote of the people. Thus, Bell has waived her arguments as to Act No. 275 and Act No. 276.
For that reason, I concur with the Court's affirmance of the trial court's dismissal of Bell's complaint. I write separately to express my concern not with Act No. 197 specifically, but with legislative proposals, allegedly proposed to the people pursuant to Art. XVIII, § 284, Ala. Const.1901, to amend many sections of the Alabama Constitution by the validation of a single amendment, as was done with Act No. 275 and Act No. 276, which resulted in Amendments 9 and 10, respectively, being placed on the November 6, 2012, ballot.
As Chief Justice Torbert noted in his special concurrence in State v. Manley, 441 So.2d 864 (Ala.1983):
“
Manley, 441 So.2d at 877–78 (Torbert, C.J., concurring).
The people, through the Alabama Constitution, have entrusted to the legislature two powers in regard to amending or changing the constitution: 1) to propose an amendment to the people for validation by their vote, pursuant to either § 284 or Art. XVIII, § 284.01, Ala. Const.1901, and 2) to call a constitutional convention, pursuant to § 286, which will commence only upon a majority vote of the people. The effect of an article-by-article amendment approach is the creation of a third legislative power in regard to changing the constitution. This is an enlargement of legislative power in contravention of Art. I, § 2, Ala. Const.1901, which provides, in pertinent part: “That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit....”
It is the “tendency of vested power to broaden and exalt itself.” Ellingham v. Dye, 178 Ind. 336, 345, 99 N.E. 1, 4 (1912). For this reason, it is “[t]he people[ ] in whom resides the vital power in reference to organic law” and not the legislature. Collier v. Frierson, 24 Ala. 100, 105 (1854). Through the constitution, the people have “ ‘prescribe[d] the exclusive modes by which it may be altered or amended, or its effect and operation changed.’ ” Manley, 441 So.2d at 873 (quoting Johnson v. Craft, 205 Ala. 386, 393, 87 So. 375, 380 (1921)). As stated by Chief Justice Torbert, the legislature is limited to the powers entrusted to it by the people. Because of the tendency of governments to expand their own power and suppress the rights of the people, this Court must vigilantly protect the “inalienable and indefeasible right” of the people to create and maintain the form and function of the State “in such manner as they may deem expedient.” Art. I, § 2, Ala. Const.1901.
In the trial court, the pro se plaintiff, Sandra Bell, attacked two acts of the legislature, Act No. 2012–275 and Act No. 2012–276, Ala. Acts 2012, which allowed for a vote of the electorate on what were styled as two constitutional “amendments” altering Article XII and Article XIII of the Alabama Constitution of 1901. Although the legislature may adopt an act submitting to the electorate an amendment to the constitution, see Ala. Const.1901, Art. XVIII, § 284, it may not adopt an act submitting to the electorate a new constitution, because that must be done by a constitutional convention, see Ala. Const.1901, Art. XVIII, § 286. State v. Manley, 441 So.2d 864 (Ala.1983).
The defendants raised numerous issues in the trial court, including: that the case was barred by the legislative immunity of all the defendants, that the case was moot, and that there had been no violation of § 284 and § 286. None of these issues are challenged on appeal.1 Instead, in her brief, Bell challenges only Act No. 2011–197, Ala. Acts 2011, a Senate Joint Resolution that created the Constitutional Revision Commission, the entity that recommended Act Nos. 2012–275 and 2012–276 to the legislature.
“When an appellant confronts an issue below that the appellee contends warrants a judgment in its favor and the trial court's order does not specify a basis for its ruling, the omission of any argument on appeal as to that issue in the appellant's principal brief constitutes a waiver with respect to the issue.”
Fogarty v. Southworth, 953 So.2d 1225, 1232 (Ala.2006). See also Tucker v. Nichols, 431 So.2d 1263, 1265 (Ala.1983) (), and Rule 28(a)(10), Ala. R.App. P. (). Because Bell has elected not to address the issues upon which the defendants relied in the trial court (immunity, mootness, and lack of merit), she has waived those issues for purposes of appeal. We cannot address those issues on Bell's behalf: Yellow Dog Dev., LLC v. Bibb Cnty., 871 So.2d 39, 41–42 (Ala.2003) (citations omitted). Bell's failure to attempt to show why the case is not barred by legislative immunity, why it is not moot, and why Act No. 2012–275 and Act No. 2012–276 are unconstitutional requires that the judgment of the trial court be affirmed.
As to the issue whether the Senate Joint Resolution creating the Constitutional Revision Commission sets up a scheme that is unconstitutional under the rationale of Manley, supra, I note that joint resolutions are not law.
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...of the voters, become a valid part of the constitution.“In a September 27, 2013, decision of the Alabama Supreme Court, Bell v. Strange, [143 So.3d 668 (Ala.2013) ], the court discussed the role of Section 284 in amending the constitution.[ 1 ] “Because the purpose of the Senate Bills cited......