Birmingham-Jefferson Center v. Birmingham

• Decision Date: 03 May 2005
• Docket Number: 1031522.
• Citation: 912 So.2d 204
• Parties: BIRMINGHAM-JEFFERSON CIVIC CENTER AUTHORITY et al. v. CITY OF BIRMINGHAM; Taxpayers and Citizens of the City of Birmingham; and Jefferson County.
• Court: Alabama Supreme Court

Page 204

912 So.2d 204

BIRMINGHAM-JEFFERSON CIVIC CENTER AUTHORITY et al. v. CITY OF BIRMINGHAM; Taxpayers and Citizens of the City of Birmingham; and Jefferson County.

1031522.

Supreme Court of Alabama.

May 3, 2005.

R. Preston Bolt, Jr., and E. Luckett Robinson II of Hand Arendall, L.L.C., Mobile; E. Shane Black of Hand Arendall, L.L.C., Birmingham; and Thomas L. Stewart of Emond, Vines, Gorham & Waldrep, Birmingham, for appellant Birmingham-Jefferson Civic Center Authority.

Troy King, atty. gen., and Billington M. Garrett and Alice M. Maples, asst. attys. gen., for intervenor/appellant State of Alabama.

Oakley Melton, Jr., and J. Flynn Mozingo of Melton, Espy & Williams, P.C., Montgomery, for intervenors/appellants Alabama House of Representatives, Alabama Senate, and Alabama Legislative Officials.

Edwin A. Strickland, county atty., and Jeffrey M. Sewell, Birmingham, for appellee Jefferson County.

Tamara Harris Johnson, city atty., and Patricia Cole Burns, James C. Stanley, and Rowena Teague, Birmingham, for appellee City of Birmingham.

Frank M. Caprio of Bradley Arant Rose & White, LLP, Huntsville, for amicus curiae Alabama Space Science Exhibit Commission, in support of the appellants.

SEE, Justice.¹

The Birmingham-Jefferson Civic Center Authority ("the Authority"), the State of Alabama, the Alabama House of Representatives, the Alabama Senate, and certain officials of the House of Representatives and the Senate appeal from an order of the Jefferson Circuit Court declaring unconstitutional two acts passed by the Alabama Legislature. We hold that this case presents a nonjusticiable political question reserved to the legislature by the separation-of-powers doctrine embodied in the Constitution of Alabama of 1901. Therefore, the trial court should have declined to decide the question. We vacate the trial court's judgment and dismiss the appeal.

Facts and Procedural History

The Authority is a public corporation authorized by Amendment No. 238 and Amendment No. 280 to the Constitution of Alabama of 1901. Those amendments authorized the Authority to issue bonds or other evidences of indebtedness and to pledge various funds for the payment of that debt. Amendment No. 280 "validated and confirmed" previous legislation that had empowered the Authority to "construct maintain, control, operate and manage a civic center in the county seat" of Jefferson County. See Act No. 547, Ala. Acts 1965. Amendment No. 280 also "validated and confirmed" those acts of the legislature that provide for the funding of the Authority through county-wide cigarette, lodging, and sales and use taxes in addition to those previously levied by the State. See Act No. 524 and Act No. 525, Ala. Acts 1965, and Act No. 405, Ala. Acts 1967. Amendment No. 280 also provides:

"No tax levied by the state or any municipality or county of the state shall apply to [the Authority], unless such tax applies to the county and the city wherein the [Authority] is located."

In 2001, the legislature passed Act No. 2001-545, Ala. Acts 2001, applicable to Jefferson County only, which imposed a "three percent sales tax on alcoholic beverages sold from restaurants that are licensed by the Alcoholic Beverage Control Board." The proceeds from this particular tax would be allocated to the Authority and used to support the operation of the Authority, "including, but not limited to, capital expansion, renovation, and maintenance." In June 2003, the legislature passed Act No. 2003-288, Ala. Acts 2003 ("Act No. 288"). Act No. 288 specifically amended Section 9 of Act No. 2001-545 to provide that the tax imposed by it became operative "on the first day of the third calendar month following passage of this act and approval of this act by the Governor, or this act's otherwise becoming law."²

Also in June 2003, the legislature passed Act No. 2003-357, Ala. Acts 2003 ("Act No. 357"), amending Act No. 547 and declaring as part of its legislative findings that Amendment No. 280 in fact exempted the Authority from imposing and paying various taxes. Act No. 357 specifically empowered the Authority to impose and collect fees or charges in lieu of those taxes and to retain and use those fees or charges for any lawful purpose. In other words, the legislature empowered the Authority to withhold tax revenue previously paid over to the City of Birmingham ("the City") or Jefferson County ("the County") and to keep the fees or charges it imposed in lieu of the taxes for its own uses.

Beginning on or around the date Act No. 288 and Act No. 357 were approved, the Authority stopped paying taxes previously due to be paid to the City and the County and withheld that revenue as fees and charges to be used for its own corporate purposes. The City petitioned the Jefferson Circuit Court for a judgment declaring Act No. 357 "unconstitutional, null, void and unenforceable" and directing the Authority to pay over as taxes due and payable to the City all sums the Authority had collected as fees or charges in lieu of those taxes.

On January 27, 2004, the Authority petitioned the Jefferson Circuit Court, pursuant to Ala.Code 1975, § 6-6-750 et seq.,³ seeking to validate the proposed issue of $1 million in bonds to renovate the Birmingham-Jefferson Civic Center.⁴ The Authority moved the trial court to consolidate the City's declaratory-judgment action with the Authority's bond-validation action. The trial court granted the motion and consolidated the cases.

The County was permitted to intervene. The County's complaint, like the City's, alleges that Act No. 357 induced the Authority improperly to hold onto tax revenues the County claims rightfully belong to it and that Act No. 357 is unconstitutional and therefore void. The County further alleges that Act No. 288, which requires the County's revenue department to collect an alcoholic beverage tax and to remit those tax revenues to the Authority, is similarly unconstitutional.

Section 61, Ala. Const.1901, provides that "[n]o law shall be passed except by bill"; § 63 provides:

"Every bill shall be read on three different days in each house, and no bill shall become a law, unless on its final passage it be read at length, and the vote be taken by yeas and nays, the names of the members voting for and against the same be entered upon the journals, and a majority of each house be recorded thereon as voting in its favor, except as otherwise provided in this Constitution."

The City and the County argue that the term "house" in the phrase "a majority of each house" in § 63 means a quorum of that house, and they allege that neither Act No. 288 nor Act No. 357 was passed by a majority of a quorum of the House of Representatives.

The legislature is made up of two houses: the House of Representatives and the Senate. The House of Representatives is composed of 105 members and the Senate of 35. Section 52, Ala. Const.1901, provides that in order for each house to do business, a quorum, that is, a majority of the members, must be present. A quorum of the House of Representatives is 53 members; a quorum of the Senate is 18 members. The City and the County contend that the word "house" as used in § 63 actually means a quorum of the house and that a bill must receive a minimum of 27 favorable votes (a majority of the quorum of 53) in the House of Representatives in order to become law.

The City and the County argue that the House of Representatives did not properly pass Act No. 288 and Act No. 357 in accordance with § 63. On June 9, 2003, House Bill 769, which became Act No. 288, was introduced and given its first reading, and it was read again on each of two different days. On June 11, 2003, the date of the bill's third reading, the House of Representatives convened; 101 of its 105 members were present, thus constituting a quorum. House Bill 769 received 21 yea votes, 4 nay votes, and 55 abstentions; House Bill 769 was delivered to the Senate, where it was read three times and, on June 16, passed by a vote of 23 yea votes, 0 nay votes, and 3 abstentions. The bill was then returned to the House of Representatives and delivered to and signed by the Governor. House Bill 769 was then enrolled as Act No. 2003-288, Ala. Acts 2003.

Act No. 357 has a similar history. On June 9, 2003, House Bill 768, which became Act No. 357, was introduced and received its first reading; it was read again on each of two different days. On June 11, 2003, as noted above, the House convened with 101 of 105 members present. House Bill 768 received 18 yea votes, 4 nay votes, and 53 abstentions; House Bill 768 was delivered to the Senate where it was read three times, and on June 16, it was passed by a vote of 22 yea votes, 0 nay votes, and 3 abstentions. The bill was then returned to the House of Representatives and delivered to and signed by the Governor. House Bill 768 was then enrolled as Act No. 2003-357, Ala. Acts 2003.

The Authority argues that the proper question is not whether 53 members of the House of Representatives, a majority of a quorum, voted in favor of the bills that became Act No. 288 and Act No. 357, but whether the bills received a favorable majority of the yea and nay votes cast in the presence of a quorum. Because both House Bill 769 and House Bill 768 received a majority of the yea and nay votes cast on those bills in the House of Representatives, the Authority argues, Act No. 288 and Act No. 357 were lawfully enacted.

It is undisputed that for at least 30 years the legislature has interpreted § 63 to mean that when a quorum is present and a bill receives a favorable majority of those votes cast for and against it, then that bill has passed that house of the legislature. Legislators other than those who vote yea or nay are present in the chamber during such votes; some of those affirmatively abstain from voting and some of those take no action whatever. As a result of this practice, many bills pass with only a handful of affirmative votes, few or...