Childree v. Hubbert

• Decision Date: 23 March 1988
• Citation: 524 So.2d 336
• Parties: 46 Ed. Law Rep. 1270 Robert CHILDREE v. Dr. Paul HUBBERT and Margaret Ann Hubbert. ALABAMA DEPARTMENT OF YOUTH SERVICES v. Dr. Paul HUBBERT and Margaret Ann Hubbert. OFFICE OF PROSECUTION SERVICES v. Dr. Paul HUBBERT and Margaret Ann Hubbert. ALABAMA DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION v. Dr. Paul HUBBERT and Margaret Ann Hubbert. ALABAMA PUBLIC LIBRARY SERVICE, et al. v. Dr. Paul HUBBERT and Margaret Ann Hubbert. ALABAMA SPACE SCIENCE EXHIBIT COMMISSION v. Dr. Paul HUBBERT and Margaret Ann Hubbert. ALABAMA DEPARTMENT OF ECONOMIC AND COMMUNITY AFFAIRS v. Dr. Paul HUBBERT and Margaret Ann Hubbert. ALABAMA STATE COUNCIL ON THE ARTS v. Dr. Paul HUBBERT and Margaret Ann Hubbert. 87-215, 87-280, 87-281, 87-282, 87-307, 87-324, 87-325 and 87-326.
• Court: Alabama Supreme Court

Page 336

524 So.2d 336

46 Ed. Law Rep. 1270

Robert CHILDREE v. Dr. Paul HUBBERT and Margaret Ann Hubbert.

ALABAMA DEPARTMENT OF YOUTH SERVICES v. Dr. Paul HUBBERT and Margaret Ann Hubbert.

OFFICE OF PROSECUTION SERVICES v. Dr. Paul HUBBERT and Margaret Ann Hubbert.

ALABAMA DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION v. Dr. Paul HUBBERT and Margaret Ann Hubbert.

ALABAMA PUBLIC LIBRARY SERVICE, et al. v. Dr. Paul HUBBERT and Margaret Ann Hubbert.

ALABAMA SPACE SCIENCE EXHIBIT COMMISSION v. Dr. Paul HUBBERT and Margaret Ann Hubbert.

ALABAMA DEPARTMENT OF ECONOMIC AND COMMUNITY AFFAIRS v. Dr. Paul HUBBERT and Margaret Ann Hubbert.

ALABAMA STATE COUNCIL ON THE ARTS v. Dr. Paul HUBBERT and Margaret Ann Hubbert.

87-215, 87-280, 87-281, 87-282, 87-307, 87-324, 87-325 and 87-326.

Supreme Court of Alabama.

March 23, 1988.

Rehearing Denied April 11, 1988.

William G. Somerville, Jr., and Robert McD. Smith, Birmingham, and John T. Alley, Jr., Robert Sasser, Michael M. Eley, and Dorothy Littleton, Montgomery, for appellant Robert Childree.

Thomas R. Christian and Robert Childers, Montgomery, and William J. Samford II, Mt. Meigs, for appellant Alabama Dept. of Youth Services.

Bryan E. Morgan, Montgomery, for appellant Office of Prosecution Services.

Thomas B. Klinner and G.R. Trawick, Montgomery, for appellant Alabama Dept. of Mental Health.

James T. Sasser of Wood & Parnell, Montgomery, for appellants Ala. Public Library Service, Ala. Firefighters' Personnel Standards and Educ. Commission, Ala. Com'n on Physical Fitness, and Ala. Bd. of Nursing.

David W. Spurlock, Robert D. Thorington, Wendell Cauley, and W. Stanley Gregory of Johnson & Thorington, Montgomery, and J.R. Brooks of Ford, Caldwell, Ford & Payne, Huntsville, for appellants Ala. Space Science Exhibit and Ala. Space and Rocket Center.

Edward E. Davis, Montgomery, for appellant Dept. of Economic and Community Affairs.

L. Tennet Lee III, Huntsville, for appellant Ala. State Council on the Arts.

Lee Miller, Montgomery, for appellant Ala. Dept. of Finance.

Jerry Carpenter and Stephen N. Dodd, Montgomery, for appellant Ala. Bldg. Com'n.

Robert D. Segall and E. Terry Brown of Copeland, Franco, Screws & Gill, Montgomery, for appellees Dr. Paul Hubbert and Margaret Ann Hubbert.

David R. Boyd of Balch & Bingham, Montgomery, for amici curiae Legislators James S. Clark, Ryan deGraffenried, Jr., Taylor F. Harper, James M. Campbell, Tommy Carter, Charles Adams, Gary White, G.J. "Dutch" Higginbotham, William M. Slaughter, William Fred Horn, Lowell Barron, Richard S. Manley, Perry A. Hand, Frank Ellis, Jr., and William H. Drinkard.

ALMON, Justice.

These appeals arise from a judgment holding that the general appropriation act (1987 Ala. Acts No. 87-715) is unconstitutional insofar as that Act makes particular appropriations from the Alabama Special Education Trust Fund ("the ASETF") to various agencies of the state. The question presented is whether appropriations to state agencies can be made from the ASETF in a general appropriation bill.

The Constitution of 1901, § 45, provides in pertinent part:

"Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes...."

The exception for general appropriation bills is limited by § 71:

"The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative, and judicial departments of the state, for interest on the public debt, and for the public schools. ... All other appropriations shall be made by separate bills, each embracing but one subject."

While the 1987 Legislature was in session, the members of this Court answered an advisory opinion request from the Legislature with the opinion that the omnibus "education appropriation bill," while not a § 71 general appropriation bill, could stand as a § 45 single-subject bill because the subject of "public education" had historically been treated comprehensively in such appropriation bills. Opinion of the Justices No. 323, 512 So.2d 72 (Ala.1987). The opinion stated that no appropriations could be made in such a bill to institutions not controlled by the state, and then expressed a reservation as to appropriations to state agencies not obviously educational in nature:

"The appropriations to state agencies must come within the subject of public education. We cannot test the specific appropriations in the bill, however, because the bill in most cases gives only general descriptions of the recipients. For example, an appropriation to the department of public health for immunizations of school children and for public school food sanitation probably comes within the subject, but a decision would have to wait for a contested case."

Id., at 77.

After that opinion issued, the legislature removed a number of appropriations from the education appropriation bill and added them to the general appropriation bill that became Act No. 87-715, the act now at issue. Appropriations in Act No. 87-715 from the ASETF to the following entities are now contested: the Department of Finance; the Alabama Academy of Honor; the Alabama State Council on the Arts and Humanities; the State Building Commission; the Department of Education; the Department of Examiners of Public Accounts; the Alabama Firefighters' Personnel Standards and Education Commission; the Alabama Law Institute; the Legislature; the Alabama Public Library Service; the Alabama Board of Nursing; the Commission on Physical Fitness; the Space Science Exhibit Commission; the Department of Youth Services; the Alabama Small Business Development Consortium; the Department of Public Health; the Alabama Department of Economic and Community Affairs; the Department of Mental Health and Mental Retardation; and the Office of Prosecution Services.

On August 27, 1987, Dr. Paul Hubbert and Margaret Ann Hubbert filed their complaint in the instant case, naming as defendants George C. Wallace, Jr., as treasurer of the State of Alabama, and Robert Childree, as comptroller of the State of Alabama. Many of the above-named recipients of the appropriations from the ASETF intervened as defendants.

The trial court entered judgment for the plaintiffs on November 13, 1987, but stayed the effect of its judgment for 45 days. By order of December 17, 1987, this Court extended the stay during the pendency of this appeal. The case was argued and submitted on February 8, 1988. Because we shall address separate issues raised by the various parties, we deem it useful to itemize the briefs filed. Three separate appellants' briefs have been filed: one for defendant Childree; one for defendant/intervenor Alabama Space Science Exhibit Commission ("the Exhibit Commission"); and one for defendants/intervenors Alabama Public Library Service, Alabama Firefighters Personnel Standards and Education Commission, Alabama Board of Nursing, and the Governor's Commission on Physical Fitness ("the APLS parties"). Several other intervenor/defendants have appealed, but they have simply joined Childree's brief. An amicus curiae brief, arguing in support of the appropriations, has been filed on behalf of 15 legislators. All but the APLS parties have also filed reply briefs. The appellees' brief filed on behalf of the Hubberts provides the only argument in support of the judgment.

Childree's position is shown in the following summary of the primary argument in his brief, to which we have added the numbers in brackets:

"It will be shown below first that the appropriations are indeed for expenses of 'the executive, [etc.,] departments of the state,' and then that they are rendered no less so merely because they are made to state agencies for administration of state educational functions at the state level. That the appropriations in question are for 'ordinary expenses ' within the meaning of that term as used in § 71 and the like constitutional provisions of other states will next be addressed. Consideration will then be given to whether coverage of appropriations for such expenses under § 71's authorization of appropriations for 'ordinary expenses of the executive, [etc.,] departments of the state' is expunged somehow by something in § 71 itself, or by some other means."

Childree essentially takes as granted that the appropriations at issue are for "educational purposes" and then argues that they may be included in a general appropriation bill because they are made to state agencies for ordinary expenses. The Exhibit Commission takes a different tack, disputing the view that the appropriations are for educational purposes, and arguing that they may nevertheless be funded with ASETF moneys because there is not a constitutional limitation on the majority of ASETF moneys requiring that they be used for education, but only a statutory earmarking that is not binding on the legislature. The APLS parties and the legislators take the same position as Childree; that is, they assume (for most of their argument) that ASETF moneys must be used for educational purposes and argue that these appropriations are both ordinary expenses and educational functions and so can be made from ASETF moneys in a general appropriation bill.

The issues regarding whether educational appropriations can be made in a general appropriation bill arise because this Court has expressed the opinion and held on several occasions that the phrase "public schools" in § 71 allows appropriations only for grammar and high schools, i.e., not for colleges, universities, trade schools, and the like. See Opinion of the Justices No. 323, 512 So.2d 72 (Ala.1987); Alabama Education Ass'n v. Board of Trustees of the Univ. of Alabama, 374 So.2d 258 (Ala.1979); State Tax Comm'n v. Board of Ed. of Jefferson County, 235 Ala. 388, 179 So. 197 (1938); Opinion of the Justices No. 31, 229 Ala. 98, 155 So. 699 (1934); Elsberry...