Cleburne County Com'n v. Norton

Decision Date17 August 2007
Docket Number1060135.
Citation979 So.2d 766
CourtAlabama Supreme Court

Bart Harmon and Winthrop E. Johnson of Webb & Eley, P.C., Montgomery, and M. Douglas Ghee of Ghee & Draper, Anniston, for appellants.

John S. Casey of Casey, Casey & Casey, Heflin, for appellee.

Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for amicus curiae Alabama Sheriffs' Association, in support of the appellee.


The Cleburne County Commission and commissioners Ryan Robertson, Bobby Brooks, Tracy Lambert, Dwight Williamson, and Joel Robinson (hereinafter collectively referred to as "the Commission") appeal from a summary judgment entered by the Cleburne Circuit Court in favor of Jack E. Norton, a supernumerary sheriff in Cleburne County. In entering the summary judgment, the trial court held §§ 11-2A-1 through -8, Ala.Code 1975, unconstitutional and ordered the Commission to pay Norton "all salary adjustments, cost of living expenses or other salary increases as the remuneration of the Sheriff of Cleburne County, Alabama, has increased since the year 2000 as provided by § 36-22-62(a) and (b), Ala.Code 1975." We reverse and remand.

I. Background

The facts are undisputed. On April 2, 1992, Norton, who had previously served as the sheriff of Cleburne County, notified then Governor Guy Hunt and Cleburne County Probate Judge Mac Smith1 of his election to participate in the supernumerary sheriffs' program as provided in § 36-22-60 et seq., Ala.Code 1975. On April 8, 1992, Governor Hunt notified Norton of his appointment as supernumerary sheriff of Cleburne County effective April 10, 1992, and on April 20, 1992, Probate Judge Smith administered the oath of office to Norton.

On January 10, 1987, while he was serving as sheriff, Norton had paid $7,500 to Cleburne County to purchase prior service credit pursuant to § 36-22-63, Ala.Code 1975. Thereafter, until his retirement as sheriff of Cleburne County, an amount equal to six percent of his salary was deducted from Norton's salary in accordance with § 36-22-61, Ala.Code 1975.

After Norton was appointed as supernumerary sheriff, he received the prescribed salary of a supernumerary sheriff. Section 36-22-62(a), Ala.Code 1975, provides, in pertinent part, that a supernumerary sheriff "shall be entitled to receive an amount equal to 50 percent of the monthly salary paid such person at the time of the completion of his service in office, and shall be entitled to receive an additional amount equal to two percent of such person's said monthly salary for each additional year of service up to a maximum of 65 percent of such monthly salary...." In addition, § 36-22-62(b), Ala.Code 1975, provides:

"Those persons eligible under either subdivisions (1) or (2) of Section 36-22-60, that may elect to become a supernumerary sheriff shall be entitled to receive a cost-of-living increase as the remuneration of the office of sheriff increases from which the supernumerary sheriff elected to vacate. Said cost-of-living increase shall be equal to the percentage allowed said supernumerary sheriff of the present sheriff's remuneration."

During its 2000 Regular Session, the Alabama Legislature enacted Act No. 2000-108, which is codified at §§ 11-2A-1 through -8, Ala.Code 1975. Section 11-2A-2 provides, in pertinent part:

"Effective October 1, 2000, the annual compensation which a county shall pay to a county commissioner, a judge of probate, a sheriff, a tax assessor, a tax collector, a revenue commissioner, a license commissioner, and an elected assistant tax assessor or collector shall be as set out below:

"(1) SHERIFF. The annual minimum compensation for each sheriff shall be fifty thousand dollars ($50,000) which shall be in lieu of any salary and expense allowance currently provided to a sheriff receiving total compensation less than the minimum. Beginning with the next term of office for each sheriff, except as provided in Section 11-2A-4, the salary herein provided shall be the minimum compensation payable to the sheriff in lieu of any salary, expense allowance, or other compensation provided by law.

". . . .

"(4) Any laws to the contrary notwithstanding, no person holding supernumerary office shall be entitled to any increases in compensation or expenses as a result of the implementation of any salary adjustments provided for in this chapter."

The Cleburne County Commission has denied Norton salary adjustments since June 1, 2000, the effective date of Act No. 2000-108, based on § 11-2A-2(4).

In 2005, Norton filed an action in the Cleburne Circuit Court, seeking a judgment declaring § 11-2A-2(4) unconstitutional and ordering the County to pay him all salary increases he argues are due him under § 36-22-62(b) since 2000. Norton submitted to the Commission a request for admission of facts, and the Commission failed to respond within 30 days; thus the facts were deemed admitted pursuant to Rule 36, Ala. R. Civ. P. Based on the admitted facts, Norton filed a motion for a summary judgment, which the trial court granted on September 29, 2006. The Commission appeals.

II. Standard of Review

"We review a summary judgment de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce `substantial evidence' creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). `Substantial evidence' is `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.1989)."

Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004).

III. Analysis

In its summary-judgment order, the trial court found as follows:

"Act 2000-108, codified as Section 11-2A-1 through -8, Code of Alabama, 1975, as amended, contravenes Section 22 of the Constitution of Alabama of 1901, and is unconstitutional as it applies to [Norton] in that [Norton] had a solemn binding contract with the [Commission] when he was appointed supernumerary sheriff on April 10, 1992, under the provisions of Section 36-22-60, Code of Alabama, 1975, and is entitled to the salary provided in Section 36-22-62(a) and is further entitled to the salary adjustments as provided in Section 36-22-62(b) of the Code."

The Commission asserts that the trial court erred in declaring §§ 11-2A-1 through -8 unconstitutional because, it argues, no "solemn binding contract" existed between Norton and the Commission. Norton, however, argues that the supernumerary-sheriff program is a thinly disguised retirement plan to which he contributed as well as purchased prior service credit and in which he has a vested interest. Therefore, he contends that §§ 11-2A-1 through -8 violate Art. I, § 22, Ala. Const. of 1901, which states that no law may be enacted impairing the obligations of a contract.

In Johnson v. Board of Control of Employees' Retirement System of Alabama, 740 So.2d 999 (Ala.1999), Justice Shores detailed the history of supernumerary officials in Alabama:

"By constitutional provision, Alabama has historically denied the legislature the authority to provide for retirement benefits for state officers, including, by implication, judges. This restriction on the legislative power is currently found in Article IV, § 98, of the Alabama Constitution of 1901:

"`The legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer.'

"This constitutional prohibition against providing pensions for state officials led to legislation over the years creating supernumerary positions for certain state officials who met the statutory requirements for such positions. These statutes creating supernumerary positions were enacted to compensate certain public officials who had served the state for a number of years (as prescribed by statute) and who had reached a certain age (also prescribed by statute), provided that the official entering upon the supernumerary office performed certain duties prescribed by the legislature. See James v. Thompson, 392 So.2d 1178 (Ala.1981). Because Article IV, § 98, of the constitution prohibited laws granting retirement benefits to such state officials, the validity of these statutes depended upon the fact that these supernumerary officials performed certain duties and responsibilities [related to] the supernumerary office created. Although these statutes may have been drafted deliberately to evade the constitutional prohibition against legislation granting retirement pay to state officials, it is clear that the compensation provided was in exchange for services performed by the supernumerary officials, as opposed to compensation for past service to the state.

"For example, by Act No. 357, Ala. Acts 1979 (§ 36-22-60 et seq., Ala.Code 1975), the legislature created the office of supernumerary sheriff. This act permitted a sheriff who had served for at least 16 years in law enforcement, 12 as sheriff, and who had reached 55 years of age to elect to become a supernumerary sheriff, subject to call to active duty by the Governor."

740 So.2d at 1003.

As the Court of Civil Appeals has noted: "The law in Alabama is clear...

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