Ex parte James

Decision Date31 May 2002
Citation836 So.2d 813
PartiesEx parte Governor Fob JAMES et al. (In re Alabama Coalition for Equity, Inc., an Alabama nonprofit corporation, et al. v. Fob James, Jr., in his official capacity as Governor of the State of Alabama and as a president of the State Board of Education, et al.) Ex parte Governor Fob James et al. (In re Mary Harper, suing as next friend of Deion Harper; and Kerry Phillips, a minor, et al. v. Fob James, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al.) Fob James, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. Alabama Coalition for Equity, Inc., et al. Fob James, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. Mary Harper et al. Joyce Pinto et al. v. Alabama Coalition for Equity et al. Joyce Pinto et al. v. Alabama Coalition for Equity et al.
CourtAlabama Supreme Court

Bill Pryor, atty. gen., and Margaret L. Fleming and Scott L. Rouse, asst. attys. gen.; Michael R. White, Alabama Department of Education; and Edward A. Hosp, governor's legal advisor, for the State defendants.

Samuel Adams, Montgomery; and Kendrick E. Webb and Bart Harmon of Webb & Eley, P.C., Montgomery, for the Pinto parties.

Roger L. Bates, I. Ripon Britton, Jr., and E. Shane Black of Hand Arendall, L.L.C., Birmingham, for Alabama Coalition for Equity, Inc.

Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery; Mark Sabel of Sabel & Sabel, Montgomery; and Martha Morgan, Tuscaloosa, for Mary Harper, suing as next friend of Deion Harper, and Kerry Phillips.

Paul J. Dezenberg, Tuscaloosa, for Alabama Disabilities Advocacy Program.

Richard P. Rouco of Whatley Drake, L.L.C., Birmingham, for amici curiae Child Advocacy Organizations, Civil Rights Organizations, Professional Education Associations, and University Professors throughout the State, in support of the Alabama Coalition for Equity.

William F. Gardner of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for amici curiae Jacksonville State University, University of Montevallo, University of North Alabama, University of South Alabama, Troy State University System, and University of West Alabama.

Henry E. Simpson and David W. Spurlock of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham; and C. Glenn Powell and Hattie E. Kaufman, Office of General Counsel, The University of Alabama System, for amicus curiae Board of Trustees of The University of Alabama.

Lee F. Armstrong, Office of General Counsel, Auburn University; and James E. Williams of Melton, Espy, Williams & Hayes, for amicus curiae Auburn University.

Roderic G. Steakley and William R. Lunsford of Sirote & Permutt, Huntsville, for amicus curiae Alabama A&M University.


This Court "shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men." Ala. Const. 1901, § 43 (emphasis added). In Alabama, separation of powers is not merely an implicit "doctrine" but rather an express command; a command stated with a forcefulness rivaled by few, if any, similar provisions in constitutions of other sovereigns. Amendment 582 to the Alabama Constitution of 1901 reflects this State's adherence to this command by effectively nullifying any "order of a state court, which requires disbursement of state funds, ... until the order has been approved by a simple majority of both houses of the Legislature." Compelled by the weight of this command and a concern for judicial restraint, we hold (1) that this Court's review of the merits of the still pending cases commonly and collectively known in this State, and hereinafter referred to, as the "Equity Funding Case,"1 has reached its end, and (2) that, because the duty to fund Alabama's public schools is a duty that—for over 125 years2the people of this State have rested squarely upon the shoulders of the Legislature, it is the Legislature, not the courts, from which any further redress should be sought. Accordingly, we hold that the Equity Funding Case is due to be dismissed.

Concerns regarding judicial restraint and the separation of powers have constituted a repeated refrain in this litigation. See James v. Alabama Coalition for Equity, Inc., 713 So.2d 937, 943 (Ala.1997) (discussing the Court's refusal to review the merits of the Liability Order); Id. at 953 (Maddox, J., concurring in the result but dissenting from the rationale, noting that this case involves "a debate about the doctrine of separation of powers among coordinate, independent branches of state government and about whether certain orders were `final' or not"); Ex parte James, 713 So.2d 869, 878 (Ala.1997) (refusing to consider the merits of the Liability Order, but addressing the political-question doctrine and noting "the American judiciary's understandable preference for restraint in this complex area of litigation," 713 So.2d at 881); Id. at 891-94 (Maddox, J., concurring in part and dissenting in part, opining that state officials "should be free to exercise their discretion," 713 So.2d at 894, with regard to their school-funding duties); Pinto v. Alabama Coalition for Equity, 662 So.2d 894, 900 (Ala.1995) (refusing to allow intervention to "reopen or relitigate the question of the constitutionality of the educational system"); Id. at 901 (Maddox, J., concurring specially, stating that "the question of the power of the circuit court, in the remedy phase, might, and probably will, present questions involving the division of powers between the Executive Branch and the Legislative and Judicial Branches of government"); Id. at 903 (Houston, J., concurring in the result, discussing Ala. Const.1901, § 43, and noting that the legislative and executive branches have the responsibility of "providing for public education"); Opinion of the Justices No. 338, 624 So.2d 107, 110 (Ala.1993) (discussing the "principle of separation of powers" and noting that "[t]he executive and legislative branches of the State have broad powers and responsibilities in the area of public education").

As the various opinions attached to this and other decisions of this Court stemming from the Equity Funding Case demonstrate, members of this Court have expressed serious concerns regarding the underlying foundations of this case and the trial court's actions and legal conclusions leading up to and included in its March 31, 1993, "Liability Order." See, e.g., Ex parte James, 713 So.2d at 895-923 (Hooper, C.J., dissenting, and among other things, describing the proceedings before the trial court as a violation of the separation-of-powers doctrine and as a "sham" due to a lack of true adversity between the parties); Pinto, 662 So.2d at 901-10 (Houston, J., concurring in the result, criticizing the trial court's "interpretation of the Constitution of Alabama of 1901, §§ 1, 6, and 22, which [the trial court interpreted] to provide equal protection," 662 So.2d at 904). However, the Liability Order having been purportedly made "final" by the trial court pursuant to Rule 54(b), Ala. R. Civ. P., and never appealed, this Court has, rightly or wrongly, so far refused to review the merits of the Liability Order.

Given our ultimate holding in this opinion, we deem it judicially imprudent now—after issuing four decisions in this case over the past nine years—to test the bounds of judicial restraint in such a manner. Our present concerns parallel the rationale that undergirds the principle of stare decisis:

"The rule of stare decisis is founded on principles of conservatism; not intended to prevent progress in the science of the law, and such modifications and adaptations of judicial decisions as may be required by the varying and advancing conditions of society and industries; but most beneficial, when applied in the exercise of a sound and wise discretion. The rule does not rest on a disaffirmance of judicial fallibility. Its invocation implies, that former decisions may be erroneous, adherence to which, though erroneous, will be productive of much less evil than a departure therefrom.... The quieting of litigation; the public peace and repose; respect for the judicial administration of the law, and confidence in its reasonable certainty, stability, and consistency, and all considerations of public policy call for permanently upholding acts done, contracts executed, rights vested, and titles to property acquired on the faith of decisions of the court of last resort."

Bibb v. Bibb, 79 Ala. 437, 443-44 (1885). However, our restraint should not be seen as establishing some new formula for determining when this Court will decline to rule on an issue or to exercise its inherent appellate and supervisory powers; the undisputedly sui generis nature of this case precludes such an interpretation. See Ex parte James, 713 So.2d at 876 (stating that "this case is sui generis in Alabama jurisprudence").

Like the issues surrounding the Liability Order, the issue of the proper remedy in this case raises concerns for judicial restraint, albeit of a different type. With regard to the remedy, our concern is not that this Court should refrain from potentially harming the public's confidence in the "reasonable certainty, stability, and consistency" of decisions of the judicial branch, but rather that the pronouncement of a specific remedy "from the bench" would necessarily represent an exercise of the power of that branch of government charged by the people of the State of Alabama with the sole duty to administer state funds to public schools: the Alabama Legislature. As Justice Houston noted in Ex parte James:

"Circumstances have denied this Court the opportunity to review the trial court's liability order. Even so, it is the duty of the Judicial

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