Folsom v. Wynn

• Decision Date: 22 December 1993
• Citation: 631 So.2d 890
• Parties: Governor Jim FOLSOM, 1 et al. v. William J. WYNN, et al. 1911772, 1920310.
• Court: Alabama Supreme Court

Page 890

631 So.2d 890

Governor Jim FOLSOM, ¹ et al. v. William J. WYNN, et al.

1911772, 1920310.

Supreme Court of Alabama.

Dec. 22, 1993.

John E. Grenier, Rebecca S. Dunnie and Beth O'Neill Roy of Lange, Simpson, Robinson & Somerville, Birmingham, Mark D. Hess, Legal Advisor to Governor Hunt, A. Lee Miller III, Gen. Counsel, Alabama Dept. of Finance, for appellants.

William M. Slaughter, Thomas T. Gallion III, James C. Huckaby, Jr. and Richard H. Walston of Haskell Slaughter Young Johnston & Gallion, Birmingham, for appellees.

PER CURIAM.

These appeals deal with the constitutionality of Alabama Code 1975, § 41-4-90, which provides for a procedure commonly known as "proration," whereby the Governor of Alabama is authorized to restrict allotments of some appropriations of State government "to prevent an overdraft or deficit in any fiscal year." The Governor appeals from the Montgomery Circuit Court's judgment declaring § 41-4-90 unconstitutional. We affirm in part, reverse in part, and render a judgment.

In a memorandum dated January 14, 1992, Governor Guy Hunt issued a proration order, pursuant to § 41-4-90, declaring a 5% proration of all General Fund appropriations to State agencies and departments. This memorandum was issued after the certification to him by James H. Rowell, acting director of finance, that General Fund revenues would be insufficient to pay appropriations and upon Rowell's recommendation that proration be set at the rate of 5%, effective for all State departments and agencies receiving General Fund revenues.

William J. Wynn, a judge of the Jefferson Circuit Court, filed a complaint in the Montgomery Circuit Court for a declaratory judgment and injunctive relief against Governor Hunt. ² The complaint, filed pursuant to § 6-6-220 et seq., sought a declaration that the Governor may not apply § 41-4-90, Code of Alabama 1975, to restrict the allotments of appropriations to the Judicial Branch of Alabama government and sought an injunction barring the implementation of proration in the Judicial Branch. The complaint was amended to add, as additional plaintiffs, Terri L. Lewis, Lee W. Reeder, Charles R. Bass, Richard Shinbaum, and the Montgomery County Commission.

The plaintiffs' complaint alleged that if § 41-4-90 is interpreted to empower the Governor to declare proration with respect to the Judiciary, it is unconstitutional under the Alabama Constitution of 1901, as amended, as violating the separation of powers provided in Article III, § 43, and the autonomy of the Judiciary provided in Article VI by Amendment No. 328 of the Constitution (the Judicial Article). The complaint also alleged that § 41-4-90 is unconstitutional as a delegation to the Governor of the Legislature's exclusive power and duty of making appropriations. The complaint further alleged that, under the holding in Abramson v. Hard, 229 Ala. 2, 155 So. 590 (1934), and the Budget and Financial Control Act of 1932, the original source of § 41-4-90 et seq., the Alabama Judiciary is not subject to proration by the Governor.

The case was heard by Judge Charles Price, who entered a final judgment holding § 41-4-90 unconstitutional and enjoining the Governor from prorating the budget of the Judiciary (the injunction was stayed pending appeal). Judge Price held as follows:

"At issue is the 'proration' statute, Ala.Code § 41-4-90 (1975). Via this statute, the Legislature has delegated to the Executive the authority to decide whether and when to declare proration; the amount or degree of proration; and exactly how to distribute proration in order to avoid 'discrimination.' The precise question is whether this delegation violates Section 43 of the Alabama Constitution of 1901, which provides that 'the executive shall never exercise the legislative and judicial powers or either of them.'

"The parties agree that the test is 'whether [the] statute constitutes an unlawful delegation of legislative power or merely a power to administer and execute the declared policy of the legislative body within reasonably clear standards fixed by the statute.' Nelson v. Donaldson, 255 Ala. 76, 81, 50 So.2d 244 (1951). See, for example, Jetton v. Sanders, 49 Ala.App. 669, 275 So.2d 349 (1973), holding that the Governor could not reduce the fee schedule for paying indigent defense lawyers....

"Because § 41-4-90 attempts to delegate the primary function of the Legislature (the 'power of the purse'), this Court finds that § 41-4-90 includes an insufficient limitation of powers. Under § 41-4-90, the Governor is not performing mere ministerial tasks, but exercises wide policy and discretionary judgments. 'The authority to determine the amount of appropriations necessary for the performance of the essential function of government is vested fully and exclusively in the legislature.' Morgan County Commission v. Powell, 292 Ala. 300, 306, 293 So.2d 830 (1974). Therefore, § 41-4-90 violates Sections 42 and 43 of the Constitution, the separation of powers doctrine. To grant the Governor such sweeping power would circumvent the historical significance of the aforestated doctrine.

"Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260 (Fla.1991), is directly on point....

"III

"In the alternative, this Court finds § 41-4-90 is unconstitutional to the extent it might apply to the co-equal branches of government, the Legislative and the Judiciary. In other words, even if the Governor is given clear enough standards in § 41-4-90, the Governor may not 'prorate' the Legislature or the Judiciary. Section 41-4-90 speaks of 'the various departments, boards, [bureaus, commissions, agencies, offices and institutions of the state'].

"Again, the Chiles case is on point: 'The inclusion of the judicial branch within the definition of "state agency," and hence the placing of the judiciary's fiscal affairs under the management of the executive branch, disregards the constitutional mandate of coordinate power-sharing....'

"IV

"Note that § 6.10 of the Judicial article also provides that, 'Adequate and reasonable financing for the entire unified judicial system shall be provided. Adequate and reasonable appropriations shall be made by the legislature....' ... This Court also notes that former Chief Justice Howell Heflin believed that the Judicial Article grants the Judiciary the responsibility to order 'reasonable and adequate' funding in the 'unlikely event' that 'the Legislature should be remiss in complying with its constitutional mandate.' Morgan County Commission v. Powell, 292 Ala. 300, 326, 293 So.2d 830 (1974) (Heflin, C.J., dissenting)."

Thus, Judge Price entered a judgment declaring § 41-4-90 unconstitutional. He held that on its face it was unconstitutional as an unlawful delegation of legislative power and held that it violated the Constitution in that it did not sufficiently limit the Governor's discretion in imposing proration on appropriations for the funding of the various state entities described in the statute--i.e., that § 41-4-90 violated Ala. Const. Art. III, §§ 42 and 43, in conferring the "power of the purse" improperly on the Governor.

Alternatively, but also under the doctrine of separation of powers, Judge Price held § 41-4-90 unconstitutional in its application to the Judiciary, holding that funding of the Judicial Branch may not be prorated. We consider these alternative holdings in this appeal.

We begin our consideration of the constitutionality of § 41-4-90 with a presumption in favor of its constitutionality. Comer v. City of Mobile, 337 So.2d 742 (Ala.1976); Norton v. Lusk, 248 Ala. 110, 26 So.2d 849 (1946). We recognize, as the Court did in the only other case to consider the validity of § 41-4-90, Abramson v. Hard, supra, that it is our duty to construe § 41-4-90 so as to uphold it and to effectuate the intent of the Legislature, if such a construction is possible. 229 Ala. at 6, 155 So. at 593.

The essential history and purpose of § 41-4-90 are detailed in Abramson, supra. The act from which § 41-4-90 was derived was enacted when deficits in State Government threatened the solvency of the State, and it was enacted to provide a means of complying with the mandate of Ala. Const., Art. IV, § 72, and Amend. 26 that the State pay no money "unless there is in the hand of [the State] treasurer money appropriated and available for the full payment of the same." Indeed, § 41-4-90 has already been construed in the context of a variety of constitutional, historical, and statutory provisions. The Court in Abramson set out the references for its review of § 41-4-90 as follows:

"The court accordingly is entitled to look, in its effort to arrive at the intention of the Legislature, to other provisions of the same act, to consider its relation to other statutory and constitutional requirements, to view its history and the purposes sought to be accomplished thereby, and critically to examine the results that will flow from giving the language in question the meaning it might have if none of these things were considered."

Abramson, supra, 229 Ala. at 7, 155 So. at 594.

The Court in Abramson upheld the statute by refusing to give the language of the statute its literal meaning. Under the Abramson Court's analysis, the Legislature's intent in using the term "all appropriations" was to require proration of only those appropriations that were not constitutionally mandated or otherwise excepted or specified as fully payable in accompanying statutes. The Court held that § 41-4-90 can validly apply only to appropriations that are not required by the Constitution to be fully paid. The Court in Abramson stated:

"Again, there are appropriations made pursuant to constitutional requirement which just as manifestly were not intended to be, and which in fact could not be, prorated, but the full amount of which, by express constitutional provision, must be appropriated by the Legislature to the purposes specified in the Constitution....

"Other parts of...