In re Op. of the Justices, 393

• Decision Date: 14 February 2018
• Docket Number: No. 393,393
• Citation: 260 So.3d 17
• Parties: OPINION OF the JUSTICES
• Court: Alabama Supreme Court

260 So.3d 17

OPINION OF the JUSTICES

No. 393

Supreme Court of Alabama.

February 14, 2018

The Honorable Kay Ivey

Governor of Alabama

Alabama State Capitol

Montgomery, Alabama 36130

Dear Governor Ivey:

We have received your letter of February 9, 2018, requesting an advisory opinion from the individual Justices of this Court as to the Governor's obligation under the following language from § 46(b), Ala. Const. 1901: "Whenever a vacancy occurs in either house of the legislature the governor shall issue a writ of election to fill such vacancy for the remainder of the term."

According to your letter, the circumstances giving rise to the request involve "the reported death, on January 16, 2018, of House District 83 Representative George Bandy." According to the request, "[o]nly nine months remain in Representative Bandy's term." "[T]he Secretary of State has advised [the Governor] that a special election would likely occur no earlier than June of this year. The winner of any special election would thus serve for a mere four or five months before leaving office."

You requested an advisory opinion on the following questions:

"(1) Does the Governor bear any duty under the constitution's legislative-vacancy provision before receiving formal notice of a legislator's death from the appropriate probate judge? See Ala. Const. [1901], § 46 ; Ala. Code [1975,] § 36–9–6.

"(2) Does the constitution's legislative-vacancy provision impose on the Governor an absolute duty to call a special election whenever a vacancy occurs regardless of how much time remains in the term of office? See Ala. Const. [1901,] § 46.

"(3) If a special election must be called to fill a legislative vacancy only when practicable, will this Court defer to the Governor's reasonable judgment about the practicability of calling any particular special election? See Ala. Const. [1901,] § 46."

Section 12–2–10, Ala. Code 1975, states that "[t]he Governor, by a request in writing, ... may obtain a written opinion of the justices of the Supreme Court of Alabama or a majority thereof on important constitutional questions." The Justices have concluded that "[a]dvisory opinions can be given to a Governor where the Governor is required to act on a law which raises constitutional issues." Opinion of the Justices No. 219, 294 Ala. 604, 605, 320 So.2d 622, 623 (1975) ; see also Opinion of the Justices No. 274, 394 So.2d 957, 959–60 (Ala. 1981) ; Opinion of the Justices No. 169, 270 Ala. 147, 148, 116 So.2d 588, 589 (1959) ; and Opinion of the Justices No. 70, 247 Ala. 663, 26 So.2d 103 (1946). But, " ‘we may answer only narrow questions directed to specific provisions of the State or Federal Constitution.’ " Opinion of the Justices No. 341, 632 So.2d 478, 482 (Ala. 1994) (quoting Opinion of the Justices No. 271, 384 So.2d 1056, 1058 (Ala. 1980) ). The Justices may not "answer solely legal questions in advisory opinions." Opinion of the Justices No. 228, 336 So.2d 164, 165 (Ala. 1976).

As stated in Opinion of the Justices No. 1, 209 Ala. 593, 96 So. 487 (1923) :

"Interpreting the [advisory-opinion] act [now codified at § 12–2–10 ] according to its manifest effects, these conclusions must, of necessity, prevail: (a) That the act does not at all contemplate the advice or the advisory opinions of the Justices upon any matter relating to the wisdom, desirability, or policy of prospective legislative or executive action; (b) that the merely advisory opinions contemplated are those of the individual Justices, not of the Supreme Court of Alabama in its judicial capacity; (c) that specific inquiries, within the intent of the act, must involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature, as distinguished from questions involved in the ascertainment or declaration of private right or interest; (d) and that responses to questions within the purview of the act are designed to be advisory, consultative only, not concluding or binding the Governor or the House or Houses propounding inquiries or the Justices responding thereto.

"....

"The performance by the Justices of the function the act contemplates is nonjudicial; this for the obvious reason that advisory opinions given do not conclude or vindicate any right or remedy, result in no judgment or decree, bind no one whatsoever."

209 Ala. at 594–95, 96 So. at 488–89 ; see also State ex rel. Bozeman v. Hester, 260 Ala. 566, 570, 72 So.2d 61, 63 (1954) ; and Opinion of the Justices No. 25, 226 Ala. 565, 569, 148 So. 107, 111 (1933). Opinion No. 1 adds that

"[n]either the Legislature nor the Executive have or enjoy any prerogative to ignore or violate the Constitutions. Indeed, obedience to the Constitutions' provisions must be regarded as the desire, the purpose and intent of every department and officer in the government. The practice thus established evinces the highest permissible form of precautionary procedure to preserve constitutional government by invoking the advice of those thought to be peculiarly qualified to give, in advance of action, advice in respect of the Constitution's prescriptions; thereby manifesting a quickening sense of responsibility for submission and conformity to the Constitutions on the part of all who owe that supreme duty to the governments."

209 Ala. at 598–99, 96 So. at 493.¹

In light of the foregoing, the undersigned Justices respectfully reply as follows to the questions designated:

Question (1)

Section 46 (b) states: "Whenever a vacancy occurs in either house of the legislature the governor shall issue a writ of election to fill such vacancy for the remainder of the term." Section 46 (b) discusses the duty of the Governor "whenever a vacancy occurs"; it contains no qualifying language as to the form or source of notice of that vacancy. A vacancy either exists or it does not, and the Governor either has notice of such a vacancy or the Governor does not. You have informed us that you are aware of the death of Representative George Bandy, and your request for an advisory opinion is premised upon the fact of his death. Thus, no factual controversy exists as to whether Representative George Bandy is deceased.

Section 36–9–1, Ala. Code 1975, states that "[a]ny office in this state is vacated ... [b]y the death of the incumbent." The language of § 36–9–6, Ala. Code 1975, to which you refer in your letter—"[o]n the death ... of any member of the Legislature, the judge of probate of the county in which such officer at the time of his death resided shall give notice thereof to the Governor"—prescribes the duty of the probate judge as to the giving of notice of death to the Governor; that language does not limit the Governor's constitutional obligation under § 46 (b), which arises "[w]henever a vacancy occurs." In short, § 46 (b) directs the Governor to "issue a writ of election" "[w]henever a vacancy occurs in either house of the legislature," not merely upon receipt of notice from the probate court of the legislator's death.²

Question (2)

Section 46 (b) states that whenever a vacancy occurs in the legislature, the Governor "shall issue a writ of election." As to the meaning of "shall" in § 46 (b), " ‘the long-settled and fundamental rule binding this Court in construing provisions of the constitution is adherence to the plain meaning of the text.’ " Town of Gurley v. M & N Materials, Inc., 143 So.3d 1, 13 (Ala. 2012) (quoting Jefferson Cty. v. Weissman, 69 So.3d 827, 834 (Ala. 2011) ). " ‘ "Constitutions are the result of popular will, and their words are to be understood ordinarily as used in the sense that such words convey to the popular mind" (6 Am. & Eng. Ency. Law, 924, 925).’ " Jefferson Cty. v. Weissman, 69 So.3d at 834 (quoting Hagan v. Commissioner's Court of Limestone Cty., 160 Ala. 544, 562, 49 So. 417, 423 (1909) ).

" ‘ "In construing a constitutional provision, the courts have no right to broaden the meaning of words used and, likewise, have no right to restrict the meaning of those words.’ " This Court is " ‘not at liberty to disregard or restrict the plain meaning of the provisions of the Constitution.’ "

City of Bessemer v. McClain, 957 So.2d 1061, 1092 (Ala. 2006) (quoting City of Birmingham v. City of Vestavia Hills, 654 So.2d 532, 538 (Ala. 1995), quoting in turn McGee v. Borom, 341 So.2d 141, 143 (Ala. 1976) ).

In Ex parte Prudential Insurance Co. of America, 721 So.2d 1135 (Ala. 1998), this Court noted:

" ‘Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the Legislature must be given effect.’

" Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa County, 589 So.2d 687, 689 (Ala. 1991) (citations omitted). The word ‘shall’ is clear and unambiguous and is imperative and mandatory. Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa, supra ; Taylor v. Cox, 710 So.2d 406 (Ala. 1998) ; Ex parte First Family Financial Services, Inc., 718 So.2d 658 (Ala. 1998) (on application for rehearing) (interpreting the word ‘shall’ as used in § 6–3–21.1[, Ala. Code 1975 ] ). The word ‘shall’ has been defined as follows:

" ‘As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means "must" and is inconsistent with a concept of discretion.’

"Black's Law Dictionary 1375 (6th ed. 199[0] )."

721 So.2d at 1138 (citations omitted).

The same rule applies to constitutional provisions: "The word ‘shall’ is considered presumptively mandatory unless something in the character of the provision...