In re Op. of the Justices, 388.

• Decision Date: 27 February 2014
• Docket Number: No. 388.,388.
• Parties: OPINION OF THE JUSTICES.
• Court: Alabama Supreme Court

148 So.3d 58 (Mem)

OPINION OF THE JUSTICES.

No. 388.

Supreme Court of Alabama.

Feb. 27, 2014.

Opinion

Members of the Senate

Alabama State House

Montgomery, Alabama 36130

Dear Senators:

We have received Senate Resolution No. 44, which states, in pertinent part:

“[W]e respectfully request the Honorable Chief Justice and Associate Justices of the Alabama Supreme Court, or a majority of them, to give this body their written opinions on a constitutional question which has arisen concerning the following pending Senate Bills: SB253 relating to impeachment of certain public officials; SB258 relating to the Legislative Department; SB259 relating to the Executive Department; SB261 relating to the Separation of Powers of Government; and SB276 relating to Homestead Exemptions.

“Section 284 of the Constitution of Alabama of 1901 (the constitution) prescribes the manner in which amendments to the constitution may be proposed by the Legislature. Three-fifths of all members elected to both the House of Representatives and the Senate must approve proposed amendments, after which the proposals must be voted upon by the electorate, and if approved by a majority of the voters, become a valid part of the constitution.

“In a September 27, 2013, decision of the Alabama Supreme Court, Bell v. Strange, [143 So.3d 668 (Ala.2013) ], the court discussed the role of Section 284 in amending the constitution.^{[ 1 ]}

“Because the purpose of the Senate Bills cited is to propose various amendments to the constitution to be submitted to the voters of the state, and in deference to this legislative body so that we may properly and constitutionally perform the duties of our office, written opinions are requested concerning the following important constitutional question:

“If pending Senate Bills 253, 258, 259, 261, and 276 are passed in compliance with the requirements of Section 284 of the Constitution of Alabama, would they be constitutionally valid proposed constitutional amendments?”

We respectfully decline to issue an advisory opinion with respect to the question presented.

QUESTION DECLINED.

Respectfully Submitted,

/s/ Lyn Stuart

Lyn Stuart

/s/ Michael F. Bolin

Michael F. Bolin

/s/ Glenn Murdock

Glenn Murdock

/s/ Greg Shaw

Greg Shaw

/s/ James Allen Main

James Allen Main

/s/ A. Kelli Wise

A. Kelli Wise

/s/ Tommy Bryan

Tommy Bryan

Associate Justices

_________________________

Members of the Senate

Alabama State House

Montgomery, Alabama 36130

Dear Senators:

I have received Senate Resolution No. 44, requesting an advisory opinion on whether the amendments to the Alabama Constitution of 1901 proposed by five senate bills would be constitutionally valid if passed by the legislature and then sent to the voters for ratification pursuant to § 284 of the Alabama Constitution of 1901. Seven Justices have declined to issue an advisory opinion on the question requested.¹

The reference in Senate Resolution No. 44 to Bell v. Strange, 143 So.3d 668 (Ala.2013), indicates that the Senate wishes to know whether the amendments proposed by the five senate bills may be collectively submitted to the voters by the amendment procedure of § 284, or whether such a large-scale simultaneous revision of the Alabama Constitution may be submitted to the voters only through the mechanism of a constitutional convention as provided in § 286 of the Alabama Constitution of 1901.²

Section 284 authorizes the legislature to submit “proposed amendments” to the voters for ratification if three-fifths of the members elected to both the Senate and the House of Representatives approve them. Section 286 authorizes the legislature, by a majority vote, to call an election on the question of holding a constitutional convention. If the voters approve, the convention may act “for the purpose of altering, revising, or amending the existing Constitution.”³

In my dissent in Bell v. Strange, I examined at length State v. Manley, 441 So.2d 864 (Ala.1983), which held that the legislature may not use § 284 to propose an entirely new constitution but must for that purpose use the constitutional-convention method of § 286. I applied the guidance and analysis of Manley to the question presented in Bell: whether a rewriting of the entire constitution, by attaching each article to a separate amendment like cars in a train, would unconstitutionally circumvent the people's prerogative to control constitutional revision through the § 286 constitutional-convention process. I concluded in Bell that this process is unconstitutional.

The proposed amendments would repeal and rewrite Article III, Distribution of Powers of Government; Article IV, Legislative Department; Article V, Executive Department; Article VII, Impeachments; and Article X, Exemptions. Overall, these proposed amendments, if adopted, would rewrite five major articles of the Alabama Constitution, which comprise 41% of its individual provisions. The substantial impact of these proposed amendments actually understates the scope of the project from which they originated and of which they are a part. Act No. 2011–197, Ala. Acts 2011, created a “Constitutional Revision Commission” whose goal was to revise 11 out of the 18 articles of the Alabama Constitution. Eight members of the commission are legislators or are appointed by the legislature. The drafting engine of the commission is the Alabama Law Institute, an advisory body to the legislature. Thus, Act No. 2011–197 created a mechanism controlled by the legislature to completely revise the Alabama Constitution, a task historically reserved to a convention of the people, which may only be called by popular vote pursuant to § 286 of the Constitution.

Justice Parker, in his special concurrence in Bell, addressed the constitutionality of “an article-by-article amendment approach” to accomplish a general revision of the Constitution:

“The people, through the Alabama Constitution, have entrusted to the legislature two powers in regard to amending or changing the constitution: 1 ) to propose an amendment to the people for validation by their vote, pursuant to either § 284 or Art. XVIII, § 284.01, Ala. Const.1901, and 2) to call a constitutional convention, pursuant to § 286, which will commence only upon a majority vote of the people. The effect of an article-by-article amendment approach is the creation of a third legislative power in regard to changing the constitution. This is an enlargement of legislative power in contravention of Art. I, § 2, Ala. Const.1901, which provides, in pertinent part: ‘That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit....’ ”

Bell v. Strange, 143 So.3d at 670 (Parker, J., concurring specially) (emphasis added). By Justice Parker's reasoning, the Senate's proposal to amend five articles of the Constitution as part of an ongoing global revision of that document is unconstitutional as neither lying within the grant of power of § 284 nor conforming with the requirements of § 286.

Constitutional revision should not be initiated by a body that is itself a creation of the very constitution it seeks to revise and that thus may seek to mold the document to serve its own parochial institutional interests. Instead, revision belongs to the people themselves, the rightful creators of the Constitution. For example, unlikely to appear in any proposed constitutional revision initiated by the legislature are term limits. The Constitutional Revision Commission did include an “alternative” proposal that “Legislators elected in 2014 and thereafter are limited to 20 years total service in the legislature.” This provision, though modest, does not appear in Senate Bill 258, the proposed amendment of Article IV, the legislative article. Similarly, one is unlikely to see in a constitutional-revision package authored by the legislature a reduction in legislative activity, such as a return to biennial sessions⁴ or enlarged restrictions on the legislative power to tax and to spend.

Part of the design of Act No. 2011–197 has already been implemented through the revision of Articles XII (Corporations) and XIII (Banks and Banking), which revision was proposed and adopted in 2012. The currently proposed amendments are the next set of cars on the revision train. Still to come, according to Act No. 2011–197, are Articles I, IX, XIV, and XVII. Six of the remaining seven articles “shall be excluded from consideration by the commission due to a previous revision of the article or because revision is not considered needed....” Act No. 2011–197, paragraph (e). The final article on taxation “is excluded from consideration by the commission at this time. ” Act No. 2011–197, paragraph (f). Thus, the entire Alabama Constitution—from Article I through Article XVIII—has come under the scrutiny of the legislature's Constitutional Revision Commission. In short, the Alabama Legislature is conducting an in-house constitutional convention disguised as a series of discrete amendments offered under § 284 to circumvent the requirement that the constitution may be “revised” only by a constitutional convention under § 286.⁵

The article-by-article revision process of Act No. 2011–197 is a carefully designed plan to deny the people their right to control the revision of the constitution through the convention process. As this Court held in Manley: “[T]he legislature's power to initiate proceedings toward a new constitution is limited to the provisions of § 286.” 441 So.2d at 876. Thus, “only conventions have the power to make sweeping change.” 441 So.2d at 879 (Torbert, C.J., concurring specially). “ ‘[T]he purpose of the legislative mode is to bring about amendments which are few and simple and independent; and on the other hand, that of the mode through Conventions is to revise the entire Constitution....’ ” 441 So.2d at 869 (quoting John Alexander Jameson, A Treatise on Constitutional Conventions § 574c (4th ed. 1887)). “ ‘[W]henever a Constitution needs a general...