McInnish v. Riley, 1040436.

• Court: Supreme Court of Alabama
• Writing for the Court: Woodall
• Citation: 925 So.2d 174
• Parties: Hugh McINNISH v. Bob RILEY, as Governor of the State of Alabama, et al.
• Decision Date: 30 September 2005
• Docket Number: 1040436.

925 So.2d 174 Hugh McINNISH
v.
Bob RILEY, as Governor of the State of Alabama, et al. 1040436. Supreme Court of Alabama. September 30, 2005.

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Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Charles B. Cambell, asst. atty. gen., for appellees Bob Riley and Kay Ivey.

Mose W. Stuart IV, asst. atty. gen., Department of Finance-Legal Division, for

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appellees James Allen Main and Robert L. Childree.

Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, P.C., Montgomery, for appellee the Joint Fiscal Committee.

WOODALL, Justice.

Hugh McInnish appeals from a judgment of the Montgomery Circuit Court upholding the constitutionality of statutes he challenged as a taxpayer in this declaratory-judgment action. We reverse and remand.

This dispute involves the validity of "community services grants" disbursed pursuant to Act No. 98-677, Ala. Acts 1998, codified at Ala.Code 1975, §§ 29-2-120 to -124, and portions of Act No. 2004-456, the education appropriations act, for the fiscal year ending September 30, 2005, which appropriated $11.7 million for the disbursements. Section 29-2-121 creates a "permanent Joint Legislative Oversight Committee on Community Services Grants" ("the Committee"). The voting members of the Committee consist of eight members of the legislature, including "the Chair of the House Ways and Means Committee; the Chair of the Senate Finance and Taxation-Education Committee; [and] the Chair of the Senate Committee on Economic Expansion and Trade" (hereinafter collectively "the Chairs"). Id. The five remaining legislators are appointed to the Committee by the Chairs. Specifically, pursuant to § 29-2-121, the Chair of the House Ways and Means Committee appoints three members from the House Ways and Means Committee, the Chair of the Senate Finance and Taxation-Education Committee appoints one member from the Senate Finance and Taxation-Education Committee, and the Chair of the Senate Committee on Economic Expansion and Trade appoints one member of the Senate Committee on Economic Expansion and Trade. Finally, the "State Superintendent of Education and [the] State Finance Director [serve on the Committee] in advisory capacities." § 29-2-121 (emphasis added).

The duties of the Committee are set forth in § 29-2-123:

"It shall be the duty of the committee to review applications and approve any community services grants made from any funds appropriated to the committee by the Legislature for the purpose of awarding community services grants. The committee may become a grant-making agency and receive and distribute any appropriations made by the Legislature to the committee for the community services grant program pursuant to Chapter 24 of Title 41. The committee shall evaluate grant proposals based on the relevance of such proposals to the purposes for which such grants shall be made; the extent to which such grant proposal advances the program objectives of the grant-making agency; the ability of the grant recipient to fulfill the objectives of the grant proposal; and the extent to which the grant proposal can benefit the greatest number of citizens, without excluding any geographic regions of the state. All of the above information may be ascertained by appropriate measures, which shall include interviews, audits, public hearings, and recommendations by members of the Legislature. It shall also be the duty of the committee to ensure that, of any appropriations received by the committee, a minimum of the equivalent of 0.4% of such appropriations shall be distributed to each House district and 1.2% of such appropriations shall be distributed to each Senate district."

(Emphasis added.)

On May 26, 2004, McInnish sued (1) Bob Riley, Governor of the State of Alabama

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(2) Drayton Nabers,¹ then director of finance, (3) Robert L. Childree, comptroller, and (4) Kay Ivey, state treasurer, in their official capacities. The complaint sought a judgment declaring that Ala.Code 1975, § 29-2-123, and Act No. 2004-456 insofar as it appropriates moneys to fund the community-services grants violate the separation-of-powers provisions of the Constitution of Alabama. More specifically, the complaint averred that "[t]he granting or awarding of funds appropriated under Act 2004-456 for expenditure by a committee of the legislature, as set forth in Ala.Code § 29-2-123, constitutes encroachment of the executive powers specifically reserved to the executive branch of government by the Alabama Constitution." (Emphasis added.) It further sought an injunction preventing the distribution of any funds pursuant to § 29-2-123. On July 23, 2004, the Joint Fiscal Committee of the legislature² filed a "motion to intervene," which the trial court granted.

Following an evidentiary hearing on September 28, 2004, the trial court entered an order containing the following pertinent factual findings:

"Act 2004-456 (the Education Budget) was passed by the Alabama Legislature and became law on May 14, 2004. The Act makes a line-item appropriation of $11,700,000 to the Joint Legislative Oversight Committee for the award of community service[s] grants for educational purposes. Such appropriation constitutes one-quarter (1/4) of one percent (1%), or .0025 of the entire education budget. The Act, including the line-item appropriation, was approved by the Governor Riley and became immediately effective upon his signature.

". . . .

"As required by § 29-2-123, a minimum equal percentage of any appropriation to the Committee is reserved for community service[s] grants in each House and Senate district in the State of Alabama. Such community service[s] grants, however, are only awarded where an appropriation is made to the Committee. For example, in the 2003-2004 fiscal year, the Committee did not function because it did not receive an appropriation.

"The Committee operates by reviewing and approving or rejecting applications for community service[s] grants submitted by legislators for educational needs in their districts. Applications that are not for educational purposes are rejected. The Committee receives and solicits input and feedback from both applicants and potential grantees in reviewing grant applications.

"According to the undisputed testimony, it is within an individual legislator's discretion to apply for a community service[s] grant, or even to apply at all. However, any application for a grant must be for an educational purpose, as required by the appropriation to the Committee. Consequently, using their discretion, some legislators apply for grants to the boards of education in

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their district. Other legislators, on the other hand, apply for the individual needs of teachers and school administrators in their district.

"All applications are reviewed by the Committee, which conducts open hearings for review and comment on the applications. The applications are also open records available for review at any time by the public.

"The grants are paid by the State Comptroller, a member of the Executive Branch, who issues a check made payable to the grantee. In turn, the legislator who applied for the grant may deliver the check to the grantee or the check will be mailed directly to the grantee."

(Emphasis in original.)

The trial court rejected McInnish's constitutional challenge and entered a judgment for the defendants. McInnish appealed, contending that "the trial court erred in refusing to declare that Ala.Code § 29-2-123 and [portions of] Act [No.] 2004-456 are unconstitutional." McInnish's brief, at 10. The attorney general filed a brief on behalf of Governor Riley and State Treasurer Ivey (hereinafter referred to as "the executive-branch defendants"). No separate brief was filed on behalf of the finance director and the comptroller.

The facts are undisputed, and the standard of review of the trial court's judgment as to the constitutionality of legislation is well established. This Court "`should be very reluctant to hold any act unconstitutional.'" Ex parte D.W., 835 So.2d 186, 189 (Ala.2002) (quoting Ex parte Boyd, 796 So.2d 1092, 1094 (Ala.2001)). "[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government." Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944) (emphasis added). This is so, because "it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law." 246 Ala. at 9, 18 So.2d at 815 (emphasis added). Guided by these principles, we consider whether the legislature, in authorizing the spending of appropriated funds by a legislative committee created for that purpose, has usurped the role of the executive branch in violation of the principle of separation of powers.

"Some . . . state Constitutions expressly provide in one form or another that the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other. Other Constitutions, including that of the United States, do not contain such an express provision. But it is implicit in all, as a conclusion logically following from the separation of the several departments." Springer v. Philippine Islands, 277 U.S. 189, 201, 48 S.Ct. 480, 72 L.Ed. 845 (1928). (emphasis added). The Constitution of Alabama is of the former sort, that is, it "expressly adopts the doctrine of separation of powers that is only implicit in the Constitution of the United States." Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204, 212 (Ala.2005).

The doctrine is enshrined in Ala. Const. 1901, §§ 42 and 43, which provide:

"[§ 42] The powers of the government of the State of Alabama shall be divided into three distinct departments, each...