Opinion of the Justices

• Decision Date: 10 March 2010
• Docket Number: No. 384.,384.
• Citation: 49 So.3d 1181
• Parties: OPINION OF THE JUSTICES.
• Court: Alabama Supreme Court

49 So.3d 1181

OPINION OF THE JUSTICES.

No. 384.

Supreme Court of Alabama.

March 10, 2010.

Members of the Senate

Alabama State House

Montgomery, Alabama 36130

Dear Senators:

We have received Senate Resolution No. 72, requesting an opinion of the Justices as to whether the "Sanford Amendment," which the Alabama Senate has adopted and which amends Senate Bill 121 ("S.B. 121") now pending before the Alabama Legislature, would, if the constitutional amendment proposed by S.B. 121 is ratified, violate certain clauses of the United States Constitution.

The questions posed by Senate Resolution No. 72 are as follows:

"1. Does the Sanford Amendment to S.B. 121, or any part thereof, violate the commerce clause of the United States Constitution, Article I, Section 8, Clause 3?

"2. Does the Sanford Amendment to S.B. 121, or any part thereof, violate the privileges and immunities clause of the United States Constitution, Article IV, Section 2, Clause 1?

"3. Does the Sanford Amendment to S.B. 121, or any part thereof, violate the Equal Protection Clause of the United States Constitution, Fourteenth Amendment?"

S.B. 121 proposes an amendment to the Constitution of Alabama of 1901. The Sanford Amendment amends S.B. 121. S.B. 121, with the language added by the Sanford Amendment emphasized, reads, in pertinent part:

"Beginning in the fiscal year ending September 30, 2011 and continuing through the fiscal year ending September 30, 2020, the Legislature shall appropriate from the Alabama Trust Fund the amount of one hundred million dollars($100,000,000) in each fiscal year. The appropriation may be made in either the general appropriations act or a separate appropriations act, and the funds shall be distributed as provided in subdivisions 1 and 2 below. Not less than twenty-five percent of this amount shall be used for maintenance and repairs.

"(1) Seventy-five percent of the appropriation from the Alabama Trust Fund shall be distributed to the Department of Transportation for state highways, roads, and bridges and other transportation allocated as follows:

"a. At least five million ($5,000,000) of this amount shall be used in each congressional district in this state as these districts exist on the effective date of this amendment. For the fiscal year ending September 30, 2011 and 2012, the funds allocated to the Fifth Congressional district shall be further allocated to the City of Huntsville for infrastructure supporting the growth and expansion related to the Defense Base Closure and Realignment Commission (BRAC).

"b. One million ($1,000,000) of this amount shall be distributed to the Alabama Shortline Railroad Infrastructure Rehabilitation Fund established by Act No. 2008-382 in the 2008 Regular Session. These funds shall be granted in a manner which will enhance economic development and growth by providing for the proper rehabilitation and upgrading of shortline railroads. In order to be eligible to receive grant funds from this allocation an eligible grantee must provide matching funds equal to 20% of the amount of the grant award which shall be allocated for the same purposes for which the grant is made.

" c. The department shall not distribute any funds to any company or corporation providing transportation products or services unless the company or corporation certifies to the department that it is an Alabama based company or corporation employing only Alabama residents.

"(2) The remaining twenty-five (25%) shall be distributed to the counties and municipalities to be used for new construction and maintenance and repair. This amount shall be allocated as follows:

"a. Forty-five percent (45%) shall be allocated equally among the sixty-seven counties of the state.

"b. Fifty-five percent (55%) shall be allocated among the sixty-seven counties of the state on the basis of the ratio of the population of each county to the total population of the state according to the then next preceding federal decennial census.

"c. Ten percent of the total amount allocated to each county in accordance with subdivisions (2)a. and b. of this amendment shall be distributed among the municipalities within the county on the basis of the ratio of the population of each municipality to the total population of all municipalities in the county according to the then next preceding federal decennial census except that in the fiscal year ending September 30, 2011 and 2012, any funds allocated to Madison County under subsection (a) and (b) shall be further allocated to the City of Huntsville for infrastructure supporting the growth and expansion related to the Defense Base Closure and Realignment Commission (BRAC).

" d. A county or municipality shall not distribute any funds to any company or corporation providing transportation products or services unless the company or corporation certifies to the county or city that it is an Alabamabased company or corporation employing only Alabama residents.

"Section 2. In order to compensate for the reduction in interest earnings to local governments due to the transfer of funds from the Alabama Trust Fund, the following additional transfers shall be made from the Alabama Trust Fund in each of the following fiscal years to be divided equally between the Municipal Government Capital Improvement Fund created in Code of Alabama 1975, Section 11-66-4 and the County Government Capital Improvement Fund created in Code of Alabama 1975, Section 11-29-4.

"FY 2011-$1 million

"FY 2012-$2 million

"FY 2013-$3 million

"FY 2014-$4 million

"FY 2015-$5 million

"FY 2016-$6 million

"FY 2017-$7 million

"FY 2018-$8 million

"FY 2019-$9 million

"FY 2020 and each fiscal year thereafter-$10 million.

" Section 3. Each company awarded a contract funded by the proceeds from this amendment shall employ 50 percent of all new hires from state unemployment rolls. The unemployment roll hires shall have been on the rolls for a minimum of 26 weeks and shall be placed on the company payroll within 60 days of receiving project funds."

In Opinion of the Justices No. 382, 907 So.2d 1022 (Ala.2005), this Court recognized:

"Section 12-2-10, Ala.Code 1975, provides that '... either house of the Legislature, by a resolution of such house, may obtain a written opinion of the justices of the Supreme Court of Alabama or a majority thereof on important constitutional questions.' An advisory opinion is an opinion of the individual Justices signing the opinion; an advisory opinion is not issued by the Alabama Supreme Court acting in its judicial capacity and, therefore, is not binding precedent. Opinion of the Justices No. 381, 892 So.2d 375 (Ala.2004).

"In 1923, the members of the Supreme Court responded to the first request for an advisory opinion. The Justices considered the constitutionality of Act No. 43, Ala. Acts 1923, the Advisory Opinion Act, now codified at § 12-2-10, and stated:

" 'Interpreting the act 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 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.'

" Opinion of the Justices No. 1, 209 Ala. 593, 594, 96 So. 487, 488-89 (1923).

"The Justices of the Supreme Court have consistently restricted advisory opinions to questions on the constitutionality of proposed legislation 'arising under a stated section or sections of the Constitution.' Opinion of the Justices No. 219, 294 Ala. 604, 605, 320 So.2d 622, 623 (1975)....

"Advisory opinions are 'usually given in deference to the executive and legislative departments of the state in order to guide them in the proper dispatch of their duties and to protect the officers and departments of the state in the performance of their duties under enacted legislation....' Opinion of the Justices No. 160, 266 Ala. 370, 371, 96 So.2d 752, 753 (1957). Advisory opinions are rendered 'outside the normal adversary system wherein pertinent facts from the record of a trial court would be presented, and the issues would be briefed by attorneys and most times orally argued before the Court.' Opinion of the Justices No. 289, 410 So.2d 388, 391-92 (Ala.1982). Because of the nature of advisory opinions, the Justices are limited to answering questions regarding the facial constitutionality of pending legislation."

907 So.2d at 1024-25.

With these principles in mind, we consider the questions propounded by the Senate:

Question number 1 asks the members of this Court to determine whether the Sanford Amendment to S.B. 121 violates the Commerce Clause of the United States Constitution.

Initially, we must determine whether the State in the Sanford Amendment is seeking to affect commercial transactions as a "regulator" or as a "market participant." The United States Supreme Court in Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976), recognized that the Commerce Clause addresses mainly state taxes and regulatory measures blocking free, private trade in the national market and that it does not limit a state's ability to operate in the free market. Thus, when a state enters the market as a participant it is not limited by the Commerce Clause. For example, in White v. Massachusetts Council of Construction Employers, 460 U.S. 204, 103 S.Ct. 1042,...