Opinion of the Justices

• Decision Date: 23 February 1982
• Docket Number: No. 289,289
• Citation: 410 So.2d 388
• Parties: OPINION OF THE JUSTICES.
• Court: Alabama Supreme Court

Page 388

410 So.2d 388

OPINION OF THE JUSTICES.

No. 289.

Supreme Court of Alabama.

Feb. 23, 1982.

To the Members of the Senate and

the House of Representatives

State Capitol

Montgomery, Alabama

Dear Senators and Representatives:

We are in receipt of House Resolutions 20, 21 and 77, sponsored by Representative Gafford, House Resolution 119 sponsored by Representative Manley, and Senate Resolution 20 sponsored by Senator Cook. All of these resolutions request opinions of the Justices of the Supreme Court relating to legislative procedure regarding certain specified constitutional provisions. We can summarize these requested opinions as follows:

House Resolution 20 inquires whether the substitution of a proposed constitutional amendment to replace a statutory bill conflicts with Art. 4, Section 61, of the Constitution. House Resolution 21 poses the opposite question-whether the substitution of a statutory bill to replace a constitutional amendment conflicts with said Section 61 of the Constitution. House Resolution 77 relates to pending House Bill 414. House Bill 414 proposes to establish legislative procedure to make bills relating to crimes and offenses the paramount order of business, unless the House or Senate by resolution adopted by a three-fifths vote of the elected membership declares otherwise. House Resolution 77 poses the question whether the three-fifths voting requirement of House Bill 414 violates Sections 63 and 64 of our Constitution. House Resolution 119 also asks whether the three-fifths voting requirements of Act 81-953 contravene the provisions of Sections 63 and 64 of the Constitution. In addition, this resolution also requests our opinion whether Act 81-953 supersedes and relieves the Legislature from the restrictive procedural mandates of Code 1975, § 41-20-10(a) (provisions of the "Alabama Sunset Law"). Senate Resolution 20 refers to another Senate resolution which proposes to exempt legislative consideration of Senate Bill 41 from the restrictive provisions of Section 1(C) of Act 81-953, inquiring of the Justices whether the provisions of Section 1(C) violate Sections 63, 64 and 66 of the Constitution.

Considering all of the resolutions and the various questions posed therein, it is apparent that both Houses of our Legislature are concerned with the proper application of the provisions of Act 81-953, First Special Session, 1981 (commonly referred to as the "budget isolation bill"), as those provisions purport to control and restrict the business of the Legislature now in process in its 1982 Regular Session. Act 81-953 is a general law which in summary establishes a paramount duty on the Legislature to consider and pass bills making "basic appropriations" and to present such bills to the Governor before any other bill can be "signed by either the presiding officer of the House or Senate and transmitted to the other House...." Act No. 81-953, § 1(C), Acts of Alabama, 1981. ¹ The Legislature in its wisdom also provided an exception to said paragraph (C) of section 1 as follows "(A)nd provided further, that following adoption, by vote of either house of not less than three-fifths of the members elected to that house, of a resolution declaring that the provisions of this paragraph (C) shall not be applicable in that house to a particular bill, which shall be specified in said resolution by number and title, the bill so specified may proceed to final passage therein."

One of the central issues addressed by these several resolutions concerns Art. 4, Section 61, of the Alabama Constitution of 1901, which provides:

"No law shall be passed except by bill, and no law shall be so altered or amended on its passage through either house as to change its original purpose."

House Resolutions 20 and 21 specifically request our opinion as to whether a bill proposing a statute may be substituted for a bill proposing a constitutional amendment, and conversely, whether a bill proposing a constitutional amendment may be substituted for a bill proposing a statute without violating the provisions of § 61.

It is interesting to observe that this same issue was presented to the Justices of the Supreme Court by Senate Resolution 42 in the First Special Session, 1981, while the Senate was considering House Bill 38 (the bill which proposed and resulted in the enactment of Act 81-953). Senate Resolution 42 was adopted by the Senate on August 13, 1981; however, on the same day the Senate took final action on House Bill 38, and accordingly, we were without authority to The statute authorizing the Justices of this Court to render advisory opinions was enacted into law in 1923. Code 1975, § 12-2-10 (see, Act No. 43, Acts of Alabama, 1923). In response to the first request for an advisory opinion, the Justices of this Court carefully considered the constitutionality of that act, and in an opinion by Justice McClellan, concurred in by Chief Justice Anderson and Associate Justices Somerville, Gardner and Thomas, determined that such a procedure was constitutionally appropriate. See, Opinions of the Justices, 209 Ala. 593, 96 So. 487 (1923). In that opinion, the majority opined the following:

answer the request for an advisory opinion since this legislation was not then a matter "pending" before that legislative body. Opinion of the Justices, No. 281, 410 So.2d 384 (Ala.1981). See, Code 1975, § 12-2-10; Opinion of the Justices, 384 So.2d 1054, 1055 (Ala.1980); Opinion of the Justices, 294 Ala. 582, 319 So.2d 709 (1975); Opinion of the Justices, 286 Ala. 156, 238 So.2d 326 (1970).

"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 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."

209 Ala. at 594, 96 So. 487.

A strong and well reasoned dissent by Associate Justices Sayre and Miller pointed out that the legislation authorizing advisory opinions was not for the purpose of helping the Legislature overcome constitutional deficiencies in legislation pending before the Alabama Senate and House of Representatives, but instead the substance of the requests would be: If the Legislature should pass this act, is it your opinion that the Supreme Court will uphold its constitutionality? They felt this would, in effect, constitute a constitutional ruling on a legislative enactment prior to its passage without the benefit of allowing the matter to proceed through the adversarial process envisioned by the separation of powers safeguards included in our Constitution. See, Opinions of the Justices, 209 Ala. 593, 602-05, 96 So. 487 (1923). The minority further stated that "Each branch (of government) has the legal and moral right to decide such questions for itself." 209 Ala. at 603, 96 So. 487.

Since that first opinion, the Justices of this Court have conscientiously responded to requests of the Legislature, as well as the Governor, for advisory opinions.

"These 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 or under stipulation of proposed bond issues, etc."

Opinion of the Justices, 266 Ala. 370, 371, 96 So.2d 752, 753 (1957). See also, Opinion of the Justices, 394 So.2d 957, 959-60 (Ala.1981). However, as has been pointed out many times, the procedure, as well as the advisability, of rendering advisory opinions is not without difficulty, particularly in view of the fact that the questions are presented outside the normal adversary system wherein pertinent facts from the record of a trial court would be presented, and "There are several reasons why the practice of invoking the merely advisory opinions of the Justices, in their individual capacities, cannot and will not operate to invite the Justices to prejudge concrete causes or proceedings that may later come to the Supreme Court for decision: First. Such merely advisory opinions must often pertain to important constitutional questions that never can or will come to the Supreme Court's consideration and decision; this, to illustrate, in all cases where the Legislature or the Executive does no act projecting or raising the constitutional inquiry upon which an advisory opinion or opinions have been requested and given. Second. Since only one prejudiced by official act or action can invoke the courts to judicially determine a constitutional question, it cannot be at all certain that the subject of such advisory opinion will be presented for judicial determination in a cause or proceeding in the courts. Third. The decision by the Supreme Court upon the constitutional validity of a legislative enactment or of an act by the Executive always contains this important factor that is wholly absent in a response by the Justices to a request for a merely advisory opinion on the question, pending legislative or executive action, namely, that in judicially testing and determining the constitutionality of legislative or executive action the Supreme Court-in the discharge of its high and...