Opinion of the Justices

Decision Date27 April 1993
Docket NumberNo. 338,338
Parties86 Ed. Law Rep. 497 OPINION OF THE JUSTICES.
CourtAlabama Supreme Court

As stated above, S. 607 was introduced in response to the finding of the Circuit Court of Montgomery County in the consolidated cases of Alabama Coalition for Equity, Inc. v. Hunt (CV-90-883) and Harper v. Hunt (CV-91-117). For a better understanding of the question presented and in view of the fact that S. 607 makes reference to the order, we directed the clerk of this court to obtain a certified copy of the order issued in the consolidated cases. See Rule 10(f), Ala.R.App.P.; Amendment 328, §§ 6.02, 6.11, Ala. Constitution of 1901. In your request you refer to this order, which is attached as an appendix to, and made a part of, this opinion. This order is not presently appealable, because the trial court has retained jurisdiction in order to address other aspects of this litigation. However, the trial court has, in an exhaustive opinion, addressed the constitutional issues that were raised in that court and that are the subject of your request for an advisory opinion.

The Justices typically refuse to answer questions involving matters that are the subject of pending litigation. The question posed by Senate Resolution 97, however, is of great importance to the people of the State of Alabama and to the Legislature, and your request for an Advisory Opinion indicates that you are interested in promptly addressing the matters required to be addressed by the order of the circuit court in the two consolidated cases.

Because the legal issues presented in those cases could be raised on appeal, provided an The statute authorizing the Justices of this Court to render advisory opinions, but not requiring them to do so, was enacted into law in 1923, and is carried in the 1975 Alabama Code as § 12-2-10. When the first request for an advisory opinion was made to the Justices in 1923, a majority of them found that the original act was constitutional, but the Justices set forth the following principles that guided them, and continue to guide us, when we express our individual opinions as authorized by the Advisory Opinion Act:

appeal should be taken within the time provided for by Rule 4, Ala.R.App.P., we deem it both appropriate and advisable that we call your attention to some of the principles of law that govern us as we respond to your inquiry.

"(1) 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."

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

Since the Justices issued their opinions on that first request, the Justices have responded conscientiously to many requests from the Legislature, "in deference to the executive and legislative departments of the state in order to guide them in the proper dispatch of their duties." Opinion of the Justices No. 160, 266 Ala. 370, 371, 96 So.2d 752, 753 (1957). See also, Opinion of the Justices No. 274, 394 So.2d 957, 959-60 (Ala.1981).

Because the question you pose is one of great public interest, and because the question raises a question of fundamental constitutional law relating to the separation of powers of government, we elect to express our opinion on the question you ask, but we must point out, as we did on another occasion when the Legislature asked for the opinion of the Justices on the constitutionality of pending legislation while the basic constitutionality of the same Act was being raised on appeal in an adversary setting: "[T]he 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 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 at pages 391-92 (Ala.1982).

As the Justices said in Opinion No. 289, when they were asked to express their separate opinions on the constitutionality of the budget isolation bill, while the constitutionality of the legislation was being raised in a case on appeal, "It is also instructive to note that advisory opinions are not binding precedents as are decisions on appeal to this Court." 410 So.2d at 392.

With those principles firmly in our minds, we now express our opinion on your request, that is, whether the Legislature is required to comply with the order of the circuit court in the consolidated cases. Our opinion is that the order has the force of law unless modified...

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34 cases
  • Montoy v. State
    • United States
    • Kansas Supreme Court
    • January 3, 2005
    ... ... this issue will have statewide effect and require legislative action in the 2005 legislative session, we announce our decision in this brief opinion. A formal opinion will be filed at a later date ...         After examining the record and giving full and complete consideration to the ... See Opinion of the Justices, 624 So.2d 107, 157 (Ala.1993) (advisory opinion) ("[T]he right to education in Alabama is fundamental" and implicitly guaranteed by the state ... ...
  • James v. Alabama Coalition For Equity, Inc.
    • United States
    • Alabama Supreme Court
    • December 12, 1997
    ... ... Alabama Coalition for Equity, 662 So.2d 894 (Ala.1995); Opinion of the Justices No. 338, 624 So.2d 107 (Ala.1993). They are appeals and cross appeals from a judgment of the Montgomery County Circuit Court ... ...
  • Ex parte James
    • United States
    • Alabama Supreme Court
    • May 31, 2002
    ... ... Const.1901, § 43, and noting that the legislative and executive branches have the responsibility of "providing for public education"); Opinion of the Justices No. 338, 624 So.2d 107, 110 (Ala.1993) (discussing the "principle of separation of powers" and noting that "[t]he executive and ... ...
  • Cent. Ala. Fair Hous. Ctr. v. Magee
    • United States
    • U.S. District Court — Middle District of Alabama
    • December 12, 2011
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8 books & journal articles
  • Safeguarding the right to a sound basic education in times of fiscal constraint.
    • United States
    • Albany Law Review Vol. 75 No. 4, June - June 2012
    • June 22, 2012
    ...been quite influential, as they have essentially been adopted by the highest courts in six other states: Alabama (Op. of the Justices, 624 So.2d 107, 107-08 (Ala. 1993)); Massachusetts (McDuffy v. Sec'y of the Exec. Off. of Educ., 615 N.E.2d 516, 554 (Mass. 1993)); New Hampshire (Claremont ......
    • United States
    • Washington University Law Review Vol. 97 No. 4, April 2020
    • April 1, 2020
    ...AL 1997 713 So.2d 869 Court of last resort AL 2002 836 So.2d 813 Court of last resort AL 1997 713 So.2d 937 Court of last resort AL 1993 624 So.2d 107 Court of last resort AR 2011 2011 WL 9683713 Trial court AR 2012 2012 WL 665604 Court of last resort AR 2013 430 S.W.3d 29 Court of last res......
  • State courts and school funding: a fifty-state analysis.
    • United States
    • Albany Law Review Vol. 63 No. 4, June 2000
    • June 22, 2000
    ...as follows, with the prevailing party indicated by (P) for plaintiff students and parents and (S) for the state: Opinion of the Justices, 624 So.2d 107 (Ala. 1993) (P); Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391 (Alaska 1997) (S); Roosevelt Elementary Sch. Dist. No. 66 v. B......
    • United States
    • Constitutional Commentary Vol. 36 No. 2, September 2021
    • September 22, 2021
    ...because equal opportunity to education is a fundamental righl). (56.) A non-exhaustive set of examples includes Op. of the Justs., 624 So. 2d 107 (Ala. 1993) (issuing an advisory opinion requiring Alabama to comply with an order of the Circuit Court of Montgomery, holding that the slate's s......
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