Opinion of the Justices

• Decision Date: 27 April 1993
• Docket Number: No. 338,338
• Citation: 624 So.2d 107
• Parties: 86 Ed. Law Rep. 497 OPINION OF THE JUSTICES.
• Court: Alabama Supreme Court

Page 107

624 So.2d 107

86 Ed. Law Rep. 497

OPINION OF THE JUSTICES.

No. 338.

Supreme Court of Alabama.

April 27, 1993.

Members of the Senate

Alabama State House

Montgomery, Alabama 36130

Dear Senators:

We have received Senate Resolution 97, which requests our opinion as to whether the finding in Section One of Senate Bill 607 ("S. 607") (the finding that the Legislature is required to provide schoolchildren with substantially equitable and adequate educational opportunities) is constitutionally required. Section One of S. 607 reads as follows:

"Section 1. The Legislature finds that it is constitutionally required to comply with the order of the circuit court in the consolidated cases of Alabama Coalition for Equity, Inc. v. Hunt, CV-90-883-R, and Harper v. Hunt, CV-91-117-R, to wit:

" '1. That, pursuant to Ala. Const. Art I, §§ 1, 6, 13 and 22 and Art. XIV, § 256, Alabama schoolage children, including children with disabilities, have and enjoy a constitutional right to attend school in a liberal system of public schools, established, organized, and maintained by the state, which shall provide all such schoolchildren with substantially equitable and adequate educational opportunities.

" '2. That the essential principles and features of the "liberal system of public schools" required by the Alabama Constitution include the following:

" 'a. It is the responsibility of the state to establish, organize, and maintain the system of public schools.

" 'b. The system of public schools shall extend throughout the state.

" 'c. The public schools must be free and open to all schoolchildren on equal terms.

" 'd. Equitable and adequate educational opportunities shall be provided to all schoolchildren regardless of the wealth of the communities in which the schoolchildren reside.

" 'e. Adequate educational opportunities shall consist of, at a minimum, an education that provides students with opportunity to attain the following:

" '(i) Sufficient oral and written communication skills to function in Alabama, and at the national and international levels, in the coming years.

" '(ii) Sufficient mathematic and scientific skills to function in Alabama and at the national and international levels, in the coming years.

" '(iii) Sufficient knowledge of economic, social, and political systems generally, and of the history, politics, and social structure of Alabama and the United States, specifically, to enable the student to make informed choices.

" '(iv) Sufficient understanding of governmental processes and of basic civic institutions to enable the student to understand and contribute to the issues that affect his or her community, state, and nation.

" '(v) Sufficient self-knowledge and knowledge of principles of health and mental hygiene to enable the student to monitor and contribute to his or her own physical and mental well-being.

" '(vi) Sufficient understanding of the arts to enable each student to appreciate his or her cultural heritage and the cultural heritages of others.

" '(vii) Sufficient training, or preparation for advanced training, in academic or vocational skills, and sufficient guidance, to enable each child to choose and pursue life work intelligently.

" '(viii) Sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in Alabama, in surrounding states, across the nation, and throughout the world, in academics or in the job market.

" '(ix) Sufficient support and guidance so that every student feels a sense of self-worth and ability to achieve, and so that every student is encouraged to live up to his or her full human potential.

" '3. That pursuant to Ala. Code §§ 16-39-3 and 16-39A-2, Alabama schoolchildren with disabilities aged 3-21 have the right to appropriate instruction and special services.

" '4. That the present system of public schools in Alabama violates the aforestated constitutional and statutory rights of plaintiffs.

" '5. That the state officers charged by law with responsibility for the Alabama public school system, are hereby enjoined to establish, organize, and maintain a system of public schools that provides equitable and adequate educational opportunities to all school-age children, including children with disabilities, throughout the state in accordance with the constitutional mandates of Ala. Const. Art. XIV, § 256; Art. I, §§ 1, 6, and 22; and to provide appropriate instruction and special services to children with disabilities aged three through twenty-one pursuant to Ala. Code §§ 16-39-3 and 16-39A-2.' "

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...