OPINION OF THE JUSTICES NO. 380

• Decision Date: 31 March 2004
• Docket Number: OPINION OF THE JUSTICES No. 380.
• Citation: 892 So.2d 332
• Parties: OPINION OF THE JUSTICES No. 380.
• Court: Alabama Supreme Court

892 So.2d 332

OPINION OF THE JUSTICES No. 380.

Supreme Court of Alabama.

March 31, 2004.

The Honorable Bob Riley Governor of Alabama State Capitol Montgomery, Alabama 36130

Dear Governor Riley:

We have received your letter requesting an advisory opinion as to whether House Bill 50 and Senate Bill 133 impermissibly extend the powers of the Legislature in violation of the separation-of-powers provisions, §§ 42 and 43 of the Alabama Constitution of 1901. Section 12-2-10, Ala.Code 1975, authorizes the governor to request an advisory opinion from this Court. It provides that "[t]he Governor, by a request in writing, or 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."

The Nature of an Advisory Opinion

We note that legislators take the same oath to uphold the constitution of this State as do the members of this Court; therefore, legislators must make their own independent decisions as to the constitutionality of proposed legislation. Moreover, this Court gives great deference to the presumption of constitutionality afforded an act of the Legislature. See Town of Brilliant v. City of Winfield, 752 So.2d 1192, 1201 (Ala.1999)("For the Court to strike down an act of the Legislature, it must be `clear beyond reasonable doubt that it is violative of the fundamental law' — i.e., that it violates a limitation on legislative power imposed by the State or Federal Constitution."). Nonetheless, we provide advisory opinions as an aid to legislators in fulfilling their constitutional responsibilities.

In issuing advisory opinions, the members of this Court consider in the abstract the question submitted for consideration, without adverse parties and without the benefit of briefing or of an actual case or controversy; in an actual case or controversy, we might reach a different conclusion. See Opinion of the Justices No. 188, 280 Ala. 692, 703, 198 So.2d 269, 280 (1967) ("`The performance by the Justices of the function [§ 12-2-10] contemplates is non-judicial; this for the obvious reason that advisory opinions given do not conclude or vindicate any right or remedy, result in no judgment or decree, bind no one whatsoever.'") (quoting Opinions of the Justices No. 1, 209 Ala. 593, 594, 96 So. 487, 488-89 (1923)). Thus, pursuant to § 12-2-10, Ala.Code 1975, we undertake to offer our opinion as to whether House Bill 50 and Senate Bill 133 violate the separation-of-powers provisions in the Constitution of Alabama of 1901.

Separation of Legislative and Executive Powers

The Constitution of Alabama, like the Constitution of the United States "expressly vest[s] the three great powers of government in three separate branches." Ex parte Jenkins, 723 So.2d 649, 654 (Ala.1998); see also U.S. Const. art. I, § 1; id. at art. II, § 1, cl. 1; id. at art. III, § 1; Ala. Const. of 1901, § 42; id. at § 43.¹ Sections 42 and 43 of the Constitution of Alabama of 1901 explicitly provide that "the three principal powers of government shall be exercised by separate departments." Jenkins, 723 So.2d at 653. Section 42 provides:

"The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another."

Ala. Const. of 1901, § 42. Section 43 of the Alabama Constitution provides:

"In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."

Ala. Const. of 1901, § 43.

In Monroe v. Harco, Inc., 762 So.2d 828 (Ala.2000), this Court described the separation-of-powers provisions of the Constitution of Alabama:

"Article III of the Alabama Constitution of 1901 creates the framework for the division of powers between the State's legislative, executive, and judicial branches. Each branch within our tripartite governmental structure has distinct powers and responsibilities, and our Constitution demands that these powers and responsibilities never be shared."

762 So.2d at 831. "The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of society; while the execution of the laws and the employment of the common strength ... seem to comprise all the functions of the executive." The Federalist No. 75, at 450 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also Maples v. McDonald, 668 So.2d 790, 792 (Ala.Civ.App.1995)("The legislature's power to enact legislation is plenary, limited only by the Constitution."). Moreover,

"`"[t]he true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, `is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law.' The first cannot be done. To the latter, no valid objection can be made."'"

Monroe, 762 So.2d at 831 (quoting Heck v. Hall, 238 Ala. 274, 282, 190 So. 280, 286 (1939))(quoting in turn State ex rel. Adams v. Burdge, 95 Wis. 390, 402, 70 N.W. 347, 350 (1897)). Thus, the core power of the legislative branch is to declare policy through enacting legislation, and the core power of the executive branch is to carry out those legislative policies with a certain degree of executive discretion.

House Bill 50

Currently, under § 41-19-10(e), Ala.Code 1975, the governor is authorized to transfer appropriations between programs within an agency or a department. See § 41-19-10(e), Ala.Code 1975 ("Appropriation transfers or changes between programs within an agency/department may be made only by the Governor and shall be reported to the Legislature quarterly."). House Bill 50 amends § 41-19-10, Ala.Code 1975, by removing the language authorizing the governor to transfer appropriations between programs within an agency or a department and by adding the following sentence: "Notwithstanding any provision of this section to the contrary, when a specific appropriation has been made by the Legislature for any purpose to any state agency/department, the entire amount of the specific appropriation may be expended by the state agency/department only for the purpose appropriated." Therefore, House Bill 50 eliminates the power of the governor to transfer appropriations between programs within an agency or a department.²

Thus, House Bill 50 reflects a legislative decision to remove from the governor the discretion to make these appropriation transfers — a power the Legislature granted to the governor when it originally enacted § 41-19-10(e), Ala.Code 1975. The Supreme Court of the United States has stated that "[o]nce Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly — by passing new legislation." Bowsher v. Synar, 478 U.S. 714, 733-34, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (quoting INS v. Chadha, 462 U.S. 919, 958, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)). In the situation presented to us, the Legislature originally granted the governor the discretion to transfer appropriations between programs within an agency or a department. See § 41-19-10(e), Ala.Code 1975. As we noted above,

"`"[t]he true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, `is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law.' The first cannot be done. To the latter, no valid objection can be made."'"

Monroe, 762 So.2d at 831 (quoting Heck v. Hall, 238 Ala. at 282, 190 So. at 286)(quoting in turn State ex rel. Adams, 95 Wis. at 402, 70 N.W. at 350). The Legislature may define the scope of executive discretion so long as in doing so it does not encroach upon the core power of the executive branch to execute a statute.

The decision of the Supreme Court of the United States in Train v. City of New York, 420 U.S. 35, 95 S.Ct. 839, 43 L.Ed.2d 1 (1975), is instructive. Train held that while Congress may grant the executive branch discretion in withholding funds Congress has appropriated, the statute in issue, the Federal Water Pollution Control Act Amendments of 1972, did not grant the executive branch discretion to withhold funds, but required that the entire amount appropriated by Congress be spent. Therefore, the Supreme Court held that the entire amount of the funds appropriated by Congress for purposes of the Federal Water Pollution Control Act Amendments of 1972 must be spent. 420 U.S. at 44-47, 95 S.Ct. 839.

Similarly, the Legislature may grant the governor discretion in the appropriation of funds, or the Legislature may require that all funds appropriated for a certain purpose be spent for that purpose. Thus, House Bill 50 is not an improper exercise of the Legislature's plenary power to enact legislation, so long as it is not applied to interfere with the discretion inherent in the power of the executive branch to execute the law.

Senate Bill 133

Senate Bill 133 amends § 29-2-41, Ala.Code 1975, a part of art. 3, ch. 2, title 29, which creates the Contract Review Permanent Legislative Oversight...