Shores v. Mackey

• Decision Date: 22 December 2022
• Docket Number: 1210353
• Parties: Gulf Shores City Board of Education and Kelly Walker v. Eric Mackey, in his official capacity as Superintendent of the Alabama State Board of Education; Teddy J. Faust, Jr., in his official capacity as Revenue Commissioner of Baldwin County; James E. Ball, Joe Davis III, Billie Jo Underwood, and Charles F. Gruber, in their official capacities as Commissioners of Baldwin County; Baldwin County Board of Education; Baldwin County Circuit Judge Carmen E. Bosch, in her official capacity as Presiding Judge of the Baldwin County Juvenile Court; Robert Wilters, in his official capacity as Baldwin County District Attorney; and Coastal Alabama Community College
• Court: Alabama Supreme Court

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Gulf Shores City Board of Education and Kelly Walker v. Eric Mackey, in his official capacity as Superintendent of the Alabama State Board of Education; Teddy J. Faust, Jr., in his official capacity as Revenue Commissioner of Baldwin County; James E. Ball, Joe Davis III, Billie Jo Underwood, and Charles F. Gruber, in their official capacities as Commissioners of Baldwin County; Baldwin County Board of Education; Baldwin County Circuit Judge Carmen E. Bosch, in her official capacity as Presiding Judge of the Baldwin County Juvenile Court; Robert Wilters, in his official capacity as Baldwin County District Attorney; and Coastal Alabama Community College

No. 1210353

Supreme Court of Alabama

December 22, 2022

Appeal from Montgomery Circuit Court (CV-21-900953) BOLIN Justice.

The Gulf Shores City Board of Education ("the Gulf Shores Board") and Kelly Walker ("the plaintiffs") appeal from the judgment of the Montgomery Circuit Court dismissing their complaint seeking certain declaratory and mandamus relief against Eric Mackey, in his official capacity as Superintendent of the Alabama State Board of Education ("the superintendent"); Teddy J. Faust, Jr., in his official capacity as Revenue Commissioner of Baldwin County ("the revenue commissioner"); James E. Ball, Joe Davis III, Billie Jo Underwood, and Charles F. Gruber, in their official capacities as Commissioners of Baldwin County ("the county commissioners"); the Baldwin County Board of Education ("the Baldwin County Board") Baldwin County Circuit Judge Carmen E. Bosch, in her official capacity as Presiding Judge of the Baldwin County Juvenile Court, and Robert Wilters, in his official capacity as the Baldwin County District Attorney ("the judicial defendants"); and Coastal Alabama Community College ("CACC").

Facts and Procedural History

Alabama's statutory framework for funding public education includes allowing a county to levy certain taxes to support the public schools in the county. For example, § 16-13-160 and § 16-13-180, Ala. Code 1975, allow a county to impose respectively, a one-mill ad valorem tax and a three-mill ad valorem tax for the purpose of funding public education in the county. Section 16-13-31(b), Ala. Code 1975, provides for the apportionment of proceeds collected pursuant to such taxes:

"(b) The tax collector/revenue commissioner of each county shall apportion county-wide taxes collected for the purposes of participating in the Foundation Program to each local board of education in the county on the basis of the total calculated costs of the Foundation Program for those local boards of education within the county. The total calculated costs of the Foundation Program for each local board of education shall be the sum of state funds received from the Foundation Program and the amount of local effort required pursuant to paragraph a. of subdivision (3) of subsection (b) of Section 16-13-231[, Ala. Code 1975]."

In addition, pursuant to § 40-12-4, Ala. Code 1975, a county has the authority to impose franchise, excise, and privilege license taxes for the purpose of funding education in the county. Section 40-12-4 provides, in pertinent part:

"(a) In order to provide funds for public school purposes, the governing body of each of the several counties in this state is hereby authorized by ordinance to levy and provide for the assessment and collection of franchise excise and privilege license taxes with respect to privileges or receipts from privileges exercised in such county, which shall be in addition to any and all other county taxes heretofore or hereafter authorized by law in such county. Such governing body may, in its discretion, submit the question of levying any such tax to a vote of the qualified electors of the county. If such governing body submits the question to the voters, then the governing body shall also provide for holding and canvassing the returns of the election and for giving notice thereof. All the proceeds from any tax levied pursuant to this section less the cost of collection and administration thereof shall be used exclusively for public school purposes, including specifically and without limitation capital improvements and the payment of debt service on obligations issued therefor.

"(b) Notwithstanding anything to the contrary herein, the governing body shall not levy any tax hereunder measured by gross receipts, except a sales or use tax which parallels, except for the rate of tax, that imposed by the state under this title. Any such sales or use tax on any automotive vehicle, truck trailer, trailer, semitrailer, or travel trailer required to be registered or licensed with the probate judge, where not collected by a licensed Alabama dealer at time of sale, shall be collected and fees paid in accordance with the provisions of Sections 40-23-104 and 40-23-107, [Ala. Code 1975,] respectively. No such governing body shall levy any tax upon the privilege of engaging in any business or profession unless such tax is levied uniformly and at the same rate against every person engaged in the pursuit of any business or profession within the county; except, that any tax levied hereunder upon the privilege of engaging in any business or profession may be measured by the number of employees of such business or the number of persons engaged in the pursuit of such profession. In all counties having more than one local board of education, revenues collected under the provisions of this section shall be distributed within such county on the same basis of the total calculated costs for the Foundation Program for those local boards of education within the county."

The Foundation Program referenced in § 16-13-31(b) and § 40-12-4(b) was created by the legislature pursuant to § 16-13-230 et seq., Ala. Code 1975. The Foundation Program Fund is a fund established for the benefit of public education in this state and is composed of appropriations made by the legislature. § 16-13-230, Ala. Code 1975. The requirements for a local board of education to participate in the Foundation Program and the formulas for determining the cost of the program and how funds are apportioned to local boards are set forth in § 16-13-231, Ala. Code 1975. Further, § 16-13-237, Ala. Code 1975, provides that "[i]t is not the intent of the Legislature to require, and the Legislature expressly so declares that it does not require, any county to provide funding to any city board of education beyond the city board of education's pro rata share of any countywide tax."

This case involves the interplay among § 16-13-31(b), § 40-12-4, and § 45-2-244.077, Ala. Code 1975, a part of § 45-2-244.071 et seq., Ala. Code 1975 ("the local-tax act"), which authorizes the Baldwin County Commission to levy a 1% sales tax in Baldwin County paralleling the state sales tax found in § 40-23-1 through § 40-23-4, Ala. Code 1975 ("the local tax"). Section 45-2-244.077 provides how proceeds of the local tax are to be disbursed. Act No. 83-532, Ala. Acts 1983, was the initial act authorizing the local tax; § 8 of that act provided, in part:

"All revenues arising from the taxes herein authorized to be levied shall be distributed as follows: (a) Fifty-five percent (55%) shall be distributed to the Baldwin County board of education to be utilized exclusively for capital improvement, capital construction and maintenance purposes; (b) five percent (5%) shall be distributed to Faulkner State Junior College^[[1] in Bay Minette to be used as other appropriations to said school are used; and (c) forty percent (40%) shall be deposited in the general fund of the county to be expended as other county funds. Provided, however, in the initial fiscal year that this sales tax is levied, prior to any distribution provided herein, a one-time disbursement of two percent (2%) of all revenues arising from said tax shall be appropriated for the erection of a suitable county animal pound as provided in Section 3-7-7, Code of Alabama 1975."

Act No. 84-523, Ala. Acts 1984, amended § 8 of Act No. 83-532 by adding the following sentence:

"Effective for the fiscal year beginning October 1, 1984, and each fiscal year thereafter, prior to any other distribution, two percent (2%) of all net revenues herein collected shall be appropriated to the juvenile court for Baldwin County to be used for the leasing or building, staffing, and operation of a home for juveniles."

1210353 In May 2017, the legislature enacted Act No. 2017-447, Ala. Acts 2017, which modified the designated recipients of the proceeds of the local tax as follows:

"Prior to any other distribution, two percent of all net revenues herein collected shall be appropriated to the Juvenile Court for Baldwin County to be used for drug interdiction and education programs; staffing; and the leasing, building, staffing, and operation of a home for juveniles; and one percent of all net revenues collected shall be appropriated to the Baldwin County District Attorney's Office to be expended for education and intervention programs, with emphasis on grades kindergarten through 12, aimed at the prevention of drug and alcohol abuse, sexual misconduct, bullying and other issues, and for other prosecution services. After the distribution to the Juvenile Court and District Attorney's Office as provided in this section, the remaining net revenues arising from the taxes herein authorized to be levied shall be distributed as follows: (1) 40 percent shall be distributed to the Baldwin County Board of Education to be utilized exclusively for capital improvement, capital construction, and maintenance purposes; (2) five percent shall be distributed to Coastal Alabama Community College in Bay Minette and shall be used only in the county as other appropriations to the school are used; and (3) 55

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