State ex rel. King v. Morton

• Decision Date: 12 October 2006
• Docket Number: 1051814.,1051771.
• Citation: 955 So.2d 1012
• Parties: STATE of Alabama ex rel. Troy KING, in his official capacity as Attorney General of Alabama; and Bob Riley, in his official capacity as Governor of Alabama v. Joe MORTON, in his official capacity as State Superintendent of Education, et al. State of Alabama ex rel. Troy King, in his official capacity as Attorney General of Alabama; and Bob Riley, in his official capacity as Governor of Alabama v. Lucy Baxley, in her official capacity as Lieutenant Governor of Alabama, et al.
• Court: Alabama Supreme Court

955 So.2d 1012

STATE of Alabama ex rel. Troy KING, in his official capacity as Attorney General of Alabama; and Bob Riley, in his official capacity as Governor of Alabama v. Joe MORTON, in his official capacity as State Superintendent of Education, et al.

State of Alabama ex rel. Troy King, in his official capacity as Attorney General of Alabama; and Bob Riley, in his official capacity as Governor of Alabama v. Lucy Baxley, in her official capacity as Lieutenant Governor of Alabama, et al.

1051771.

1051814.

Supreme Court of Alabama.

October 12, 2006.

Troy King, atty. gen.; Kevin C. Newsom, deputy atty. gen., Scott L. Rouse, deputy legal advisor, office of the Governor; and James W. Davis, asst. atty. gen., for appellant.

Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery, for appellee the Joint Fiscal Committee.

PER CURIAM.

The State of Alabama on the relation of Troy King, Attorney General of Alabama, and Bob Riley, Governor of Alabama ("the State"), challenges the constitutionality of Act No. 2006-511, codified at §§ 29-2-121, 29-2-123, and 41-24A-1, Ala.Code 1975.¹ The trial court upheld the constitutionality of Act No. 2006-511 against the State's challenge, and the State appeals (case no. 1051814). The State also filed a separate appeal, seeking an injunction prohibiting the defendants from disbursing any funds pending the disposition of its appeal (case no. 1051771). In case no. 1051814, we affirm; we dismiss as moot case no. 1051771.

Facts and Procedural History

In 1998, the Legislature passed Act No. 98-677, Ala. Acts 1998, codified at Ala. Code 1975, §§ 29-2-120 to -124. Section 29-2-121 created a "permanent Joint Legislative Oversight Committee on Community Services Grants" (the "Legislative Oversight Committee"), made up of eight members of the Legislature. The Legislative Oversight Committee was charged with reviewing "community services" grant applications. Section 29-2-123 authorized the Legislative Oversight Committee to "become a grant-making agency and receive and distribute any appropriations made by the Legislature to the committee for the community services grant program pursuant to Chapter 24 of Title 41." As a grant-making agency, the Legislative Oversight Committee evaluated grant proposals based on certain criteria and either approved or rejected the proposals. Id.

This community-services-grant process established by Act No. 98-677 and the appropriations in Act No. 2004-456, the education-appropriations act, for the community-services grants were held unconstitutional in McInnish v. Riley, 925 So.2d 174, 176 (Ala.2005). This Court held in McInnish that § 29-2-123 encroached on the powers specifically reserved to the executive branch of government by the Alabama Constitution:

"[W]e hold that § 29-2-123, which authorizes a permanent joint legislative committee to award community-services grants, and so much of Act No. 2004-456 by which those grants are funded `constitute,' in the words of the complaint, an `encroachment of the executive powers specifically reserved to the executive branch of government by the Alabama Constitution.' The legislature cannot, consistent with § 42 and § 43, execute the laws it enacts. See Bowsher v. Synar, 478 U.S. [714] at 726, 106 S.Ct. 3181 [(1986)]; Stockman v. Leddy, 55 Colo. [24] at 31, 129 P. [220] at 223 [ (1912) ].

"....

"`"[W]here the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted."' Mistretta v. United States, 488 U.S. 361, 381, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (quoting The Federalist No. 47, at 325-26 (James Madison) (J. Cooke ed.1961) (emphasis in The Federalist)). Because the grant-making process created by § 29-2-123 begins and ends in the legislature, it violates the separation-of-powers provisions of the Constitution of Alabama."

925 So.2d at 188.

In 2006, after this Court had issued its opinion in McInnish, the Legislature passed Act No. 2006-511 ("the Act").² The Act created the State Executive Commission on Community Services Grants (the "Executive Commission"), which, according to §§ 41-24A-1 and 41-24-2 to -5, Ala.Code 1975, is a "grant-making agency."³ Further, the Act empowers the Executive Commission to distribute any appropriations made by the Legislature to the Executive Commission for the community-services-grant program. The Executive Commission is composed of certain members of the executive department, namely, the State Superintendent of Education, the Lieutenant Governor, the State Treasurer, and the Commissioner of Agriculture and Industries. The Governor does not serve on the Executive Commission, and he does not have any authority to appoint its members, directly oversee its actions, or veto its decisions.

The Act also amended §§ 29-2-121 and -123, to redesignate the Legislative Oversight Committee as the "Legislative Advisory Committee on Community Service Grants" ("the Legislative Advisory Committee"). Under the Act, legislators submit grant applications to the Legislative Advisory Committee,⁴ which is composed entirely of members of the legislative department, namely:

"[T]he Chair of the House Ways and Means Committee; the Chair of the Senate Finance and Taxation-Education Committee; the Chair of the Senate Committee on Economic Expansion and Trade; three members of the House Ways and Means Committee appointed by the Chair of the House Ways and Means Committee; one member of the Senate Finance and Taxation-Education Committee appointed by the Chair of the Senate Finance and Taxation-Education Committee; and one member of the Senate Committee on Economic Expansion and Trade appointed by the Chair of the Senate Committee on Economic Expansion and Trade."

§ 29-2-121, Ala.Code 1975. The Legislative Advisory Committee is authorized under § 29-2-123 to conduct hearings and to gather information in order to determine whether a grant application falls within the applicable guidelines.⁵ The Legislative Advisory Committee is to forward the grant applications to the Executive Commission, along with its recommendations on those applications. Finally, the Executive Commission makes a final ruling on the grant applications forwarded to it from the Legislative Advisory Committee. "The [executive] commission shall have absolute discretion to award or reject any grant." § 29-2-123, Ala.Code 1975. Finally, the Act appropriates to the Executive Commission $12,800,000 from the Education Trust Fund to be used for grants that promote public-education purposes, and $604,633 from the Education Trust Fund to be distributed within those legislative districts "that did not receive the full designated amounts for the fiscal year ending September 30, 2005."

The State filed a complaint in the Montgomery Circuit Court challenging the constitutionality of the Act and moved the court for a preliminary injunction prohibiting the defendants from disbursing any funds from the Education Trust Fund pursuant to the Act. After a hearing, the trial court denied the State's motion in a written order. The State then filed an "Emergency Motion for Injunction Pending Appeal" in this Court, seeking an injunction prohibiting the defendants from disbursing any funds pending the appeal of the trial court's order denying the motion for a preliminary injunction. That case was assigned case no. 1051771.

While the State's emergency motion was pending in this Court, the trial court held a final hearing on the merits of the underlying action. After the hearing, the trial court entered an order in favor of the defendants, upholding the Act against the State's constitutional challenge. The State had argued to the trial court that the Act violated §§ 42 and 43 of the Alabama Constitution of 1901, the separation-of-powers provisions, in that it improperly denied the Governor his role as the chief executive officer under § 113 of the Alabama Constitution.⁶ The trial court ruled that the Act does not violate § 113 of the Alabama Constitution. Additionally, the trial court, in response to the defendants' request for relief, issued a writ of mandamus directing the Governor to allot the funds appropriated to the Executive Commission, but the trial court also entered an injunction prohibiting the Executive Commission from disbursing those funds until October 1, 2006.

This Court heard arguments on September 26, 2006, and issued an order extending beyond October 1, 2006, the trial court's order enjoining the Executive Commission from disbursing the funds appropriated by the Act. Additionally, this Court ordered that the injunction constitutes an encumbrance on the funds appropriated by the Act, so that those funds will not revert to the state treasury at the end of the 2005-2006 fiscal year.⁷ Finally, this Court ordered the Joint Fiscal Committee⁸ to file a supplemental brief addressing whether the role of the Legislative Advisory Committee violates the separation-of-powers provisions of the Alabama Constitution.

Standard of Review

The State's challenge to the Act is essentially a "`facial challenge,' which is defined as `[a] claim that a statute is unconstitutional on its face—that is, that it always operates unconstitutionally.'" Board of Water & Sewer Comm'rs of Mobile v. Hunter, [Ms. 1050067, July 28, 2006] ___ So.2d ___, ___ (Ala.2006) (quoting Black's Law Dictionary 244 (8th ed.2004)). "Our review of constitutional challenges to legislative enactments is de novo." Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala. 2001). Additionally, acts of the legislature are presumed constitutional. State v. Alabama Mun. Ins. Corp., 730 So.2d 107, 110 (Ala.1998). See also Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425, 428 (Ala.1999) ("In reviewing the constitutionality of a legislative act, this Court will sustain the act `"unless it is clear beyond reasonable doubt that it is violative of the...