Wright v. Turner

• Court: Supreme Court of Alabama
• Citation: 351 So.2d 1
• Parties: Dr. Leslie S. WRIGHT et al. v. Edward P. TURNER et al. Dr. Leslie S. WRIGHT et al. v. Charles M. HOHENBERG et al. Dr. Leslie S. WRIGHT et al. v. James J. CARTER et al. SC 2564-SC 2566.
• Decision Date: 23 September 1977

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351 So.2d 1 Dr. Leslie S. WRIGHT et al.
v.
Edward P. TURNER et al.
Dr. Leslie S. WRIGHT et al.
v.
Charles M. HOHENBERG et al.
Dr. Leslie S. WRIGHT et al.
v.
James J. CARTER et al. SC 2564-SC 2566. Supreme Court of Alabama. Sept. 23, 1977.
As Corrected On Denial of Rehearing Nov. 4, 1977.

William J. Baxley, Atty. Gen., and William T. Stephens and Winston T. Lett, Asst. Attys. Gen., State of Alabama, for appellants.

William H. Morrow, Jr. and Truman Hobbs, Montgomery, for appellees.

BLOODWORTH, Justice.

By these three consolidated appeals, Act No. 130, the State Ethics Act (Acts of Legislature, Regular Session 1975, Vol. 1, page 604) which amended and re-enacted the former Ethics Act (Act No. 1056, Regular Session

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1973, Vol. III, page 1699) is being challenged again. For the history of these two acts, see Mr. Justice Beatty's opinion for the Court in Comer v. City of Mobile, 337 So.2d 742 (Ala.1976), in which we disposed of the several constitutional challenges there presented to Act No. 130.

Two principal issues are raised by these appeals. First, are members of the Board of Bar Commissioners of the Alabama State Bar, members of the Judicial Compensation Commission, and members of the Court of the Judiciary "public officials" within the meaning of that term in the State Ethics Act and thus subject to the Act? Second, would application of the Ethics Act to these parties violate the "separation of powers" doctrine of the Alabama Constitution?

We answer the first question in the negative and therefore need not reach the constitutional issue. Moreover, we do not consider the constitutional validity of a statute unless essential to a disposition of the cause. Rainey v. Ford Motor Credit Co., 294 Ala. 139, 313 So.2d 179 (1975); City of Mobile v. Gulf Dev. Co., 277 Ala. 431, 171 So.2d 247 (1965).

These cases commenced on May 19, 1974, when appellees Edward Turner, et al., Charles M. Hohenberg, et al., and James J. Carter, et al., who are members of the Board of Bar Commissioners of the Alabama State Association, the Judicial Compensation Commission, and the Court of Judiciary, respectively, instituted these actions against appellants, members of the Alabama State Ethics Commission and the Attorney General of Alabama, seeking to restrain them from applying and enforcing the provisions of the 1973 Ethics Act to them in their capacity as members of these entities. On May 15, 1974, Circuit Judge Eugene Carter entered a temporary restraining order; on May 21, 1974, he entered a preliminary injunction.

Appellants thereafter filed answers to appellees' complaints denying the substantive allegations of the complaints and incorporating motions to dismiss them.

By agreement of counsel for all parties, further proceedings were suspended pending final determination of the constitutionality of the 1973 Ethics Act. On November 19, 1974, Judge Carter upheld the constitutionality of the Act.

On August 7, 1975, the Alabama Legislature passed an amended and re-enacted Ethics Act over the Governor's veto. This 1975 amended version withstood a challenge to its constitutionality by the City of Mobile and certain individuals in Comer v. City of Mobile, supra, although two of its provisions were held to be unconstitutional.

Subsequently, at a pre-trial hearing of these cases, appellees filed an amendment to their complaints advancing the same challenges to the 1975 Ethics Act as they had made to the 1973 version. Appellees further averred that appellants' attempt to apply the provisions of the 1975 Ethics Act to them violated the "separation of powers" clauses of the Alabama Constitution of 1901, contained in sections 42, 43, and 139 et seq.

On May 4, 1977, Circuit Judge William Thetford, to whom the case had been reassigned upon the retirement of Judge Carter, entered a permanent injunction, enjoining appellants from taking any action to apply any of the provisions against appellees or their successors in office solely by reason of their service as members of these entities.

We now proceed to consider whether appellees are "public officials" within the meaning of that term in the Act.

Section 2(k) of the Ethics Act defines "public official" as follows:

"(k) 'Public Official' means any elected official at the state, county, or municipal level of government and any person appointed under state, county, or municipal law to an office where in the conduct of such office such person has administrative and discretionary authority for the receipt or expenditure of public funds. This definition shall also include members of state boards, commissions, committees, councils and authorities, however selected, Presidents, Vice-Presidents, Chief

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Purchasing Officials and Chief Financial Officials of all schools, colleges and universities of the State; members of city and county industrial boards, planning and zoning boards, school boards, boards of adjustment, utility boards, housing boards, public hospital boards, and any boards, commissions, committees, authorities or councils having jurisdiction with respect thereto, in all cities whose population is more than 15,000 according to the last decennial census. ¹ This definition excludes members of all other boards not named including but not limited to those commissions, committees, councils, boards or authorities, functioning solely for cultural or historical purposes and advisory board members and members of boards of trustees of institutions of higher learning of the State of Alabama."

In interpreting the provisions of a statute, we must ascertain and effectuate the intent of the legislature. Tillman v. Sibbles, 341 So.2d 686 (Ala.1977); State ex rel. City of Birmingham v. City of Tarrant City,294 Ala. 304, 315 So.2d 583 (1975).

In ascertaining legislative intent, we are entitled to consider conditions which may arise under the provisions of statutes and to examine the results which will flow from giving the language in question a particular meaning over another. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974).

At the outset, we should say that the express provisions of § 2(k) of the Ethics Act leave this matter in some doubt. Nowhere does the statute explicitly refer to the Board of Bar Commissioners of the Alabama State Bar, the Judicial Compensation Commission, or the Court of Judiciary. Appellants earnestly contend that the following language clearly demonstrates that appellees are covered by the Ethics Act: "This definition (public officials) shall also include members of state boards, commissions, committees, councils and authorities, however selected . . .." Appellees just as vigorously contend that the above-quoted language is not dispositive of the issue, and insist that the following language demonstrates that they are not covered by the act: "This definition excludes members of all other boards not named including, but not limited to those commissions, committees, councils, boards or authorities, functioning solely for cultural or historical purposes and advisory board members . . .."

Upon close examination, we think it clear that none of the appellees are covered by the Ethics Act, and, therefore, that none need comply with it.

Under the statutory definition, these appellees are not "elected officials." Nor are they "appointed (officials who) in the conduct of such office . . . (have) administrative and discretionary authority for the receipt or expenditure of public funds," with, perhaps, the possible exception of the Bar Commissioners.

The plainest case is that of the Judicial Compensation Commission. Although it is a constitutionally mandated body and is required to "recommend to the legislature the salary and expense allowances to be paid from the state treasury for all judges of this state except for municipal and probate judges," its members are expressly excluded from the definition of "public officials" found in the Ethics Act.

This is equally true for the Court of Judiciary. Its five members' primary function is to hear complaints filed against judges by the Judicial Inquiry Commission. Since its creation four years ago, it has convened for no more than a few times each year. Its members serve without pay in a position which may be charitably characterized as "thankless." Plainly, we think, the members of the Court of Judiciary are not "public officials."

Likewise, it seems clear to us that the members of the Board of Bar Commissioners of the Alabama State Bar Association are not "public officials" either.

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It might be argued that because the Bar Commissioners receive and expend public funds through their discretionary budgeting of receipts from lawyers' licenses, they fall within the second part of the definition. Tit. 46, § 32, Code of Alabama 1940 (Recompiled 1958). But, we think not for the reasons which hereafter appear.

The members of the Board of Bar Commissioners act on matters relating exclusively to their professional association of attorneys. They serve without pay. They are required to meet once each year, although in practice, they usually meet five or six times annually. Their significant duties, with respect to disbarment and reinstatement, are subject to Supreme Court review. Clearly, they should not be characterized as "public officials" in any common sense or legal definition of the term.

Historic definitions as to the meaning of the term "public officers" are not particularly helpful to us in a resolution of the question as to whether members of the Board of Bar Commissioners are, or are not, "public officials" within the meaning of that term in the Ethics Act. Nevertheless, we proceed to examine those definitions found in our case law.

In State v. Baumhauer, 244 Ala. 1, 7, 12 So.2d 326, 330 (1942), the following appears: "(I)n Harrington v. State, 200 Ala. 480, 76 So. 422, 423, it is pointed out that 'when we speak of a public officer as a state, county, or municipal...