In its recent opinion in Barnett v. Jones,[1] the Alabama Supreme Court applied textual rules to interpret the Alabama Constitution. In a notable concurrence, the majority opinion’s author, Justice Jay Mitchell, joined by Chief Justice Tom Parker, wrote separately to encourage litigants and amici curiae to focus their efforts on explicating the original public meaning of the state’s constitutional provisions.

Background

Section 105 of the Alabama Constitution prohibits the state legislature from enacting any “special, private, or local law” that applies only to a certain county or subdivision if the “matter of said law is provided for by a general law.”[2] At issue in Barnett was whether a local law directing a large portion of Morgan County’s proceeds from a general taxing statute violated this prohibition.

Three provisions were at issue. First, the statewide taxing statute—the Simplified Seller Use Tax Remittance Act[3]—mandated the collection of certain use taxes from the online sales of goods and services. The statute directed 40% of the net tax proceeds to be distributed among the counties, based on each county’s population, “and deposited into the general fund of the respective county commission.”[4]

Second, the Budget Control Act, another general law, required each county commission to adopt an annual, balanced budget detailing the “anticipated revenue of the county for all public funds under its supervision and control” and estimating all “expenditures for county operations”—including funding required by state law, such as paying for the probate judge, sheriff, and the county jail.[5]

Third, the relevant local law—which applied only to Morgan County—provided: “[A]fter Morgan County retains five percent of the gross proceeds for administrative purposes, the remaining proceeds of the simplified seller use tax distributed to Morgan County . . . shall be allocated by the county commission” and distributed pursuant to a set formula to boards of education and volunteer fire departments within the county.[6]

The Court’s Opinion

The dispute over the local law arose when the Morgan County Commission refused to transfer the tax proceeds to the listed entities, and members of the boards of education sued to get their funding.[7]

The Alabama Supreme Court agreed with the boards of education. It explained that “the key to assessing a local law under § 105 is determining the subject covered by the general law or—in the phrasing of the text of § 105—determining the ‘case’ or ‘matter’ ‘provided for’ by the general law.”[8] While admitting that it had not always been consistent in how it applied Section 105’s limitation—at times focusing on whether there was a “substantial difference” between the local and general laws, at other times applying a “variance” test—the court emphasized that Section 105 does “not speak of substantial differences, variances, or result comparisons,” but “speak[s] in terms of cases and matters provided for.”[9]

The court determined that the local law for Morgan County did not cover the same “case” or “matter” “provided for” by either the taxing statute or the Budget Control Act. It explained that the taxing statute “creates a tax and then provides directions for the distribution and initial deposit of the tax proceeds” in each county commission’s general fund, “[b]ut after the proceeds are distributed,” the taxing statute “ceases to speak.”[10] “By contrast,” the court said, the local law “covers what happens to Morgan County’s portion of the [tax] proceeds after it is deposited in Morgan County’s general fund.”[11]

Neither did the Budget Control Act change matters for the court. While that Act requires counties to have a balanced budget and mandates certain items that counties must fund “at a minimum,” the court explained that the Act does not “grant county commissions the discretion over remaining funds after those required items are funded” or “prevent the Legislature from requiring counties to fund additional items—like public education.”[12] Thus, the court concluded, “[w]hile the ‘case’ or ‘matter’ addressed by the Budget Control Act may subsume the subject of county budgeting procedures, it does not cover the subject of the Legislature’s ability to appropriate funds sent to counties”—which is all Morgan County’s local law did.

There were a number of separate writings. Chief Justice Parker, in addition to joining Justice Mitchell’s concurrence (discussed below), wrote separately to clarify that he understood the main opinion’s use of the word “appropriation” as simply a generic word “for direction of tax revenue to particular recipients,” not as “having any bearing on the meaning of ‘appropriation’ in other contexts.”[13] Justice Brady E. Mendheim, Jr. concurred with the court’s result, but joined only the part of the opinion applying § 105 to the local act, not its historical overview.[14] Justice Greg Shaw concurred only in the result, writing separately to explain his view that § 105 “does not prohibit a local law from conflicting with a presumption” that the general taxing statute provides the county commission with discretion to spend the money directed to it. Rather, Justice Shaw said, § 105 “is limited to prohibiting a local law from providing for a case or matter that a general law—not a general principle—provides.”[15] And Justice William B. Sellers, joined by Justice Michael F. Bolin, dissented. They noted that both the general taxing statute and the Budget Control Act “designate that a percentage of the total use-tax funds collected pursuant to the [taxing statute] are to be spent by the county commissions in this State on county operations generally,” while the local law “requires the Morgan County Commission to give nearly all of the use-tax revenue it receives under the [taxing statute] to the county and city school systems in Morgan County, which will spend the money on public education, not on the general operations of the county.”[16] As the dissenters saw it, then, “[t]he matter regulated by the Local Act, i.e., how and by whom county-designated use-tax revenue generated under the [taxing statute] will be spent, is a matter already provided for by the general laws at issue,” and thus violates Section 105.[17]

Justice Mitchell’s Concurrence

Justice Mitchell—the author of the majority opinion—wrote separately to “state [his] view that our courts should interpret the Alabama Constitution of 1901 in accordance with its original public meaning and to invite parties and amici curiae in future cases to provide scholarship and arguments that help [the court] do that.”[18] His separate writing was joined by Chief Justice Parker.

“It is critical to interpret the Alabama Constitution according to its text,” Justice Mitchell wrote, “[b]ut the key to understanding any text is its context.”[19] “Thus, to keep courts from improperly changing the law to fit contemporary policy preferences, it is important to give words the meaning they had at the time the law was adopted.”[20]

Justice Mitchell explained that the search for the original public meaning of a constitutional provision is not “an attempt to discover and give effect to the intent of the drafters,” but “the objective meaning of the text itself—because that is the law that was adopted by the public.”[21] “[O]riginal public meaning,” he wrote, “is ‘simply shorthand for the meaning the people understood a provision to have at the time they enacted it.’”[22]

Recognizing that “[a]scertaining the original public meaning of a constitutional provision can be arduous,” Justice Mitchell noted that “th[e] job is made easier when scholarship is generated and issues before [the court] are briefed from that perspective.”[23] In this case, he explained, “it would have been helpful to have research and arguments” about the original public meaning of Section 105, particularly “[w]hat the words ‘case’ or ‘matter’ were understood by the Alabama public to mean in 1901.”[24] Thus, he “encourage[d] parties and amici curiae in future state-constitutional cases to provide appropriate research and arguments about the original public meaning of they provision they are asking [the court] to interpret.”[25]



[1] See No. 1190470, 2021 WL 1937259, -- So. 3d -- (Ala. May 14, 2021).

[2] Ala. Const. art. IV, § 105.

[3] Ala. Code § 40-23-191 et seq.

[4] Ala. Code 40-23-197(b).

[5] Ala. Code § 11-8-3(a)1), (c).

[6] Act No. 2019-272, § 2, available at https://arc-sos.state.al.us/ucp/B19149AA.A0D.pdf.

[7] Barnett, 2021 WL 1937259, at *1-2.

[8] Id. at *3.

[9] Id. at *4-5.

[10] Id.

[11] Id. (emphasis added).

[12] Id. at *6.

[13] Id. at *7 (Parker, C.J., concurring specially).

[14] Id. at *9 (Mendheim, J., concurring in part and concurring in the result).

[15] Id. at *9-10 (Shaw, J., concurring in the result).

[16] Id. at *10 (Sellers, J., dissenting).

[17] Id. at *11.

[18] Id. at *7 (Mitchell, J., concurring specially)

[19] Id.

[20]Id.

[21] Id.

[22] Id. (emphasis in original) (quoting Olevik v. State, 806 S.E.2d 505, 513 (Ga. 2017)).

[23] Id. at *8.

[24] Id. at *9.

[25] Id.

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