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6/1/2009 - June 2009 SLI Educational Update - The 2009 Legislature Continues Lawless and Unconstitutional Behavior

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE™, INC.

To: SLI Supporters

Date: June 2009

From: A. Eric Johnston

Re: The 2009 Legislature Continues Lawless and Unconstitutional Behavior

The most significant event in the Legislature involved an alcohol related bill. The passage of this bill demonstrates the leadership’s high disregard for the Alabama Constitution and their continuing mendacious behavior. Lawlessness and deception have been the hallmarks of this legislative leadership.

HB 175 was a bill that would reduce the required population of a town to 1,000 persons for permitting a local referendum on the sale of alcoholic beverages. Previous to now, the existing law Section 28-2A-1, 1975 Code of Alabama, required a minimum of 7,000 persons before such referenda could be considered. The reason stated in § 28-2A-3 is as follows:

“In the furtherance of the protection of the public welfare, health, peace and morals, the Legislature has determined that a population classification should be established to provide this method of municipal option election only in those municipalities with a population of 7,000 or more people within a county, it being the judgment of the legislature that municipalities with a lesser population would be unable to support and maintain such protection . . . .”

It was very wise of the Legislature in 1984 to decide that protection would be needed for citizens if there is legalized use of alcoholic beverages. We know that DUIs, drunk and disorderly, domestic abuse, and other crimes rise with the use of alcohol. We also know there is an increased number of traffic accidents with injuries and fatalities. Without law enforcement and healthcare infrastructure to deal with these issues, communities place themselves at a significant risk.

However, the Legislature is inconsiderate of the real needs of the community. Our readers will recall the case of Geral Greene v. Cedar Bluff, a case we have been litigating for six years. The issue in that case is whether the Town of Cedar Bluff, which only had a population of about 1,500 persons, could have a referendum to determine whether to sell alcoholic beverages. Such a vote was taken and passed. Since then, alcoholic beverages have been sold in that community. The local law permitting the 1,500 person referendum in Cedar Bluff, when the general law required a 7,000 person minimum, violated Article IV, § 104 of the 1901 Constitution of Alabama, which says that a local law cannot be enacted if there is already a general law on the subject. There was even an opinion by the Alabama Supreme Court, Opinion of the Justices No. 376, 825 So.2d 109 (2002), which informed the Legislature that the law would be unconstitutional if it were passed. Notwithstanding, the Legislature passed the law, Cedar Bluff had the referendum and we have been litigating it ever since. Because of HB 175, now a general law as Act No. 2009-546, that lawsuit is uncertain.

Act No. 2009-546 violates the Alabama Constitution and the Legislature was well aware of it when it passed this law. The bill first intended to change the 7,000 persons requirement to 1,000 persons. If the Legislature decided to do only that, the law would have been valid. However, the Legislature added to the bill another subject, that is, the issue of Sunday liquor sales in Shelby County. By doing so, the bill had two subjects. Article IV, § 45, 1901 Constitution of Alabama provides “Each law shall contain but one subject . . . .” Legislators are well versed in the requirements of this constitutional restriction. Nevertheless, when Governor Riley vetoed the bill because of this constitutional infirmity, the Legislature overrode his veto.

We believe the 1,000 person requirement is a dangerous and a very ill informed law. On the other hand, we have sympathy for the Shelby County merchants who have relied on Alabama Beverage Control regulations that previously permitted them to have Sunday alcohol sales. Regardless of one’s position on these issues, our central concern is that the Legislature continues to bow to special interests and knowingly violate the Alabama Constitution. We have a constitutional form of government in order to keep unmitigated majoritarian rule from violating fundamental and other important rights.

Unless Act No. 2009-546 is challenged, small communities all over the state will have referenda, many of whom will approve the sale of alcohol, and then problems will begin in those communities. Shelby County restaurants will be able to continue their Sunday alcohol sales. The liquor interests have a significant investment in this and a new opportunity for great profit. We know it would ferociously defend any contest of this unconstitutional law. Practically speaking, does that mean the law will go into effect? Probably so. But now, we must wait and see what happens. We hope the Attorney General will contest Act No. 2009-546.

We are disappointed in the integrity of the Alabama Legislature. While we know it is made up of members, each of whom have their own constituencies and responsibilities, we first blame the problems on leadership. But, we must also hold members accountable. This type of thing should never be allowed. We believe it is important that Alabama citizens remember this lawless nature of the Legislature in the 2010 elections. Voters need to take a serious look at their own representatives and senators and determine whether they have provided honest and proper representation in government. If voters do not do that, we expect to see this type of problem continu...

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