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3/7/2007 - March 2007 Educational Update - When the Alabama Constitution Means Nothing

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTETM, INC.

 

To:                  SLI Supporters                                 

 

Date:               March 2007

 

From:              A. Eric Johnston

 

Re:                  When the Alabama Constitution Means Nothing

 

 

            As a state with a republican form of government, we operate under a hierarchical system of laws, viz., a constitution, statutes, and regulations.  The constitution is a fundamental document expressing bedrock principles, which are difficult to change, requiring votes of all the people in the state.  Statutes are enacted by the elected representatives of the people, the state legislature.  Regulations are promulgated by state agencies by authority given them by statutes.  Statutes may not conflict with the constitution and regulations may not conflict with either.  When there is a conflict, the constitution must prevail.  Otherwise, the legislature could enact laws against the general will of the people.  In 2003, the Alabama Legislature did just that.

 

            In 1984 the Alabama Legislature passed a general law that would permit municipal referenda to authorize the sale and distribution of alcoholic beverages when there was a population of 7,000 persons or more.  Ala. Code 28-2A-1.  Municipalities of a lesser population would not have that authority.  The reason for this is the expressed legislative intent in 28-2A-3, id., that a municipality of that population could "provide safeguards for the protection of the public welfare, health, peace and morals of the people."  That is, a city with 7,000 or more population would have sufficient infrastructure, hospital, emergency service, police, and other facilities to handle problems that occur as a result of alcohol consumption.

 

            The Alabama Constitution provides protection of such a general law.  Alabama Constitution 105 says that no local law "shall be enacted in any case which is provided for by a general law." However, in 2002 the legislature decided that the Alabama Constitution notwithstanding, it would pass a "local law" authorizing a liquor referendum in a town with only 1,500 persons.  This was clearly in violation of the 7,000 person minimum of the general law.

 

            The legislature asked the Alabama Supreme Court what it thought about this.  In Opinion of the Justices No. 376, 825 So.2d 109 (Ala. 2002), the court said such an effort would be unconstitutional.  The legislature redrafted the bill and included in its legislative findings specific disagreements with the court's interpretation of the constitution and then proceeded in the 2003 General Session to pass a local law authorizing the Town of Cedar Bluff (population 1,500) to hold a liquor referendum.  The town held the referendum, authorized the sale of alcoholic beverages and lawsuits followed.

 

            The first lawsuit, Citizens Caring for Children and Carl Green v. Town of Cedar Bluff, properly held the referendum unconstitutional.  The case was appealed and on a technical issue of standing, that is the plaintiffs did not have the right to bring the lawsuit, the Supreme Court sent the case back.  The original plaintiffs withdrew and a new plaintiff, Geral Greene, attempted to join the lawsuit, but was denied.  He filed a separate lawsuit, Geral Greene v. Town of Cedar Bluff.  The town objected to the second lawsuit saying the issue had been decided in the first lawsuit and Geral Greene had no ability to pursue a claim. 

 

            The trial judge decided the first lawsuit had been dismissed with prejudice thereby not allowing Geral Greene to intervene as he had requested.  During this time in the second lawsuit, the judge ruled that it would be dismissed because you could not have two lawsuits doing the same thing at the same time.  This rank confusion was appealed. 

 

            On February 16, 2007 the Alabama Supreme Court decided both cases.  It ruled the first case had been concluded as a result of the way the trial judge had written his order.  However, it ruled that the second lawsuit was still viable and that Mr. Greene could proceed and sent it back to the trial court.

 

            Any issue involving alcohol and its regulation is important.  We do not diminish that.  The overarching issue, however, is the legislative abuse of the constitution and the potential for similar action on other issues to occur.  The legislature has already passed four other local laws for small towns like Cedar Bluff.  While SLI's purpose statement does not include handling alcohol-related referenda cases, we are concerned with protecting constitutional principles.  It is with that interest we closely follow this case and urge the parties and the judges to come to a proper conclusion so that the legislature will not be tempted in the future to try to obtain other "rights" in violation of the constitutional protections the people have authorized.

 

           

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