In Legal Terms - Janaury/February 2001

2001 Legislative Session Refresher Course

As the ACCA staff works to finalize its legislation for introduction when the 2001 Regular Session of the Alabama Legislature begins on February 6, 2001, I imagine that counties are putting the final touches on their local legislation. If not, you certainly should be by the time this article is published or you may run into serious time problems in trying to work your bills through the legislative process. In any case, with the Legislative Session on everyone's mind, it seemed like a good time for a refresher course on local legislation.

Article IV, Section 106 of Alabama's Constitution, as amended by Amendment 341, requires that the substance of all local bills be advertised in a local newspaper once a week for four consecutive weeks before introduction in the Legislature. A bill that has not been properly advertised is unconstitutional. However, in determining whether proper notice of a local bill has been made, the courts cannot go behind the legislative journals to determine whether the bill advertisement was actually published on the dates indicated. In other words, if the legislative journal reflects that the bill has been advertised, which is indicated by the words "filed with notice and proof", the courts will presume that the bill was, in fact, advertised, and it will be difficult to attack the constitutionality of that bill on those grounds. See, St. Elmo Irvington Water Authority v. Mobile County Commission, 728 So.2d 125 (Ala. 1998).

A more serious threat to the validity of a local bill on constitutional grounds, related to the advertising requirement, involves changes made to the bill during the legislative process. The constitutional requirement is that the "substance" of the bill be advertised, and if the "substance" of the bill is changed by amendment or substitute prior to passage, it may be declared invalid.

The attorney general has held that a local law is unconstitutional if there is a material difference between the bill advertised and the bill passed. See, AG Opinion # 97-045 and # 98-147. Therefore, it is important that you watch your bill very carefully as it works its way through the process and oppose any substantive changes to the bill. Technical changes or corrections that do not affect the original purpose, meaning, and procedure of the bill will not affect its constitutionality. But there is a fine line that cannot be crossed, and it is a court that will ultimately determine whether it was. You are certainly in a much safer position if you can pass your local bill in the exact form that it was introduced.

Article IV, Section 106 requires that the local bill advertisement take place "without cost to the state", and Code of Alabama 1975, § 11-13-6 provides that this cost shall be paid from the county treasury. There are, however, two circumstances wherein the county is entitled to reimbursement for the cost of advertising under § 11-13-6. If the bill being advertised is for the benefit of one or more municipalities, then the municipalities must reimburse the county for the cost of advertising. Additionally, effective August 1, 1998, if a proposed local law raising revenue for a public or private entity other than the county becomes law, the entity or entities receiving the proceeds of the revenue raising measure shall reimburse the county commission for the costs of advertising the local bill from the first revenues generated by the local law.

There are a few other things to keep in mind in considering and pursuing local legislation. Article IV, Section 104 of the Constitution of Alabama prohibits the passage of local laws on certain subjects, and lists 31 separate areas where local legislation is forbidden. The one that arguably gives counties the biggest problem is number 14, fixing the punishment of crime. This prohibition makes it difficult for counties to enact laws which regulate or prohibit certain activities, such as topless dancing. See, e.g, AG's Opinion # 96-012. As with most areas covered in this article, it may be hard to determine whether your local bill violates this provision. However, any local bill that establishes a fine or penalty or allows the county or others to take punitive action is suspect.

Article IV, Section 105 prohibits the passage of a local law where a general law exists on the same subject and has, in effect, "subsumed" the subject matter. This means, in essence, that a general law cannot be altered by local law. Although frequently difficult to distinguish, this provision does not necessarily prohibit a local law on a subject covered by general law, provided it does not attempt to change, and does not conflict with, the general law. This issue is the subject of much litigation, beginning with the precedent-setting decision in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala. 1978). See, also, Baldwin County v. Jenkins, 494 So.2d 584 (Ala. 1986) and State ex rel. Whetstone v. Baldwin County Commission, 682 So.2d 220 (Ala. 1996).

If you want to repeal or amend a local law, that too must be done through legislation. See, e.g., AG's Opinion # 96-277. Additionally, Article IV, Section 107 of the Alabama Constitution provides that the notice by advertisement required for local bills is also required to repeal or modify a local bill.

Local constitutional amendments have some special rules, which are set out in Amendment 425 of the Constitution, as amended by Amendment 555. There is no advertising requirement prior to introduction. However, as with all constitutional amendments, a local constitutional amendment must pass both houses of the Legislature by a 3/5 majority. The governor's signature is not required on local constitutional amendments, but of course, the amendment must be submitted to a vote of the people after passage by the Legislature.

The process for setting the election and placing the issue on the ballot is generally the same as for other constitutional amendments. However, Amendment 555 provides that if a local constitutional amendment is approved by the Legislature with no dissenting votes and is approved by the Local Constitutional Amendment Commission (the "Callahan Commission"), it can be submitted to vote of the people in the affected county only. If there are one or more dissenting votes in the Legislature, or if the "Callahan Commission" does not approve the amendment by majority vote, the amendment must be submitted in a statewide referendum. It is important that your legislators understand this and ensure that amendments they are handling are passed by a 3/5 majority without dissent. Otherwise, citizens in all 67 counties will be allowed to vote on your local issue.

The legislative process is complicated and often stressful, and if you are not in Montgomery watching every day, it can be difficult to keep track of your local legislation. It is important that you stay in contact with your legislators and follow your local bills carefully. It is easy for your legislation to get lost in the maze and sometimes, drama, of the Alabama Legislature. Therefore, the more closely you watch it, and the earlier you get it introduced and passed, the better your chances of not having your bill get caught up and lost in the confusion as the 30th legislative day draws near.