In Legal Terms - Legislative Preview 2001

Outcome of Four Cases Important to Counties

The Association is occasionally asked to file "friend of the court" briefs in cases pending in the appellate courts where the outcome will have an important impact on counties. Lately, there has been much more activity in this area than usual - in fact, the Association has filed at least four such briefs in recent months.

Depending on the outcome, each may have a very direct - and possibly - negative impact on county government and the citizens represented at the county level. A brief overview of the issues now pending in the appellate courts in these cases is set out below.

Chambers County Commission v. Chambers County Board of Education
In August, the Chambers County Board of Education presented the county commission with a resolution requesting that it set a special election in September for a vote on a special county-wide tax for schools in the county. The resolution set out the date for the election, the millage to be levied, and the length of time for the tax.

Concerned about the cost of a special election, the County Commission voted to continue a final decision until a later meeting in order to further review the matter. The next day, the board of education filed a petition for writ of mandamus in the Circuit Court asking the court to direct the commission to call for the election. The Circuit Court granted the mandamus and the county commission appealed.

The core issues in this case are whether the county school board can direct the county commission to call a special election for a referendum on levying a county-wide ad valorem taxes, and set the rate and length of time for the levy. However, the threshold question in this case is a procedural one - did the Circuit Court properly grant mandamus under the facts in this case? Mandamus is a special remedy to be granted by the court only when a governmental entity or court has refused to take action it is required to take and the petitioning party has no other remedy.

The Chambers County Commission (and the Association) maintain that this court action was not proper or appropriate in this case, particularly since the county commission never voted not to hold the election, but merely to further consider the issue and its options. The special election would cost around $30,000, while if held during the primary in June 2002, including this issue on the ballot would cost virtually nothing.

The case is still pending in the Supreme Court of Alabama.

The Alcohol Beverage Control Board v. Duval Wineries
The Circuit Court of Montgomery County has declared that the excise tax on table wine in Alabama is unconstitutional. Counties where the wine is sold receive .07¢ of this tax. Obviously, a final order striking down the tax would be devastating.

Under the law existing at the time of this lawsuit, there was a Code section which taxed certain Alabama wineries at a lower rate than other wineries and exempted them from other taxes, and the plaintiffs maintained that this law discriminated against out of state wineries in an unconstitutional manner. Rather than striking the section which created the differential treatment for native wineries by setting a lower tax and creating the exemption, the Circuit Court struck down the tax on all wineries, which in effect, eliminated all tax on table wine.

The case is still pending in the Supreme Court of Alabama. However, during the 4th Special Session, the Alabama Legislature passed a law rewriting the Code sections at issue in this case and correcting any constitutional defects. The outcome of this case will still be important in terms of whether the tax will apply to sales prior to the new law's effective date and whether any refunds are due.

Auburn University Board of Trustees v. The Advertiser Company
This case involves the Sunshine Law. The Montgomery Advertiser, joined by the Alabama Press Association and several other newspapers in the state, filed suit against the Auburn University Board of Trustees claiming several violations of the Open Meetings Law, including holding secret meetings of the various Board committees.

The Lee County Circuit Court issued a detailed order finding several violations of the Open Meetings Law, and Auburn appealed. This case involves several Sunshine law issues, and whatever the outcome, will impact the way county commissions conduct their meetings and render decisions affecting county government. Several public entities, including the Association, have filed amicus briefs in this case.

Delaneys v. State of Alabama
The long-running case out of Mobile over what constitutes forest property for purposes of ad valorem taxes is back in the appellate courts for what will hopefully be the last time.

About two years ago, A Mobile Circuit Court jury found that the property in question did not meet the definition of "forest property" which is entitled to taxation at a lower ad valorem rate. The case was reviewed by both the Court of Civil Appeals and the Supreme Court and, after oral argument in the Supreme Court, the jury verdict was eventually upheld. However, Delaneys has filed yet another appeal, raising new legal issues not previously raised or litigated in the trial court. For the second time, the Association has filed an amicus brief on behalf of the county's long-standing efforts to properly tax this property. Hopefully, the Court will refuse to address these issues which were never argued before or decided by the trial court. If so, the county will finally be able to properly tax this property and counties will have some guidance regarding what constitutes forest property for tax purposes.

The case is currently pending in the Supreme Court of Alabama. As stated in the introduction, the outcome in each of these cases will greatly impact county government. The ACCA staff will keep you updated.