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In Legal Terms - Convention Issue 2002
Commission Only May Set School
Tax Elections
In August of 2001, the Chambers
County Board of Education - along with the Lanett City
Board of Education - presented the Chambers County Commission
with a resolution requesting that the Commission call
a special election on November 13, 2001 for a special
county-wide five mill property tax for the public schools.
The resolution also requested that the tax be assessed
for a period of 20 years.
The county commission considered
this resolution at its regular meeting held on August
20, 2001, and voted to table the issue until its next
meeting to give the matter further consideration. While
the commission was agreeable to the referendum, it was
concerned about the $30,000 cost of a special election
and wanted to look at whether the referendum could be
held in conjunction with the statewide primary election
set in June 2002.1 The very
next day, the school board filed a petition for writ of
mandamus in the Chambers County Circuit Court, asking
the court to direct the county commission to call the
special election on the date requested. Following a hearing
on September 6, 2001, the Circuit Court granted the relief
requested by the school board. The Chambers County Commission
appealed that ruling to the Alabama Supreme Court. No
election was held on November 13, 2001. 2
The school boards argued in
the Circuit Court and on appeal that Alabama's Constitution
(Amendments No. 3 and No. 202) and Code of Alabama
1975, § 16-13-180 et seq. grant it the authority to
direct when a special county five mill tax election is
held, what the millage will be, and how long the tax assessment
will last. The county commission maintained, on the other
hand, that the school board had no such authority, and
that the county commission, not the school board, had
the legislative responsibility for calling the election,
setting the millage, and levying the tax in the event
it was approved by the voters. Briefs were submitted to
the Supreme Court by both parties and several amici curiae
(including the ACCA), and the Court heard oral arguments
on the issues in May 2002.3
On August 2, 2002, the Alabama
Supreme Court issued its decision in this important case,
reversing the judgment of the Circuit Court and holding
unequivocally that "the Boards [of Education] do not have
the authority to set the rate and term of any ad valorem
assessment considered under Amendment No. 202 [and] do
not have the authority to set the date of the election
for a special county tax proposed pursuant to Amendment
No. 202." Chambers County Commission et al. v. Chambers
County Board of Education et al., 2002 Ala. LEXIS
236 (Ala. 2002). The Court based this decision, in part,
on the long-standing principle of law that boards of education
are administrative, not legislative bodies, and as such,
have no power to tax. "[A]ny attempt by the Legislature
to delegate to a board of education the legislative power
of taxation is improper." Chambers County Commission
et al. v. Chambers County Board of Education et al.,
supra. The Court held that the Chambers County Commission,
as the county governing body, "is the only entity empowered
to levy and collect the taxes authorized by Amendment
No. 202". Chambers County Commission et al. v. Chambers
County Board of Education et al., supra.
The opinion is rather complicated
and the full implication of this ruling will not likely
be known for sometime. However, this is a very important
decision which will clearly have a positive impact for
counties faced with pressure from their local school boards
to call a special election for referendums on a special
county five mill tax for education.
It is important to note that
the opinion issued by the Supreme Court only
affects a special county tax imposed under Amendment No.
202 of Alabama's Constitution. That constitutional provision
authorizes the county governing body to levy and collect
a five mill "special county tax" if approved by a referendum
of qualified electors in the county. There is another
Constitutional provision, Amendment No. 3, which authorizes
the county to levy of a county-wide three mill tax and
also authorizes a school district to levy a three mill
district tax. Code of Alabama 1975, § 16-13-180
et seq. set out statutory procedures for the election
of "Amendment No. 3" taxes, and arguably allow the school
board to request when the election for a district three
mill tax will be held. The Chambers County school board
argued that these same procedures applied to an election
for a five mill county-wide tax to be voted on and levied
under Amendment No. 202. However, the Chambers County
Commission and the Alabama Supreme Court disagreed. The
Court did not address the validity or applicability of
the procedures in place for the election or levy of "Amendment
No. 3" taxes.
This recent opinion has already
caused a stir across the state, with counties, school
boards, and lawyers all debating its full impact and scope.
The Chambers County School Board has filed an Application
for Rehearing with the Supreme Court, which at the time
of writing, had not been ruled on. Regardless, I predict
that this opinion will prompt further litigation on the
proper procedures for elections and levying of local school
taxes under both Amendment No. 202 and Amendment No. 3.
I recommend that all counties (and their attorneys) carefully
consider this ruling by the Supreme Court when faced with
a request from your local school board for a special referendum
on school property taxes. And of course, if you have questions
or wish to discuss this ruling in more detail, please
feel free to contact the ACCA office.
1Under
Code of Alabama 1975, § 17-21-2, the State reimburses
the county for one-half of its costs in conducting a statewide
election. However, in a special election held for a referendum
on school taxes, the county would absorb all of the costs.
2In
fact, no election has been held as yet, and by bringing
this action, the Chambers County Board of Education has
delayed for well over a year the opportunity to have this
tax revenue levied and collected for the benefit of the
local schools.
3Oral
argument is a fairly rare occurrence usually indicating
the importance (and sometimes the complexity) of the issues
presented in the view of the Court.
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