Gulf Shores City Board of Education and Kelly Walker v. Eric Mackey, in his official capacity as Superintendent of the Alabama State Board of Education Teddy J. Faust, Jr., in his official capacity as Revenue Commissioner of Baldwin County James E. Ball, Joe Davis III, Billie Jo Underwood, and Charles F. Gruber, in their official capacities as Commissioners of Baldwin County Baldwin County Board of Education Baldwin County Circuit Judge Carmen E. Bosch, in her official capacity as Presiding Judge of the Baldwin County Juvenile Court Robert Wilters, in his official capacity as Baldwin County District Attorney and Coastal Alabama Community College

Rel: December 22, 2022
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
_________________________
1210353
_________________________
Gulf Shores City Board of Education and Kelly Walker
v.
Eric Mackey, in his official capacity as Superintendent of the
Alabama State Board of Education; Teddy J. Faust, Jr., in his
official capacity as Revenue Commissioner of Baldwin County;
James E. Ball, Joe Davis III, Billie Jo Underwood, and Charles
F. Gruber, in their official capacities as Commissioners of
Baldwin County; Baldwin County Board of Education; Baldwin
County Circuit Judge Carmen E. Bosch, in her official capacity
as Presiding Judge of the Baldwin County Juvenile Court;
Robert Wilters, in his official capacity as Baldwin County
District Attorney; and Coastal Alabama Community College
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Appeal from Montgomery Circuit Court
(CV-21-900953)
BOLIN, Justice.
The Gulf Shores City Board of Education ("the Gulf Shores Board")
and Kelly Walker ("the plaintiffs") appeal from the judgment of the
Montgomery Circuit Court dismissing their complaint seeking certain
declaratory and mandamus relief against Eric Mackey, in his official
capacity as Superintendent of the Alabama State Board of Education
("the superintendent"); Teddy J. Faust, Jr., in his official capacity as
Revenue Commissioner of Baldwin County ("the revenue
commissioner"); James E. Ball, Joe Davis III, Billie Jo Underwood, and
Charles F. Gruber, in their official capacities as Commissioners of
Baldwin County ("the county commissioners"); the Baldwin County
Board of Education ("the Baldwin County Board"); Baldwin County
Circuit Judge Carmen E. Bosch, in her official capacity as Presiding
Judge of the Baldwin County Juvenile Court, and Robert Wilters, in his
official capacity as the Baldwin County District Attorney ("the judicial
defendants"); and Coastal Alabama Community College ("CACC").
Facts and Procedural History
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Alabama's statutory framework for funding public education
includes allowing a county to levy certain taxes to support the public
schools in the county. For example, § 16-13-160 and § 16-13-180, Ala.
Code 1975, allow a county to impose, respectively, a one-mill ad valorem
tax and a three-mill ad valorem tax for the purpose of funding public
education in the county. Section 16-13-31(b), Ala. Code 1975, provides for
the apportionment of proceeds collected pursuant to such taxes:
"(b) The tax collector/revenue commissioner of each
county shall apportion county-wide taxes collected for the
purposes of participating in the Foundation Program to each
local board of education in the county on the basis of the total
calculated costs of the Foundation Program for those local
boards of education within the county. The total calculated
costs of the Foundation Program for each local board of
education shall be the sum of state funds received from the
Foundation Program and the amount of local effort required
pursuant to paragraph a. of subdivision (3) of subsection (b) of
Section 16-13-231[, Ala. Code 1975]."
In addition, pursuant to § 40-12-4, Ala. Code 1975, a county has the
authority to impose franchise, excise, and privilege license taxes for the
purpose of funding education in the county. Section 40-12-4 provides, in
pertinent part:
"(a) In order to provide funds for public school purposes,
the governing body of each of the several counties in this state
is hereby authorized by ordinance to levy and provide for the
assessment and collection of franchise, excise and privilege
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license taxes with respect to privileges or receipts from
privileges exercised in such county, which shall be in addition
to any and all other county taxes heretofore or hereafter
authorized by law in such county. Such governing body may,
in its discretion, submit the question of levying any such tax
to a vote of the qualified electors of the county. If such
governing body submits the question to the voters, then the
governing body shall also provide for holding and canvassing
the returns of the election and for giving notice thereof. All
the proceeds from any tax levied pursuant to this section less
the cost of collection and administration thereof shall be used
exclusively for public school purposes, including specifically
and without limitation capital improvements and the
payment of debt service on obligations issued therefor.
"(b) Notwithstanding anything to the contrary herein,
the governing body shall not levy any tax hereunder
measured by gross receipts, except a sales or use tax which
parallels, except for the rate of tax, that imposed by the state
under this title. Any such sales or use tax on any automotive
vehicle, truck trailer, trailer, semitrailer, or travel trailer
required to be registered or licensed with the probate judge,
where not collected by a licensed Alabama dealer at time of
sale, shall be collected and fees paid in accordance with the
provisions of Sections 40-23-104 and 40-23-107, [Ala. Code
1975,] respectively. No such governing body shall levy any tax
upon the privilege of engaging in any business or profession
unless such tax is levied uniformly and at the same rate
against every person engaged in the pursuit of any business
or profession within the county; except, that any tax levied
hereunder upon the privilege of engaging in any business or
profession may be measured by the number of employees of
such business or the number of persons engaged in the pursuit
of such profession. In all counties having more than one local
board of education, revenues collected under the provisions of
this section shall be distributed within such county on the
same basis of the total calculated costs for the Foundation
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Program for those local boards of education within the
county."
The Foundation Program referenced in § 16-13-31(b) and § 40-12-4(b)
was created by the legislature pursuant to § 16-13-230 et seq., Ala. Code
1975. The Foundation Program Fund is a fund established for the benefit
of public education in this state and is composed of appropriations made
by the legislature. § 16-13-230, Ala. Code 1975. The requirements for a
local board of education to participate in the Foundation Program and
the formulas for determining the cost of the program and how funds are
apportioned to local boards are set forth in § 16-13-231, Ala. Code 1975.
Further, § 16-13-237, Ala. Code 1975, provides that "[i]t is not the intent
of the Legislature to require, and the Legislature expressly so declares
that it does not require, any county to provide funding to any city board
of education beyond the city board of education's pro rata share of any
countywide tax."
This case involves the interplay among § 16-13-31(b), § 40-12-4, and
§ 45-2-244.077, Ala. Code 1975, a part of § 45-2-244.071 et seq., Ala. Code
1975 ("the local-tax act"), which authorizes the Baldwin County
Commission to levy a 1% sales tax in Baldwin County paralleling the
state sales tax found in § 40-23-1 through § 40-23-4, Ala. Code 1975 ("the
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local tax"). Section 45-2-244.077 provides how proceeds of the local tax
are to be disbursed. Act No. 83-532, Ala. Acts 1983, was the initial act
authorizing the local tax; § 8 of that act provided, in part:
"All revenues arising from the taxes herein authorized to be
levied shall be distributed as follows: (a) Fifty-five percent
(55%) shall be distributed to the Baldwin County board of
education to be utilized exclusively for capital improvement,
capital construction and maintenance purposes; (b) five
percent (5%) shall be distributed to Faulkner State Junior
College[1] in Bay Minette to be used as other appropriations to
said school are used; and (c) forty percent (40%) shall be
deposited in the general fund of the county to be expended as
other county funds. Provided, however, in the initial fiscal
year that this sales tax is levied, prior to any distribution
provided herein, a one-time disbursement of two percent (2%)
of all revenues arising from said tax shall be appropriated for
the erection of a suitable county animal pound as provided in
Section 3-7-7, Code of Alabama 1975."
Act No. 84-523, Ala. Acts 1984, amended § 8 of Act No. 83-532 by
adding the following sentence:
"Effective for the fiscal year beginning October 1, 1984, and
each fiscal year thereafter, prior to any other distribution, two
percent (2%) of all net revenues herein collected shall be
appropriated to the juvenile court for Baldwin County to be
used for the leasing or building, staffing, and operation of a
home for juveniles."
1Faulkner State Junior College is now CACC.
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In May 2017, the legislature enacted Act No. 2017-447, Ala. Acts 2017,
which modified the designated recipients of the proceeds of the local tax
as follows:
"Prior to any other distribution, two percent of all net
revenues herein collected shall be appropriated to the
Juvenile Court for Baldwin County to be used for drug
interdiction and education programs; staffing; and the
leasing, building, staffing, and operation of a home for
juveniles; and one percent of all net revenues collected shall
be appropriated to the Baldwin County District Attorney's
Office to be expended for education and intervention
programs, with emphasis on grades kindergarten through 12,
aimed at the prevention of drug and alcohol abuse, sexual
misconduct, bullying and other issues, and for other
prosecution services. After the distribution to the Juvenile
Court and District Attorney's Office as provided in this
section, the remaining net revenues arising from the taxes
herein authorized to be levied shall be distributed as follows:
(1) 40 percent shall be distributed to the Baldwin County
Board of Education to be utilized exclusively for capital
improvement, capital construction, and maintenance
purposes; (2) five percent shall be distributed to Coastal
Alabama Community College in Bay Minette and shall be
used only in the county as other appropriations to the school
are used; and (3) 55 percent shall be deposited in the general
fund of the county to be expended as other county funds
provided that not less than 20 percent of the proceeds shall be
expended for road and bridge construction, capacity
improvements, paving, resurfacing, and/or maintenance of
roads and bridges."
Act No. 2017-447 became effective on June 1, 2018. The disbursement
scheme set forth in Act. No. 2017-447 is codified at § 45-2-244.077.
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On October 9, 2017, the Gulf Shores Board was created to oversee
an independent city school district pursuant to a resolution adopted by
the City of Gulf Shores. Thereafter, the Gulf Shores Board and the
Baldwin County Board entered into negotiations that resulted in a
separation agreement pursuant to which the Gulf Shores Board obtained
certain assets and assumed certain liabilities of the Baldwin County
Board. Additionally, the separation agreement provided that taxes
collected specifically to fund public schools in Baldwin County --
including ad valorem taxes authorized under § 16-13-160 and § 16-13-
180 and franchise, excise, and privilege license taxes authorized under §
40-12-4 -- would be apportioned according to the apportionment
provisions in § 16-13-31(b) and § 40-12-4(b) so as to include the Gulf
Shores Board as a recipient. However, the separation agreement did not
address apportionment of the proceeds of the local tax. The president of
the Gulf Shores Board stated in his affidavit that the "parties specifically
agreed to disagree [as to] whether the [local] tax was required to be
apportioned." The Gulf Shores Board has demanded but has not received
a share of the local-tax proceeds. The Baldwin County Board has received
all of the local-tax proceeds apportioned to it in § 45-2-244.077.
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On September 2, 2021, the plaintiffs filed their initial complaint
against the superintendent, the revenue commissioner, and the county
commissioners, seeking mandamus relief requiring that the local-tax
proceeds be apportioned to include the Gulf Shores Board as a recipient
and/or a judgment declaring that the local-tax act is unconstitutional.
On September 13, 2021, the Baldwin County Board moved to
intervene in the action, arguing that it would lose substantial revenue if
the local-tax proceeds were apportioned to include the Gulf Shores Board
as a recipient or the local-tax act was found to be unconstitutional. The
Baldwin County Board also moved to require the joinder of the judicial
defendants, pursuant to Rule 19, Ala. R. Civ. P., because § 45-2-244.077
provides for the distribution of a portion of the local-tax proceeds to the
Baldwin County Juvenile Court and the Baldwin County District
Attorney's Office. On that same day, CACC moved to intervene in the
action.
On September 14, 2021, the circuit court entered separate orders
granting the motions to intervene filed by the Baldwin County Board and
CACC. The circuit court ordered that those parties be added so that they
could oppose the claims asserted in the complaint. On September 15,
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2021, the circuit court entered an order granting the Rule 19 motion to
join the judicial defendants and ordered that the judicial defendants be
joined as parties to the action.
On September 23, 2021, the plaintiffs filed their amended
complaint asserting four counts. In the first three counts, the Gulf Shores
Board sought identical relief against the superintendent, the county
commissioners, and the revenue commissioner, respectively: mandamus
relief directing the superintendent, the county commissioners, and/or the
revenue commissioner to "allocate the proceeds of all sales and use taxes
raised for educational purposes within Baldwin County, Alabama, in
accordance with Ala. Code §§ 40-12-4 and 16-13-31(b)" or, alternatively,
a judgment declaring the local-tax act to be unconstitutional on the basis
that it violates Art. IV, § 105, of the Alabama Constitution of 1901. In
count four, Walker asserted that the local-tax act imposes a tax upon the
citizens located in the Gulf Shores school district that is not apportioned
to and used in the Gulf Shores school district and, thus, sought a
judgment declaring the local-tax act unconstitutional. The plaintiffs
included a "joinder" section in the amended complaint, joining the
judicial defendants as ordered by the circuit court and asserting the same
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claims against those defendants. It does not appear that the plaintiffs
expressly added the Baldwin County Board or CACC as party opponents,
as ordered by the circuit court.
On October 5, 2021, the revenue commissioner and the county
commissioners moved the circuit court to dismiss the claims asserted
against them pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that the
plain language of the local-tax act did not require apportionment to the
Gulf Shores Board and that the local-tax act is constitutional.
On October 7, 2021, CACC moved the circuit court to dismiss the
claims asserted against it pursuant to Rule 12(b)(6), arguing that the
local-tax act is constitutional and does not violate § 105 of the Alabama
Constitution. CACC further argued that the plaintiffs' assertion that the
local-tax proceeds make up funds needed for the Foundation Program
was incorrect.
On October 26, 2021, the superintendent moved the circuit court to
dismiss the claims asserted against him pursuant to Rule 12(b)(1) and
Rule 12(b)(6), arguing that, in his official capacity, he is not a proper
party to this action for declaratory and mandamus relief. Alternatively,
the superintendent argued that the claims asserted against him were due
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to be dismissed because he cannot be compelled to exercise his discretion
as the superintendent in favor of the plaintiffs.
On October 27, 2021, the judicial defendants moved the circuit
court to dismiss the claims asserted against them pursuant to Rule
12(b)(1), Rule 12(b)(6), and Rule 12(b)(7). The judicial defendants argued
that the plaintiffs' amended complaint failed to join the Baldwin County
Board and CACC as ordered by the circuit court and that the failure to
join those parties is a jurisdictional defect that required dismissal of the
complaint; that the plaintiffs lacked standing to pursue their
constitutional claims because those claims were nonjusticiable; and that
the plaintiffs had failed to state a claim upon which relief could be
granted. Also on October 27, 2021, the Baldwin County Board moved the
circuit court to dismiss the claims asserted against it and adopted the
arguments of the other defendants.
On January 10, 2022, the plaintiffs filed their omnibus response in
opposition to the motions to dismiss, arguing that the question whether
the tax levied pursuant to the local-tax act is for "public school purposes"
as that term is defined in § 40-12-4 is not suitable for resolution on a
motion to dismiss; that the requirements for a local board of education's
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participation in the Foundation Program include accounting for all
countywide taxes used to fund education, including sales and use taxes
such as the local tax; that the plaintiffs have standing to challenge the
constitutionality of the local-tax act; that the plaintiffs' complaint states
a valid claim that the local-tax act violates § 105 of the Alabama
Constitution; that Walker's claim asserted in count four states a claim
upon which relief can be granted; that the superintendent is a proper
party to this action and that the claims were sufficiently pleaded against
him; and that the plaintiffs have joined all necessary parties.
Following a hearing, the circuit court, on February 2, 2022, entered
an order granting the motions to dismiss the plaintiffs' claims. The
plaintiffs appeal, challenging primarily the circuit court's determinations
that they lacked standing and that they had failed to state claims upon
which relief could be granted.
Standard of Review
The standard of review applicable to a judgment granting a motion
to dismiss based on a lack of standing is as follows:
" 'A ruling on a motion to dismiss is reviewed
without a presumption of correctness. This Court
must accept the allegations of the complaint as
true. Furthermore, in reviewing a ruling on a
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motion to dismiss we will not consider whether the
pleader will ultimately prevail but whether the
pleader may possibly prevail.'
"Newman v. Savas, 878 So. 2d 1147, 1148-49 (Ala. 2003)
(citations omitted). 'Matters of subject-matter jurisdiction are
subject to de novo review.' DuBose v. Weaver, 68 So. 3d 814,
821 (Ala. 2011). ' " 'When a party without standing purports
to commence an action, the trial court acquires no subject-
matter jurisdiction. ' " ' Blevins v. Hillwood Office Ctr. Owners'
Ass'n, 51 So. 3d 317, 321 (Ala. 2010) (quoting Riley v. Pate, 3
So. 3d 835, 838 (Ala. 2008), quoting in turn State v. Property
at 2018 Rainbow Drive, 740 So. 2d 1025, 1028 (Ala. 1999))."
Poiroux v. Rich, 150 So. 3d 1027, 1033 (Ala. 2014).
The standard of review applicable to a judgment granting a motion
to dismiss pursuant to Rule 12(b)(6) is as follows:
" 'On appeal, a dismissal is not entitled to a presumption
of correctness. ... The appropriate standard of review under
Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the
allegations of the complaint are viewed most strongly in the
pleader's favor, it appears that the pleader could prove any
set of circumstances that would entitle [the pleader] to relief.
... In making this determination, this Court does not consider
whether the plaintiff will ultimately prevail, but only whether
[the plaintiff] may possibly prevail. ... We note that a Rule
12(b)(6) dismissal is proper only when it appears beyond
doubt that the plaintiff can prove no set of facts in support of
the claim that would entitle the plaintiff to relief. ' "
Carr v. International Refin. & Mfg. Co., 13 So. 3d 947, 952 (Ala. 2009)
(quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)).
Discussion
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I. The Gulf Shores Board
The plaintiffs argue that the circuit court's judgment, insofar as it
determined that the Gulf Shores Board lacked standing to pursue its
claims asserted in counts one through three of the complaint, ignores
specific relief requested in those counts, namely, mandamus relief
requiring the superintendent, the county commissioners, and/or the
revenue commissioner "to allocate the proceeds of all sales and use taxes
raised for educational purposes within Baldwin County, Alabama, in
accordance with Ala. Code §§ 40-12-4 and 16-13-31(b)." The circuit court,
in its judgment, addressed the standing issue, which had been raised by
the judicial defendants in their motion to dismiss, as follows:
"[T]he Plaintiffs cannot establish a likelihood that the injury
complained of will be redressed by a favorable decision. It is
not within the province of this Court to re-write the local 1983
tax act (as amended) in order to re-apportion tax proceeds
earmarked for the Baldwin County Board of Education
(BCBOE) for capital improvements, etc. between BCBOE and
GSCBOE; rather, it is the duty of any Court to strike down
those laws which are unconstitutional. In the instant matter,
if, as the Plaintiffs argue, the local tax act impermissibly
apportions tax proceeds for public school purposes to one
school district to the exclusion of another school district
within the county, it follows that the provision of the act
allocating money exclusively to Baldwin County Board of
Education must fail. Alternatively stated, if the provision at
issue in this action fails, neither BCBOE nor GSCBOE would
receive any tax proceeds. GSCBOE would receive no tangible
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benefit. While the undersigned has cogitated on the Plaintiffs'
argument that the local statute can still be saved by applying
the distribution scheme undergirding Ala. Code § 40-12-4, to
hold so would effectively result in re-writing the local statute.
Based on the foregoing, it does not appear the injury in fact
suffered by GSCBOE is redressable by this Court, and as
such, GSCBOE has no standing to proceed."
Although the circuit court certainly did not provide an in-depth analysis
regarding the claims seeking an order appropriating funds to the Gulf
Shores Board based on the provisions set forth in § 40-12-4 and § 16-13-
31(b), we cannot say that the circuit court ignored or wholly failed to
address those claims; the circuit court expressly found that the provisions
of the local-tax act could not be rewritten by the courts to provide for an
appropriation to the Gulf Shores Board of a portion of the tax proceeds
raised pursuant to the local-tax act. The issue whether, under the local-
tax act or § 40-12-4 and § 16-13-31(b), the Gulf Shores Board is entitled
to an appropriation of a portion of the tax proceeds raised pursuant to
the local-tax act will be thoroughly discussed infra.
The plaintiffs argue that § 16-13-31(b) provides that all taxes
"collected for the purposes of participating in the Foundation Program"
shall be apportioned among the school districts in each county. They
contend that the taxes collected by Baldwin County pursuant to the local-
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tax act are taxes that are required to be paid into the Foundation
Program and, thus, are subject to the apportionment mandate in § 16-13-
31(b). The plaintiffs contend that the complaint asserts a claim that the
apportionment mandate of § 16-13-31(b) and § 16-13-237 apply to the
taxes collected pursuant to the local-tax act that are earmarked for
education purposes, i.e., the taxes apportioned to the Baldwin County
Board. Section 16-13-31(b) provides that the tax collector/revenue
commissioner of each county shall apportion countywide taxes "collected
for the purposes of participating in the Foundation Program" to each local
board of education in the county. Therefore, the plaintiffs conclude that
the complaint alleges an injury to the Gulf Shores Board that is connected
to the conduct complained of and that could be redressed by a favorable
ruling ordering an apportionment of a portion of the local-tax proceeds to
the Gulf Shores Board.
This Court has often stated:
" ' "When the language of a statute is plain and
unambiguous, ... courts must enforce the statute as written by
giving the words of the statute their ordinary plain
meaning -- they must interpret that language to mean exactly
what it says and thus give effect to the apparent intent of the
Legislature." ...
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" ' "In determining the meaning of a statute,
this Court looks to the plain meaning of the words
as written by the legislature. As we have said:
" ' " ' "Words used in a statute
must be given their natural, plain,
ordinary, and commonly understood
meaning, and where plain language is
used a court is bound to interpret that
language to mean exactly what it says.
If the language of the statute is
unambiguous, then there is no room for
judicial construction and the clearly
expressed intent of the legislature
must be given effect. " ' " ' "
Ex parte Dorough, 773 So. 2d 1001, 1003 (Ala. 2000)(quoting Ex parte
Pfizer, Inc., 746 So. 2d 960, 964 (Ala. 1999)).
By enacting the local-tax act, the legislature has authorized the
Baldwin County Commission to "levy and impose, in addition to all other
taxes, … a special county privilege license tax paralleling the state sales
tax." § 45-2-244.072. As originally enacted, the local-tax act expressly
provided, in pertinent part:
"All revenues arising from the taxes herein authorized to be
levied shall be distributed as follows: (a) Fifty-five percent
(55%) shall be distributed to the Baldwin County board of
education to be utilized exclusively for capital improvement,
capital construction and maintenance purposes; (b) five
percent (5%) shall be distributed to Faulkner State Junior
College in Bay Minette to be used as other appropriations to
said school are used; and (c) forty percent (40%) shall be
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deposited in the general fund of the county to be expended as
other county funds."
Act No. 83-532, § 8. As discussed above, the legislature, in May 2017,
enacted Act No. 2017-447, which, among other things, modified the
designated recipients of the local-tax proceeds and the amount of the
local-tax proceeds the recipients would receive. Act No. 2017-447
provided for distribution of those tax proceeds as follows:
"Prior to any other distribution, two percent of all net
revenues herein collected shall be appropriated to the
Juvenile Court for Baldwin County to be used for drug
interdiction and education programs; staffing; and the
leasing, building, staffing, and operation of a home for
juveniles; and one percent of all net revenues collected shall
be appropriated to the Baldwin County District Attorney's
Office to be expended for education and intervention
programs, with emphasis on grades kindergarten through 12,
aimed at the prevention of drug and alcohol abuse, sexual
misconduct, bullying and other issues, and for other
prosecution services. After the distribution to the Juvenile
Court and District Attorney's Office as provided in this
section, the remaining net revenues arising from the taxes
herein authorized to be levied shall be distributed as follows:
(1) 40 percent shall be distributed to the Baldwin County
Board of Education to be utilized exclusively for capital
improvement, capital construction, and maintenance
purposes; (2) five percent shall be distributed to Coastal
Alabama Community College in Bay Minette and shall be
used only in the county as other appropriations to the school
are used; and (3) 55 percent shall be deposited in the general
fund of the county to be expended as other county funds
provided that not less than 20 percent of the proceeds shall be
expended for road and bridge construction, capacity
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improvements, paving, resurfacing, and/or maintenance of
roads and bridges."
See § 45-2-244.077. Although Act No. 2017-447 was enacted by the
legislature in May 2017, it did not become effective until June 1, 2018,
after the Gulf Shores Board and school district were created. Nothing in
the plain language of the local-tax act, as originally enacted or as
amended, can be read as requiring and/or authorizing an allocation of a
portion of the local-tax proceeds that are earmarked for the Baldwin
County Board to the Gulf Shores Board. The plaintiffs conceded this point
during the hearing on the motions to dismiss, stating:
"If you look just at 1983 Tax Act is what we call it -- if you look
just at that in a vacuum, we don't really argue that allocation
is required, if that's all you're looking at. That's what the
defendants want you to do is just look at the terms of that
statute and see what it says. I agree it doesn't say that you
have to allocate."
Based on the plain language of the local-tax act, none of the tax proceeds
generated by the local-tax act are allocable to the Gulf Shores Board.
Although the tax proceeds generated by the local-tax act are not
allocable to the Gulf Shores Board based on the clear language of the
local-tax act, the plaintiffs further contend that those tax proceeds may
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be allocated to the Gulf Shores Board under the provisions of § 40-12-4
and § 16-13-31(b). Section 40-12-4 provides, in pertinent part:
"(a) In order to provide funds for public school purposes,
the governing body of each of the several counties in this state
is hereby authorized by ordinance to levy and provide for the
assessment and collection of franchise, excise and privilege
license taxes with respect to privileges or receipts from
privileges exercised in such county, which shall be in addition
to any and all other county taxes heretofore or hereafter
authorized by law in such county. … All the proceeds from
any tax levied pursuant to this section less the cost of
collection and administration thereof shall be used exclusively
for public school purposes, including specifically and without
limitation capital improvements and the payment of debt
service on obligations issued therefor.
"(b) … In all counties having more than one local board
of education, revenues collected under the provisions of this
section shall be distributed within such county on the same
basis of the total calculated costs for the Foundation Program
for those local boards of education within the county."
(Emphasis added.) The plain language of § 40-12-4 requires that, in order
for tax proceeds to be apportioned under that Code section, the taxes
must be "levied pursuant to [that] section" and "collected under the
provisions of [that] section." Obviously, the local tax is not a tax that is
"levied pursuant to" or "collected under the provisions" of § 40-12-4.
Section 16-13-31(b) provides:
"(b) The tax collector/revenue commissioner of each
county shall apportion county-wide taxes collected for the
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purposes of participating in the Foundation Program to each
local board of education in the county on the basis of the total
calculated costs of the Foundation Program for those local
boards of education within the county. The total calculated
costs of the Foundation Program for each local board of
education shall be the sum of state funds received from the
Foundation Program and the amount of local effort required
pursuant to paragraph a. of subdivision (3) of subsection (b) of
Section 16-13-231."
(Emphasis added.) The plain language of § 16-13-31(b) expressly
provides that the tax proceeds apportioned pursuant to that Code section
must be "collected for the purposes of participating in the Foundation
Program." The plaintiffs contend that the tax proceeds generated by the
local-tax act are included in the Foundation Program and can be
apportioned to the Gulf Shores Board. However, the plaintiffs have not
demonstrated to this Court how the local tax is "collected for the purposes
of participating in the Foundation Program" and, therefore, how the
proceeds of the local tax are allocable to the Gulf Shores Board pursuant
to § 16-13-31(b). The Foundation Program itself was not approved by the
legislature until July 1995, and it was predated by the enactment of Act
No. 83-532, which initially authorized the local tax, by approximately 12
years. Act No. 2017-447, the most recent amendment of the local-tax act,
did not provide that the local tax be "collected for the purposes of
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participating in the Foundation Program." Section 16-13-231(b)(3)
identifies the funds available for funding the Foundation Program Fund
and requires a local effort on the part of each participating local board of
education to share in the cost of the Foundation Program. Section 16-13-
231(b)(3)a. specifically provides:
"a. The funds available to meet the cost of the
Foundation Program shall be appropriated by the Legislature
taking into consideration an amount of local effort required on
the part of each local board of education. The required local
effort charged against each local board of education for its
share of the cost of the Foundation Program shall be as
follows:
"....
" 3 . … the equivalent of ten mills of local
school tax district ad valorem tax as reported
pursuant to subsection (b)(1)a. "
Nothing in § 16-13-231 supports the conclusion that the local tax, in
addition to the required 10 mill of ad valorem taxes, be considered a tax
"collected for the purposes of participating in the Foundation Program."
In anticipation of the eventual formation of the Gulf Shores Board
and school district, the Baldwin County Board sought an opinion of the
attorney general on the precise issue presented here, i.e., whether any
statutes or state laws required the proceeds of the local tax to be
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distributed between the Baldwin County Board and the Gulf Shores
Board. The attorney general addressed the issue as follows:
"The plain language of local Act [No. 83-532, as amended by
Act No. 84-523,] provides that 55 percent of the sales tax
revenues shall be distributed to the Baldwin County Board of
Education to be used for capital improvement, capital
construction, and maintenance purposes. Nothing in the act
provides that a portion of the sales tax revenues shall be
distributed to municipal school systems in the county, and
nothing in the act states that the tax is levied for 'public school
purposes.'
"The language of Act [No. 83-532, as amended by Act No.
84-523,] should be contrasted with the language of section 40-
12-4 of the Code of Alabama. Section 40-12-4 of the Code
authorizes counties to collect 'franchise, excise and privilege
license taxes with respect to privileges or receipts from
privileges exercised in such county' to provide funds for 'public
school purposes.' Ala. Code § 40-12-4 (2003). This section also
provides that the county tax must parallel, except for the rate
of the tax, the state sales tax. Id. The last sentence of this
section states that '[i]n all counties having more than one local
board of education, revenues collected under the provisions of
this section shall be distributed within such county on the
same basis of the total calculated costs for the Foundation
Program for those local boards of education within the
county.' Id. (emphasis added). Thus, any taxes collected for
'public school purposes' by a county under this section must
be distributed among the local boards of education in the
county on the same basis of the total calculated costs for the
Foundation Program for those local boards of education.
"Article 2 of chapter 13 of title 16 generally provides for
the apportionment and distribution of public school funds.
Ala. Code § 16-13-30 to 16-13-40 (2001). Section 16-13-31
specifically discusses the apportionment of countywide taxes
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for the Foundation Program. Section 16-13-31(c) states as
follows:
" 'The apportionment of countywide taxes
collected for the purposes of participating in the
Foundation Program as determined in Section 16-
13-31(b) shall be used unless the local boards of
education in a county sign a mutual agreement
and secure the approval of the State
Superintendent of Education to use some other
plan involving desirable special adjustments.'
"Ala. Code § 16-13-31(c) (2001).
"The sales taxes collected in this situation, however, are
collected pursuant to a local act and are not collected under
section 40-12-4 for 'public school purposes.' Act [No.] 83-532
specifically states that the one percent sales tax provided by
the act is in addition to all other taxes, including a special
county privilege license tax paralleling the state sales tax.
Accordingly, the requirement for distribution of sales taxes
collected under section 40-12-4 to all the local boards of
education in the county is not applicable to the taxes collected
under [Act No. 83-532, as amended by Act No. 84-523]."
Ala. Att'y. Gen. Op. No. 2007-034 (Jan. 12, 2007). Both the local-tax act
and § 40-12-4 were amended after the attorney general issued the opinion
addressing the issue presented here. As discussed above, in 2017,
significant changes were made to the local-tax act regarding the entities
that receive appropriations under the local-tax act and the amount of
those appropriations. Section 40-12-4 was amended in 2018 to provide
that the terms "collection" and "administration," as used in § 40-12-4,
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would have the same meaning as in § 11-3-11.3(i), Ala. Code 1975. See §
40-12-4(c). Neither amendment changed the relevant language of the
local-tax act or § 40-12-4 and § 16-13-31(b) discussed and analyzed in the
opinion of the attorney general, which concluded that the local-tax
proceeds were not subject to allocation or distribution to the Gulf Shores
Board. Although an attorney general's opinion is only advisory and not
binding upon this Court, we find the legislative amendment of the local-
tax act and § 40-12-4, without materially changing the relevant portions
of the local-tax act and the other statutes discussed and relied upon in
the attorney general's opinion, to be significant indication that the
legislature approved of the attorney general's interpretation of the
interplay between the local-tax act and § 40-12-4 and § 16-13-31(b). See
Farmer v. Hypo Holdings, Inc., 675 So. 2d 387 (Ala. 1996) (holding that
reenactment of a statute without material change from administrative
interpretation is not binding on this Court but is especially persuasive).
We conclude that tax proceeds collected pursuant to the local-tax
act may not be distributed to the Gulf Shores Board pursuant to § 40-12-
4 and § 16-13-31(b). As the circuit court acknowledged, it is not within
the province of the courts to rewrite the local-tax act in order to
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redistribute to the Gulf Shores Board those tax proceeds collected
pursuant to the local-tax act and earmarked for the Baldwin County
Board. "In Alabama, legislation cannot originate with the judiciary." Ex
parte Christopher, 145 So. 3d 60, 69 (Ala. 2013); see also Echols v. State,
24 Ala. App. 352, 353, 135 So. 410, 411 (1931) ("[C]ourts are without
authority to add to or take from the written statutory law as passed by
the Legislature and approved."). "[T]he judicial branch may not exercise
the legislative ... power." Art. III, § 42(c), Ala. Const. 1901 (Off. Recomp.).
Federal courts also follow the same principle. See Ali v. Federal Bureau
of Prisons, 552 U.S. 214, 228 (2008); Badaracco v. Commissioner of
Internal Revenue, 464 U.S. 386, 398 (1984) ("Courts are not authorized
to rewrite a statute because they might deem its effects susceptible of
improvement."); and Nguyen v. United States, 556 F.3d 1244, 1256 (11th
Cir. 2009) ("We are not authorized to rewrite, revise, modify, or amend
statutory language in the guise of interpreting it ...."). Accordingly, the
Gulf Shores Board is not entitled to an order "allocat[ing to the Gulf
Shores Board] the proceeds of all sales and use taxes raised for
educational purposes within Baldwin County, Alabama, in accordance
with Ala. Code §§ 40-12-4 and 16-13-31(b)."
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In counts one through three of the complaint, the Gulf Shores Board
also sought, in the alternative, a judgment declaring the local-tax act to
be unconstitutional on the basis that it violates § 105 of the Alabama
Constitution. The Gulf Shores Board asserted that, to the extent that the
local-tax act requires distribution of tax proceeds earmarked for
educational purposes differently than provided for in § 40-12-4, the local-
tax act violated § 105, which prohibits a local law from being enacted on
any subject that is already provided for by a general law. If, as the Gulf
Shores Board requests, the local-tax act is declared unconstitutional as
violative of § 105, then not only would the entities identified in the local-
tax act as intended recipients of the local-tax proceeds not receive those
tax proceeds, but also it would be impossible for the Gulf Shores Board to
receive an appropriation of the local-tax proceeds. This Court has stated
the following regarding standing to bring an action:
"In determining whether a party has standing in
Alabama courts, we are guided by whether the following exist:
'(1) an actual, concrete and particularized "injury in fact" --
"an invasion of a legally protected interest"; (2) a "causal
connection between the injury and the conduct complained
of"; and (3) a likelihood that the injury will be "redressed by a
favorable decision. " ' Alabama Alcoholic Beverage Control Bd.
v. Henri-Duval Winery, L.L.C., 890 So. 2d 70, 74 (Ala. 2003)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992))."
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Ex parte Merrill, 264 So. 3d 855, 862-63 (Ala. 2018). The first two
requirements of the standing inquiry are satisfied here. The Gulf Shores
Board has asserted that it is entitled to an appropriation of the tax
proceeds raised pursuant to the local-tax act and has not heretofore
received an appropriation of those tax proceeds. However, we conclude
that the third requirement -- likelihood that the injury will be redressed
by a favorable decision -- is not satisfied here. The Gulf Shores Board
has sought a judgment declaring that the local-tax act is
unconstitutional. If the Gulf Shores Board was successful on that claim
and the local-tax act was declared unconstitutional, it would be
impossible for the alleged injury to be redressed by that decision because
there would no longer be any tax proceeds generated by the local-tax act.
See Ex parte Merrill, supra.
The plaintiffs contend that the local-tax act would not necessarily
be invalidated if it was declared unconstitutional. The plaintiffs argue
that the circuit court could declare the local-tax act unconstitutional in
part, insofar as it relates to the allocation of local-tax proceeds to fund
public education in Baldwin County, and then determine that the
Baldwin County Commission has the authority to allocate a portion of
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the local-tax proceeds pursuant to § 40-12-4. It appears, in other words,
that the plaintiffs are contending that that component of the local-tax act
could be severed from the act as a whole and the relevant portion of the
local-tax proceeds could then be distributed under the provisions of § 40-
12-4. That, however, would necessarily require the circuit court to
rewrite the local-tax act, which, as discussed above, the courts are
prohibited from doing. Accordingly, we conclude that the Gulf Shores
Board lacks standing to bring its constitutional claim asserting that the
local-tax act violates § 105 of the Alabama Constitution.
II. Walker
Walker is a taxpayer and resides in Gulf Shores within the Gulf
Shores school district. In count four of the complaint, Walker asserted
an "equality-of-taxation" claim alleging that the local-tax act
unconstitutionally imposes upon her and the residents of the Gulf Shores
school district a tax whose proceeds are used completely outside the Gulf
Shores school district and without providing any benefit to the citizens of
the Gulf Shores school district. Walker sought in count four a judgment
declaring the local-tax act unconstitutional.
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The circuit court determined that Walker lacked standing to assert
her constitutional claim, holding that the claim presented a
nonjusticiable controversy because, it determined, the real matter in
controversy was whether the Gulf Shores Board should receive an
appropriation of a portion of the local-tax proceeds earmarked for the
Baldwin County Board.
"We have recognized that a justiciable controversy is one that
is ' "definite and concrete, touching the legal relations of the
parties in adverse legal interest, and it must be a real and
substantial controversy admitting of specific relief through a
[judgment]. " ' MacKenzie v. First Alabama Bank, 598 So. 2d
1367, 1370 (Ala. 1992)(quoting Copeland v. Jefferson County,
284 Ala. 558, 561, 226 So. 2d 385, 387 (1969))."
Harper v. Brown, Stagner, Richardson, Inc., 873 So. 2d 220, 224 (Ala.
2003).
The plaintiffs argue that Walker is the master of her complaint and
that the circuit court may not ignore the clear allegations contained in
count four of the complaint and treat those allegations as what it
determines the "real" matter in controversy to be. See Wright v. Cleburne
Cnty. Hosp. Bd., Inc., 255 So. 3d 186, 192 (Ala. 2017) (stating that, "of
course, it is the plaintiff who is 'the master of his complaint.' … It is for
the court to address the merit of the claim as framed by the plaintiff, not
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to reframe it."). Walker has alleged that she is a taxpayer living in the
Gulf Shores school district and that she pays the tax levied pursuant to
the local-tax act. Walker has further alleged that, although the local-tax
act imposes a tax burden upon her and the other residents of the Gulf
Shores school district, they receive no benefit from the local tax because
the proceeds of the tax are apportioned to benefit public schools outside
of, and to the exclusion of, the Gulf Shores school district. Walker sought
a judgment declaring the local-tax act unconstitutional. Based on the
foregoing, we conclude that a justiciable controversy does exist and that
Walker has standing to assert her constitutional claim.
However, it is well settled that this Court may affirm a circuit
court's judgment of dismissal "for any legal, valid reason, even one not
raised in or considered by the circuit court, unless due-process fairness
principles require that the ground have been raised below and it was not."
State v. Epic Tech, LLC, [Ms. 1210012, May 20, 2022] __ So. 3d __, __
(Ala. 2022). The revenue commissioner and the county commissioners
argued in their motion to dismiss that Walker's "equality-of-taxation
claim" fails because it ignores the facts that the local-tax act does not levy
solely a "school tax" and that a majority of the local-tax proceeds are
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apportioned to fund other entities that benefit all the residents of
Baldwin County, including Walker and the other residents who reside in
the Gulf Shores school district.
The plaintiffs rely upon the decision in Garrett v. Colbert County
Board of Education, 255 Ala. 86, 50 So. 2d 275 (1950), in support of
Walker's constitutional claim. In Garrett, the legislature had enacted a
local sales and use tax in Colbert County that paralleled the state sales
and use tax. The local act allocated 75% of the tax proceeds to the Colbert
County Board of Education ("the Colbert County Board") and the
remaining 25% to the City of Tuscumbia Board of Education ("the
Tuscumbia Board") and the City of Sheffield Board of Education ("the
Sheffield Board"), to be split based on the percentage of population in
each city. The local act provided that the tax proceeds allocated to the
three boards of education were to be used exclusively for public-school
purposes.
An action was brought challenging the local law and seeking to
enjoin the custodian of public-school funds for Colbert County from
collecting the tax levied under the local act. In the alternative, the action
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sought to enjoin the Colbert County Board from receiving 75% of the tax
proceeds. The circuit court denied the relief sought.
In affirming the judgment of the circuit court, this Court upheld
the apportionment formula in the local act, finding that the allocation of
the tax proceeds was purely a legislative matter that was not subject to
review by this Court if the apportionment formula was based upon a
reasonable foundation. Garrett, 255 Ala. at 94, 50 So. 2d at 281. Further,
it was argued on appeal that the local act violated the principle -- which
forms the basis of Walker's claim -- that prohibits the "levy of special
taxes from the citizens of a definite locality to be expended in some other
locality." Garrett, 255 Ala. at 94, 50 So. 2d at 281. In upholding the local
act, this Court stated:
"In this connection, it is also insisted that the
apportionment violates the principle which prevents the levy
of special taxes from the citizens of a definite locality to be
expended in some other locality. That principle was very
carefully considered by the Supreme Court of Florida in the
case of Amos v. Mathews, 99 Fla. 1, 23, 24, 26, 126 So. 308[(1930)]. It is of universal application so far as we have been
able to find. In 1 Cooley on Taxation (4th Ed.) section 314,
with reference to a district tax it is said: 'The purpose to be
accomplished thereby (the tax) shall be one which in a special
and peculiar manner pertains to the district within which it
is proposed that the contribution called for shall be collected.'
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"We do not think that principle here serves to strike
down Act No. 485 on account of the apportionment feature of
it. The tax is a county wide one, having the county as the unit.
It is not a tax on one district to be applied to another. It is paid
by persons in the two cities and outside the two cities, all alike
and for one fund. The question is one of apportionment rather
than as above insisted on, although by exact measurement
more of the tax may be paid in the cities than is apportioned
to them. If the apportionment is not invalid, the other
principle has no application here."
Garrett, 255 Ala. at 94-95, 50 So. 2d at 281-82.
Although the plaintiffs rely upon the principle stated in Garrett
that prohibits the levy of special taxes on the citizens of a definite locality
to be expended in some other locality, the holding in Garrett is actually
supportive of the defendants' position and is dispositive of Walker's
claim. Like the tax levied in Garrett, the local tax levied by the Baldwin
County Commission pursuant to the local-tax act is a countywide tax that
is apportioned on a countywide basis not only to the Baldwin County
Board, but also to the Baldwin County Juvenile Court, the Baldwin
County District Attorney's Office, CACC, and the Baldwin County
general fund. Walker, and the other citizens residing in the Gulf Shores
school district, undoubtedly benefit from the allocation of the local-tax
proceeds to those other entities because those entities provide services on
a countywide basis. Because the local-tax act levies a tax that is allocated
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on a countywide basis to support services that are provided countywide,
the principle set forth in Garrett that prohibits the levy of special taxes
on the citizens of a definite locality to be expended in some other locality
has not been violated, and Walker's constitutional claim therefore fails.
Accordingly, the circuit court's order dismissing Walker's constitutional
claim is due to be affirmed.
Conclusion
We affirm the circuit court's judgment dismissing the plaintiffs'
claims.
AFFIRMED.
Wise, Sellers, and Mendheim, JJ., concur.
Parker, C.J., and Mitchell, J., concur in part and concur in the
result, with opinions.
Shaw, Bryan, and Stewart, JJ., concur in the result.
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PARKER, Chief Justice (concurring in part and concurring in the result).
I agree with the main opinion except its omission to address Kelly
Walker's claim that the local-tax act, §§ 45-2-244.071 - .077, Ala. Code
1975, violates § 105 of the Alabama Constitution. As Justice Mitchell
points out in his special writing, this claim was asserted by both
plaintiffs. And unlike the Gulf Shores City Board of Education, Walker
had standing to raise this claim. Even though success on the claim would
have resulted in invalidation of the local tax, Walker was allegedly
harmed by paying the tax and presumably would have received redress
through a refund, see Graves v. McDonough, 264 Ala. 407, 409, 88 So. 2d
371, 373 (1956), or at least relief from future collection of the tax.
Further, Walker's § 105 claim must be addressed by this Court. Although
Walker's equality-of-taxation claim fails for the reasons explained by the
main opinion, nevertheless if her alternative § 105 claim were correct,
the local-tax act would be invalid and the judgment would have to be
reversed.
Regarding the merits of Walker's § 105 claim, that section of the
constitution provides:
"No special, private, or local law, except a law fixing the
time of holding courts, shall be enacted in any case which is
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provided for by a general law, or when the relief sought can
be given by any court of this state; and the courts, and not the
legislature, shall judge as to whether the matter of said law is
provided for by a general law, and as to whether the relief
sought can be given by any court; nor shall the legislature
indirectly enact any such special, private, or local law by the
partial repeal of a general law."
Art. IV, § 105, Ala. Const. 1901 (Off. Recomp.). I fully agree with Justice
Mitchell's analysis of this claim, with one exception and one caveat. First,
I do not believe that the ordinary presumption of constitutionality applies
to § 105 claims. Second, I join Justice Mitchell in commending some of
the parties' use of contemporaneous dictionaries to aid this Court in the
search for the original public meaning of § 105. But I also caution parties
against relying solely on dictionaries. As Justice Mitchell and I have
previously made clear, an originalist approach to interpreting § 105 must
also draw from deeper wells. See Barnett v. Jones, 338 So. 3d 757, 766-
67 (Ala. 2021) (Mitchell, J., concurring specially); Glass v. City of
Montgomery, [Ms. 1200240, Feb. 11, 2022] ___ So. 3d ___, ___ n.3 (Ala.
2022) (Mitchell, J., concurring in part and concurring in the result); id.at ___ n.4 (Parker, C.J., dissenting). And those wells include the
historical and legal context in which § 105 was adopted.
I. Inapplicability of presumption of constitutionality
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Ordinarily, courts owe deference to the Legislature in the form of a
presumption that statutes do not violate the constitution. This
presumption does more than place the burden of persuasion on the party
asserting unconstitutionality; it imposes a substantive duty on courts to
hold a statute constitutional if reasonably possible, see Clay Cnty.
Comm'n v. Clay Cnty. Animal Shelter, Inc., 283 So. 3d 1218, 1229 (Ala.
2019). In § 105, however, that duty "is forbidden to us by the
constitution's express command." Glass v. City of Montgomery, [Ms.
1200240, Feb. 11, 2022] ___ So. 3d ___, ___ (Ala. 2022) (Parker, C.J.,
dissenting). Section 105 provides that "the courts, and not the legislature,
shall judge as to whether the matter of [a special, private, or local] law is
provided for by a general law." Art. IV, § 105, Ala. Const. 1901 (Off.
Recomp.).
This language is unique within the Alabama constitution. It
appears to have been a reaction to this Court's prior holding, under a
predecessor of § 105, that the question whether the matter of a particular
local law could have been provided for by a general law was "one of
legislative discretion," Clarke v. Jack, 60 Ala. 271, 278 (1877). The people
of Alabama rejected that deference in 1901, as this Court recognized
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within seven years:
"Prior to the adoption of the present Constitution this
court held [in Clark] that it was the province of the
Legislature to determine whether or not the 'cause' was
provided for by a general law .... But this section (105)
provides that the courts, and not the Legislature, shall judge
as to whether the matter of said law is provided by a general
law."
Forman v. Hair, 150 Ala. 589, 593-94, 43 So. 827, 829 (1907).
Notably, other states have similar constitutional provisions. For
example, Minnesota's provides: "Whether a general law could have been
made applicable in any case shall be judicially determined without
regard to any legislative assertion on that subject." Art. XII, § 1, Minn.
Const.; see also, e.g., Art. 4, § 40, subsec. 30, Mo. Const.; Art. 4, § 13, Ill.
Const.; Art. 2, § 19, Alaska Const.
Here, excluding the presumption of constitutionality that Justice
Mitchell applies, I still agree with the remainder of his explanation of
why the local-tax act does not provide for the same subject matter as the
general laws at issue. I simply add the observation that, in operation, tax
laws are often sui generis in the sense that they contemplate unique
sources and allocations of revenue. Thus, even when two tax laws raise
revenue by similar means and for similar purposes, they may still provide
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for different subject matters for purposes of § 105.
II. A broad originalist approach to § 105
Some of the defendants in this case have focused on using
contemporaneous dictionaries to understand the original meaning of §
105. Such dictionaries are a useful starting point, but they are by no
means the ending point of originalist analysis. This is especially so when
the provision in question uses broad language, words with a variety of
potential meanings, or potential terms of art. For example, one cannot
discover the original meaning of the federal Religion Clause by simply
pulling out Samuel Johnson's and Noah Webster's dictionaries, looking
up "free," "exercise," "establishment," and "religion," and collating those
definitions. Likewise for the Second Amendment: Understanding the
original meaning requires more than combining dictionary definitions of
"keep," "bear," and "arms." Rather, genuine originalism frequently
requires practitioners and scholars to look deeper into the historical and
legal context in which a provision was adopted. See Barnett v. Jones, 338
So. 3d 757, 767 (Ala. 2021) (Mitchell, J., concurring specially); Glass v.
City of Montgomery, [Ms. 1200240, Feb. 11, 2022] ___ So. 3d ___, ___ n.3
(Ala. 2022) (Mitchell, J., concurring in part and concurring in the result);
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see, e.g., Town of Greece v. Galloway, 572 U.S. 565, 576 (2014); District
of Columbia v. Heller, 554 U.S. 570, 584-603 (2008).
Thankfully, when it comes to § 105, a wealth of data about that
context is presently available, including information about the historical
impetus for American states' proscriptions of special laws, the 1901
constitutional convention's extensive debate regarding § 105, the similar
language of earlier Alabama constitutions, other states' similar
constitutional provisions adopted during the same period, and pre-1901
court decisions interpreting all those provisions.
Historically, constitutional prohibitions of special laws were rooted
in a fundamental presupposition, derived from natural law, that civil
government is divinely instituted to legislate for the common good, not
for the individual benefit of private parties and groups. See Justin R.
Long, State Constitutional Prohibitions on Special Laws, 60 Clev. St. L.
Rev. 719, 725 (2012). James Madison observed that "a great proportion
of the errors committed by the State legislatures proceeds from the
disposition of the members to sacrifice the comprehensive and permanent
interest of the State to the particular and separate views of the counties
or districts in which they reside." The Federalist No. 46, at 296 (James
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Madison) (Clinton Rossiter ed., 1961). Thus, state-constitutional
prohibitions of special laws were developed in response to a 19th-century
glut of special legislation that resulted from state legislatures'
succumbing to special interests and ignoring the public welfare. See
Harrisburg Sch. Dist. v. Zogby, 574 Pa. 121, 136, 828 A.2d 1079, 1088
(2003). See generally Robert M. Ireland, The Problem of Local, Private,
and Special Legislation in the Nineteenth-Century United States, 46 Am.
J. Legal Hist. 271 (2004).
Alabama's § 105 was no exception. At the 1901 constitutional
convention, delegate (and former governor) Emmet O'Neal declared in
his introduction of the provision that became § 105:
"Local, special or private bills are condemned because they
destroy the harmony of the law, consume the time of the
legislature, obscure in the eyes of members of the General
Assembly the importance of general laws, furnish opportunity
for perpetrating jobs,[2] inflict injustice on individuals or
localities in the interest of a favored few. It has been truly
declared that they are one of the scandals of the country. They
have been in the past and will continue to be in the future the
prolific sources of corruption. … The bribery and flagrant
corruption which has disgraced the Legislature of some of the
States of the Union can all be traced to the effort to secure the
passage of local or private bills, conferring some special or
2At the time, one meaning of "job" was "a public duty or trust
performed or conducted with a view to improper private gain." 4 The
Century Dictionary 3235 (The Century Co. 1889).
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valuable privilege, franchise or pecuniary advantage on the
promoters or syndicate interested in the proposed legislation."
2 John Knox et al., Official Proceedings of the Constitutional Convention
of the State of Alabama 1779-80 (Wetumpka Printing Co. 1940). 3
Following O'Neal's introduction, the delegates extensively debated
the proposed provision; the whole discussion extends almost 300 pages.
See id. at 1774-2068. Many of their comments suggest a broad
understanding of § 105. The overarching goal of the proponents was that
"local or special legislation will be largely eliminated." Id. at 1785. One
proponent explained that § 105 "started out with a view of stopping up
every possible gap which the Legislature could get through on this
question of local legislation." Id. at 1966. Section 105 was described as
"let[ting] the courts and not the Legislature be the exclusive judge of
whether the subject matter of local law could be reached by some general
law in operation." Id. at 1932-33 (emphasis added). Under § 105, the
question before the Legislature in deciding whether to pass a local or
3On the date this opinion was released, this document was available
online through the Alabama Department of Archives and History at the
following Web address:
https://digital.archives.alabama.gov/digital/collection/constitutions/id/12
0/.
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special law would be "whether or not a matter before them was covered
by a general law." Id. at 1940. The proponents likewise emphasized that
"this provision is to prohibit [the Legislature] from passing any law of the
same nature in regard to other subjects which are not mentioned [by §
104's list of prohibited subjects of special, private, or local laws] and
which are provided for by the general law." Id. As an example of how §
105 would apply, a proponent explained that it would prevent the
Legislature from passing a law granting emancipation to a specific minor,
because a general law already defined the process whereby a minor could
seek emancipation. Id. at 1967. Moreover, § 105 would operate by
refusing "to delegate to the Legislature to determine whether or not a
matter of local concern which was introduced before them had already
been provided for by general law." Id. at 1966. One delegate explained:
"Suppose, for instance, that a general law should be passed on
any matter, why should any county or municipality be
exempted from the operation of that law. …
"It is not the working of the law, but it is the manner of
creating the law that you desire to reach, and that you desire
to make uniform throughout the state."
Id. at 1810.
On the other hand, a few statements in that debate have been read
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by commentators as espousing a narrow view of § 105. For example, one
proponent asserted:
"[I]s there any hardship saying to any man, any individual,
corporation or association that if the laws of the State have
already provided for your case and you can get everything you
could possibly get by appealing to the legislature, you ought
not to consume the public time in trying to get the legislature
to do what has already been done for you[?] That is all this
provision means."
Id. at 1997. Some scholars have taken those statements to mean that the
delegates understood § 105 to forbid a local law only "if there were an
existing general law having precisely the same operation." James N.
Walter, Jr., Local Legislation in Alabama: The Impact of Peddycoart v.
City of Birmingham, 32 Ala. L. Rev. 167, 181 (1980); see J. Russell
McElroy, No ... Local Law ... Shall Be Enacted in Any Case Which Is
Provided for by a General Law, 7 Ala. Law. 243 (1946).
Of course, the goal of sound, textualist-type originalism is to
understand and apply the original public meaning of the text, not the
subjective intent of its framers. So the convention debate is relevant only
to the extent that it sheds light on what the ratifying public understood
the text to mean at the time.
As additional evidence regarding original meaning, it is significant
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that § 105 was based on provisions in Alabama constitutions that had
been adopted earlier in that period of constitutional reform. The 1865
constitution provided: "No special law shall be enacted for the benefit of
individuals or corporations, in cases which are provided for by a general
law, or where the relief sought can be given by any court of this State."
Art. IV, § 38, Ala. Const. 1865. The 1875 constitution strengthened that
prohibition: "No special or local law shall be enacted for the benefit of
individuals or corporations, in cases which are or can be provided for by
a general law, or where the relief sought can be given by any court of this
State ...." Art. IV, § 23, Ala. Const. 1875 (emphasis added).
We have recognized that the Alabama constitution should be
interpreted in light of its predecessors. See Lockridge v. Adrian, 638 So.
2d 766, 768 (Ala. 1994); Moog v. Randolph, 77 Ala. 597, 606 (1884). In
particular, when a constitutional provision was adopted after earlier
similar provisions had been interpreted by our Court, those
interpretations may provide evidence of the original public meaning of
the provision in question. See State v. Sayre, 118 Ala. 1, 27-28, 24 So. 89,
92 (1897). And notably, in the years before § 105 was adopted, the 1875
provision was analyzed several times by our Court. See Clarke v. Jack,
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60 Ala. 271, 278 (1877); McKemie v. Gorman, 68 Ala. 442, 448 (1880);
Jones v. Jones, 95 Ala. 443, 449, 11 So. 11, 12 (1892); Holt v. City of
Birmingham, 111 Ala. 369, 373, 19 So. 735, 736 (1896).
Further, most constitutional prohibitions of special or local laws by
other states also originated in that same 19th- and early 20th-century
period of reform. See 2 Shambie Singer, Sutherland Statutes and
Statutory Construction § 40:1 (8th ed. 2022); Anthony Schutz, State
Constitutional Restrictions on Special Legislation as Structural
Restraints, 40 J. Legis. 39, 44-46 (2014). Indeed, the Alabama convention
delegates who introduced § 105 expressly referenced other states' similar
provisions and relied on their example as the "best considered
constitutions." Knox et al., supra, at 1777-80. They also acknowledged
that they drafted § 105 in the context of "numerous decisions of the courts
of the States." Id. at 1799. Thus, those states' pre-1901 court decisions
interpreting those provisions could be relevant to the original meaning of
§ 105. See, e.g., State ex rel. Van Riper v. Parsons, 40 N.J.L. 1 (Sup. Ct.
1878); State v. Dalon, 35 La. Ann. 1141 (1883); Mathis v. Jones, 84 Ga.
804, 11 S.E. 1018 (1890); City of Louisville v. Kuntz, 104 Ky. 584, 47 S.W.
592 (1898). And to the extent that those states' post-1901 decisions and
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secondary literature have wrestled with the original meaning of their
provisions, those efforts can benefit Alabama courts as well.
As we continue to seek the original meaning of § 105, I join Justice
Mitchell in urging advocates and scholars to make use of
contemporaneous dictionaries, but not to stop there. The goal is to
interpret § 105 by seeking to understand "[w]hat was the most plausible
meaning of the words of the Constitution to the society that adopted it."
Antonin Scalia, Scalia Speaks 183 (Crown Forum 2017). Achieving that
goal requires understanding the words in the context in which they were
ratified. Thus, those who would help us uncover the original meaning of
§ 105 should research the history of anti-special-law provisions and
carefully examine the debate at the 1901 convention for evidence of the
public's understanding of the meaning and operation of § 105. In
addition, they should review the language of earlier Alabama
constitutions and of other states' pre-1901 constitutions, along with pre-
1901 court decisions interpreting those constitutions. Any
contemporaneous lay-audience advocacy, such as in newspaper articles
or recorded stump speeches, should be examined. Further, the research
should more broadly examine contemporaneous public usage of the
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language in § 105 and in analogous provisions of our earlier constitutions,
perhaps through corpus linguistics as Justice Mitchell cogently suggests.
Analysis of all the available data will help ensure, to the extent possible,
that we have a firm foundation for moving toward an approach that
conforms to the original public meaning of the constitution.
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MITCHELL, Justice (concurring in part and concurring in the result).
I agree that we should affirm the judgment of the Montgomery
Circuit Court. Nothing in the text of §§ 16-13-31(b) or 40-12-4, Ala. Code
1975, requires a portion of the revenue collected from the Baldwin
County tax imposed by § 45-2-244.071 et seq., Ala. Code 1975 ("the local-
tax act"), to be distributed to the Gulf Shores City Board of Education
("the Gulf Shores Board"). But I believe the alternate argument made by
the Gulf Shores Board and its co-plaintiff Kelly Walker ("the plaintiffs")
-- that this tax violates § 105 of the Alabama Constitution -- is properly
before our Court and must also be addressed.4 As explained below, I
ultimately find that argument to be without merit; therefore, I
respectfully concur in part and concur in the result.
This Court's § 105 framework
Section 105 generally prohibits the enactment of a "local law … in
any case which is provided for by a general law." Ala. Const. 1901 (Off.
Recomp.), Art. IV, § 105 (emphasis added). The provision further
4A majority of the Court concludes that the Gulf Shores Board lacks
standing to bring its claim asserting that the local-tax act violates § 105
of the Alabama Constitution. Even if that is correct, as I read the
plaintiffs' complaint, Walker has asserted that same claim and has
standing to assert it.
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provides that "the courts, and not the legislature, shall judge as to
whether the matter of said law is provided for by a general law." Id.
(emphasis added). Our caselaw considering § 105 has rightfully focused
on the terms "case," "matter," and "provided for." In Barnett v. Jones,
338 So. 3d 757, 761 (Ala. 2021), we reviewed this caselaw and a plurality
of this Court concluded that "the key to assessing a local law under § 105
is determining the subject covered by the general law or -- in the phrasing
of the text of § 105 -- determining the 'case' or 'matter' 'provided for' by
the general law." The Barnett Court further reiterated the general rule
laid down in Peddycoart v. City of Birmingham, 354 So. 2d 808 (Ala.
1978), that "if the 'case' or 'matter' of the local law is 'provided for' by a
general law -- that is, it covers 'matters of the same import' -- § 105 has
been violated. But if not -- that is, if the laws cover things not of the same
import -- the local law does not offend § 105." Id. at 762 (quoting § 105
and Peddycoart, 354 So. 2d at 811). 5
5In Glass v. City of Montgomery, [Ms. 1200240, Feb. 11, 2022] ___
So. 3d ___, ___ (Ala. 2022) (plurality opinion), a different configuration of
Justices agreed "with the Barnett plurality's affirmation of Peddycoart's
'same import' standard." By my count, between Barnett and Glass, a
majority of the Justices on this Court have now indicated their agreement
with this aspect of Peddycoart's approach to § 105.
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Analysis
Briefly summarized, the plaintiffs argue that the local-tax act
violates § 105 in two ways. First, they contend that § 40-12-4(a) is a
"general law" that "provide[s] for" a specific "case" -- the enactment of a
countywide tax to raise funds for education. Therefore, they argue, the
local-tax act, which they say addresses that same case (i.e., a countywide
tax that raises funds for education) is unconstitutional. Second, they say
that multiple statutes of statewide application -- including §§ 16-13-31(b)
and 40-12-4(b) -- constitute general laws providing that the revenue
raised from a countywide tax for education must be apportioned between
the school systems in the county on a pro rata basis. Accordingly, they
argue, the local-tax act is unconstitutional because it addresses that
same matter, i.e., how the revenue raised from a countywide tax for
education must be apportioned.
The defendants counter that the plaintiffs have defined the
relevant case or matter too broadly, despite this Court cautioning parties
not to do so. 6 See Barnett, 338 So. 3d at 763 (emphasizing "the
6The defendants include Eric Mackey, in his official capacity as
Superintendent of the Alabama State Board of Education; Teddy J.
Faust, Jr., in his official capacity as the Revenue Commissioner of
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importance of not extending the boundaries of subject matter too
broadly"); Drummond Co. v. Boswell, 346 So. 2d 955, 958 (Ala. 1977)
(explaining that "[i]t is not the broad, overall subject matter which is
looked to in determining whether the local act, taken together with the
general law, is violative of § 105"). Thus, they argue, it is inappropriate
to define the case provided for by § 40-12-4(a), or, alternatively, the
matter of the local-tax act, as being simply countywide taxes that raise
funds for education. Rather, the defendants say, the case provided for by
§ 40-12-4(a) is a county's authority to levy "franchise, excise and privilege
license taxes" that are to "be used exclusively for public school purposes."
In contrast, they argue, the matter provided for by the local-tax act is
Baldwin County's authority "to levy … a special county privilege license
tax paralleling the state sales tax." While a portion of the funds raised
Baldwin County; James E. Ball, Joe Davis III, Billie Jo Underwood, and
Charles F. Gruber, in their official capacities as Commissioners of
Baldwin County; the Baldwin County Board of Education; Judge Carmen
E. Bosch, in her official capacity as Presiding Judge of the Baldwin
County Juvenile Court; Robert Wilters, in his official capacity as the
Baldwin County District Attorney; and Coastal Alabama Community
College. These government officials and entities have collectively filed
five appellee briefs. Their arguments largely overlap, and some
defendants have expressly adopted the arguments made by other
defendants in their briefs. For convenience, I have treated their
arguments about § 105 as a collective argument.
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by this tax are allocated to the Baldwin County Board of Education, some
of the funds are allocated to other entities for noneducational uses, and
some of the funds are even allocated to Baldwin County's general fund
"to be expended as other county funds." Thus, the defendants argue, the
case provided for by § 40-12-4(a) -- a county's authority to levy a
franchise, excise, or privilege license tax to raise funds for public schools
-- is different from the matter of the local-tax act -- Baldwin County's
authority to levy a privilege license tax to raise funds generally.
Similarly, the defendants argue that §§ 16-13-31(b) and 40-12-4(b),
and the local-tax act, cannot be reduced to laws addressing the broad case
or matter of how revenue raised from a countywide tax should be
allocated between local boards of education in a county. To be sure, § 16-
13-31(b) provides for how countywide taxes collected for the purpose of
participating in the Foundation Program, see generally § 16-13-230 et
seq., Ala. Code 1975, should be allocated between the "local boards of
education within the county," and § 40-12-4(b) provides that, in counties
with multiple school systems, "revenues collected under the provisions of
this section shall be distributed within such county on the same basis of
the total calculated costs for the Foundation Program." But the
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defendants emphasize that the revenue collected under the local-tax act
is not collected either for purposes of participating in the Foundation
Program or under the grant of authority made by § 40-12-4. Thus, they
reason, the case provided for by those statutes is not the same as the
matter addressed by the local-tax act. Or, in Peddycoart terms, the laws
do not address "matters of the same import." 354 So. 2d at 811.
The defendants' argument is convincing. The plaintiffs' broad
characterization of the legislative acts is not supported by the text of
those acts. And defining the case provided for by a general law in broad
terms that create a conflict with local laws is contrary to the fundamental
principle that " '[w]e approach the question of the constitutionality of a
legislative act " ' "with every presumption and intendment in favor of its
validity, and seek to sustain rather than strike down the enactment of a
coordinate branch of the government." ' " ' " Bynum v. City of Oneonta,
175 So. 3d 63, 66 (Ala. 2015) (citations omitted). Consistent with our
previous decisions, the case provided for by the relevant statutes and the
matter provided for by the local-tax act can be narrowly defined to avoid
running afoul of the § 105 prohibition. See, e.g., Barnett, 338 So. 3d at
762-63 (describing how this Court, in Town of Vance v. City of Tuscaloosa,
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661 So. 2d 739 (Ala. 1995), and Birmingham v. Vestavia Hills, 654 So. 2d
532, 538 (Ala. 1995), "refused to treat the matter [provided for by the
subject legislative acts] as annexation generally. Rather, it treated the
matter provided for as annexation in certain contexts.").
Properly viewed, the case provided for by § 40-12-4 is not simply a
county's authority to implement a countywide tax, or even a county's
authority to implement a countywide tax that raises revenue for
education. Rather, it is a county's authority to levy a franchise, excise,
or privilege license tax to raise revenue exclusively for public-school
purposes. The local-tax act, by contrast, provides for a different
matter -- the authority of a county (Baldwin County) to levy a special
privilege license tax to raise revenue for the county (the smaller part of
which is allocated for educational purposes and the rest of which is used
to support various other government purposes). Likewise, the case
provided for by §§ 16-13-31(b) and 40-12-4(b) is not the allocation of tax
revenue between school systems in a county "generally," it is the
allocation of tax revenue between school systems in a county "in certain
contexts." Barnett, 338 So. 3d at 762-63. The local-tax act, meanwhile,
addresses such an allocation in a different context. When the case
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provided for by the general laws is properly delineated in this way, it is
apparent that the local-tax act does not run afoul of § 105.
The defendants, like the City of Montgomery in Glass v. City of
Montgomery, [Ms. 1200240, Feb. 11, 2022] ___ So. 3d ___ (Ala. 2022),
have provided this Court with "valuable supporting evidence" of the
original public meaning of the terms "case" and "matter" that buttresses
this understanding of § 105. ___ So. 3d at ___ (Mitchell, J., concurring
in part and concurring in the result). Specifically, they point to the
definitions of those terms found in dictionaries from the period when the
Alabama Constitution was adopted. See Barnett, 338 So. 3d at 767
(Mitchell, J., concurring specially) ("When seeking to determine the
original public meaning of a constitutional provision, it is necessary to
examine relatively contemporaneous sources and older, pre-enactment
sources that shed light on a provision's historical context."). Their
discussion of the term "case" is particularly helpful. 7
7In my special concurrence in Barnett, I encouraged parties "in
future state-constitutional cases to provide appropriate research and
arguments about the original public meaning of the provision they are
asking us to interpret," noting specifically that "[w]hat the words 'case'
or 'matter' were understood by the Alabama public to mean in 1901 would
be of great interest to me in determining the scope of § 105." 338 So. 3d
at 768-69 (Mitchell, J., concurring specially).
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The relevant definitions of "case" in The Century Dictionary are "[a]
particular determination of events or circumstances; a special state of
things coming under a general description or rule" and "[a] state of things
involving a question for discussion or decision." 1 The Century
Dictionary 840 (The Century Co. 1889). And Webster's New
International Dictionary defines case as "[a]n instance or circumstance
of the kind; a special state of affairs; as, a case of injustice." Webster's
New International Dictionary 339 (1910). 8 Notably, both of these
contemporaneous dictionaries indicate that the term "case" carried with
it an emphasis on the particular or special (as opposed to the broad and
general) at the time the current Alabama Constitution was ratified.
Courts should "give words the meaning they had at the time the law was
adopted," Barnett, 338 So. 3d at 766 (Mitchell, J., concurring specially)
(emphasis omitted), and these definitions indicate that the term "case"
8The defendants explain that they selected these two dictionaries
because they were published in the period surrounding the ratification of
the Alabama Constitution in 1901, and our courts have previously relied
on them when determining the meaning of terms used in constitutional
provisions and statutes. See, e.g., State v. Towery, 143 Ala. 48, 49, 39 So.
309, 309 (1905) (citing Webster's International Dictionary); Lovelady v.
State, 15 Ala. App. 615, 618, 74 So. 734, 735-36 (1917) (citing The
Century Dictionary).
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would have been understood by the informed public at the beginning of
the 20th century as referring to a set of particular circumstances, not a
broad general category. This evidence further supports the defendants'
argument about the original public meaning of § 105, a provision that has
vexed this Court since it became law. See, e.g., Board of Revenue of
Jefferson Cnty. v. Kayser, 205 Ala. 289, 290-91, 88 So. 19, 20-21 (1921)
(discussing the meaning of § 105); see also Barnett, 338 So. 3d at 766
(Parker, C.J., concurring specially) (questioning whether this Court's
current § 105 jurisprudence bears any resemblance to the original
meaning of this constitutional provision).
Before ending, I would like to highlight an emerging research tool
that courts are beginning to employ in cases presenting difficult issues of
constitutional and statutory interpretation -- corpus linguistics. In short,
corpus linguistics involves the use of an electronic database -- called a
corpus -- that contains thousands or even millions of examples of
everyday usage of a given word or phrase in a particular time period. By
examining how a word had been used across a wide range of sources --
including not only academic works, but also sources in general public
circulation (newspapers, periodicals, and works of fiction) -- corpus
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linguistics can shed light on what the public would have understood a
constitutional provision or statute to mean at the time it was ratified or
enacted. See Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary
Meaning, 127 Yale L.J. 788 (2018) (providing a broad overview of corpus
linguistics). As one respected jurist has noted, corpus linguistics has the
potential to be "a powerful tool for discerning how the public would have
understood a statute's text at the time it was enacted." Wilson v. Safelite
Grp., Inc., 930 F.3d 429, 440 (6th Cir. 2019) (Thapar, J., concurring in
part and concurring in the judgment).
Courts at both the state and federal levels are now using corpus
linguistics alongside other traditional research tools to help determine
the meaning of disputed terms. 9 The Supreme Court of the United States
9See, e.g., United States v. Rice, 36 F.4th 578, 583 n.6 (4th Cir.
2022) ("[C]orpus linguistics supports the conclusion that the ordinary
public meaning of strangulation at the time North Carolina passed § 14-
32.4(b) involved intentional conduct."); United States v. Woodson, 960
F.3d 852, 855 (6th Cir. 2020) (applying corpus linguistics to a defendant's
argument that the term "scheme" in a sentencing statute referred to a
physical place as opposed to plans and actions); Health Freedom Defense
Fund, Inc. v. Biden, [No. 8:21-cv-1693-KKM-AEP, Apr. 18, 2022] ___ F.
Supp. 3d ___, ___ (M.D. Fla. 2022) (noting that a corpus-linguistics
analysis of the term "sanitation" supported the conclusion that the term
most frequently referred to "a positive act to make a thing or place
clean"); Richards v. Cox, 450 P.3d 1074, 1078-81 (Utah 2019) (using
corpus linguistics to determine what it means to enjoy "employment …
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even discussed corpus linguistics during a recent oral argument in ZF
Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. ___, 142 S.Ct. 2078(2022) (orally argued on March 23, 2022). And while that Court has not
published a majority opinion containing a full-blown corpus-linguistics
analysis, Justice Thomas has conducted searches using popular corpora,
see Carpenter v. United States, 585 U.S. ___, ___ n.4 and accompanying
text, 138 S.Ct. 2206, 2238 n.4 and accompanying text (2018) (Thomas, J.,
dissenting) (citing the Corpus of Historical American English,
https://corpus.byu.edu/coha; and the Corpus of Founding Era American
English, https://lawncl.byu.edu/cofea, and explaining that the phrase
"expectation(s) of privacy" does not appear in "collections of early
American English texts"), and Justice Alito has stated that "perhaps
someday it will be possible to evaluate the[] canons [of interpretation] by
in the state's education systems" under Utah Const. Art. X, § 9); State v.
Lantis, 165 Idaho 427, 433, 447 P.3d 875, 881 (2019) (noting that corpus
linguistics supported the conclusion that a statute criminalizing
disturbing the peace barred the disturbance of a "public, external peace"
as opposed to a private, internal, or emotional peace); People v. Harris,
499 Mich. 332, 347, 885 N.W.2d 832, 838-39 (2016) (applying corpus-
linguistics techniques to help determine whether a statute prohibiting
"information" provided by a law-enforcement officer during an internal-
affairs investigation from later being used against that officer in a
criminal proceeding applied only to true information provided by the
officer, or to both true and false information).
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conducting what is called a corpus linguistics analysis, that is, an
analysis of how particular combinations of words are used in a vast
database of English prose." Facebook, Inc. v. Duguid, 592 U.S., ___, ___,
141 S.Ct. 1163, 1174 (2021) (Alito, J., concurring in the judgment) (citing
Lee & Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788 (2018)).
Clearly, corpus linguistics is on the rise.
Convinced of the potential of this tool, some courts have even asked
parties and amicus curiae to include corpus-linguistics analyses in
supplemental briefs in pending cases. See, e.g., Jones v. Bonta, 34 F.4th
704, 714 n.6 (9th Cir. 2022) (noting that the court had "asked the parties
to file supplemental briefing addressing in part the applicability of corpus
linguistics to [the] case"); Wright v. Spaulding, 939 F.3d 695, 700 n.1 (6th
Cir. 2019) ("We asked the parties to file supplemental briefs on the
original meaning of Article III's case-or-controversy requirement,
specifically whether the corpus of Founding-era American English helped
illuminate that meaning."). While supplemental briefing is not necessary
here, I echo those courts' general invitation and urge parties appearing
before this Court in future state-constitutional and statutory cases to
include corpus-linguistics analyses to help us wrestle with the original
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public meaning of relevant provisions -- especially where key words or
phrases are older and may have had a different meaning than they would
have today. Corpus linguistics will often serve only as a method to "check
our work" and confirm the results of the underlying textual analysis, but
"[i]n future cases where the ordinary meaning is debatable, … the results
[of a corpus-linguistics analysis] could be determinative." Wilson, 930
F.3d at 445 (Thapar, J., concurring in part and concurring in the
judgment).
64