Leah Abbott Belser v. Blount County (Appeal from Blount Circuit Court: CV-22-900108).
Date Filed2023-12-22
DocketSC-2023-0421
JudgeWise, J.
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
Rel: December 22, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2023-2024
_________________________
SC-2023-0421
_________________________
Leah Abbott Belser
v.
Blount County
Appeal from Blount Circuit Court
(CV-22-900108)
WISE, Justice.
Leah Abbott Belser, the plaintiff below, appeals from a judgment
entered by the Blount Circuit Court in favor of Blount County, the
defendant below. We affirm the trial court's judgment.
Facts and Procedural History
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This case involves a lodging tax in Blount County that was levied
pursuant to Act No. 2019-410, Ala. Acts ("the Act"). In its judgment, the
trial court set forth the following undisputed facts:
"1. Act 2019-410 was introduced as House Bill 564 in
the 2019 Regular Session of the Alabama Legislature.
"2. [House Bill] 564 came before the House of
Representatives on May 8, 2019. Because the general fund
and education budgets had not yet been passed, Ala. Const.
Art. IV, § 71.01 required the House to first pass a budget
isolation resolution ('BIR') by 'not less than three-fifths of a
quorum present.'
"3. The House of Representatives has interpreted this
requirement in two different ways since § 71.01 was passed in
1981. From ratification until 2016, the House interpreted §
71.01 as requiring that a budget isolation resolution be passed
by at least three-fifths of the members present and voting.
Beginning in the 2017 Legislative Session, the House started
to require a minimum of thirty-two (32) votes on any budget
isolation resolution, reasoning that 'a quorum present' is fifty-
three of the one hundred and five members, and that three-
fifths of fifty-three members is thirty-two members.
"4. The House passed the BIR on May 8, 2019 ….
[House Bill] 564 was signed into law by Governor Ivey on June
6, 2019.
"5. The Blount County Commission levied the tax in
accordance with the authority granted to it by Act 2019-410."
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On July 8, 2019, the Blount County Commission enacted a resolution
that provided that, pursuant to the Act, a 4% lodging tax would be levied
in Blount County effective September 1, 2019.
On August 29, 2022, Belser filed a putative "Class Action
Complaint for Declaratory Judgment, Injunction, Tax Refund and Other
Relief," challenging the constitutionality of the Act. 1 Among other things,
she alleged that the Act is "void for violation of Amend. No. 448, 'the
Budget Isolation Amendment." Specifically, she contended:
"29. The citizens of this state, being aware of what has
transpired in the past regarding bills making basic
appropriations, directly addressed the responsibilities of not
only the Governor, but also of the Legislature, in their
primary task of passing general fund and education budgets
during each regular session of the Legislature. Amendment
No. 448 to the Alabama Constitution requires that the
Governor '[o]n or before the second legislative day of each
regular session of the legislature ... transmit to the legislature
for its consideration a proposed budget for the then next
ensuing budget period.' Section (c) of Amendment No. 448
provides that '[t]he duty of the legislature at any regular
session to make the basic appropriations for any budget
period that will commence before the first day of any
succeeding regular session shall be paramount.' (Emphasis
added). Ala. Const. Art. IV, § 71.01(C) (recodifying Ala. Const.
Amend. No. 448, the 'Budget Isolation Amendment -- that
appropriations bills must be 'paramount': passage of a Budget
1The record does not indicate that the trial court ruled on Belser's
request for class certification.
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Isolation Resolution ('BIR'). 'The house in which a bill is
pending can, by adoption of a resolution concurred in by three-
fifths of the quorum present, consider other legislation Id.
(Emphasis added). More specifically, Amendment 448(C)
states, in pertinent part
" '[P]rovided ... that following adoption, by vote of
either house of not less than three-fifths of a
quorum present, of a resolution declaring that the
provisions of this paragraph (C) shall not be
applicable in that house to a particular bill, which
shall be specified in said resolution by number and
title, the bill so specified may proceed to final
passage therein.
"Ala. Const. Amend. No. 448(C) (emphasis added).
"30. The requirement of Amendment 448(C) is that 3/5
of a 'quorum present' vote in favor of passing the BIR. Exhibit
2 proves that the 'quorum present' at the vote on the BIR
related to [House Bill] 564 was 92. It is axiomatic that three
fifths of 92 equals 55.1.
"31. On May 8, 2019, prior to the presentment of the
State Education or General Fund Budgets to the Governor,
the House of Representatives considered a BIR for [House
Bill] 564. The recorded vote total for the BIR regarding
[House Bill] 564 was yeas: 43, nays: 0, and abstains: 49. …
Thus, in the presence of a quorum of 92, the 43 favorable votes
fell below the 55 votes required to comply with Amendment
448(C). Nonetheless, on May 8, 2019, the presiding officer of
the House signed and transmitted [House Bill] 564 to the
Senate in violation of Amendment 448, Ala. Const., Art. IV, §
71.01. …
"32. Accordingly, the Act is null, void, and unenforceable
by reason of violation of Amendment 448(C), Ala. Const., Art.
IV, § 71.01."
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On March 20, 2023, Belser filed a motion for a summary judgment.
In her motion, she argued that the Act "is unconstitutional because the
budget isolation resolution ('BIR') required by Amendment 448 to the
Alabama Constitution lacked sufficient favorable votes to comply with
Amendment 448(C)." She also argued:
"2. On or about May 8, 2019, a Budget Isolation
Resolution was adopted by the House of Representatives for
House Bill 564.
"3. The recorded vote on the Budget Isolation Resolution
relating to House Bill 564 was yeas: 43, nays: 0, and abstains:
49.
"4. On May 8, 2019, the State Education and General
Fund Budgets had not been presented to the Governor.
"5. On May 8, 2019, the presiding officer of the House of
Representatives signed and transmitted House Bill 564 to the
Senate."
Belser went on to argue:
"The … language [of Amendment 448] clearly and
unambiguously reveals the purpose and intent of Amendment
448 in four critical ways. First, that the objective of the
Amendment is to make adoption of the state budgets the
paramount -- or primary -- duty of the legislature. Second, to
accomplish this objective when the legislature has failed to
make basic appropriations, the Amendment prohibits the
presiding officers of the house and senate from signing or
transmitting any non-appropriations bill without first
passing a [Budget Isolation Resolution ('BIR')] that complies
with the Amendment's formula. Third, by expressly and
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unambiguously setting the number of votes required to
lawfully adopt a BIR at three-fifths of a quorum present, the
Amendment intentionally establishes a high minimum
threshold of votes necessary to proceed with a non-
appropriations bill when the legislature has not yet met its
paramount constitutional duty to make basic appropriations.
Ala. Const., Amendment No. 448(C). And fourth, the
Amendment restrains legislative authority by expressly
prohibiting the legislature from altering the number of votes
required to adopt a BIR by rule or statute. Ala. Const.,
Amendment 448(E). Taken together, these clearly
demonstrate that Amendment 448's primary objective is to
force the legislature to prioritize basic appropriations and to
restrain legislative authority to act upon other matters unless
and until it has met this paramount duty.
"Despite Amendment 448's express prohibition against
rules or statutes altering the constitutional formula for
determining the number of votes required to adopt a BIR[,]
Defendant relies upon House Rule 36 …, which purports to
diminish Amendment 448's constitutional threshold of votes
necessary to adopt a BIR by authorizing the legislature to
adopt a budget isolation resolution with only 'three-fifths [of
a] majority of the members present and voting.' Specifically,
House Rule 36 provides:
" 'The following provisions shall apply to budget
isolation resolutions (BIRs) that are provided for
in Subsection C of [Amendment 448] of the
Constitution of Alabama ...:
" '(1) The Speaker shall determine the time allowed
for debate before calling for a vote.
" '(2) If the resolution receives the three-fifths
majority of the members present and voting
required by the Constitution of the State of
Alabama …, the Clerk shall call the attached bill.
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" '(3) If the resolution is not adopted, the House
shall proceed with other business.
" '(4) Each resolution is subject to one motion for
reconsideration.
" '([5]) Pertaining to local bills and
notwithstanding [House] Rule 31, following
adoption of the resolution, any member may make
a motion to provide for an expression of local
courtesy on the resolution. Such motions, which
are not subject to debate or reconsideration, may
only be voted on by members who represent areas
outside the counties or municipalities affected by
the bill associated with the resolution. Yea votes
on the motion shall be reflected in the Journal as
those members who voted for the resolution only
as a matter of local courtesy and not as a position
for or against the bill. All votes on motions to
express local courtesy must be recorded votes.'
"Ala. House Rule 36 (emphasis added)."
Belser argued that House Rule 36(2) "is a clear violation of Amendment
448(E)." Specifically, she contended that
"[t]he purpose and intent of House Rule 36 is immediately
evident -- to circumvent Amendment 448(C) by substituting a
lesser favorable vote requirement than the constitutionally-
mandated 'three-fifths of a quorum present,' in effect allowing
the adoption of a [budget isolation resolution] with as few as
two affirmative votes when only three votes are cast in the
House of Representatives, a legislative body containing 105
members."
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Belser attached an affidavit from Jeff Woodard, the Clerk of the
House of Representatives. In his affidavit, Woodard stated:
"2. I am the Clerk of the Alabama House of
Representatives. I was elected to this position in May 2012
as the 'clerk in waiting' to take over when the former clerk
retired. I officially took office on October 1, 2012, and was re-
elected to serve a full term in January 2015.
"3. The duties of the clerk include, but are not limited
to: certifying each bill that passes as required by House of
Representative Rule 82; enforcing the House Rules as
appropriate; providing parliamentary advice to the House;
keeping its records; and supervising other legislative staff.
"4. I previously served as the Assistant Clerk from
January 2011 to May 2012.
"5. Prior to becoming the Assistant Clerk, I was the
Chief of Staff to the Speaker of the House from January 1999
to January 2011, and a Confidential Assistant from January
1991 to January 1999.
"6. I worked as a journalist covering Alabama politics for
various publications from 1982 until 1991.
"7. I have personal knowledge of the way in which the
Alabama House of Representatives has interpreted and
implemented Ala. Const. Art. IV, § 71.01 since it was
proclaimed as ratified on December 10, 1984. This knowledge
is based on both my own personal observations and experience
as well as my familiarity with legislative history and records.
"8. From ratification of the amendment until 2016, the
Alabama House of Representatives interpreted § 71.01 as
requiring a budget isolation resolution be passed by at least
three-fifths of the members present and voting. This
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interpretation was based on historic, legal, and practical
considerations, which were discussed at length during the
litigation in Jefferson County v. Taxpayers, Civil Action No.
CV-2015-903133.00, Appeal Nos. 1150326 and 1150327[,]
specifically including in the Brief of Amici Curiae the Speaker
of the Alabama House of Representatives and the President
Pro Tempore of the Alabama Senate in Support of Jefferson
County and the Jefferson County Commission. This practice
was formally codified in Alabama House of Representatives,
Rule 36, in 1995.
"9. The House of Representatives has always
maintained that its interpretation is a valid exercise of the
House's inherent authority to govern its own proceedings, and
that Rule 36 is a valid exercise of the House's duty and
authority under Alabama law to adopt formal rules of
parliamentary procedure. Nevertheless, beginning in the
2017 Legislative Session, the House -- out of an abundance of
caution -- started to require a minimum of thirty-two (32)
votes on any budget isolation resolution. A budget isolation
resolution must be passed by a vote of 'not less than three-
fifths of a quorum present (Ala. Const. § 71.01(C) (emphasis
added)). 'A quorum present' in the House is fifty-three of the
one hundred and five members. Three-fifths of fifty-three
members is thirty-two members. This procedure has been
followed in each succeeding session.
"10. Based on my experience with and knowledge of the
legislative process, it is my opinion that requiring budget
isolation resolutions to be passed by three-fifths of the specific
quorum actually present at the time in the House of
Representatives would be impractical and would introduce
uncertainty and needless complexity into the process.
"11. All statements made in this Affidavit are based on
my personal knowledge and are true and correct to the best of
my knowledge. Any opinion is based on my personal
knowledge and perceptions."
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(Emphasis in original.)
On May 10, 2023, Blount County filed its response in opposition to
Belser's motion for a summary judgment and its own motion for a
judgment on the pleadings. Relying on this Court's decision in
Birmingham-Jefferson Civic Center Authority v. City of Birmingham,
912 So. 2d 204 (Ala. 2005) ("BJCCA"), the County argued that this case
presents a nonjusticiable political question. 2
On May 12, 2023, the trial court conducted a hearing on the parties'
motions. On May 31, 2023, the trial court entered its judgment, in which
it denied Belser's motion for a summary judgment and granted the
County's motion for a judgment on the pleadings. This appeal followed.
Discussion
Belser argues that the language in Art. IV, § 71.01, Ala. Const. 1901
(Off. Recomp.), which was formerly Amend. No. 448, Ala. Const. 1901,
2The County raised other arguments that are not relevant to our
disposition of this appeal. However, we do note that one of the County's
other arguments was a contention that the legitimacy of House Rule 36,
upon which Belser bases her argument, was not before the trial court
because the budget isolation resolution at issue in this case was passed
using a procedure other than the procedure set forth in House Rule 36,
which was explained in Woodard's affidavit.
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requires that any budget isolation resolution ("BIR") be passed by at least
three-fifths of the members who were actually present and voting when
the BIR was passed. However, based on the information set forth in
Woodard's affidavit, the Alabama House of Representatives instead
requires a minimum of 32 votes on a BIR, based on the fact that a quorum
of the 105 members of the House is 53 members and that three-fifths of
53 members is 32 members. The trial court held that the question of how
to determine what constitutes "not less than three-fifths of a quorum
present" is a nonjusticiable political question.
Belser argues that the trial court erred in concluding that this case
involves a nonjusticiable political question. In reaching its decision, the
trial court relied on this Court's previous decision in BJCCA, in which
this Court considered what constitutes a nonjusticiable political question,
explaining as follows:
"The Constitution of Alabama expressly adopts the
doctrine of separation of powers that is only implicit in the
Constitution of the United States. Opinion of the Justices No.
380, 892 So. 2d 332, 334 n.1 (Ala. 2004). This Court has said
that the Alabama Constitution provides that the 'three
principal powers of government shall be exercised by separate
departments,' and it 'expressly vest[s] the three great powers
of government in three separate branches.' Ex parte Jenkins,
723 So. 2d 649, 653-54 (Ala. 1998). Section 42, Ala. Const.
1901, provides:
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" 'The powers of the government of the State
of Alabama shall be divided into three distinct
departments, each of which shall be confided to a
separate body of magistracy, to wit: Those which
are legislative, to one; those which are executive,
to another; and those which are judicial, to
another.'
"Section 43 provides:
" 'In the government of this state, except in
the instances in this Constitution hereinafter
expressly directed or permitted, the legislative
department shall never exercise the executive and
judicial powers, or either of them; the executive
shall never exercise the legislative and judicial
powers, or either of them; the judicial shall never
exercise the legislative and executive powers, or
either of them; to the end that it may be a
government of laws and not of men.'
" ' "Great care must be exercised by the courts not to
usurp the functions of other departments of government. §
43, Constitution 1901. No branch of the government is so
responsible for the autonomy of the several governmental
units and branches as the judiciary." ' Piggly Wiggly No. 208,
Inc. v. Dutton, 601 So. 2d 907, 911 (Ala. 1992) (quoting Finch
v. State, 271 Ala. 499, 503,124 So. 2d 825, 829
(1960)). Thus,
just as this Court will declare legislative usurpation of the
judicial power violative of the separation-of-powers provision
of our Constitution, see, e.g., Ex parte Jenkins, supra, so it
must decline to exercise the judicial power when to do so
would infringe upon the exercise of the legislative power.
"The separation-of-powers provision of the Alabama
Constitution limits the jurisdiction of this Court. …
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"… [Q]uestions regarding jurisdiction, that is, questions
of the constitutional authority of the courts to exercise power
over a matter -- going to the very core of the Constitution's
structuring the government to constrain its exercise of power
-- are of such importance that it is the duty of this Court to
consider the absence of jurisdiction on our own initiative. See
Baldwin County v. Bay Minette, 854 So. 2d 42 (Ala. 2003).
The oath of office taken by the Justices on this Court to
'support the Constitution of the State of Alabama' requires us
to consider whether this Court has jurisdiction over a
particular matter. See § 279, Ala. Const. 1901.
"Because the judicial branch 'shall never exercise the
legislative and executive powers, or either of them,' this Court
will not decide 'political questions,' even if submitted to it.
The Supreme Court of the United States has with some
frequency addressed whether certain issues are
nonjusticiable political questions. We have previously
referred to the United States Supreme Court's formulation of
what constitutes a nonjusticiable political question, and we
look to it again in this case. See, e.g., Ex parte James, 836 So.
2d 813, 842 n.25 [(Ala. 2002)]; Ex parte James,713 So. 2d 869, 903
[(Ala. 1997)] ; State ex rel. James v. Reed,364 So. 2d 303, 305
(Ala. 1978). In Baker v. Carr,369 U.S. 186
,82 S. Ct. 691
,
7 L. Ed. 2d 663 (1962), the Supreme Court of the United
States offered the following description:
" 'It is apparent that several formulations
which vary slightly according to the settings in
which the questions arise may describe a political
question, although each has one or more elements
which identify it as essentially a function of the
separation of powers. Prominent on the surface of
any case held to involve a political question is
found [1] a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or [2] a lack of judicially discoverable
and manageable standards for resolving it; or [3]
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the impossibility of deciding without an initial
policy determination of a kind clearly for
nonjudicial discretion; or [4] the impossibility of a
court's undertaking independent resolution
without expressing lack of the respect due
coordinate branches of government; or [5] an
unusual need for unquestioning adherence to a
political decision already made; or [6] the
potentiality of embarrassment from multifarious
pronouncements by various departments on one
question.'
"369 U.S. at 217,82 S. Ct. 691
. The presence of one or more
of the factors listed in Baker v. Carr indicates that a question
is 'political,' that is, one reserved for, or more suitably
determined by, one of the political branches of government. If
a question is one properly to be decided by the executive or
legislative branch of government, rather than by the judicial
branch, we will not decide it. At least three of the factors
enunciated in Baker v. Carr are present in this case.
"1. Textually demonstrable constitutional
commitment of the issue to a coordinate
political department.
"In Nixon v. United States, 506 U.S. 224,113 S. Ct. 732
,
122 L. Ed. 2d 1 (1993), a former chief judge of the United
States District Court for the Southern District of Mississippi,
Judge Walter L. Nixon, was impeached by the United States
House of Representatives and was convicted by the Senate.
Nixon argued that Senate Rule XI, under which he was tried
and convicted, was unconstitutional because it provided for a
Senate committee, rather than for the full Senate, to
participate in the evidentiary hearings.
"The first sentence of the Impeachment Trial Clause,
Art. I, § 3, cl. 7, United States Constitution, states that '[t]he
senate shall have the sole power to try all impeachments.'
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The Supreme Court affirmed the lower court's ruling that the
matter is nonjusticiable, holding that the language of the
Impeachment Trial Clause demonstrates a commitment of the
matter of impeachments to the Senate. The Supreme Court
explained that in order to determine whether there is a
textually demonstrable constitutional commitment of an issue
to a coordinate political department, a court must, in the first
instance, interpret the text in question and determine to what
extent the issue is textually committed. 506 U.S. at 228,113 S. Ct. 732
(citing Powell v. McCormack,395 U.S. 486, 519
,89 S. Ct. 1944
,23 L. Ed. 2d 491
(1969)). The Supreme Court
concluded that the first sentence of the Impeachment Trial
Clause is a grant of authority to the Senate and that the word
'sole' indicates that the authority is reposed in the Senate and
nowhere else. 506 U.S. at 229,113 S. Ct. 732
. The Supreme
Court was unpersuaded by Nixon's argument that 'sole'
means merely that the Senate, as opposed to the courts or a
lay jury or a Senate committee, may try impeachments. The
Supreme Court, quoting Webster's Third New International
Dictionary (1971), noted that 'sole' is defined as ' "functioning
... independently and without assistance or interference," ' 506
U.S. at 231,113 S. Ct. 732
, and that allowing judicial review
of impeachments would be inconsistent with the use of the
word 'sole.' The Court held, therefore, that the use of the word
'sole' in the Impeachment Trial Clause means that the
Senate's impeachment power is not subject to judicial review.
"The Supreme Court's distinguishing of Nixon from
Powell v. McCormack, 395 U.S. 486,89 S. Ct. 1944
,23 L. Ed. 2d 491
(1969), is instructive. In Powell, the Supreme Court
had examined the issue whether the constitutional
commitment to the House of Representatives of the authority
to judge the qualifications of its members precluded judicial
review of such a determination. Article I, § 5, provides: 'Each
House shall be the judge of the elections, returns and
qualifications of its own members.' However, Art. I, § 2,
specifies three requirements for membership in the House: a
member of the House must have attained the age of 25 years,
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must have been a citizen of the United States for 7 years, and
must be an inhabitant of the state from which he is elected.
In Powell, the Supreme Court held that those three specific
requirements impart to the word 'qualifications' in Art. I, § 5,
'a precise, limited nature.' 395 U.S. at 522,89 S. Ct. 1944
.
Thus, the House's argument that its power to judge the
qualifications of its own members is a textually demonstrable
commitment of unreviewable authority is 'defeated by the
existence of this separate provision specifying the only
qualifications which might be imposed for House
membership.' Nixon, 506 U.S. at 237,113 S. Ct. 732
(discussing Powell).
"In Nixon, on the other hand, there is no separate
provision of the Constitution that would be defeated by
allowing the Senate final authority to determine the meaning
of the word 'try' in the Impeachment Trial Clause. 506 U.S.
at 237-38,113 S. Ct. 732
. The Supreme Court in Nixon
recognized that, although courts do possess the power to
review legislative or executive actions that transgress
identifiable textual limits, the word 'try' in the Impeachment
Trial Clause does not provide an identifiable textual limit on
the authority committed to the Senate to conduct
impeachment proceedings. Id. Thus, the Supreme Court
concluded, the question of how the Senate may 'try' an
impeachment is a nonjusticiable political question.
"In State of Alabama ex rel. James v. Reed, 364 So. 2d
303 (Ala. 1978), this Court considered whether the question
of a legislator's ability to hold office is nonjusticiable because
it is committed to the legislature by the text of the Alabama
Constitution. The State brought a quo warranto action
challenging the qualifications of Thomas Reed to hold office
as a member of the Alabama House of Representatives. Reed
had been previously convicted of attempted bribery. This
Court recognized that if the authority to pass on the question
of Reed's eligibility is vested exclusively in the House of
Representatives, then the question presented is a political one
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barred from judicial resolution by the separation-of-powers
doctrine. 364 So. 2d at 305. Reed contended that §§ 51 and
53, Ala. Const. 1901, are a textually demonstrable
constitutional commitment of the issue of a House member's
eligibility to the legislature and, therefore, that the question
is nonjusticiable. Section 51 provides: 'Each house shall
choose its own officers and shall judge the election, returns,
and qualifications of its members.' Section 53 provides: 'Each
house shall have power to determine the rules of its
proceedings....'
"This Court determined in Reed that §§ 51 and 53 do not
demonstrate a constitutional commitment of the issue to the
legislature. However, the holding expressly rested on the
presence of § 60, Ala. Const. 1901, which provides that '[n]o
person convicted of embezzlement of the public money,
bribery, perjury, or other infamous crime, shall be eligible to
the legislature, or capable of holding any office of trust or
profit in this state.' This Court held that § 60 is a specific
constitutional limitation on legislative authority, like the
three requirements for membership in the United States
House of Representatives the Supreme Court of the United
States considered in Powell v. McCormack. Because § 60
expressly limits legislative authority, this Court concluded,
judicial enforcement of its mandate does not 'derogate the
principle of separation of powers.' 364 So. 2d at 306. This
Court concluded that to construe §§ 51 and 53 as vesting in
the legislature exclusive authority on the issue, thereby
removing it from judicial cognizance, would deprive § 60 of its
field of operation. 364 So. 2d at 306-07.
"Section 63, Ala. Const. 1901, states that 'no bill shall
become a law, unless ... a majority of each house be recorded
[upon the journals] as voting in its favor.' The question
presented in the case before us today is whether the rules and
procedure by which the Alabama House of Representatives
determined that the bills that became Act No. 288 and Act No.
357 each received a majority vote of the House are subject to
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judicial review. Section 53, Ala. Const. 1901, expressly
provides that '[e]ach house shall have power to determine the
rules of its proceedings.' The power of the legislature to
determine the rules of its own proceedings is 'unlimited except
as controlled by other provisions of our Constitution,' and
'unless controlled by other constitutional provisions the courts
cannot look to the wisdom or folly, the advantages or
disadvantages of the rules which a legislative body adopts to
govern its own proceedings.' Opinion of the Justices No. 185,
278 Ala. 522, 524-25,179 So. 2d 155, 158
(1965).
"Unlike Reed, in which an express constitutional
prohibition on a felon's serving in the legislature was
applicable, and unlike Powell, in which express
constitutionally identified qualifications for membership in
the United States House of Representatives were applicable,
there is in the case before us no provision of the Alabama
Constitution that defines or limits what is meant by the term
'a majority of each house,' and there is no other provision of
the Constitution that would be defeated by allowing the
legislature the final authority over its internal voting rules
and procedures. Because the Alabama Constitution contains
no limitation on the manner in which the legislature might
interpret the phrase 'majority of each house' and because the
Constitution clearly grants to the legislature the power to
determine the rules of its own proceedings, whether a
'majority of each house' has voted in favor of a bill must be
decided by the rules established by the legislature. We
conclude that there is a textually demonstrable constitutional
commitment to the legislature of the question of how to
determine what constitutes a 'majority of each house ... voting
in [the bill's] favor.' See Nixon, 506 U.S. at 230,113 S. Ct. 732
.
Therefore, whether the legislature conducted its internal
voting proceedings in compliance with § 63 is a nonjusticiable
issue.
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"2. Lack of judicially discoverable and
manageable standards for resolving
question.
" '[J]udicial action must be governed by standard, by
rule. Laws promulgated by the Legislative Branch can be
inconsistent, illogical, and ad hoc; law pronounced by the
courts must be principled, rational, and based upon reasoned
distinctions.' Vieth v. Jubelirer, 541 U.S. 267, 278,124 S. Ct. 1769
,158 L. Ed. 2d 546
(2004) (discussing the 'lack of
judicially discoverable and manageable standards' factor
enunciated in Baker v. Carr).
"In Nixon v. United States, Nixon argued that his
challenge to the constitutionality of Senate Rule XI was
justiciable and that the word 'try' in the Impeachment Trial
Clause imposes a constitutional requirement that an
impeachment proceeding be in the nature of a judicial trial.
The Supreme Court of the United States held, however, that
a variety of definitions could be assigned to the word 'try' and
that, therefore, the term lacks sufficient precision to afford a
'judicially discoverable and manageable standard[]' for the
judiciary to apply in reviewing the legislative action. 506 U.S.
at 230,113 S. Ct. 732
. The Supreme Court addressed the lack
of a judicially discoverable and manageable standard for
review together with its consideration of the textually
demonstrable commitment of the matter to the legislative
branch of government. It held that the lack of a judicially
discoverable and manageable standard strengthened the
conclusion that there had been a textually demonstrable
commitment of the question to a coordinate branch of the
government, and that the question was, therefore,
nonjusticiable.
"Although this Court did not speak in terms of judicially
discoverable and manageable standards in Reed, supra, the
determination that the question presented in that case was
justiciable rested on the existence of a separate constitutional
19
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provision limiting the authority of the legislature in
determining the eligibility of its members. The specific
limitation of § 60 as to who could serve in the legislature
provided the Court with a judicially discoverable and
manageable standard for its review of the issue.
"The Constitution of Alabama, the only source of any
limitation on the authority of the legislature, offers no such
standard by which the judicial branch of the government can
review the legislature's voting rules and procedures with
respect to the legislature's determination that 'a majority of
each house' voted in favor of the bills that became Act No. 288
and Act No. 357. The Constitution does not define the term
'majority of each house,' and the legislature's power to
determine its rules regarding voting procedures is not limited
by the text of the Constitution. Therefore, there is no
manageable standard this Court can discover to guide our
review of the legislative action at issue in this case. Because
of the lack of judicially discoverable and manageable
standards for resolving the question presented to us, we
decline to decide it.
"3. Lack of the respect due coordinate branches
of government.
" 'The preservation of the constitution in its integrity
and obedience to its mandates, is exacted alike from the
legislative and the judicial departments of the government.'
Mayor of Mobile v. Stonewall Ins. Co., 53 Ala. 570, 575 (1875).
Legislators take the same oath of office that judges and
justices take -- to 'support the Constitution of the United
States, and Constitution of the State of Alabama.' See § 279,
Ala. Const. 1901. The Constitution provides that '[e]ach
house [of the legislature] shall have power to determine the
rules of its own proceedings,' and the judiciary should
presume that the legislators comply with their oath of office
when they determine and apply those rules. If the judiciary
questions the legislature's declaration that Act No. 288 and
20
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Act No. 357 were validly enacted by the legislature, we would
be demonstrating a lack of the respect due that coordinate
branch of government.
"In Field v. Clark, 143 U.S. 649,12 S. Ct. 495
,36 L. Ed. 294
(1892), The Tariff Act of October 1, 1890, was challenged
as not being a law of the United States. The Supreme Court
of the United States stated:
" 'The signing by the Speaker of the House of
Representatives, and by the President of the
Senate, in open session, of an enrolled bill, is an
official attestation by the two houses of such bill as
one that has passed Congress. It is a declaration
by the two houses, through their presiding officers,
to the President, that a bill, thus attested, has
received in due form, the sanction of the legislative
branch of the government, and that it is delivered
to him in obedience to the constitutional
requirement that all bills which pass Congress
shall be presented to him. And when a bill, thus
attested, receives his approval, and is deposited in
the public archives, its authentication as a bill that
has passed Congress should be deemed complete
and unimpeachable. As the President has no
authority to approve a bill not passed by Congress,
an enrolled act in the custody of the Secretary of
State, and having the official attestations of the
Speaker of the House of Representatives, of the
President of the Senate, and of the President of the
United States, carries, on its face, a solemn
assurance by the legislative and executive
departments of the government, charged,
respectively, with the duty of enacting and
executing the laws, that it was passed by
Congress. The respect due to coequal and
independent departments requires the judicial
department to act upon that assurance, and to
21
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accept, as having passed Congress, all bills
authenticated in the manner stated: leaving the
courts to determine, when the question properly
arises, whether the act, so authenticated, is in
conformity with the Constitution.'
"143 U.S. at 672,12 S. Ct. 495
(emphasis added). The
Supreme Court noted the uncertainty and instability that
would result if every person were free to ' "hunt through the
journals of a legislature to determine whether a statute,
properly certified by the speaker of the house and the
president of the senate, and approved by the governor, is a
statute or not." ' 143 U.S. at 677,12 S. Ct. 495
(quoting Weeks
v. Smith, 81 Me. 538, 547,18 A. 325, 327
(1889)).
"We are here presented with a similar situation. In
Baker v. Carr, the Supreme Court of the United States stated
that the appropriateness of attributing finality to an action of
one of the political departments is a 'dominant consideration'
in determining whether a question falls within the political-
question category. 369 U.S. at 210,82 S. Ct. 691
. We, like
the United States Supreme Court in Field v. Clark, are
persuaded that uncertainty and instability would result if
every person were free to 'hunt through the journals of a
legislature to determine whether a statute, properly certified
by the speaker of the house and the president of the senate,
and approved by the governor, is a statute or not,' 143 U.S. at
677,12 S. Ct. 495
(quoting Weeks v. Smith,81 Me. at 547
,18 A. at 327
), and the internal proceedings of the legislature
when passing a bill were to be subject to judicial challenge.
"The Supreme Court of the United States has explained
that the language of Field v. Clark quoted above does not
apply in the presence of a clear constitutional requirement
that binds Congress. United States v. Munoz-Flores, 495 U.S.
385, 392 n.4,110 S. Ct. 1964
,109 L. Ed. 2d 384
(1990). In
Munoz-Flores, the Supreme Court of the United States was
presented with a challenge to a revenue-raising act alleged
22
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not to have originated in the House of Representatives, as
required by Art. I, § 7, cl. 1, of the Constitution of the United
States. In Field v. Clark, the Supreme Court had held that
courts should not question an authentication by Congress that
a bill has passed; that authentication 'should be deemed
complete and unimpeachable.' 143 U.S. at 672,12 S. Ct. 495
.
However, the Origination Clause at issue in Munoz-Flores
specifically mandates that all revenue-raising bills originate
in the House, and there is no question as to the meaning of
the constitutional requirement that '[a]ll Bills for raising
revenue shall originate in the House of Representatives.' We
are not here presented with such a situation.
"In the case before us today, there is no clear
constitutional provision binding the legislature to a certain
manner of determining whether a 'majority of each house' has
voted in favor of a bill. Thus, the rationale of Field v. Clark is
applicable, and the judiciary should not question the
determination by the legislative branch of whether a bill was
passed by the requisite majority vote of the house. To do so
would be to demonstrate a lack of the respect due a coordinate
branch of government. As Justice Scalia says in his
concurrence in Munoz-Flores:
" 'Mutual regard between the coordinate branches,
and the interest of certainty, both demand that
official representations regarding such matters of
internal process be accepted at face value.'
"495 U.S. at 410,110 S. Ct. 1964
(Scalia, J., concurring in the
judgment).
"Because judicial review of the issue whether the bills
that became Act No. 288 and Act No. 357 received the
favorable vote of a 'majority of each house' would express a
lack of the respect due that coordinate branch of government,
the question presented is nonjusticiable. We, therefore,
decline to decide it.
23
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"Conclusion
"Section 53, Ala. Const. 1901, specifically commits to
each house of the legislature the 'power to determine the rules
of its own proceedings.' Our Constitution contains no
identifiable textual limitation on the legislature's authority
with respect to voting procedures that would permit judicial
review of those procedures. There is also a lack of judicially
discoverable and manageable standards for resolving whether
the House of Representatives constitutionally passed Act No.
288 and Act No. 357. Finally, for the judicial branch to declare
the legislature's procedure for determining that a bill has
passed would be to express a lack of the respect due that
coordinate branch of government. For each of these three
reasons, this case presents a nonjusticiable political
question."
912 So. 2d at 212-21 (footnotes omitted).
In its judgment in this case, the trial court stated, in relevant part:
"This Court holds that the proper interpretation of Ala.
Const. Art. IV, § 71.01 is a nonjusticiable political question
under the authority of Birmingham-Jefferson Civic Center
Authority v. City of Birmingham, 912 So. 2d 204 (Ala. 2005).
"BJCCA was concerned with the proper interpretation
of the voting requirement contained in Ala. Const. 1901, Art.
IV, § 63. This case presents a very similar issue to that
considered in BJCCA. Like the phrase 'a majority of each
house' at issue in that case, 'three-fifths of a quorum present'
is not specifically defined in the Alabama Constitution of
1901, nor does § 71.01 purport to except this requirement from
the general rule that the Legislature has the authority to
determine its own rules of proceedings.
24
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"Also like § 63, § 71.01 can be interpreted in at least
three different ways: 1) as applying only to that portion of a
quorum present and voting; 2) as requiring a minimum
number of thirty-two affirmative votes, representing three-
fifths of a quorum present which is the method used in
passing the budget isolation resolution attached to [the]
Act…; or, 3) as requiring an affirmative vote of at least three-
fifths of the members constituting the quorum present at the
time, which is the method suggested by Plaintiff Belser. The
validity of the first 'present and voting' method is not before
this Court. The Parties' arguments regarding the second and
third methods hinge on the use of the indefinite article 'a,' as
opposed to the definite article 'the,' in § 71.01.
"At argument, Plaintiff criticized the Legislature for
improperly attempting to thwart judicial review of the budget
isolation resolutions by failing to include the necessary
information in the Journals, indicating that the Legislature
has stopped publishing even unofficial information regarding
the vote on budget isolation resolutions on its website.
Plaintiff stated that the Legislature easily could provide this
information. As pointed out by Defendant, however, nothing
in § 71.01 requires the Legislature to take or record the vote
using any particular method, i.e., by yeas and nays. The
courts cannot impose extra-Constitutional duties on the
Legislature. See, e.g., Caudle v. Cotton, 234 Ala, 126, 128-
129, 173 So. 847, 849 (1937); Cf. Ala. Const. 1901, Art. IV, §
63.
"Without the underlying information regarding the
quorum present at the moment of a BIR vote and the number
of legislators voting for, against, or abstaining from a vote, a
court could never apply any particular interpretation of §
71.01 to a specific case. The judiciary's role is to decide cases
involving a 'definite and concrete' controversy brought before
it by adverse parties; 'the declaratory judgment statutes do
not empower courts to decide moot questions or abstract
propositions or to give advisory opinions…' Baldwin County
25
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v. Bay Minette, 854 So. 2d 42, 46, 47 (Ala. 2003)(internal
quotations and emphasis omitted). This Court accordingly
does not have subject matter jurisdiction to issue a legal
conclusion that does not and/or cannot resolve a justiciable
controversy.
"The Journal of the House of Representatives in this
case indicates only that the BIR was passed by three-fifths of
a quorum present. It is well-established that the Journals are
the only admissible evidence of the actions of the Legislature;
they 'can neither be contradicted nor amplified by loose
memoranda made by the clerical officers of the house. Nor
will it be presumed from the silence of the journals on a
matter of which it is proper for them to speak that either
house has disregarded a constitutional requirement in the
passage of an act, except in those cases where the organic law
expressly requires the journals to show the action taken, as
where it requires the yeas and nays be entered.' State v.
Joseph, 175 Ala. 579, 594,57 So. 942, 947
(1911). The need to
go so far beyond the text of [the] Act … and the Journals of
the Legislature distinguishes this case from Magee v. Boyd,
175 So. 3d 79 (Ala. 2015). This Court notes that Magee v.
Boyd does not purport to somehow overrule or even limit
BJCCA, but instead explicitly distinguishes the two cases.
175 So. 3d at 104.
"The fact that § 71.01 does not require the Legislature
to take or record a budget isolation resolution vote by any
particular method only emphasizes several key factors
identified by the BJCCA Court in its determination,
including: '[1] a textually demonstrable constitutional
commitment of the issue to a coordinate political department;
[2] a lack of judicially discoverable and manageable standards
for resolving it; ... [4] the impossibility of a court's undertaking
independent resolution without expressing lack of the respect
due coordinate branches of government.' 912 So. 2d at 214-
15."
26
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This Court's reasoning in BJCCA supports the trial court's
conclusion that this case involves a nonjusticiable political question. As
was the situation in BJCCA, the Alabama Constitution does not place a
limitation on the manner in which the legislature might interpret the
phrase "not less than three-fifths of a quorum present." Also, the
Constitution clearly gives the legislature the power to determine the
rules of its own proceedings. Therefore, there is a textually demonstrable
constitutional commitment to the legislature of the question of how to
determine what constitutes "not less than three-fifths of a quorum
present." Additionally, there are not any judicially discoverable and
manageable standards for resolving whether the House of
Representatives constitutionally passed the BIR for House Bill 564 that
became the Act. Finally, judicial review of the issue as to whether the
BIR for House Bill 564 received the favorable vote of a "not less than
three-fifths of a quorum present" would express a lack of the respect due
to a coordinate branch of government. For these reasons, we conclude
that the issue whether the legislature conducted its internal voting
proceedings in compliance with § 71.01 is a nonjusticiable political
question.
27
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Conclusion
For the above-stated reasons, we affirm the trial court's judgment.3
AFFIRMED.
Parker, C.J., and Bryan, Mendheim, Stewart, and Cook, JJ.,
concur.
Mitchell, J., concurs specially, with opinion.
Shaw and Sellers, JJ., concur in the result.
3Because we conclude that Belser's challenge of the Act raises a
nonjusticiable political question, we pretermit addressing the remaining
issues she has raised in her brief to this Court.
28
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MITCHELL, Justice (concurring specially).
The idea that courts should refrain from deciding "political
questions" is deeply embedded in our jurisprudence. See Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 170 (1803) ("Questions, in their nature
political, or which are, by the constitution and laws, submitted to the
executive, can never be made in this [C]ourt."). But the application and
scope of the political question doctrine has generated confusion within
the courts -- including our own -- with Birmingham-Jefferson Civic
Center Authority v. City of Birmingham, 912 So. 2d 204 (2005)
("BJCCA"), being a salient example. I write separately in an effort to
clear up some of this confusion and to express my views on the limits of
the political question doctrine.
In BJCCA, this Court said that political questions have
jurisdictional consequences. 912 So. 2d at 213 (noting that while neither
party had "argued that the issue before us is nonjusticiable … it is the
duty of this Court to consider the absence of jurisdiction" (emphasis
added)). Consequently, once the Court determined in BJCCA that the
issue presented was a nonjusticiable political question, it concluded that
29
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it must dismiss the appeal for lack of subject-matter jurisdiction. See id.
at 225.
In my view, that reasoning conflated two distinct concepts:
jurisdiction and justiciability. While the two often go hand in hand, they
are not synonymous; it is possible for our Court to exercise subject-matter
jurisdiction in a controversy that proves to raise a nonjusticiable issue.
That is true of cases raising political questions because the political
question doctrine does not "rest on limits on … courts' authority to decide
cases." John Harrison, The Political Question Doctrines, 67 Am. U.L.
Rev. 457, 509 (2017). 4 Rather, it tells us under which circumstances
courts should accept the lawful authority of another political branch. Of
course, before courts may decide whether they should defer to the
4The leading United States Supreme Court case on the political
question doctrine, Baker v. Carr, 360 U.S. 186, 196(1962), also preserved this important distinction by "classif[ying] the political question doctrine as one of non-judicial finality, not as a limitation on Article III or statutory jurisdiction." Harrison, 67 Am. U.L. Rev. at 497. The Court later decided another political question case, Nixon v. United States,506 U.S. 224
(1993), based on this distinction. In Nixon, the federal district
court concluded that it had subject-matter jurisdiction to hear the case
but dismissed it because the Court concluded that the controversy
presented a nonjusticiable political question. Both the Court of Appeals
and the Supreme Court went on to affirm that judgment, which was on
the merits.
30
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discretion of another branch, they must first determine the scope of that
branch's discretion, which is a substantive inquiry that goes to the merits
of the case. The political question doctrine therefore acts as a substantive
rule. And because it does, courts must exercise subject-matter
jurisdiction when they apply that rule, even if they ultimately enter a
judgment of dismissal.
That was true in BJCCA, in which this Court considered whether
the interpretation of § 63 of the Alabama Constitution of 1901 -- which
provided that "no bill shall become a law" unless "a majority of each
house" votes in its favor -- was a political question committed to the
discretion of the Legislature. The city and the county challenging the
acts at issue in BJCCA argued that "a majority of each house" in the
Legislature meant that a bill must receive a majority of a quorum of the
House of Representatives. But the Legislature interpreted § 63 to mean
that "when a quorum is present and a bill receives a favorable majority
[of that number], then the bill has passed that house of the [L]egislature."
912 So. 2d at 208.
Our Court never reached the ultimate question of whose
interpretation was superior because it concluded that its review was
31
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foreclosed by a threshold political question. In particular, the Court
reasoned that § 63 was not sufficiently precise to afford any "judicially
discoverable and manageable standards for resolving whether the House
of Representatives constitutionally passed [an act]." Id. at 221. And the
Court determined that § 53 of the Alabama Constitution of 1901 -- which
gave the Legislature the "power to determine the rules of its own
proceedings" -- was a "textually demonstrable constitutional
commitment" to the Legislature to interpret § 63. Id. at 218. As a result,
the Court dismissed the appeal for lack of subject-matter jurisdiction.
But when I examine BJCCA, it seems clear that while our Court
characterized the fundamental issue as jurisdictional, it was, in
substance, a merits problem. That's because the decision was implicitly
premised on the Court's substantive determination that the Legislature's
interpretation of § 63 was within the realm of its lawful discretion to
make rules related to its own proceedings.
To illustrate the point, imagine an otherwise identical fact pattern
in which the Legislature has interpreted the phrase "a majority of each
house" to mean that a bill may pass if zero legislators voted in its favor.
If a plaintiff challenged the constitutionality of a bill "passed" without a
32
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single affirmative vote of a legislator, we would hold the resulting statute
unconstitutional. That's because "zero votes" is not a plausible reading
of "a majority of [votes in] each house," and therefore does not fall within
the Legislature's discretion to construe rules related to its own
proceedings.
That hypothetical is extreme, of course, but I believe it crystallizes
the distinction between jurisdiction and justiciability in this context. In
both BJCCA and in the example imagined above, the issue boils down to
whether the Legislature's interpretation of "a majority of each house"
falls within the bounds of its discretion under the political question
doctrine. And in making that threshold determination -- regardless of
the outcome -- the Court is exercising subject-matter jurisdiction.
Therefore, when we dispose of an appeal that presents a nonjusticiable
political question, we do so on the merits.
Our better reasoned cases reflect that principle. A prime example
is our recent decision in Clay County Commission v. Clay County Animal
Shelter, Inc., 283 So. 3d 1218, 1228 (Ala. 2019). As in BJCCA, the issue
in Clay County was whether the Legislature had complied with a
constitutionally mandated procedure for passing a bill. Only this time,
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the plaintiffs' challenge involved a requirement in § 73 that an
appropriations bill pass "by a vote of two-thirds of all the members
elected to each house." Ala. Const. 1901 (Off. Recomp.), Art. IV, § 73. The
defendant conceded that the bill "did not receive the vote of two-thirds of
all the members elected to each house," 283 So. 3d at 1221, but
nonetheless argued that the validity of the resulting statute could not be
challenged because, in the defendant's view, any dispute over whether a
bill received the constitutionally mandated number of votes presented "a
nonjusticiable political question," id. at 1225.
Our Court rejected that argument. We reasoned that since the
language of § 73 was a " 'clear constitutional mandate,' " there was no
" 'lack of judicially manageable standards' " that would trigger the
political question doctrine and require the Court to "defer to the
legislature's internal rules and procedures." Id. at 1226-27 (citations
omitted). In doing so, we distinguished BJCCA, in which the procedural
requirement of § 63 was susceptible to a range of interpretations and the
Legislature's determination had fallen within that permissible range. In
Clay County, by contrast, there was only one plausible interpretation of
§ 73, and the Legislature's actions did not comport with it. "[T]wo thirds
34
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of all members elected to each house" meant exactly that: two-thirds of
all members. And because it was undisputed that less than two-thirds of
all the members elected to each house had voted in favor of the challenged
statute, there was no way to square the Legislature's actions
constitutionally.
What Clay County underscores is that while § 53 is a "textually
demonstrable commitment" to the Legislature in determining the rules
of its own proceedings, that power is necessarily limited by a range of
permissible interpretations of the constitutional provision. And only a
substantive rule -- in these cases, the political question doctrine -- can
tell us whether the Legislature has exceeded its discretion. Since
applying a substantive rule to the facts of a case necessarily entails
exercising subject-matter jurisdiction, I believe that the proper
disposition of a case that presents a political question is a dismissal on
the merits.
The distinction between a dismissal for a lack of subject-matter
jurisdiction and a dismissal on the merits has practical consequences for
litigants. Because the former "does not operate as an adjudication on the
merits," Ex parte Stewart, 985 So. 2d 404, 409 (Ala. 2007), res judicata is
35
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no bar; the plaintiffs could file an identical lawsuit in federal court the
day after the state suit was dismissed. By contrast, a Rule 12(b)(6), Ala.
R. Civ. P., dismissal does operate as an adjudication on the merits under
Rule 41(b), Ala. R. Civ. P., and would therefore preclude the plaintiffs
from maintaining the suit in a different court. The upshot is that
defendants in these cases may want to call courts' attention to this
distinction in order to preempt repetitious litigation. And if litigants
raise the issue in a future case, I would be willing to revisit BJCCA so
that we can iron out its wrinkles and reconcile it with our better reasoned
cases.
That said, the parties to this case have not asked us to depart from
our reasoning in BJCCA. I therefore concur with the main opinion, which
faithfully applies that precedent. See Ex parte McKinney, 87 So. 3d 502,
509 n.7 (Ala. 2011) (noting that "this Court has long recognized a
disinclination to overrule existing caselaw in the absence of either a
specific request to do so or an adequate argument asking that we do so").
36