ALABAMA OBSCURA: BARNETT V. JONES, GLASS V. CITY OF MONTGOMERY, AND CORPUS LINGUISTICS: A POTENTIAL PATH TO UNCLOUDING THE ORIGINAL MEANING OF SECTION 105 OF THE CONSTITUTION OF ALABAMA OF 1901.
|Kiszla, J. Luke
Alabama anchors the restrictive end of the spectrum of "home rule"--that is, the degree to which political subdivisions of a state may wield powers without positive delegation of those powers by a state legislature. The Constitution of Alabama of 1901 places numerous conditions on the power of the Legislature to delegate authority to political subdivisions or to treat localities individually via local law. The calculus regarding the distinctions between general and local law itself is subject to plenty debate, perhaps most famously within Peddycoart v. City of Birmingham. (1) This article will not consider that debate any further than is necessary for the present discussion. Similarly, this article will not foray into the questions of home rule and its propriety.
The conditions placed specifically upon local laws by the Constitution of Alabama of 1901 may be categorized into three main areas: (1) restrictions on the subject matter which may be contained within local legislation, such as are enumerated in Section 104 of the Constitution of Alabama of 1901; (2) requirements for and limitations on the treatment of local legislation throughout the legislative process; and (3) a general proscription that "[n]o... local law... shall be enacted in any case which is provided for by a general law," as set forth by Section 105 of the Constitution of Alabama of 1901. (2) This article will examine the third area, general proscription, and will refer to it generally as "Section 105."
For such a brief phrase within the Constitution of Alabama of 1901, the effect of the operative provision of Section 105 quoted above is staggering. Eighty-nine casenotes follow Section 105 in the Official Recompilation of the Constitution of Alabama of 1901, and Section 105 has been cited in hundreds of reported cases and opinions of the Attorney General of Alabama. The lion's share of these relates to that brief phrase discussed herein. Section 105 thus stands tall in the jungle of local laws; its canopy spreads and casts shade over the entire area; its roots, deeply entrenched, have raised hurdles in the path of local law practitioners for over one hundred years.
Two recent decisions of the Supreme Court of Alabama, Barnett v. Jones and Glass v. City of Montgomery, have further contributed to this ecosystem, joining the virtual plethora of cases and opinions which have refined Section 105 over the century since the ratification of the Constitution of 1901. (3) This article will recite each ruling in turn, explaining its interplay with prior cases and opinions and forecasting how these rulings may shape the future judicial treatment of local laws.
Moreover, this article will suggest an emerging doctrine of statutory interpretation that seems to meet a call for aid from the court: corpus linguistics. In the various opinions issued in Barnett and Glass, members of the court expressed both an uncertainty that the current Section 105 jurisprudence truly reflects the text itself and a desire to garner more insights into the original meaning of Section 105, particularly the public understanding of its text. Corpus linguistics--the empirical study of real language use within speech communities, as applied to legal analysis--seems almost tailor-made to conduct this type of inquiry. And although judges, and therefore courts, are undoubtedly well-equipped to conduct historical analyses, the pleas for aid in this task issued by the members of the court demonstrate the need for a fresh lens through which to view the text of Section 105, and corpus linguistics may be that lens.
This article does not contain a corpus linguistics analysis of Section 105 itself, for reasons including lack of resources and the lack of a justiciable matter beyond the present cases upon which such commentary by the author may be improper. Additionally, because the application of corpus linguistics is not meant to displace the intuition and wisdom of the bench, a firm answer would be impossible to provide using corpus linguistics without the court first considering some questions that are posed within this article. However, perhaps the brief introduction to corpus linguistics, presented alongside a range of questions inherent to any corpus linguistics analysis, will aid the court and future litigants in conducting an analysis.
At the very least, they will have an author onto whom they may project their frustrations.
The current framework for the analysis of Section 105 traces its direct roots to Peddycoart v. City of Birmingham, a seminal case that drastically changed the legal landscape of local laws in numerous ways. (4)
Whether due to cowardice or discretion, this article will not foray into the questions of home rule or classifications of municipalities but will instead focus on that watershed case only for what is necessary to discuss the two recent holdings. For the present study, Peddycoart's primary relevant effect was changing the analysis of Section 105 of the Constitution of Alabama of 1901. (5) This shift is, quite conveniently, recounted in specific detail by the majority opinion in Barnett v. Jones, the first of the two major recent holdings discussed herein. (6)
A. Burnett v. Jones
The primary issue in the 2021 Alabama Supreme Court case of Barnett v. Jones was the interpretation and application of Section 105 to a local law that distributed a portion of the Simplified Sellers Use Tax ("SSUT") proceeds from the Morgan County Commission's general fund to county and city boards of education in Morgan County. (7) The members of the Morgan County Commission appealed the trial court's decision upholding the law under a theory that the local act "creates a variance" from the results dictated by the general law. (8) Specifically, the County Commission argued that the enactment of the local law was prohibited by Section 105 due to the existence of two general laws: the Simplified Seller Use Tax Remittance Act ("the SSUT Act"), (9) which provides for the collection of online sales taxes and deposit of proceeds, without earmarks, into the general funds of the various counties on a population basis; and the Budget Control Act, (10) which authorizes and tasks the county commissions to make specific provisions with their discretionary funds in the shaping of their budgets.
Upholding the law, the Alabama Supreme Court issued a ruling that is easy to oversimplify: because the local act, the SSUT Act, and the Budget Control Act each provide for a different "case" or "matter," the local act is not "subsumed by" the general laws in the Peddycoart sense. (11) However, such an open-and-shut restatement would not truly reflect the complex nature of the question proposed, nor would it give due credit to the facially-contradictory precedents and evidence proffered by the appellants and appellees in their briefs--as well as much of the caselaw mentioned in this article.
The main opinion makes great efforts to dispel what it labels "the confusion that has arisen around this Court's [Section] 105 jurisprudence" while recounting the history of the Section 105 framework. (12) Prior to Peddycoart, the aptly-named "substantial difference" test instructed courts to determine whether there was a "substantial difference between the general and the local law." (13) The test operated as a sliding scale; a higher degree of "substantial difference" between a local act and the general law would indicate a higher likelihood of the constitutionality of the local law. (14)
Peddycoart set forth a new framework for the Section 105 analysis of any local law enacted following that 1978 ruling. (15) The main opinion in Barnett recited the relevant holding from Peddycoart setting forth the new framework:
We do not look upon the presence of a general law upon a given subject as a bare segment, but to the contrary, its presence is primary, and means that a local law cannot be passed upon that subject. By constitutional definition a general law is one which applies to the whole state and to each county in the state with the same force as though it had been a valid local law from inception. [T]he constitutional framers have prohibited the enactment of a local act when the subject is already subsumed by the general statute. (16) As explained by the main opinion in Barnett, no degree of "substantial difference" from the general law will save a post-Peddycoart local law that addresses a subject "already subsumed" by the general law. (17) The main opinion in Peddycoart derived its interpretation of Section 105 from the construction of the phrase "provided for" therein, holding that Section 105 restricts only local laws "of the same import dealt with in the general law." (18) In determining whether a local law is "of the same import" as a general law, the framework laid out in Barnett first demands a focus on the "case" or "matter" of the general law, then an analysis of whether the local law addresses the same "case" or "matter." (19) According to the main Barnett opinion, this is an inversion of the "substantial difference" test for pre-Peddycoart inquiries, which focused on the character of the local law and a subsequent contrast to the general law. (20) The Barnett main opinion goes on to cite a line of caselaw illustrating a trend that the court is to treat "case" or "matter" in a contextual sense, based upon the specific facts of each case. (21)
Wielding the framework as established above, the main opinion in Barnett thus concluded that the "case" or "matter" provided for by the general SSUT Act--a statewide system for the levy and collection of SSUT payments and distribution into the general funds of the various counties--was "distinct" from "case" or "matter" addressed in the local act--the disbursement of SSUT proceeds from the general fund to the county and city boards of education. (22) The main opinion also found a distinction between the "case" or "matter" of the Budget...
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