What to Do With a Lawless Legislature?

A. Eric Johnston, Attorney at Law

Telephone: (205) 408-8893
Address: 1200 Corporate Drive, Suite 107, Birmingham, Alabama 35242
Facsimile: (205) 408-8894
email: [email protected]

FROM:  A. Eric Johnston
DATE:  December 2014

RE:  What to Do With a Lawless Legislature?

The case of Glenn Bynum and Larry Gipson v. City of Oneonta was argued before the Alabama Supreme Court on November 6, 2014.  The case involves a question of a wet/dry municipal option election and an important principle of law.  

In 1984, the Legislature passed § 28-2A-1, 1975 Code of Alabama, a “general law” applicable to all 67 counties, providing that municipalities with 7,000 or more population could decide through municipal option elections whether to sell alcohol within their city limits.  Subsection 3 of the statute explained the cutoff was to protect the public welfare due to complications that arise from alcohol consumption, viz., domestic abuse, DUI, crime, etcetera.
The facts of this case demonstrated a history of willful legislative abuse in passing the statute at issue.  In 2002, the Alabama Legislature passed a local law providing that towns in Cherokee County with populations of 1,300-1,500 (only the Town of Cedar Bluff qualified) could have wet/dry elections.  This law was in conflict with the general law.  The Legislature asked the Alabama Supreme Court if the bill was constitutional, who explained that it was not.  Nevertheless, the Legislature passed the law.  A lawsuit was filed and the trial court held it unconstitutional.  On appeal, the Supreme Court found a jurisdictional issue and sent it back to the trial court.  The issue was resolved and the case was renewed.  Before the second effort could be tried again, in 2009, the Alabama Legislature amended the general law providing that in every county except Blount, Clay and Randolph Counties, towns with 1,000 persons could have wet/dry elections.  This mooted the Cherokee County case.  

In passing the 2009 amendment to § 28-2A-1, the Legislature violated several Alabama constitutional provisions, viz., though introduced as a general law, it was passed as a local law due to excluding three counties, it was not advertised as a local law and the bill had two subjects.

Notwithstanding the Governor’s veto for the latter reason, the Legislature passed the law.  During the legislative process, the law was amended eight times, most of which had to do with what counties to include and the population of a qualifying city.  It was clear the bill would not pass without limitations.  The most egregious violation of law was the excluding of three counties without a proper reason from being able to vote as the other 64 counties would.  This was a violation of citizen’s equal protection rights under the United States Constitution.

From 2002 until 2009 the Alabama Legislature  was acting at the behest of big alcohol interests to establish the sale of their products in every nook and cranny in the State of Alabama, without regard to the health, safety and welfare of the public, and in disregard of the laws mentioned.  The Legislature knowingly acted unlawfully in this concerted and protracted effort.  As a result, the law was challenged in court by Bynum and Gipson.  
These issues were presented to the Blount County Circuit Court who followed the usual rules of statutory construction, ordering removal of the offensive constitutional language, viz., deleting the three counties who had been omitted, thereby making the law applicable to all 67 counties, and upholding the statute.  In other words, alcohol could be on the ballot of every small town in every county of Alabama.  The injustice of this is that the rule of statutory construction is oblivious to the intentionally unlawful legislative acts to achieve something through the court that the Legislature could not achieve on its own.  

The arguments presented to the Alabama Supreme Court requested the court to mitigate that rule so as to recognize the unlawful intentions of the Legislature.  The only way the Legislature could pass this bill was to exclude the three counties.  If that is unconstitutional (which it is) and the legislative intent was to exclude them (which it was), then the law is unconstitutional.  Put another way, there were only three options for the possibility of this law:  (1) pass it excluding the three counties [which it should not do]; (2) not pass it due to the opposition by the three counties [which it would not do]; or (3) pass it in its unconstitutional condition and let the court correct the unlawful action [which it did].  The latter is not a legitimate option, but it is the reality of the existing rule of statutory construction.

The circuit court is not to be blamed, because it ruled in conformity with existing law.  There appears to be no legal precedent for guidance to courts in situations like this.  On appeal, the Alabama Supreme Court was requested to find the entire law unconstitutional.  The court was asked not to do what the Legislature could not do and, certainly, not to be complicit through a judicial slight of hand to participate in the denial of equal protection rights to voters.  We are hopeful the Alabama Supreme Court will further define the rules of statutory construction so that a travesty like this will not happen again.  We are a nation of laws, not men.

Finally, if this law is found unconstitutional, we will go back to the previous law, that is, only municipalities with 7,000 or more citizens can have alcohol municipal option elections.  All of the small towns who have voted under this unconstitutional law to authorize alcohol sales must stop those sales. That will be a good thing.  Otherwise, any changes to the law must completely start over in the Legislature.  It is unlikely the current
Legislature would go down this path again. 

I represented Messrs Bynum and Gipson in this case and also parties in the second Cherokee County case.  I appreciate the opportunity to work with these fine citizens who are standing up for their communities. They are to be commended.