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Clay County Commission v. Clay County Animal Shelter, Inc.

Supreme Court of Alabama

April 5, 2019

Clay County Commission
v.
Clay County Animal Shelter, Inc.

          Appeal from Clay Circuit Court (CV-17-900028)

          BRYAN, JUSTICE. [1]

         The Clay County Commission ("the county commission") appeals from a judgment of the Clay Circuit Court ("the trial court") in favor of Clay County Animal Shelter, Inc. ("the animal shelter"). We reverse the trial court's judgment and remand the cause for further proceedings.

         Facts and Procedural History

         In March 2017, the legislature enacted Act No. 2017-65, Ala. Acts 2017, which provides, in pertinent part:[2]

"Section 1. This act shall apply only in Clay County.
"Section 2. (a) The proceeds from the tobacco tax authorized in Clay County pursuant to Section 45-14-244 of the Code of Alabama 1975, and as further provided for in Sections 45-14-244.01 to 45-14-244.03, inclusive, and Section 45-14-244.06 of the Code of Alabama 1975, less two percent of the actual cost of collection, which shall be retained by the Department of Revenue, shall be distributed to the Clay County General Fund to be expended as follows:
"....
"(3) Eighteen percent to the Clay County Animal Shelter. The Clay County Animal Shelter shall annually report to the county commission regarding the expenditure of the funds in the preceding year.
"....
"Section 4. This act shall become effective on October 1, 2017."

         In July 2017, the county commission and three individuals (hereinafter referred to collectively as "the plaintiffs")[3]initiated an action in the trial court against the animal shelter and certain state officials.[4] In their complaint, the plaintiffs sought injunctive relief and a judgment, pursuant to § 6-6-220 et seq., Ala. Code 1975, declaring that part of Act No. 2017-65 directing an expenditure of a portion of Clay County's tobacco-tax proceeds to the animal shelter to be unconstitutional.[5]

         The plaintiffs asserted that Act No. 2017-65 was improperly enacted without a sufficient number of legislative votes in violation of Article IV, § 73, Ala. Const. 1901, which provides:

"No appropriation shall be made to any charitable or educational institution not under the absolute control of the state, other than normal schools established by law for the professional training of teachers for the public schools of the state, except by a vote of two-thirds of all the members elected to each house."

         The plaintiffs also filed a motion seeking a preliminary injunction to temporarily restrain distribution of Clay County's tobacco-tax receipts to the animal shelter. The animal shelter moved to dismiss the plaintiffs' complaint.[6]

         The trial court conducted a hearing regarding the county commission's motion for a preliminary injunction. On October 26, 2017, the trial court entered an order requiring the portion of Clay County's tobacco-tax receipts that would be distributed to the Clay County General Fund to be disbursed as an expenditure to the animal shelter under Act No. 2017-65 to be paid into the trial-court clerk's office and held in an escrow account pending the entry of a final judgment. On January 16, 2018, the trial court conducted a bench trial, at which only documentary evidence was admitted.

         At the trial, the county commission argued that Act No. 2017-65 appropriated public funds to the animal shelter and that, because the animal shelter is a charitable organization not under the absolute control of the state, the appropriation was subject to the requirements of § 73, instead of the ordinary requirements for the passage of bills by the legislature. As noted above, § 73 requires that applicable appropriations be approved "by a vote of two-thirds of all the members elected to each house." It was undisputed that Act No. 2017-65 did not receive the vote of two-thirds of all the members elected to each house. The county commission argued that that portion of Act No. 2017-65 purporting to distribute funds to the Clay County General Fund to be disbursed to the animal shelter is, therefore, unconstitutional.

         In March 2018, the legislature enacted Act No. 2018-432, Ala. Acts 2018, "to amend Section 2 of Act 2017-65 of the 2017 Regular Session, now appearing as Section 45-14-244.07 of the Code of Alabama 1975, to further provide for the distribution of the local tobacco tax; and to provide for retroactive effect." In relevant part, Act No. 2018-432 purports to amend § 45-14-244.07 to increase the share of Clay County's tobacco-tax revenue to be distributed to the Clay County General Fund to be disbursed to the animal shelter from 18% to 20%.

         On April 13, 2018, the trial court entered a final judgment declaring that the county commission had failed to meet its burden of proving that the challenged portion of Act No. 2017-65 is unconstitutional. The trial court also ordered "that the distribution of the proceeds from the tobacco tax authorized in Clay County be immediately distributed in accordance with Act [No.] 2017-65, or any law superseding or replacing said Act." The plaintiffs filed a motion to stay execution of the trial court's judgment, asserting, among other things:

"[The p]laintiffs note [that] the Court's judgment directs the county to 'immediately distribute [the tobacco-tax proceeds] in accordance with Act [No.] 2017-65, or any law super[s]eding or replacing said Act.' (emphasis added). Although not expressly stated, the Court's inclusion of 'any law super[s]eding or replacing said Act' appears to refer to ... Act [No.] 2018-432 ... which purports to provide retroactive appropriations to the [a]nimal [s]helter from the County's tobacco tax receipts.
"....
"11. [The county commission] will seek a declaratory judgment that [Act No. 2018-432] is void, invalid, and unconstitutional ... and therefore, [the county commission's] appeal of the judgment in the instant case will be determinative of whether the funds held in escrow are due to be released to the [a]nimal [s]helter."

         The trial court conducted a hearing regarding the plaintiffs' motion and entered an order providing as follows:

"[The p]laintiffs' motion to stay the implementation of Act [No.] 2018-432, pending a hearing on the merits of [the county commission's] challenge to said Act is GRANTED.
"[The p]laintiffs' request to stay the implementation of Act [No.] 2017-65 is DENIED." (Capitalization in original.) The county commission appealed.

         Analysis

         On appeal, the county commission argues that the trial court erred in determining that it failed to meet its burden of proving that the provision of Act No. 2017-65 directing that a portion of Clay County's tobacco-tax proceeds be distributed to the Clay County General Fund to be disbursed to the animal shelter received a sufficient number of legislative votes to become law.[7] Specifically, the county commission asserts that the legislature's enactment, as to that part of Act No. 2017-65, was an appropriation of funds by the legislature without a two-thirds votes of all the members elected to each house and was, therefore, a violation of § 73. Before addressing the county commission's substantive argument, we must first address certain preliminary procedural considerations.

         In response to the county commission's argument, the animal shelter, with the assistance of counsel on appeal, first argues that the question presented by the county commission became moot with the enactment of Act No. 2018-432, which, the animal shelter says, "effectively repealed and replaced" Act No. 2017-65. In other words, the animal shelter contends that the issue no longer presents a justiciable controversy. See Underwood v. State Bd. of Educ., 39 So.3d 120, 127 (Ala. 2009)("'This Court has often said that, as a general rule, it will not decide questions after a decision has become useless or moot. ... Alabama courts do not give opinions in which there is no longer a justiciable controversy ....'" (quoting Arrinqton v. State ex rel. Parsons, 422 So.2d 759, 760 (Ala. 1982))). Alternatively, the animal shelter also argues that "the constitutionality of Act No. 2017-65 ... raises a nonjusticiable political question." The animal shelter's brief, at 3. See, e.g., Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204 (Ala. 2005)("BJCCA").

         A justiciable controversy is necessary to confer subject-matter jurisdiction on the trial court. See Chapman v. Gooden, 974 So.2d 972, 983 (Ala. 2007)("'There must be a bona fide existing controversy of a justiciable character to confer upon the court jurisdiction to grant declaratory relief under the declaratory judgment statutes ....'" (quoting State ex rel. Baxley v. Johnson, 293 Ala. 69, 73, 300 So.2d 106, 110 (1974))). Moreover,

"'"'[u]nless the trial court has before it a justiciable controversy, it lacks subject matter jurisdiction and any judgment entered by it is void ab initio.'"' Sustainable Forests, L.L.C. v. Alabama Power Co., 805 So.2d 681, 683 (Ala. 2001)(quoting Hunt Transition & Inaugural Fund, Inc. v. Grenier, 782 So.2d 270, 272 (Ala. 2000), quoting in turn Ex parte State ex rel. James, 711 So.2d 952, 960 n.2 (Ala. 1998)). 'A moot case lacks justiciability.' Crawford [v. State], 153 S.W.3d [497, ] 501 [(Tex. App. 2004)]. Thus, '[a]n action that originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.' Case [v. Alabama State Bar], 939 So.2d [881, ] 884 [(Ala. 2006)](citing Employees of Montgomery County Sheriff's Dep't v. Marshall, 893 So.2d 326, 330 (Ala. 2004))."

Chapman, 974 So.2d at 983-84. Therefore, we must first determine whether the issue presented is justiciable before considering the merits of the county commission's substantive argument.

         A. Mootness

         In support of its mootness argument, the animal shelter quotes from Jefferson County Commission v. Edwards, 32 So.3d 572 (Ala. 2000), and argues that, because Act No. 2018-432 "effectively repealed and replaced" Act No. 2017-65, Act No. 2018-432 "stands as the last expression on the point by the legislature," 32 So.3d at 580, thereby rendering Act No. 2017-65 "void." In response to the animal shelter's mootness argument, the county commission points to our decision in Ex parte Buck, 256 So.3d 84 (Ala. 2017).

         In Ex parte Buck, this Court granted certiorari review of a decision of the Court of Civil Appeals to consider whether a municipal rezoning ordinance, "Ordinance 1949-G," had complied with the notice-publication requirements set out in certain statutory provisions. The respondents argued that the issue was moot because a new ordinance had "repealed and replaced" Ordinance 1949-G. We analyzed the issue as follows:

"If Ordinance 1949-G, the subject of this appeal, has in fact been repealed and replaced by the new ordinance, then this appeal is moot, because there no longer exists a justiciable controversy as to the single issue upon which certiorari review was granted. However, the [petitioners] argue that the new ordinance was also improperly enacted and is also void; thus, they say, it did not repeal Ordinance 1949-G and their challenge to Ordinance 1949-G remains. In fact, they contend that they have filed a new action in the Jefferson Circuit Court challenging the validity of the new ordinance, and they submitted a copy of the complaint they have filed in that new action.
"This Court is not in a position, in the present appeal, to determine whether the new ordinance is valid or invalid and whether it did or did not properly repeal and replace Ordinance 1949-G. That issue is pending in another circuit court action, where a proper record and arguments relating to that issue can be developed. Because there remains the possibility that the new ordinance could be held invalid, a holding that this appeal is moot based on the adoption of the new ordinance is premature. Specifically, if we were to dismiss this case as moot, but the [petitioners] were to prevail in their new action challenging the new ordinance, the issue of the validity of Ordinance 1949-G would remain unresolved, and the [petitioners] would have lost their ability to maintain their challenge to it in the instant appeal. In other words, at this time it is uncertain whether the new ordinance is valid and moots this case, and we ...

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