Alabama Advisory Opinions December 27, 1996: AGO 1997-062 (December 27, 1996)

AGO 1997-062.

Dear Speaker Clark:

This letter is in response to your request dated December 13, 1996, for an opinion of the Attorney General.

Specifically, you requested an opinion regarding whether you are required to appoint a black person to the Forever Wild Board to succeed Senator E. B. McClain of the Central District. You noted that none of the Group A organizations have nominated a black person to succeed Senator McClain.

Appointments of Trustees to the Forever Wild Board are governed by amendment 543 of the Constitution of Alabama. With respect to the initial appointments to the Board, amendment 543 provides that the Governor, Lieutenant Governor, and the Speaker of the House shall each appoint three members to the Board. Each official is required to appoint at least one black. The appointments are required to be divided among the three geographical areas of the state and the appointments shall be made from a list of nominees submitted by groups of nominators. In addition, when making the initial appointments, amendment 543 states that "at least one appointee by the Governor, at least one appointee by the Lieutenant Governor and at least one appointee by the Speaker of the House of Representatives shall be black. If none of the recommending groups recommend a black to the appointing authority, said appointing authority shall appoint a black on his or her own initiative." Successor appointments, however, are governed by the following language: "Any successor appointments and appointments to vacancies shall be made in the same manner as described in subparagraphs (A), (B) and (C) above, and members appointed after the initial term of that office has expired shall serve for six year terms, except that no member shall serve consecutive six-year terms." Id . _ 4(a)(5)(D). Neither that language nor the language of subparagraphs (A), (B), and (C) contain any references to the race of the appointee. Your question, therefore, turns on whether the language of paragraph (5) of section 4(a) also governs successor appointments under subparagraph (D).

In my opinion, the plain language of subparagraph (6), which contains no reference to race, controls this question, and that language requires you to appoint someone nominated by the Group A organizations(fn1) without regard to the race of that person. The Supreme Court of Alabama has ruled that provisions of the Constitution of Alabama must be "strictly construed." City of Birmingham v. City of Vestavia Hills , 654 So.2d 532, 538 (Ala. 1995). "Nothing in the Constitution suggests that the framers meant anything more than is said by the words they used." Id .

The language of paragraph (5) regarding the appointment of black persons is limited to the several initial appointments made to the Board. That is why the paragraph refers to "at least one appointee." That language is nonsensical when applied to successor appointments and appointments to vacancies, which occur one at a time.

Last year, this Office opined that an "appointing official must select his appointee from the properly submitted list of nominees." Op. Atty. Gen. 95-00219 (letter to Commissioner James D. Martin, dated May 16, 1995). Although that opinion did not address the issue of race, the opinion recognized the mandatory language that pertains to successor appointments. Subparagraph (6) provides that successor appointments " shall be made" as required by subparagraphs (A), (B), and (C). It would defeat a central purpose of amendment 543 to subordinate the recommendations of Group A to an allegedly permanent racial classification.

A law review article written by two drafters of amendment 543 also supports this interpretation. See William Satterfield & Glenn Waddell, A History and Analysis of Alabama's "Forever Wild" Constitutional Amendment , 44 Ala. L. Rev. 393, 404 (1993). These drafters explained, "Constitutionality concerns aside, this provision has already raised several questions among the recommending organizations. For example, if an appointing official initially appoints a black person as the trustee for a particular slot, must he appoint another black person at the end of the trustee's term? Such an interpretation is clearly not required by the language of the amendment." Id. These drafters also noted that there is no requirement that the recommending groups consider the race of any nominee. Id ., at 405.

You should also be aware that a long line of cases decided by the U.S. Supreme Court and lower federal courts provide, "Racial classifications are antithetical to the Fourteenth Amendment, whose 'central purpose' was 'to eliminate racial discrimination emanating from official sources in the States.'" Shaw v. Hunt , 116 S.Ct. 1894, 1902 (1996) (quoting McLaughlin v. Florida , 379 U.S. 184, 192 (1964)); see also Miller v. Johnson , 115 S.Ct. 2475 (1995); Adarand Constructors, Inc. v. Pena , 115 S.Ct. 2097 (1995); Richmond v. J.A. Croson , 488 U.S. 469 (1989). Over thirty years ago, the Supreme Court ruled that there is "no relevance in the State's pointing up the race of the candidate as bearing upon his qualifications for office." Anderson v. Martin , 375 U.S. 399, 403 (1964). This Office, however, need not address the constitutionality of any racial classification for the Forever Wild Board, because successor appointments must be made without regard to race.

Your appointment of a successor to Senator E. B. McClain for the Forever Wild Board must be made from the nominees submitted by Group A without regard to race.

I hope this letter sufficiently answers your question. If this Office can be of further assistance, please contact Deputy Attorney General William Pryor of my staff.

Sincerely,

JAMES R. SOLOMON, JR.

Chief, Opinions Division

JS/WHPjr:jho

CJ12.96/OP

1. Group A consists of nonprofit organizations, whose primary concerns are environmental protection and non-consumptive use and preservation of natural areas. Ala. Const. amend. 543 _ 4(a)(6)(A).