Alabama Advisory Opinions January 03, 1997: AGO 1997-066 (January 3, 1997)

AGO 1997-066.

Dear Judge Diamond:

This opinion is issued in response to your request for an opinion from the Attorney General.

Is the Probate Judge entitled to be paid $.05 per name on the voter list pursuant to Code of Alabama 1975, § 17-4-138, if the voter list is printed at the office of the Board of Registrars using the "Alvin" computer system and not printed in the Probate Judge's office?

Code of Alabama 1975, § 17-4-138 provides:

"The judge of probate may employ such assistants and clerical help as may be necessary to complete and properly prepare the list of qualified electors which the judge of probate is required to furnish the election inspectors. The judge of probate shall receive or such assistants shall be paid out of the county treasury by warrants, drawn by the county commission on certificate of the probate judge, accompanied by the certificates of the person being paid, showing the amount is due under the provisions of this chapter, but the entire amount spent for the preparation of such lists shall not exceed a sum equal to the amount obtained by multiplying the number of names on said list by $.05 for the preparation of such list. . . ."

The probate judge's duties with respect to the voter list or poll list is not limited to printing a list but also includes those duties set forth in Code of Alabama 1975, § 17-4-130, which states:

"The board of registrars shall, when registration is closed before a primary, general, or special election, certify to the judge of probate any additions, deletions, corrections or changes from the list previously prepared and submitted to the judge. From these lists the judge shall prepare correct alphabetical lists of the qualified electors registered by precincts, by districts or by subdivisions thereof where the precinct has been divided or subdivided, if not within a city or incorporated town, and by wards and other subdivisions, if within a city or incorporated town, and no others, which lists shall be certified by the board thereof officially to be full and correct copies of the lists of registered electors for each of said political subdivisions, as the same appears from the records of the board, and shall deliver the same to the judge of probate for distribution to the officers of election. The judge of probate shall deliver or cause to be delivered to the inspectors in each precinct, each district, each ward or each other subdivision one copy of the list prepared for such box or voting place immediately preceding every general, primary or special election, and the delivered list shall contain only the names of persons qualified to vote at such box or voting place; except, that for purposes of information only, there may be delivered to such inspectors lists prepared for other boxes or voting places.

The list published in the newspaper before each primary election shall not be used as the poll list.

"The judge of probate shall certify a copy of each of such poll list to the Secretary of State and shall provide a copy to the board of registrars. Both the board of registrars and the judge of probate shall keep a current copy of such lists open and subject to public inspection."

This office has previously held that upon proper certification the probate judge is entitled to receive $.05 per name for preparation of the voter list without regard to whether the probate judge is compensated on the fee system or a salary system. Opinion to Honorable Rogene Booker, Probate Judge, Conecuh County, dated August 10, 1995, A.G. No. 95-00279, and to Honorable Sherrie R. Phillips, Probate Judge, Covington County, dated February 24, 1994, A.G. No. 94-00092. The right of all probate judges to receive these funds was recognized by the Alabama Supreme Court in Opinion of the Justices , No. 285, 407 So. 2d 122 (Ala. 1981), wherein the Justices held that probate judges cannot be denied this compensation during their term of office. This office has also held the funds to be received by the probate judge for preparation of the voter list accrue to the probate judge upon certification by the probate judge that he is the proper person to receive such payment, but the funds may be paid to the probate judge's assistants if the probate judge certifies that the assistants prepared the list and are entitled to the funds. Opinion to Honorable Freddie Armstead, President, Marengo County Commission, dated November 10, 1992, A.G. No. 93-00057.

Based upon the foregoing, the Probate Judge, upon certification to the County Commission that the payment should be made to him, is entitled to the $.05 per name for all the duties associated with preparation of the voter list.

After proper certification by the Probate Judge, the Probate Judge is entitled to receive the $.05 per name provided under Code of Alabama 1975, § 17-4-138, for the preparation of the voter list.

I hope this sufficiently answers your question. If our office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

BP/BFS

D/12.96/f