Alabama Advisory Opinions August 13, 2001: AGO 2001-252 (August 13, 2001)

AGO 2001-252.

Dear Senator Callahan:

This opinion of the Attorney General is issued in response to your request.

QUESTION ONE

Does the law allow for a petition to be filed requiring that a referendum be called to amend section 11-44C-28 of the Code of Alabama from a "super majority" (at least five members of a seven-member council) to a "simple majority" (four members out of seven) to be sufficient for the passage of any resolution?

The City of Mobile is a Class 2 municipality and is governed by a mayor-council form of government. See ALA. CODE §§ 11-44C-1, et seq. (1989, Supp. 2000). Your question involves the method by which the procedures used to conduct the business of the council in a Class 2 municipality can be changed or amended. Section 11-44C-28 of the Code of Alabama sets forth these procedures. It provides that the presence of five council members constitutes a quorum for the conduct of council business and specifies that a super-majority vote of the seven-member council is required "for the passage of any resolution, bylaw ordinance, or the transaction of any business of any sort by the said council or the exercise of any of the powers conferred upon it by the terms of this chapter or bylaw, or which may hereafter be conferred upon it." ALA. CODE § 11-44C-28 (1989). This super majority is also required for the council to override mayoral vetoes. Id .

Section 11-44C-91 of the Code of Alabama provides the manner by which a city that is subject to the provisions of chapter 44C of title 11 of the Code can alter its form of government:

The city is prohibited from changing from the mayor-council form of government within two years after the adoption thereof. At the end of such period, or at any time thereafter, the city's form of government may be amended or changed when:

(1) A written petition executed by 10 percent of the number of those who voted in the last city election is submitted to the council with the proposed changes or amendments incorporated in the petition; after presentation of the petition, the council shall call for a referendum vote on the proposed changes and amendments, and

(2) A majority of the votes cast in the referendum is in favor of the proposed changes or amendments. After the council receives the proposed changes and petition, it shall call a special election for the purpose of determining whether the city shall adopt the changes or amendments. Notice shall be given of the time and purpose of such election by publication once each week for four consecutive weeks in a newspaper published in said city prior to the referendum vote. All qualified electors of such city may participate in the election and such questions shall be plainly printed upon the ballot. The referendum shall be conducted, the expenses paid, the votes canvassed and the results declared in the same manner as is provided by law in other city elections.

This Office understands that a citizens group in Mobile has collected and deposited a petition with the city council requesting that a state law, section 11-44C-28 of the Code, be changed or amended to reduce the number of affirmative votes required for the transaction of business of the council from a super-majority vote of five to a simple majority of four. The change from a super-majority requirement for the conduct of city business to a simple majority vote is an amendment to the form of government. Accordingly, the provisions of section 11-44C-91 of the Code would seem to allow the citizens of Mobile to petition for the holding of a referendum on whether to make this amendment.

Please be advised, however, that the Supreme Court of Alabama has held that, under section 44 of the Constitution of Alabama, a city cannot amend state law: "It is of course well understood that the only authority which has the power to make State laws is the legislature. Section 44, Constitution. That means that a city or town cannot validly enact a state law, amend or repeal it. " Personnel Bd. of Mobile County v. City of Mobile, 84 So. 2d 365, 369 (Ala. 1956) (emphasis added). Although this Office presumes that enactments of the Legislature are valid and does not opine as to the constitutionality of legislative enactments, the grant of authority to citizens of class 2 municipalities to change or amend the municipality's form of government must be considered in the light of the broad and exclusive reservation of the power to make laws to the Legislature in section 44 of our state Constitution.

The change from a super-majority requirement for the conduct of city business to a simple majority vote is an amendment to the form of government. The provisions of section 11-44C-28 of the Code of Alabama would, therefore, seem to allow the citizens of Mobile to petition for the holding of a referendum on whether to make this amendment. It should be noted, however, that the grant of authority to citizens of class 2 municipalities to change or amend the municipality's form of government must be considered in the light of the broad and exclusive reservation of the power to make laws to the Legislature found in section 44 of the Constitution of Alabama.

QUESTION TWO

What is the obligation of the City Council of Mobile to respond to such a petition as presented to them on July 10, 2001, to determine if the petition is in order, and what time frame do they have to make that determination?

QUESTION THREE

What is the time frame required for the Council to call such a referendum if the petition is in order?

FACTS, ANALYSIS, and CONCLUSION

The answers to your second and third questions depend on whether the proposed actions are constitutional. Determinations of the constitutionality of legislative enactments are beyond the scope of opinions of this Office. Only a court of competent jurisdiction can make that determination.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Troy King of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/CJS/TRK

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