Alabama Advisory Opinions September 07, 2004: AGO 2004-215 (September 7, 2004)

AGO 2004-215.

Dear Representative Clouse:

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

1. Given the presence of the general statewide statute (section 11-3-6 of the Code of Alabama), does Act 86-174, a local law relating only to Houston County, have to be enforced such that upon a vacancy on the Houston County Commission the probate judge is required to call a special election to fill the vacancy?

2. Notwithstanding the presence of the local act, does section 11-3-6 of the Code of Alabama authorize the Governor, in case of a vacancy on the Houston County Commission, to fill the vacancy by appointment of the Governor with the person so appointed to hold office for the remainder of the term of the commissioner in whose place he or she is appointed?

3. What effect does the amendment of section 11-3-6 of the Code of Alabama by Act 2004-455 have on the answer to the above questions?

Section 11-3-6 of the Code of Alabama is a general statute applicable to the entire state governing the filling of vacancies on county commissions. This section, before its amendment by Act 2004-455, provided for the filling of vacancies on the county commissions as follows:

In case of a vacancy, it shall be filled by appointment by the governor, and the person so appointed shall hold office for the remainder of the term of the commissioner in whose place he is appointed.

Ala. Code § 11-3-6 (1989).

Act 86-174 is a local act applicable to Houston County that provides for four commission districts, the election of part-time associate county commissions, and for the at-large election of a full-time chairman of the county commission. 1986 Ala. Acts No. 86-174, 203. Section 4 of the act provides for the filling of vacancies on the county commission and states as follows:

Vacancies in offices occurring due to death, disability, resignation or nonresidency shall be filled by special elections called to fill any unexpired term and called by the probate judge. Notice of such special elections shall be advertised in a newspaper of general circulation in the county for a period of four weeks prior to any such election.

Id . This act does not provide any further guidance with respect to the timing or the manner of holding the special elections.

The Alabama Constitution provides that "no special, private, or local law . . . shall be enacted in any case which is provided by a general law."

Ala. Const. art. IV, § 105. The statewide statute provides that vacancies on the county commission shall be filled by appointment by the Governor. The local act applicable to Houston County provides that vacancies on the county commission shall be filled by special election called by the probate judge. The general rules of statutory construction provide that a general law that applies to the entire state will prevail over a local act when the subject matter of the local act is subsumed by the general statute. Opinion of the Justices , 469 So. 2d 105 (Ala. 1985).

The Alabama Supreme Court considered a similar local act applicable to Mobile County and found that the local act was in conflict with the state statute, section 11-3-6 of the Code of Alabama. Stokes v. Noonan , 534 So. 2d 237 (Ala. 1988). The Mobile County act provided for the filling of vacancies on the Mobile County Commission by special election if at least 12 months remained on a county commissioner's term of office at the time of the vacancy. See 1985 Ala. Acts No. 85-237, 137. The Supreme Court stated that section 11-3-6 is a statewide statute governing the general subject of filling vacancies on county commissions. Stokes , 534 So. 2d, at 238. The Court found that the local act was subsumed by the general law and declared the local act providing for the filling of vacancies by special election unconstitutional in violation of article IV, section 105 of the Alabama Constitution. Id .

Because the local act applicable to Houston County provides for the filling of vacancies by special election, it is the opinion of this Office that a court would find that the provisions of Act 86-174 related to filling vacancies is unconstitutional in violation of article IV, section 105 of the Alabama Constitution. Accordingly, any vacancies on the Houston County Commission should have been filled by appointment by the Governor as required under section 11-3-6 of the Code of Alabama before its amendment in 2004.

Section 11-3-6 of the Code of Alabama was amended in 2004 by Act 2004-455. The amendment became effective on May 14, 2004, but is not enforceable until it has received preclearance as required under section 5 of the Voting Rights Act of 1965. 42 U.S.C. § 1973c (2000). Act 2004-455 has been submitted to the United States Department of Justice for preclearance and a decision is due by Friday, October 8, 2004. Section 11-3-6, as amended, states as follows:

Unless a local law authorizes a special election , in case of a vacancy, it shall be filled by appointment by the governor, and the person so appointed shall hold office for the remainder of the term of the commissioner in whose place he or she is appointed.

2004 Ala. Acts No. 2004-455 (emphasis added). This amended language in the general law allows a vacancy on the county commission to be filled by a special election if so authorized by a local law. Accordingly, the provisions of local Act 86-174 would apply to a vacancy occurring on the Houston County Commission after May 14, 2004, the effective date of the amendment to section 11-3-6. Thus, once Act 2004-455 is precleared, a vacancy on the Houston County Commission occurring after May 14, 2004, should be filled by special election as set forth in the local act.

Vacancies on the Houston County Commission occurring after May 14, 2004, should be filled by special election as provided by local Act 86-174.

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

Sincerely,

TROY KING

Attorney General

By: BRENDA F.SMITH

Chief, Opinions Division

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