Alabama Advisory Opinions March 27, 2006: AGO 2006-075 (March 27, 2006)

AGO 2006-075.

Dear Mr. Reid:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Saraland City Council.

Can the Mobile County Probate Court include an advisory referendum on the June primary election ballot?

Your request states that the City of Saraland is considering establishing its own school system. You further state that the Mobile County Probate Court is supervising primary elections for both the Democratic and Republican parties on June 6, 2006. The city wishes to add an advisory referendum to the election, polling its citizens on the issue of establishing its own school system.

A city with a population of more than 5000 inhabitants may establish its own school system under section 16-11-2 of the Code of Alabama. Marshall County Bd. of Educ. v. City of Albertville , 479 So. 2d 1127, 1129 (Ala. 1985). The Code of Alabama does not authorize the city to conduct or call for a referendum election (advisory or otherwise) on whether a city school system should be established.

Ala. Code § 16-11-1 to 16-11-27 (2001).

This Office has consistently stated that a city is not authorized to spend funds to conduct an advisory referendum, but a referendum could be held if there is no cost to the city. Opinions to Honorable Cathy Larrimore, City Clerk, City of Orange Beach, dated August 14, 1997, A.G. No. 97-00257; Honorable Jimmy S. Calton, City Attorney, City of Eufaula, dated October 13, 1993, A.G. No. 94-00001; Honorable Clarence F. Rhea, Attorney, City of Attalla, dated January 5, 1990, A.G. No. 90-00081; and Honorable James Buskey, Member, House of Representatives, dated September 7, 1989, A.G. No. 89-00427. No city employees or officials should be used to conduct the referendum. A.G. Opinion Nos. 97-00257, 94-00001. It should be conducted by a nongovernmental entity such as a chamber of commerce. A.G. Opinion No. 97-00257. This line of opinions has been extended to the county. Opinion to Honorable Arthur Payne, Member, House of Representatives, dated January 5, 1999, A.G. No. 99-00074.

As with the city and county, research reveals no general authority for the probate judge to include an advisory referendum on a ballot. The Legislature has granted the probate judge the authority to call a referendum only in specific instances. For example, this Office has recognized that the probate judge may set a referendum election on the incorporation of an unincorporated community under section 11-41-2 of the Code of Alabama [Opinion to Honorable Adrian T. Johns, Judge of Probate, Baldwin County Probate Judge's Office, dated August 28, 2002, A.G. No. 2002-325]; on the classification of a county as a wet or dry county under section 28-2-1 of the Code of Alabama [Opinion to Honorable Mac Smith, Judge of Probate, Cleburne County, dated February 10, 1984, A.G. No. 84-00157]; and on the annexation of property by a city under sections 11-42-2 and 11-42-43 of the Code of Alabama [Opinions to Honorable Don Davis, Probate Judge, Mobile County, dated May 7, 2003, A.G. No. 2003-142; and Honorable Luke Cooley, Judge of Probate, Houston County, dated March 6, 1997, A.G. No. 97-00124].

The probate judge has no authority to include an advisory referendum on the June primary election ballot.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Ward Beeson of my staff.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/GWB

109537/92369