Alabama Advisory Opinions January 22, 2009: AGO 2009-32 (January 22, 2009)

Alabama Attorney General Opinions

2009.

AGO 2009-32.

Dear Mr. Turnbach:

This opinion of the Attorney General is issued in response to your request on behalf of the Etowah County Commission.

QUESTION

Is the State of Alabama required to reimburse Etowah County those sums paid to the judge of probate under local Act 79-354 for his or her completion and preparation of the lists of qualified electors required to be furnished to election inspectors for the February 5, 2008, presidential preference primary?

FACTS AND ANALYSIS

Section 17-3-60 of the Code of Alabama is the general law that regulates the duties and compensation of judges of probate in this state. This section requires judges of probate to prepare and furnish a certified copy of the list of qualified electors to the election inspectors and calls for probate judges to receive up to $.05 cents per name on the lists.

Section 17-13-100 of the Code of Alabama relates to presidential preference primary elections. Subsection (a) moved the presidential preference primary election to the first Tuesday in February beginning in the year 2008. Subsection (d) provides for reimbursement to the counties from the state for the expenses related to holding the presidential preference primary. Subsection (d) states as follows:

The State of Alabama shall reimburse a county for all sums expended in holding and conducting the presidential preference primary as provided in Section 17-16-4. The provisions of Section 17-4-1 shall not apply to the election held under this section, and no payments shall be made to the judge of probate under the provisions of Section 17-3-60 .

Ala. Code §17-13-100(d) (Supp. 2007) (emphasis added). This section requires the state to reimburse a county for all sums expended in holding the presidential preference primary as provided in section 17-16-4.

Section 17-16-4 provides that the state "shall reimburse a county for all sums expended by the county in payment of expenses incurred in holding and conducting an election in which only candidates for federal or state offices are nominated or federal or state officials are elected." Ala. Code §17-16-4 (2006). The term "expenses," as used in this section, is defined in section 17-16-2 of the Code and includes the "cost of preparing and furnishing the lists of qualified electors to the election officials as required by law." Ala. Code §17-16-2(5) (2006). This cost of preparing and furnishing the lists of qualified electors is required by general law in section 17-3-60. With respect to a presidential preference primary, however, the general law provides that "no payments shall be made to the judge of probate under section 17-3-60." Ala. Code §17-13-100(d) (Supp. 2007). This language in section 17-13-100 expresses the legislative intent that the state will not reimburse a county for payments made to the judge of probate for the cost of preparing and furnishing the lists of qualified electors to the election officials for a presidential preference primary.

This Office, in a previous opinion, determined that "[t]he Etowah County Judge of Probate is authorized by Etowah County Local Act 79-354 to receive up to $.05 cents per name to prepare and furnish the list of qualified electors to the election inspectors for presidential preference primary elections." Opinion to Honorable Bobby M. Junkins, Etowah County Probate Judge, dated May 7, 2008, A.G. No. 2008-077. In that opinion, this Office determined that the county was required to pay the probate judge for these costs based on the language of the local act applicable to Etowah County and not based on the general law.

The general law, section 17-13-100 of the Code, provides for counties to be reimbursed from the state for expenses related to holding the presidential preference primary, but specifically prohibits the state from reimbursing the counties for the $.05 per name paid to the judge of probate for preparing the list of qualified electors for the election inspectors for the presidential preference primary. Thus, although Etowah County is required by local Act 79-354 to pay the probate judge the costs of preparing the list of qualified electors for the presidential preference primary, the state is not authorized to reimburse the county for these expenses.

CONCLUSION

Section 17-13-100 of the Code of Alabama prohibits the State of Alabama from reimbursing a county for the costs paid to the probate judge under a local act for preparing the list of qualified electors for the election inspectors for the presidential preference primary.

I hope this opinion answers your question. 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