Alabama Advisory Opinions April 09, 2013: AGO 2013-042 (April 09, 2013)

Advisory Opinion Text

Honorable James R. Scale

Attorney, Montgomery County Board of Education

Hill, Hill, Carter, Franco, Cole & Black

Post Office Box 116

Montgomery, Alabama 36101-0116

Education, Boards of - Term of Office -Boards - Elections - Act No. 2011-257

Under the amendment proposed by Act 2011-257, members of the Montgomery County Board of Education elected on November 6, 2012, will serve six-year terms, and members subsequently elected will serve four-year terms.

Luther Strange, Attorney General

Dear Mr. Scale:

This opinion of the Attorney General is issued in response to your request on behalf of the Montgomery County Board of Education.

QUESTION

What are the terms of office of the newly elected members of the Montgomery County Board of Education under the amendment proposed by Act 2011-257?

FACTS AND ANALYSIS

Your request states as follows:

The Montgomery County Board of Education ("Board") is created by Act 222 of the 1939 Legislative Session. 1939 Ala. Acts No. 222, 125. The act determined the terms of office of the members of the Board were to be six years, and terms would expire on December 1. Id. at 126. Pursuant to Act 2011-257, which proposed a local constitutional amendment for Montgomery County adopted at the November 6, 2012, general election, the terms of new members were reduced to four years. 2011 Ala. Acts No. 2011-257. The members elected on November 6, 2012, took office on December 1, 2012 ....

In addition, members of the Board "are elected by staggered terms every two years; . . . two members are elected every two years with one of the staggered elections having three members elected. The board normally consists of seven members." Opinion to Honorable Vaughan H. Robison, Robison & Belser, dated September 11, 1991, A.G. No. 91-00409 at 2.

Act 2011-257 provides as follows:

PROPOSED AMENDMENT

As terms of office on the Montgomery County Board of Education expire, new members shall be elected to the board for terms of four years.

Section 2. An election upon the proposed amendment shall be held in accordance with Amendment 555 to the Constitution of Alabama of 1901, now appearing as Section 284.01 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, and the election laws of this state.

Section 3. The appropriate election official shall assign a ballot number for the proposed constitutional amendment on the election ballot and shall set forth the following description of the substance or subject matter of the proposed constitutional amendment:

"Relating to Montgomery County, proposing an amendment to the Constitution of Alabama of 1901, to decrease the terms of office for members elected after ratification of this amendment from six to four years.

"Proposed by Act_______"

This description shall be followed by the following language:

"Yes () No ()."

2011 Ala. Acts No. 2011-257, 461, 461-62 (emphasis added).

The text of the amendment stating that the terms are reduced uses different language from the description of the amendment to be placed on the ballot. Regarding the former, "[t]he words 'shall be, ' being in the future tense, point, of course, to future action." In re Strawbridge, 39 Ala. 367, 1864 WL 511, at *5 (1864). Nonetheless, "[c]ourts generally interpet statutes written in the future tense as presently operative where that is clearly the legislative intent." C. Sands, Sutherland Statutory Construction, § 21:10 (7th ed. 2012). Thus, the issue is dependent on whether there is clear legislative intent for present operation.

The context of the amendment indicates that the Legislature did not intend a present operation. This Office has observed that, "[g]enerally, a constitutional amendment will state that such law becomes effective once that law has been ratified by a vote of the people." Opinion to Honorable Claud E. McCoy, Jr., Attorney, Chambers County, dated January 4, 2012, A.G. No. 2012-023 at 3.

For example, an amendment having that effect, albeit without such an explicit statement, is the local constitutional amendment considered in an opinion issued to Honorable Bruce Hamrick, Chairman, Walker County Commission, dated January 26, 1999, A.G. No. 99-00096 (construing section 4 of the Local Amendments for Walker County of the Recompiled Constitution of Alabama). That amendment provided for the removal of appointed members of certain local governmental bodies in Walker County. The Hamrick opinion concluded that any member could be removed from the time the amendment was ratified because there was nothing in the amendment limiting its application to members appointed after the amendment was ratified.

In contrast to the amendment in the Hamrick opinion, the description of the amendment to be placed on the ballot here plainly states that the amendment applies to elections occurring ''after ratification of this amendment, " not "at the same time as and after ratification." The inclusion of this clear language providing for an effective date that is contrary to the common usage of effective-date language in amendments indicates the Legislature's intent that this amendment take effect beginning with the next elections following the November 6, 2012, election. Accordingly, it is the opinion of this Office that the newly elected members of the Board will serve six-year terms, and members subsequently elected will serve four-year terms.

CONCLUSION

Under the amendment proposed by Act 2011-257, members of the Montgomery County Board of Education elected on November 6, 2012, will serve six-year terms, and members subsequently elected will serve four-year terms.

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

Sincerely,

LUTHER STRANGE Attorney General.

BRENDA F. SMITH Chief, Opinions Division.