Alabama Advisory Opinions May 07, 2008: AGO 2008-77 (May 7, 2008)

Alabama Attorney General Opinions

2008.

AGO 2008-77.

Dear Judge Junkins:

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

QUESTION

May the Etowah County Judge of Probate receive $.05 cents per name to prepare the list of qualified electors required to be furnished to the election inspectors for the 2008 presidential pre-ference primary?

FACTS AND ANALYSIS

Etowah County Local Act 79-354 provides compensation to the Judge of Probate for the preparation of the list of qualified electors that he or she is required to furnish the election inspectors. This local act provides compensation at the rate of $.05 per name, in lieu of the same amount provided by the general law in section 17-3-60 of the Code of Alabama. Section 17-13-100, however, precludes judges of probate from receiving $.05 per name, awarded under section 17-3-60, during a presi-dential preference primary election. Ala. Code § 17-13-100(d) (Supp. 2007). You ask whether, notwithstanding section 17-13-100 of the Code, Local Act 79-354 authorizes the Etowah County Judge of Probate to receive $.05 per name for preparing the list of qualified electors he was required to furnish to the election inspectors prior to the 2008 presidential preference primary election.

Section 7 of the local amendments for Etowah County pertains to salaries of certain Etowah County officials. This constitutional amend-ment provides as follows:

The legislature of Alabama may hereafter, from time to time by general or local laws, fix, regulate, and alter the fees, commissions, allowances and salaries, including the method or basis of their compensation, to be charged or received by tax assessors, tax collectors, probate judges, circuit clerks, sheriffs, and registers of the chancery courts, including the right to place any one or all said officers on a salary and pro-vide for the fees, allowances or compensation collected by said officers to be paid into the trea-sury from which their salaries are paid in the following named county: Etowah. . . .

Ala. Const. Local Amends., Etowah County § 7 (amend. 62) (emphasis added). This local amendment authorizes the Legislature to regulate and alter the compensation of probate judges in Etowah County.

Pursuant to this authority, the Legislature enacted Act 79-354, which relates to the duties and compensation of the judge of probate in Etowah County. This act states as follows:

Section 1. The judge of probate of Etowah County shall complete and properly prepare the lists of qualified electors required to be furnished to the election inspectors. For such service, the judge of probate shall be paid an amount equal to the amount obtained by multiplying the number of names on said lists by an amount not to exceed five cents ($.05) each . The judge of probate shall from the proceeds of this allowance pay the costs and expenses of preparing said lists. The expenses due under the provisions of this act shall be paid by the county commission by warrants drawn on the county treasury upon certificate of the pro-bate judge.

Section 2. All laws or parts of laws which conflict with this act are hereby repealed

Section 3. The provisions of this act are severable. If any part of the act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.

Section 4. The payments provided by this act are in lieu of any payments authorized by Section 17-4-25 of the Code of Alabama 1975.

Section 5. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

1979 Ala. Acts No. 79-354, 566, 566-67 (emphasis added). This local act requires the Probate Judge of Etowah County to prepare the lists of quali-fied electors and furnish them to the election inspectors. The act calls for the Judge of Probate to be paid "an amount equal to the amount obtained by multiplying the number of names on said lists by an amount not to exceed five cents ($.05) each." Id. The act specifically states that the payments provided by this act are "in lieu of any payments authorized by Section 17-4-25 of the Code of Alabama 1975." Id . Section 17-4-25 of the Code became section 17-3-60 with the passage of Act 2006-570. Therefore, the payments provided by Act 79-354 are in lieu of any pay-ments authorized by section 17-3-60 of the Code.

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. It also requires judges of probate to prepare and furnish a certified copy of the list of qualified electors to the election inspectors and calls for judges of probate to receive up to $.05 cents per name on the lists.

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

(d) The State of Alabama shall reimburse a county for all sums expended in holding and con-ducting 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 pro-visions of Section 17-3-60.

Ala. Code § 17-13-100 (Supp. 2007) (emphasis added). This section pro-hibits payments to the judges of probate "under the provisions of section 17-3-60" for their duties associated with the presidential preference pri-mary. As noted above, section 17-3-60 is the general law that provides probate judges up to $.05 cents per name on the list of registered voters. Thus, judges of probate are not entitled to the $.05 cents per name pro-vided by section 17-3-60 for the names of qualified electors provided to the election officials prior to the presidential preference primary. Judges of probate are still required to prepare the list of qualified electors to election officials for the presidential preference primary, but they are prohibited from receiving compensation under section 17-3-60 for this particular election.

Validly enacted legislation, including constitutional amendments proposed by the Legislature, is presumed to be valid until declared other-wise by a court of law. Opinion to Honorable McDowell Lee, Secretary of the Senate, dated April 19, 1994, A.G. No. 94-00128 at 2. It is the duty of courts to sustain the constitutionality of a legislative act unless it is clear beyond a reasonable doubt that it is in violation of the funda-mental law. McInnish v. Riley , 925 So. 2d 174, 178 (Ala. 2005); Ala. State Fed'n of Labor v. McAdory , 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944). As discussed above, the Probate Judge of Etowah County is paid by Act 79-354 "in lieu of" any payments authorized by section 17-3-60 of the Code. Because the Probate Judge of Etowah County is not paid "under the provisions of section 17-3-60," but is paid pursuant to local Act 79-354, the language in section 17-13-100 does not affect his or her compensation. It is therefore the opinion of this Office that subsection (d) of section 17-13-100 does not preclude the Etowah County Judge of Probate from receiving compensation pursuant to Act 79-354. The Etowah County Judge of Probate is entitled to receive up to $.05 cents per name to pre-pare the list of qualified electors required to be furnished to the election inspectors for the 2008 presidential preference primary election.

CONCLUSION

The 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.

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

Sincerely,

TROY KING

Attorney General

By:

BRENDA F. SMITH

Chief, Opinions Division

TK/NB

396166/118333