Alabama Advisory Opinions July 09, 2009: AGO 2009-89 (July 9, 2009)

Alabama Attorney General Opinions

2009.

AGO 2009-89.

Dear Mayor Traffanstedt:

This opinion of the Attorney General is issued in response to your request on behalf of the Town of Collinsville.

QUESTION

Once a petition is filed, can the town council call for a "special option municipal election" and this "special option election" be considered the municipal election next succeeding the date of filing of the petition; or will the election have to be held at the next general municipal election , primary, general, or county-wide election next succeeding the date of the filing of said petition?

FACTS AND ANALYSIS

In your letter of request, you inquire as to whether the language of section 28-2A-1(f), as amended by Act 2009-546, allows for a wet/dry referendum to be included in a special municipal election, called by the municipality, which would occur before the next succeeding primary, general, county-wide, or municipal election. Municipalities with a population of 1000 or more may conduct a wet/dry referendum pursuant to the provisions of section 28-2A-1, et seq., of the Code of Alabama. See, generally, 2009 Ala. Acts No. 2009-546. Section 28-2A-1(c), which establishes the appropriate date and type of election in which a municipality may include a wet/dry referendum states, in pertinent part, as follows:

(c) Said municipal election shall be held and the officers appointed to hold same in the manner provided by law for holding other municipal elections and the returns thereof tabulated and the results certified as provided by law for such municipal elections. Said municipal option election shall be held at the time of the primary, general, county-wide or municipal election next succeeding the date of the filing of said petition , provided, however, said election shall not be held within less than 30 days from the date of the filing of said petition....

Ala. Code §28-2A-1(c) (2003) (emphasis added).

In an opinion to the Honorable Betty Brewer, this Office previously addressed the issue of whether a special election, which would occur before the next election date enumerated by section 28-2A-1(c) of the Code of Alabama, may be set for a wet/dry referendum. Opinion to Honorable Betty Brewer, Cullman County Judge of Probate, dated July 17, 2001, A.G. No. 2001-222. In the Brewer opinion, this Office stated as follows:

Section 28-2A-1(c) provides that the election shall be held at the same time as one of the elections specifically mentioned in the statute. No exceptions to these dates are provided, and no other provision of law allows the city or the county to set a different date or a special date for holding a wet/dry referendum.

Brewer at 2. It is evident from the Brewer opinion, and it is the opinion of this Office, that a county commission or municipal governing body may not call for a special election and have that election considered the election next succeeding the date of the filing of the wet/dry petition. The wet/dry referendum must be held at the same time as one of the elections specifically enumerated in section 28-2A-1(c) of the Code of Alabama.

In your letter of request, you refer to the amended language of section 28-2A-1(f) of the Code of Alabama and ask whether it allows a wet/dry referendum to be included in a special election. Section 28-2A-1(f) of the Code of Alabama states as follows:

Said municipal option election in said municipality may be held at the time of any primary, general, county-wide or municipal election as determined by the county commission or the municipal governing body, as applicable , provided a period of not less than 720 days must elapse between the dates of such municipal option elections; provided further, that a county wet-dry election or special method referendum may be held at any time without regard to the lapse of time between the dates of any county option elections.

2009 Ala. Acts No. 2009-546 (emphasis added). The pertinent portion of the amended language of section 28-2A-1(f), as amended by Act 2009-546, is set out above in bold.

Both subsections (c) and (f) of section 28-2A-1 of the Code of Alabama limit permissible election dates to the primary, general, county-wide, or municipal election dates. In interpreting the amendatory language, subsections (c) and (f) must be read so as to give effect to both sections. It is the opinion of this Office that these subsections, although they do not authorize a county or municipal authority to call a special election, do authorize the county or municipal governing body to determine from among the next succeeding election dates therein listed which specific election date will be used to hold the wet/dry referendum. Therefore, the wet/dry referendum must be held during the primary, general, county-wide, or municipal election next succeeding the date of the filing of the wet/dry petition, as determined by the applicable governing body.

CONCLUSION

A municipal governing body may not call for a special election and have that special election considered the election next succeeding the filing of the wet/dry petition. A municipal wet/dry referendum must be held at the same time as one of the elections enumerated in section 28-2A-1 of the Code of Alabama. Section 28-2A-1(f) of the Code of Alabama does not authorize a municipal governing body to set a special election for a wet/dry referendum. It only allows the municipal governing body to determine which election date next succeeding the filing of the wet/dry petition will be used for holding the wet/dry referendum.

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

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division