Alabama Advisory Opinions November 01, 1995: AGO 96-00024 (November 01, 1995)

Advisory Opinion Text

Honorable Albert O. Howard

Probate Judge

Probate Court of Russell County

P. O. Box 700

Phenix City, AL 36868-0700

Education, Boards of -Elections - Reapportionment -Probate Judges

The matter of the county board of education districts is currently in litigation in federal court, and until such litigation is concluded, the existing court order should be adhered to.

The failure to reapportion county board of education districts does not prevent the probate judge from accepting applications of candidates for the board of education.

Dear Judge Howard:

This opinion is issued in response to your request for an opinion from the Attorney General.

QUESTION 1

Can the probate judge of Russell County accept applications for an at-large seat on the county board of education for the primary election of 1996 when the Code of Alabama 1975, § 16-8-1(a) provides for a board of education of five members, which section was part of a general act of the legislature in 1987, and the present structure of the Russell County Board of Education is compliant with a local act providing for six single-member districts and one at-large member?

FACTS, LAW AND ANALYSIS

Code of Alabama 1975, § 16-8-1 provides regarding the composition of county boards of education:

"(a) The county board of education shall be composed of five members, who shall be elected by the qualified electors of the county.

"(b) County boards of education unless otherwise provided by law may use the provisions of this subsection to establish single member election districts with one board member elected from each district. School boards exercising this option may establish five or seven such districts. Such plan shall be considered only after two weeks public notice has been given, outlining generally the school districts under consideration. The members so elected must be residents of the district in which election is sought. Such residency shall have been established at least one year before the general election at which the candidate is to be elected. The boundaries of such single member districts shall be determined by a majority vote of the county board of education. The county board of education shall apportion the districts according to the last federal decennial census for the county utilizing the principle of equal representation. Thereafter, each county board of education choosing to implement single member election districts shall reapportion those districts within six months following the publication of the results of each federal decennial census."

Act No. 82-322, Acts of Alabama 1982, p. 434 provided for districts and election of members of the Russell County Board of Education. It states in pertinent part:

"Section 1. The Russell County board of education shall be composed of seven members elected as follows:

"One member shall be elected from each of the board of education districts hereinafter described and shall be a qualified elector thereof, and shall reside in said district. Members representing the six districts shall be elected by the qualified electors residing in each of said districts, and no others shall be allowed to vote in such elections.

"One member shall be elected from the county at large and shall be elected by the qualified electors of the county who reside outside the corporate limits of Phenix City."

Furthermore, it has come to the attention of this office that the matter of Russell County School Board districts is now in litigation in the United States District Court for the Middle District of Alabama, Eastern Division, in the case of Anthony T. Lee, et al. v. Russell County Board of Education, et al. , Civil Action No. 848-E.

We suggest you have the county attorney review the court order and advise you concerning applications for an at-large seat on the board of education.

CONCLUSION

The matter of the county board of education districts is currently in litigation in federal court which will make a determination regarding the validity of such districts. Until this litigation is concluded, the existing court order should be adhered to.

QUESTION 2

Can the probate judge accept applications from candidates for offices which are supposed to be reapportioned after each decennial census and no reapportionment has been done since the 1980 census or earlier when reapportionment was proper?

FACTS, LAW AND ANALYSIS

It is the duty of the probate judge to prepare the ballots for an election. The ballot-certifying official and the courts make the final determination as to the names of candidates to be included on the ballot. It is true that the law requires reapportionment of the districts after the last federal decennial census, but failure to reapportion does not prevent the probate judge from accepting applications of candidates and having ballots printed.

CONCLUSION

The failure to reapportion county board of education districts does not prevent the probate judge from accepting applications of candidates for the board of education.

QUESTION 3

Does the probate judge have any responsibility as an election official or otherwise to require the county board of education, the county commission, or other body of local government to adhere to and comply with the apportionment of political offices?

FACTS, ANALYSIS AND CONCLUSION

The county board of education, the county commission and other bodies of local government have the responsibility to comply with laws and court orders concerning the apportionment of districts for political offices. The probate judge must perform the duties of his office regarding the printing of ballots although the required reapportionment is not done. It would be appropriate for the probate judge to remind the board of education of this responsibility, but the probate judge has no statutory responsibility in this regard.

I hope this sufficiently answers your questions. If our office can be of further assistance, please contact James R. Solomon, Jr., of my staff.

Sincerely,

JEFF SESSIONS Attorney General

JAMES R. SOLOMON, JR. chief, Opinions Division