Clay Cnty. Animal Shelter, Inc. v. Clay Cnty. Comm'n

341 So.3d 1052

CLAY COUNTY ANIMAL SHELTER, INC.

v.CLAY COUNTY COMMISSION et al.

1190947

Supreme Court of Alabama.

May 28, 2021

Andrew C. Clausen, Oxford, for appellant.

Spencer P. Waddell and Gregory M. Varner of Gregory Varner & Associates, Ashland, for appellee Clay County Commission.

Steve Marshall, att'y gen., and Edmund G. LaCour, Jr., solicitor gen., and A. Barrett Bowdre, deputy solicitor gen., for amicus curiae State of Alabama, in support of the appellant.

James L. Entrekin, Jr., gen. counsel, and Caleb M. Hindman, legislative att'y, Legislative Services Agency; and Othni J. Lathram, secretary, Legislative Council, for amicus curiae Senator Jimmy Holley, chair of the Legislative Council of the Legislature of Alabama, in support of the appellant.

STEWART, Justice.¹

Clay County Animal Shelter, Inc. ("the animal shelter"), appeals from a judgment entered by the Clay Circuit Court ("the trial court") declaring Act No. 2018-432, Ala. Acts 2018, to be unconstitutional. The parties to this appeal have previously been before this Court in a related appeal. See Clay Cnty. Comm'n v. Clay Cnty. Animal Shelter, Inc., 283 So. 3d 1218 (Ala. 2019) (" Clay County").

Facts and Procedural History

The animal shelter is a nonprofit organization that provides food, water, medical care, spay and neutering services, and adoption services for stray and abandoned animals in Clay County. The animal shelter is a "no-kill" shelter where the animals are humanely cared for until adopted or transferred to other shelters for eventual adoption. Most of the people working at the animal shelter are unpaid volunteers. The animal shelter incurs numerous expenses associated with operating the shelter and caring for the animals. The legislature has sought to provide funding to the animal shelter with proceeds from the tobacco tax authorized in Clay County pursuant to § 45-14-244, Ala. Code 1975 (Local Laws, Clay County).

This Court set forth the following in Clay County:

"In March 2017, the legislature enacted Act No. 2017-65, Ala. Acts 2017, which provides, in pertinent part:

" ‘Section 1. This act shall apply only in Clay County.

" ‘Section 2. (a) The proceeds from the tobacco tax authorized in Clay County pursuant to Section 45-14-244 of the Code of Alabama 1975, and as further provided for in Sections 45-14-244.01 to 45-14-244.03, inclusive, and Section 45-14-244.06 of the Code of Alabama 1975, less two percent of the actual cost of collection, which shall be retained by the Department of Revenue, shall be distributed to the Clay County General Fund to be expended as follows:

" ‘....

" ‘(3) Eighteen percent to the Clay County Animal Shelter. The Clay County Animal Shelter shall annually report to the county commission regarding the expenditure of the funds in the preceding year.

" ‘....

" ‘Section 4. This act shall become effective on October 1, 2017.’

"In July 2017, the [Clay] [C]ounty [C]ommission and three individuals (hereinafter referred to collectively as ‘the plaintiffs’) initiated an action in the trial court against the animal shelter and certain state officials. In their complaint, the plaintiffs sought injunctive relief and a judgment, pursuant to § 6-6-220 et seq., Ala. Code 1975, declaring that part of Act No. 2017-65 directing an expenditure of a portion of Clay County's tobacco-tax proceeds to the animal shelter to be unconstitutional.

"The plaintiffs asserted that Act No. 2017-65 was improperly enacted without a sufficient number of legislative votes in violation of Article IV, § 73, Ala. Const. 1901, which provides:

" ‘No appropriation shall be made to any charitable or educational institution not under the absolute control of the state, other than normal schools established by law for the professional training of teachers for the public schools of the state, except by a vote of two-thirds of all the members elected to each house.’

"The plaintiffs also filed a motion seeking a preliminary injunction to temporarily restrain distribution of Clay County's tobacco-tax receipts to the animal shelter. The animal shelter moved to dismiss the plaintiffs' complaint.

"The trial court conducted a hearing regarding the county commission's motion for a preliminary injunction. On October 26, 2017, the trial court entered an order requiring the portion of Clay County's tobacco-tax receipts that would be distributed to the Clay County General Fund to be disbursed as an expenditure to the animal shelter under Act No. 2017-65 to be paid into the trial-court clerk's office and held in an escrow account pending the entry of a final judgment. On January 16, 2018, the trial court conducted a bench trial, at which only documentary evidence was admitted.

"At the trial, the county commission argued that Act No. 2017-65 appropriated public funds to the animal shelter and that, because the animal shelter is a charitable organization not under the absolute control of the state, the appropriation was subject to the requirements of § 73, instead of the ordinary requirements for the passage of bills by the legislature. As noted above, § 73 requires that applicable appropriations be approved ‘by a vote of two-thirds of all the members elected to each house.’ It was undisputed that Act No. 2017-65 did not receive the vote of two-thirds of all the members elected to each house. The county commission argued that portion of Act No. 2017-65 purporting to distribute funds to the Clay County General Fund to be disbursed to the animal shelter is, therefore, unconstitutional.

"In March 2018, the legislature enacted Act No. 2018-432, Ala. Acts 2018, ‘to amend Section 2 of Act 2017-65 of the 2017 Regular Session, now appearing as Section 45-14-244.07 of the Code of Alabama 1975, to further provide for the distribution of the local tobacco tax; and to provide for retroactive effect.’² In relevant part, Act No. 2018-432 purports to amend § 45-14-244.07 to increase the share of Clay County's tobacco-tax revenue to be distributed to the Clay County General Fund to be disbursed to the animal shelter from 18% to 20%.

"On April 13, 2018, the trial court entered a final judgment declaring that the county commission had failed to meet its burden of proving that the challenged portion of Act No. 2017-65 is unconstitutional. The trial court also ordered ‘that the distribution of the proceeds from the tobacco tax authorized in Clay County be immediately distributed in accordance with Act [No.] 2017-65, or any law superseding or replacing said Act.’ The plaintiffs filed a motion to stay execution of the trial court's judgment, asserting, among other things:

" ‘[The p]laintiffs note [that] the Court's judgment directs the county to "immediately distribute [the tobacco-tax proceeds] in accordance with Act [No.] 2017-65, or any law super[s]eding or replacing said Act." (emphasis added). Although not expressly stated, the Court's inclusion of "any law super[s]eding or replacing said Act" appears to refer to ... Act [No.] 2018-432 ... which purports to provide retroactive appropriations to the [a]nimal [s]helter from the County's tobacco tax receipts.

" ‘....

" ‘11. [The county commission] will seek a declaratory judgment that [Act No. 2018-432] is void, invalid, and unconstitutional ... and therefore, [the county commission's] appeal of the judgment in the instant case will be determinative of whether the funds held in escrow are due to be released to the [a]nimal [s]helter.’

"The trial court conducted a hearing regarding the plaintiffs' motion and entered an order providing as follows:

" ‘[The p]laintiffs' motion to stay the implementation of Act [No.] 2018-432, pending a hearing on the merits of [the county commission's] challenge to said Act is GRANTED.

" ‘[The p]laintiffs' request to stay the implementation of Act [No.] 2017-65 is DENIED.’ "

283 So. 3d at 1220-22 (footnotes omitted).

On appeal in Clay County, the Clay County Commission ("the county commission") argued that the trial court had erred in determining that it had failed to meet its burden of proving that the provision of Act No. 2017-65 directing that a portion of Clay County's tobacco-tax proceeds be distributed to the Clay County General Fund to be disbursed to the animal shelter had received a sufficient number of legislative votes to become law. Specifically, the county commission argued that the portion of Act No. 2017-65 directing that a portion of Clay County's tobacco-tax proceeds be disbursed to the animal shelter was an appropriation of funds by the legislature without a two-thirds vote of all the members elected to each house and, therefore, violated Article IV, § 73, Ala. Const. 1901 (Off. Recomp.). This Court agreed, holding:

"Legislative appropriations must comply with the requirements of the Alabama Constitution, including § 73. The plain meaning of the language in Act No. 2017-65 provides for an appropriation to the animal shelter of 18% of Clay County's tobacco-tax proceeds. The animal shelter does not dispute that it is a ‘charitable or educational institution not under the absolute control of the state’ within the meaning of § 73, nor does it argue that an appropriation to it would be exempt from the voting requirements of § 73. Thus, the legislature's appropriation to the animal shelter had to receive ‘a vote of two-thirds of all the members elected to each house’ to comply with § 73. It did not. That part of Act No. 2017-65 appropriating 18% of Clay County's tobacco-tax proceeds, i.e., Section 2(a)(3), is, therefore, unconstitutional."

Clay County, 283 So. 3d at 1234-35. This Court reversed the trial court's judgment and remanded the cause for further proceedings.

As mentioned in Clay County, in March 2018 the legislature enacted Act No. 2018-432, Ala. Acts 2018, to amend Section 2 of Act No. 2017-65. Act No. 2018-432 provides:

"ENROLLED, An Act,

"Relating to Clay County; to amend Section 2 of Act 2017-65 of the 2017 Regular Session, now appearing as Section 45-14-244.07 of the Code of Alabama 1975, to further

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