Brian Lyman

Montgomery Advertiser

It threatens fire department funding. Court funding. Hospital construction.

And beer.

Moving parallel last week to the contentious lottery fight in the Alabama Legislature last week was a lower-profile struggle to save hundreds of local laws, imperiled by the way the approval process used for decades in the Alabama House of Representatives.

The Association of County Commissions of Alabama (ACCA), which pushed for the legislation, estimates that at least 477 local laws would be at risk of lawsuits if the issue was not addressed.

In the River Region, the problem would hit Autauga and Elmore Counties particularly hard, affecting laws on funding for fire departments, court costs and a host of local alcohol laws, including the 2013 bill that allowed Prattville to sell draft beer.

Sonny Brasfield, the executive director of the ACCA, said hundreds more local laws could also be affected.

“It would not automatically invalidate those laws,” he said. “But if you can figure out how to get to work this morning, you can figure out if the court works this way, those laws are going to be immediately challenged.”

The Legislature ended up passing a constitutional amendment Friday aimed at addressing the problem. But it took a court order from Montgomery Circuit Court Judge William Shashy late Friday afternoon to get the bill on the November ballot.

“If you don’t do it in November, I think the next time you could do it would be certain municipal elections next summer, and that would be a stretch,” said Sen. Cam Ward, R-Alabaster, the bill’s sponsor.

The problem lies in a procedural motion known as a budget isolation resolution, or BIR. Under a constitutional amendment that went into effect in 1984, the Legislature must make passage of the state’s two budgets “paramount,” and cannot consider any other piece of legislation without a BIR until after passage of the budgets. According to the amendment, a BIR requires the “three-fifths of a quorum” of members present.

The budgets are lengthy documents involving complicated negotiations that rarely pass until late in a legislative session. In practice, almost every piece of legislation must win BIR approval before winning general approval. For decades, the House has been operating under a rule saying that a BIR needs passage by “three-fifths of members voting and present.”

The difference between the amendment and the House rule played a key role in a lawsuit brought last year to stop a law allow a sales tax intended to pay for school construction in Jefferson County to other items. Opponents argued that the BIR on the bill – which passed with 13 yeas, 3 nays and 35 abstentions – fell short of the 32 votes needed if a quorum of 53 members was present. Supporters said that the House rule only required 16 members to be present and that the 13 votes were enough to get the BIR through.

Jefferson County Circuit Judge Michael Graffeo ruled last December that the Constitution’s stricter language controlled the issue and that since the sales tax bill passed without three-fifths of a quorum of members present, the law was invalid.

“Therefore, a budget isolation resolution ... was never adopted, and the bill was prohibited from ‘proceeding to final passage’ or being ‘signed by the presiding officer of each House,’” Graffeo wrote.

The House rule on BIR passage remains on the books. Graffeo's decision is on appeal, but those interested in the fate of those local laws did not want to take any chances.

“I believe the courts were going to rule against us on the BIR issue,” Ward said last week. “Had they done that while we passed on a special session, we would be in a catastrophe.”

The amendment approved by the Legislature last week – which will require approval from the state’s voters in the fall – would keep valid any laws passed before Nov. 8 “that conformed to the rules of either body of the Legislature.”

Should the amendment fail, Brasfield said two things could happen.

“Local government grinds to a halt,” he said. “That’s one option. The other option is you try to repass 650 local laws, which would cost the taxpayers millions of dollars in advertising costs alone.”

The legislation received final passage on Friday, but, like the lottery bill, got caught up in a fight over the deadline to get amendments on the fall ballot. Secretary of State John Merrill argued last week that legislation had to pass by Aug. 24, the 76th day before the election, to make it on the ballot. Legislators argued that the deadline was the 74th day before the election, last Friday.

Following a request from the Chilton County Health Care Authority – concerned that a local sales tax for hospital construction might face legal action – Montgomery County Circuit Judge William Shashy Friday afternoon ordered the Secretary of State’s office to place the amendment on the November ballot. Merrill said Monday he followed the order and placed the amendment on the November ballot, but said his opinion on the deadline had not changed.

“Either one of two things have to happen,” he said. “You change the law to 74 days, or you’re going to have to have an officer of the court, or a judge at the circuit level or a Supreme Court justice grant an order.”

Local laws affected

Some of the statues in the River Region affected by the BIR situation:

Autauga

Distribution of court costs for juvenile court services (1998)

Gasoline and motor fuel tax (1999)

Distribution of courts costs for jail, courthouse construction (1999)

Prattville City Council allowed to authorize sale of draft beer (2013)

Elmore

Fire protection fees to be distributed to municipal fire departments under certain conditions (2003)

County commission may regulate and license junkyards (2003)

Referendum on Millbrook annexation (2005)

Wetumpka annexations (2012)

Referendum on Sunday alcohol sales in Tallassee (2014)

Montgomery

County Commission appoints two additional members to industrial development board (2012)

Process fees increased to support county budget, civil court clerk (2015)

Source: Association of County Commissions of Alabama