Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
OPINION OF THE JUSTICES.
Members of the House of RepresentativesAlabama State HouseMontgomery, Alabama 36130
Dear Representatives:
I have received the House of Representatives' request for the opinion of the Justices of the Supreme Court as to whether the constitutional amendment proposed by House Bill 434, if ratified, would violate the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment to the United States Constitution. After clarifying the nature and scope of advisory opinions of the Alabama Supreme Court, I answer the question in part below.
I. The Nature of an Advisory Opinion
Under Alabama law, the Governor or the legislature may petition the Justices of the Alabama Supreme Court for a written opinion on important constitutional questions:
“The Governor, by a request in writing, or either house of the Legislature, by a resolution of such house, may obtain a written opinion of the justices of the Supreme Court of Alabama or a majority thereof on important constitutional questions.”
§ 12-2-10, Ala.Code 1975. These advisory opinions express the individual views of the Justices of the Court rather than the view of the Court itself-even where every member of the Court has joined in a single advisory opinion. Thus, advisory opinions do not bind those who request them, and their precedential authority is merely persuasive.
Nevertheless, an advisory opinion may still be very useful as an indicator of how the Court is likely to rule in a case before it in which the same issues are raised. Consequently, I am inclined to answer a question posed by a request by the Governor or the legislature for an advisory opinion on an important constitutional question, even when, as in this case, the advisory opinion must be incomplete because of limited information made available with the request.
II. The Legislature's Request
If ratified as a local constitutional amendment,1 House Bill 434 would provide that real property in Escambia County be subject to reappraisals for tax purposes at most once every four years. The bill makes no reference to the other counties of the State, which, at the time of this advisory opinion, are in the process of converting to some form of annual tax reappraisal from the previous method of tax appraisals every four years following a 2003 directive from the Alabama Department of Revenue.2
Consequently, unless the Department of Revenue reverses its directive, an event not precluded under Alabama law, or the legislature passes a general law requiring the Department of Revenue to restore the quadrennial tax appraisals statewide, the ratification of the constitutional amendment proposed by House Bill 434 would result in the residents of one county, Escambia, facing property-tax reappraisals every four years while the residents of every other Alabama county face tax reappraisals every year.
Concerned that the resulting disparity of the frequency in appraisals might be unconstitutional, the House of Representatives has asked the Justices of this Court for an advisory opinion, posing the following question:
“If ratified, would the constitutional provision violate the equal protection or due process clause of the 14th Amendment to the Constitution of the United States?”
Because the question addresses the constitutional import of disparate treatment between one county and the rest of the State, the question does not involve purely a local matter. Moreover, this subject matter is capable of repetition in other proposed local constitutional amendments. Accordingly, my response follows.
III. The Answer to the Legislature
The Founding Fathers believed that human rights were God-given and inalienable but also frequently usurped by civil government. To help protect against such usurpation, the Founders enumerated some of these rights in the first 10 amendments to the Constitution and later in subsequent amendments. Among the later amendments was the Fourteenth, which states, in relevant part:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
(Emphasis supplied.)
A. The Due Process Clause
Because the legislature's question regarding possible infringement of the Due Process Clause of the Fourteenth Amendment to the United States Constitution can be answered more easily than its question regarding the Equal Protection Clause, I will respond to it first and then address the possible infringement of the Equal Protection Clause.
The Justices of the Alabama Supreme Court have previously issued advisory opinions on the constitutionality under the Due Process Clause of the Fourteenth Amendment of a variety of proposed bills. See, e.g., Opinion of the Justices No. 32, 230 Ala. 543, 162 So. 123 (1935); Opinion of the Justices No. 96, 252 Ala. 351, 40 So.2d 849 (1949); Opinion of the Justices No. 102, 252 Ala. 527, 41 So.2d 775 (1949); Opinion of the Justices No. 106, 252 Ala. 559, 42 So.2d 56 (1949); Opinion of the Justices No. 155, 264 Ala. 452, 88 So.2d 778 (1956); Opinion of the Justices No. 168, 270 Ala. 42, 115 So.2d 475 (1959); Opinion of the Justices No. 181, 277 Ala. 630, 173 So.2d 793 (1965); Opinion of the Justices No. 204, 287 Ala. 331, 251 So.2d 749 (1971); Opinion of the Justices No. 215, 294 Ala. 555, 319 So.2d 682 (1975); Opinion of the Justices No. 216, 294 Ala. 571, 319 So.2d 699 (1975); Opinion of the Justices No. 222, 333 So.2d 125 (Ala.1976); Opinion of the Justices No. 238, 345 So.2d 1354 (Ala.1977); and Opinion of the Justices No. 262, 373 So.2d 293 (Ala.1979).
As currently drafted, the proposed local constitutional amendment does not deprive any person of life. Nor does it deprive any person of liberty. Provided the proposed amendment is duly ratified according to the Alabama Constitution, it also does not deprive any person of property without due process of law. Accordingly, I conclude the proposed constitutional amendment does not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.3
B. The Equal Protection Clause
The Justices of the Alabama Supreme Court have also previously issued advisory opinions on the constitutionality under the Equal Protection Clause of the Fourteenth Amendment of proposed bills on a variety of topics. See, e.g., Opinion of the Justices No. 106, 252 Ala. 559, 42 So.2d 56 (1949); Opinion of the Justices No. 138, 262 Ala. 345, 81 So.2d 277 (1955); Opinion of the Justices No. 181, 277 Ala. 630, 173 So.2d 793 (1965); Opinion of the Justices No. 184, 278 Ala. 412, 178 So.2d 641 (1965); Opinion of the Justices No. 278, 403 So.2d 197 (Ala.1981); Opinion of the Justices No. 293, 410 So.2d 60 (Ala.1982); and Opinion of the Justices No. 314, 468 So.2d 883 (Ala.1985).
Consequently, there is no general prohibition against issuing a similar advisory opinion in this instance as well. Before responding to the equal-protection question directly, however, I will supply some historical legal context for the current property-appraisal and property-tax system in Alabama.
Alabama changed its property-tax system after a three-judge panel in Weissinger v. Boswell, 330 F.Supp. 615 (M.D.Ala.1971), held that Alabama's then existing property-tax system was unconstitutional. Amendment No. 325, proposed by Act No. 116, Ala. Acts 1971 (3d Spec. Sess.), and proclaimed ratified on June 8, 1972, and now appearing as § 217, Ala. Const. 1901 (Recomp.), establishes different classes of property for property-tax purposes. The property-classification system promulgated by Amendment No. 325 was upheld in Weissinger v. White, 733 F.2d 802 (11th Cir.1984). Act No. 160, Ala. Acts 1971 (3d Spec. Sess.), codified as Ala.Code 1975, § 40-7-60 et seq., established a system for statewide property reappraisal.4
Alabama's constitutional provisions on property taxes also already allow for some variation among counties. § 217, Ala. Const. 1901 (Recomp.) (Amendments No. 325 and No. 373). For example, § 217(c) authorizes counties and municipalities to increase or decrease the assessment ratio applicable to any class of property. “Such assessment ratios as herein authorized may vary among taxing authorities so long as each such assessment ratio is uniform within a taxing authority.”
In addition, § 217(i) exempts the municipalities of Mountain Brook, Vestavia Hills, and Huntsville from the caps imposed on the ad valorem taxes as a percentage of “the fair and reasonable market value of such taxable property in any one ad valorem tax year․” Furthermore, § 217(l ) authorizes counties to impose a one-time “additional ad valorem tax of not more than two mills on all taxable property located in the taxing authority in order to reimburse itself for its payment of such costs of reappraisal․”
It is clear from each of these examples that Alabama's property-tax system does not mandate uniformity. Instead, it allows for variation based on local needs and circumstances.
Similarly, the United States Supreme Court has recognized that property appraisals need not be uniform or be kept precisely current at a given time:
“Just as [the Equal Protection] Clause tolerates occasional errors of state law or mistakes in judgment when valuing property for tax purposes, it does not require immediate general adjustment on the basis of the latest market developments. In each case, the constitutional requirement is the seasonable attainment of a rough equality in tax treatment of similarly situated property owners.”
Allegheny Pittsburgh Coal Co. v. County Comm'n of Webster County, West Virginia, 488 U.S. 336, 343-44, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989)(internal citations omitted)(emphasis added). Although there should be uniformity in treatment within a taxing authority, § 211, Ala. Const. 1901 (Recomp.), there is some room for differences between separate taxing authorities:
“[Although] distinctions based on geographical areas are not, in and of themselves, violative of the Fourteenth Amendment, Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954), a state must demonstrate, if it wishes to establish different classes of property based upon different geographical localities-e.g., rural areas as opposed to urban areas-that the classification is neither capricious nor arbitrary but rests upon some reasonable consideration of difference or policy. State Board of Tax Comm'rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S.Ct. 540, 75 L.Ed. 1248 (1931).”
Weissinger, 330 F.Supp. at 623-24. However, according to the United States Supreme Court, there must be a rational basis for any such differences between taxing authorities:
“The appropriate standard of review is whether the difference in treatment ․ rationally furthers a legitimate state interest. In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. This standard is especially deferential in the context of classifications made by complex tax laws. ‘[I]n structuring internal taxation schemes “the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.” ’ ”
Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (citations omitted).
The above examples and standards may be applied to the proposed constitutional amendment. And, because the “rational basis” standard is usually not a difficult one for a civil government authority to meet, I have little doubt that a rational basis could be established for the proposed constitutional amendment. But “could be established” and “are established” are clearly not the same, and I agree with my fellow Justices, who today are responding separately to the request for an advisory opinion, that, because we are limited to the documents supplied to us by the legislature in its request for an advisory opinion, “there are no facts before us elaborating on the governmental purpose to be served,” 925 So.2d at 197, by returning to quadrennial tax appraisals in Escambia County alone. We are not told anything about the cost to implement an annual reappraisal program in Escambia County, the rate of the growth of property values in Escambia County, distinct land-use patterns, the projected net effects of the implementation of such a program, or any of the many other conceivable bases for this local constitutional amendment.
“To be sure, the Equal Protection Clause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification. United States Railroad Retirement Bd. v. Fritz, 449 U.S. [166], at 179 [ (1980) ]. See also McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 809 (1969) (legitimate state purpose may be ascertained even when the legislative or administrative history is silent). Nevertheless, this Court's review does require that a purpose may conceivably or ‘may reasonably have been the purpose and policy’ of the relevant governmental decisionmaker.”
Nordlinger v. Hahn, 505 U.S. at 15. But without such information-ordinarily supplied to the Court as the result of a trial below, with witnesses, or by briefs-there is no information before us to demonstrate the rational basis of the proposed constitutional amendment. Therefore, like the other Justices in their separate response to the legislature's request for an advisory opinion, I am ultimately unable to answer the legislature's question regarding the Equal Protection Clause.
IV. Conclusion
The proposed legislation does not violate the Due Process Clause of the Fourteenth Amendment. It may also not violate the Equal Protection Clause of the Fourteenth Amendment, but the legislature has not supplied sufficient facts for a full review of that question.
QUESTION ANSWERED IN PART; DECLINED IN PART.
Respectfully submitted,
/s/ Tom Parker
Tom Parker
Associate Justice
FOOTNOTES
1. Ala. Const. 1901, § 284.01 (Recomp.) (Amend. No. 425 and Amend. No. 555).
2. Under Alabama law, the Department of Revenue is authorized to “prescribe for the counties the procedures to be followed” and the “standards to be met” for property appraisals. § 40-7-63, Ala.Code 1975. For their part, the counties are required to follow the standards established by the Department of Revenue in appraising property according to its “fair and reasonable market value.” § 40-7-62, Ala.Code 1975. Before the 2003 directive requiring annual reappraisals, the practice in nearly every county was to appraise property for tax purposes only once every four years.
3. I recognize that various glosses have been applied to justify more elaborate interpretations of the Due Process Clause. However, I do not consider them to have any application here and thus see no reason to discuss them.
4. Even under the statewide system established by the Department of Revenue pursuant to Act No. 160, there were some differences among counties on the frequency of property reappraisals. For example, Montgomery County began annual reappraisals before the Alabama Department of Revenue's 2003 directive requiring all counties to transition to annual reappraisals over the course of five years.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: No. 383.
Decided: February 16, 2006
Court: Supreme Court of Alabama.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)