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OPINION OF THE JUSTICES
Dear Governor Ivey:
We have received your letter of August 23, 2019, requesting an advisory opinion concerning certain questions related to responding to the need to modernize Alabama's prison system. As discussed below, we must respectfully decline to answer your questions.
To state the situation you present succinctly, there is an essential need to modernize prisons in Alabama, and a plan has been proposed for entering into build-to-suit-prison lease agreements with one or more private developers, which would construct three new prison facilities to be managed by the Alabama Department of Corrections (“ADOC”). ADOC would lease those facilities from the developers, and substantial cost savings would result from decommissioning old prisons and consolidating the inmate population into fewer, more advanced facilities.
You indicate that it is assumed that the prisons will be built on land owned by the private developers. ADOC already owns unimproved lands that may be suitable for one or more of the new prison sites, and you have asked whether ADOC could donate this land for use in constructing the new prisons. According to your letter, “ADOC believes that its rent payments could be lower if State-owned land could be donated for this purpose.”
The Land Sales Act, found in Article 3, Chapter 15, Title 9, Code of Alabama 1975 (“the Act”), generally requires that sales of state-owned land must be made by free and open competitive auction or sealed bids to the highest bidder. Ala. Code 1975, § 9-15-71. This restriction, however, does not apply to a sale or lease of property by the State to a county. Ala. Code 1975, § 9-15-82(b). However, the Act provides that the “sale or lease” by the State to the county is “subject to the condition that such property or any interest therein is not ․ transferred ․, within three years, to any private person, firm, or corporation without compliance with the provisions of this article.” Id.
You further note that Ala. Const. 1901, art. IV, § 94.01(a), provides the governing body of a county “full and continuing power” to, for certain qualifying purposes and under certain circumstances, convey property “to any individual, firm, corporation, or other business entity, public or private, ․ for the purpose of constructing, developing, equipping, and operating industrial, commercial, research, or service facilities of any kind.” Given a county's ability to transfer property to a private entity under this provision, the issue presented is whether the three-year “condition” in § 9-15-82(b) would bind a county that received the ADOC property or whether that condition is unconstitutional under § 94.01. In your first question, you state the issue as follows: “[D]oes Section 94.01 ․ supersede the Land Sales Act insofar as that Act purports to restrict a county's donation of formerly State-owned land to a private firm for one of Section 94.01's qualifying purposes?”
It appears to us that the Act mirrors the dictates of Ala. Const. 1901, art. IV, § 99. That provision states:
“Lands belonging to or under the control of the state shall never be donated, directly or indirectly, to private corporations, associations, or individuals, or railroad companies; nor shall such lands be sold to corporations or associations for a less price than that for which they are subject to sale to individuals ․”
By requiring competitive auction or bidding in a sale of State land, § 9-15-71 of the Act ensures that land is not “donated” to private entities or sold to corporations or associations for a price less than the price that would be available in a sale to an individual. But the Act, like § 99, does not prohibit the donation or sale of land to a county.1 The requirement in § 9-15-82(b) that property transferred to a county be “subject to the condition that such property” not be transferred to a private party within three years without compliance with the Act also appears to agree with the prohibition in § 99 on the State's “indirectly” donating land to private entities or selling land to corporations or associations, through a county, for a price less than the price that would be available in a sale to an individual.
The issue here, stated very simply, is: Under § 9-15-82(b), must the State's sale or lease of the property be conditioned on the county's not transferring the property within three years, or is the Code section simply stating that, after it receives the property, the county cannot transfer it within three years? In other words, does the condition apply to the State or the county? As the briefs filed by your counsel and the Attorney General note, if it is the former, that is, if it is the transfer by the State that is conditioned on the restriction, then § 94.01 would seem to grant the county no license to do otherwise. But if the three-year restriction is statutorily imposed as a condition on the county's subsequent ability to transfer the property, and does not implicate the State's transfer to the county, then such statutorily imposed condition would arguably violate the county's powers under § 94.01, rendering the Act unconstitutional as applied here.
To us, the meaning of this language is unclear. Section 9-15-82(b) states that “the sale or lease” of the State's property to a county is “subject to the condition that such property” not be transferred to a private entity within three years. On the one hand, this restriction appears to refer to the sale or lease by the State in the first place, which would restrain the State's transfer of the property. But, on the other hand, the phrase “subject to the condition” could also refer to the property--“such property”--which could mean that the condition is imposed on the transferred property after the transfer is complete.
This ambiguity in § 9-15-82(b) shows why the more recent Opinions of the Justices have cautioned against addressing certain issues in an advisory opinion. Prior advisory opinions state that we do not “issue advisory opinions regarding issues that do not concern pending legislation,” Opinion of the Justices No. 386, 69 So. 3d 859, 860 (Ala. 2011), and that this Court is not authorized to provide advisory opinions “on legislation[, like § 9-15-82(b),] already enacted by the Legislature.” Opinion of the Justices No. 270, 384 So. 2d 1054, 1055 (Ala. 1980). Instead, “[t]he constitutionality of legislation already passed should ․ be tested by adversary proceedings.” Id. There are several reasons for this:
“After a law has been passed, it is presumed to be constitutional and is the law until the constitutionality of the law is contested in court in an adversary proceeding where the court can have the benefit of briefs and argument of counsel, and where time is not nearly so limited as it is on a request for an advisory opinion.”
Opinion of the Justices No. 219, 294 Ala. 604, 605, 320 So. 2d 622, 623 (1975). Further:
“Advisory opinions are rendered ‘outside the normal adversary system wherein pertinent facts from the record of a trial court would be presented, and the issues would be briefed by attorneys and most times orally argued before the Court.’ Opinion of the Justices No. 289, 410 So. 2d 388, 391–92 (Ala. 1982). Because of the nature of advisory opinions, the Justices are limited to answering questions regarding the facial constitutionality of pending legislation.”
Opinion of the Justices No. 382, 907 So. 2d 1022, 1025 (Ala. 2005).
The first question presented does not concern pending legislation. Furthermore, a determination at this juncture as to the constitutionality of the Act would require the application of the rules of statutory construction unaided by the normal adversarial process, factual development, and briefing and argument from opposing viewpoints, which are necessary to providing a complete analysis. Finally, the potential implications of § 99 with respect to the issue presented, if any, have not been briefed or even mentioned in the materials before us and in our view need to be considered in connection with the question. With these considerations in mind, we must respectfully decline to answer Question 1. For similar reasons, as discussed by other Justices in other advisory opinions issued today, we must also decline to answer Question 2.
Respectfully submitted,
/s/ Greg Shaw
Greg Shaw
/s/ A. Kelli Wise
A. Kelli Wise
/s/ Brady E. Mendheim, Jr.
Brady E. Mendheim, Jr.
Associate Justices
_
The Honorable Kay Ivey Governor of Alabama Alabama State Capitol Montgomery, Alabama 36130
Dear Governor Ivey:
We have received your letter of August 23, 2019, requesting an advisory opinion from the individual Justices of this Court as to the propriety of a series of proposed real-property transactions that are part of an effort to “modernize [Alabama's] antiquated prison system.” In response to our request, made pursuant to § 12-2-11, Ala. Code 1975, we have received briefs from General Counsel, Office of the Governor; the Alabama Attorney General's Office; and the Association of County Commissions of Alabama. The Elmore County Economic Development Authority also has filed an amicus curiae brief. We answer the first question set out in your letter in the affirmative. For the reasons stated below, we respectfully decline to answer the second question.
Background
According to your letter to the Justices, pursuant to your official duties, you directed the Commissioner of the Alabama Department of Corrections (“ADOC”) to prepare “a plan to modernize the State's prison system without incurring any new state debt or raising any new taxes.” Under ADOC's proposed plan, new prisons will be constructed by private entities on private property and those prisons will then be leased to ADOC, an agency of the State.
According to your letter, ADOC “owns unimproved lands that may be suitable for one or more of the new prison sites,” and “ADOC has been asked whether it could donate this state-owned land for use in constructing a new prison that would then be leased to the State.” The letter states further that, “[a]lthough not essential to [the prison-modernization] plan, the ADOC believes that its rent payments could be lower if state-owned land could be donated for this purpose.”
You acknowledge in your letter that the proposed conveyance of state-owned real property implicates the Alabama Land Sales Act, which is codified at § 9-15-70 et seq., Ala. Code 1975. Among other things, the Land Sales Act provides that sales of real property owned by the State or any department thereof having an appraised value of more than $20,000 “shall be made by free and open competitive advertised public auction or advertised sealed bids to the highest bidder.” § 9-15-71, Ala. Code 1975.
Your letter concedes that donating ADOC's property directly to a private entity would conflict with the language in the Land Sales Act requiring that such a sale be competitively bid. Instead, ADOC proposes to donate the land to a county, which, in turn, would “then immediately donate [the] land to a selected developer.” You point to § 9-15-82(b), Ala. Code 1975, which states that, except as otherwise stated later in the statute, the Land Sales Act does not apply “to the sale or lease of any real property ․ owned ․ by any county or municipal government.” Section 9-15-82(b) also provides that the Land Sales Act does not apply to “the sale or lease of any real property or interest therein owned by the State of Alabama to ․ any county or municipal governing body.” Thus, you suggest that ADOC can donate the property to a county, which can subsequently donate it to a private developer outside the competitive-bidding process outlined in the Land Sales Act.
The problem with ADOC's plan, however, is that § 9-15-82(b) imposes the further condition that “such property [conveyed to a county or municipality by the State] or any interest therein is not resold, leased, or otherwise transferred in whole or in part, within three years, to any private person, firm, or corporation without compliance with the provisions of [the Land Sales Act].” Thus, the plain language of § 9-15-82(b) appears to prohibit a county that receives ADOC's real property from immediately donating that property to a private developer.
You point to Article IV, § 94.01, Ala. Const. 1901, which gives the governing bodies of counties and municipalities “full and continuing power” to
“[l]ease, sell, grant, exchange, or otherwise convey, on terms approved by the governing body of the county or the municipality, ․ real property ․ to any individual, firm, corporation, or other business entity, public or private, ․ for the purpose of constructing, developing, equipping, and operating industrial, commercial, research, or service facilities of any kind.”
Section 94.01 also authorizes counties and municipalities to “grant public funds and things of value in aid of or to any individual, firm, corporation, or other business entity, public or private, for the purpose of promoting the economic and industrial development of the county or the municipality.”1
Question 1
The restriction in § 9-15-82(b) on a county's ability to convey formerly state-owned property appears to conflict with the grant of authority to a county in § 94.01 to donate real property, public funds, and things of value to private entities for qualifying purposes. Thus, the first question set out in your letter to the Justices is:
“[D]oes Section 94.01 of the Constitution of Alabama of 1901 supersede the Land Sales Act insofar as that Act purports to restrict a county's donation of formerly state-owned land to a private firm for one of Section 94.01's qualifying purposes?”
Your letter suggests that, if the answer to that question is yes, then the county receiving the property from ADOC can donate it immediately, assuming the other requirements of § 94.01 are satisfied.
If the language of a statute permits, courts have a duty to construe the language of the statute in such a way as to make the statute harmonious with the Constitution. Burnett v. Chilton Cty. Health Care Auth., [Ms. 1160958, Aug. 31, 2018] ––– So. 3d –––– (Ala. 2018). That said, if the plain language of a statute clearly conflicts with a constitutional provision, courts cannot ignore that conflict, and the Constitution controls. Id.
The initial version of § 9-15-82(b) was enacted in 1995. It stated that counties and municipalities had to comply with the competitive-bidding process if they proposed to convey to private parties land that the counties or municipalities previously had received from the State. There was no three-year waiting period in the original version of § 9-15-82(b); the limitation on a local government's ability to convey formerly state-owned property to a private party was indefinite.
In 2004, the amendment adding § 94.01 to the Alabama Constitution was ratified, giving counties and municipalities the “full and continuing” constitutional authority to make donations to private entities for certain purposes. In 2008, the Attorney General issued an opinion concluding that the limitation in § 9-15-82(b) on the ability of local governments to convey to private parties previously state-owned property conflicted with, and had been superseded by, the authority granted local governments by § 94.01. See Ala. Op. Att'y Gen. No. 2009-008 (Oct. 22, 2008). We agree with the rationale of that opinion.
In 2010, § 9-15-82(b) was amended to add the three-year waiting period, after which counties and municipalities may donate formerly state-owned property to private parties. The addition of the waiting period did not eliminate the conflict between § 94.01 and § 9-15-82(b), because the latter still restricts the ability of local governments to donate their property to private entities. That restriction, however, must fail in light of the constitutional provision. See Parker v. Amerson, 519 So. 2d 442, 446 (Ala. 1987) (“When the Constitution and a statute are in conflict, the Constitution controls ․”).
In sum, although the Land Sales Act states that it typically does not apply to conveyances of property owned by counties, the language of the Act provides that it would indeed apply if a county proposes to donate to a private entity real property the county received during the prior three years from the State. The language at issue reads not as a restriction on the State's capacity to convey its land, but as a restriction on the local government's capacity to convey the land received from the State. Section 94.01, Ala. Const. 1901, on the other hand, grants counties and municipalities “full and continuing power” to donate their property for certain qualifying purposes. Assuming all the requirements of § 94.01 are satisfied, there is no limitation therein that would prevent a county from immediately donating land received from ADOC. The conflict between § 9-15-82(b) and § 94.01 must be resolved in favor of the constitutional provision. Thus, we answer your first question in the affirmative.2
Question 2
Section 94.01 sets out the following conditions on the powers it confers on counties and municipalities:
“(c) Neither the county nor any municipality located therein shall lend its credit to or grant any public funds or thing of value to or in aid of any private entity under the authority of this amendment unless prior thereto both of the following are satisfied:
“(1) The action proposed to be taken by the county or municipality is approved at a public meeting of the governing body of the county or municipality, as the case may be, by a resolution containing a determination by the governing body that the expenditure of public funds for the purpose specified will serve a valid and sufficient public purpose, notwithstanding any incidental benefit accruing to any private entity or entities.
“(2) At least seven days prior to the public meeting, a notice is published in the newspaper having the largest circulation in the county or municipality, as the case may be, describing in reasonable detail the action proposed to be taken, a description of the public benefits sought to be achieved by the action, and identifying each individual, firm, corporation, or other business entity to whom or for whose benefit the county or the municipality proposes to lend its credit or grant public funds or thing of value.”
Art. IV, § 94.01(c), Ala. Const. 1901.
Your second question is:
“Assuming a county commission complies with Section 94.01(c)'s procedural requirements, will its written resolution determining that a donation of land serves a valid public purpose conclusively and finally determine that the donation satisfies Section 94.01(a)'s qualifying-purposes requirement?”
(Emphasis in original.) Because this question involves hypothetical assumptions and conjecture, it would be better answered in the context of an adversarial setting with full briefing and a complete record. See Opinion of the Justices No. 273, 396 So. 2d 46, 47 (Ala. 1981) (“[A]ny opinion on this question would of necessity be based upon hypothetical assumptions and conjecture. Opinions founded upon such a basis are not authorized by [Ala.] Code 1975, § 12-2-10.”).
Accordingly, we respectfully decline to answer it.
Respectfully submitted,
/s/ Tom Parker
Tom Parker
Chief Justice
/s/ William B. Sellers
William B. Sellers
Associate Justice
_
The Honorable Kay Ivey Governor of Alabama Alabama State Capitol Montgomery, Alabama 36130
Dear Governor Ivey:
I have received your letter of August 23, 2019, requesting an advisory opinion concerning your plan to modernize Alabama's prison system. Unfortunately, I must decline to answer both of your questions. I agree with the rationale expressed by Justice Shaw, Justice Wise, Justice Mendheim, and Justice Bryan in their advisory opinions issued today that to address Question 1 regarding the proposed land donation from the State to a county and then from the county to a private developer would necessarily require an examination of Art. IV, § 99, Ala. Const. 1901, which was not raised in your letter.
I further respectfully decline to answer Question 2 based on the rationale expressed by Chief Justice Parker and Justice Sellers in their advisory opinions. Whether the county commission's written resolution would, as set out in Question 2, “conclusively and finally” determine compliance with Art. IV, § 94.01, Ala. Const. 1901, would be better answered in the context of an adversarial setting.
Respectfully submitted,
/s/ Michael F. Bolin
Michael F. Bolin
Associate Justice
_
The Honorable Kay Ivey Governor of Alabama Alabama State Capitol Montgomery, Alabama 36130
Dear Governor Ivey:
I have received your letter of August 23, 2019, requesting an advisory opinion concerning your proposed plan to modernize Alabama's prison system. Unfortunately, I must decline to answer both of your questions. In your letter, you note that the questions are posed “to provide maximum legal certainty” to the private developers that would build the new prisons under your plan. According to that plan, the State would donate land to a county, and the county would then donate that land to private developers. In my opinion, a full legal consideration of the plan would require consideration of Article IV, § 99, Ala. Const. 1901. Section 99 provides, in part:
“Lands belonging to or under the control of the state shall never be donated, directly or indirectly, to private corporations, associations, or individuals, or railroad companies; nor shall such lands be sold to corporations or associations for a less price than that for which they are subject to sale to individuals ․”
Insofar as the plan calls for the State to indirectly donate land to the developers, the plan would appear to run afoul of § 99. However, because that issue has not been raised, I do not attempt to resolve it, although a resolution of that issue is necessary to adequately evaluate the legality of the plan. Accordingly, I respectfully decline to answer both Questions 1 and 2.
Moreover, regarding Question 2, I note “that advisory opinions rendered by justices of this court are nonjudicial in nature, and binding upon no person, for the obvious reason that advisory opinions do not conclude or vindicate any right or remedy nor do they result in any judgment or decree.” Alabama Educ. Ass'n v. James, 373 So. 2d 1076, 1081 (Ala. 1979). Thus, even if I were inclined to answer Question 2, I could not say that a county commission's written resolution as described in Question 2 would “conclusively and finally” determine compliance with Article IV, § 94.01, Ala. Const. 1901.
Respectfully submitted,
/s/ Tommy Bryan
Tommy Bryan
Associate Justice
_
The Honorable Kay Ivey Governor of Alabama Alabama State Capitol Montgomery, Alabama 36130
Dear Governor Ivey:
I would conclude as to Question 1 that there is not a conflict between § 9-15-82(b), Ala. Code 1975, part of the Land Sales Act, § 9-15-70 et seq., Ala. Code 1975 (“the Act”), and Ala. Const. 1901, art. IV, § 94.01. In my view, the condition prescribed by § 9-15-82(b) -- “that ․ property [conveyed by the State to a county] ․ is not resold, leased, or otherwise transferred ․, within three years, to any private person, firm, or corporation without compliance with the provisions of this article” -- is a statutory restriction on the State's authority to convey the property to a county rather than a condition on the county's authority to resell the property to a third party. Further, I interpret § 9-15-82(b) as providing the State with a statutory option to repurchase the property in the event a county to which it transferred the property sells that property within three years. Accordingly, I would answer Question 1 in the negative.
In addition, I note that Ala. Const. 1901, art. IV, § 99, a provision that was not contemplated in your request to this Court for an advisory opinion, places certain restrictions on the State regarding donations of land. Section 99 provides, in pertinent part:
“Lands belonging to or under the control of the state shall never be donated, directly or indirectly, to private corporations, associations, or individuals, or railroad companies ․”
Under the scenario described in your request, property conveyed by the State to a county that the county, in turn, immediately donates to a private developer would constitute an indirect donation by the State to the developer.
Regarding Question 2, I agree with the rationale expressed by the other Justices in other advisory opinions issued today, and I respectfully decline to answer that question.
Respectfully submitted,
/s/ Sarah H. Stewart
Sarah H. Stewart
Associate Justice
FOOTNOTES
1. It appears from your letter that the means by which the ADOC property would be transferred to the county will constitute a “sale or lease” for purposes of the Act.
1. The authority granted by § 94.01 is subject to certain procedural requirements. See Art. IV, § 94.01(c), Ala. Const. 1901.
2. This advisory opinion is limited to the question whether the restrictions on local governments' ability to convey property set out in the Land Sales Act are superseded by § 94.01. We do not express an opinion on any other potential statutory, constitutional, or other impediment to the proposed transactions.
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Docket No: No. 394
Decided: October 03, 2019
Court: Supreme Court of Alabama.
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