Gulf Shores City Board of Education and Kelly Walker v. Eric Mackey, in his official capacity as Superintendent of the Alabama State Board of Education Teddy J. Faust, Jr., in his official capacity as Revenue Commissioner of Baldwin County James E. Ball, Joe Davis III, Billie Jo Underwood, and Charles F. Gruber, in their official capacities as Commissioners of Baldwin County Baldwin County Board of Education Baldwin County Circuit Judge Carmen E. Bosch, in her official capacity as Presiding Judge of the Baldwin County Juvenile Court Robert Wilters, in his official capacity as Baldwin County District Attorney and Coastal Alabama Community College

• Court: Supreme Court of Alabama
• Decided: December 22, 2022
• Docket: 1210353
• Status: Published

Opinion

Rel: December 22, 2022

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA OCTOBER TERM, 2022-2023

_________________________

1210353 _________________________

Gulf Shores City Board of Education and Kelly Walker

v.

Eric Mackey, in his official capacity as Superintendent of the Alabama State Board of Education; Teddy J. Faust, Jr., in his official capacity as Revenue Commissioner of Baldwin County; James E. Ball, Joe Davis III, Billie Jo Underwood, and Charles F. Gruber, in their official capacities as Commissioners of Baldwin County; Baldwin County Board of Education; Baldwin County Circuit Judge Carmen E. Bosch, in her official capacity as Presiding Judge of the Baldwin County Juvenile Court; Robert Wilters, in his official capacity as Baldwin County District Attorney; and Coastal Alabama Community College 1210353

Appeal from Montgomery Circuit Court (CV-21-900953)

BOLIN, Justice.

The Gulf Shores City Board of Education ("the Gulf Shores Board")

and Kelly Walker ("the plaintiffs") appeal from the judgment of the

Montgomery Circuit Court dismissing their complaint seeking certain

declaratory and mandamus relief against Eric Mackey, in his official

capacity as Superintendent of the Alabama State Board of Education

("the superintendent"); Teddy J. Faust, Jr., in his official capacity as

Revenue Commissioner of Baldwin County ("the revenue

commissioner"); James E. Ball, Joe Davis III, Billie Jo Underwood, and

Charles F. Gruber, in their official capacities as Commissioners of

Baldwin County ("the county commissioners"); the Baldwin County

Board of Education ("the Baldwin County Board"); Baldwin County

Circuit Judge Carmen E. Bosch, in her official capacity as Presiding

Judge of the Baldwin County Juvenile Court, and Robert Wilters, in his

official capacity as the Baldwin County District Attorney ("the judicial

defendants"); and Coastal Alabama Community College ("CACC").

Facts and Procedural History

2 1210353 Alabama's statutory framework for funding public education

includes allowing a county to levy certain taxes to support the public

schools in the county. For example, § 16-13-160 and § 16-13-180, Ala.

Code 1975, allow a county to impose, respectively, a one-mill ad valorem

tax and a three-mill ad valorem tax for the purpose of funding public

education in the county. Section 16-13-31(b), Ala. Code 1975, provides for

the apportionment of proceeds collected pursuant to such taxes:

"(b) The tax collector/revenue commissioner of each county shall apportion county-wide taxes collected for the purposes of participating in the Foundation Program to each local board of education in the county on the basis of the total calculated costs of the Foundation Program for those local boards of education within the county. The total calculated costs of the Foundation Program for each local board of education shall be the sum of state funds received from the Foundation Program and the amount of local effort required pursuant to paragraph a. of subdivision (3) of subsection (b) of Section 16-13-231[, Ala. Code 1975]."

In addition, pursuant to § 40-12-4, Ala. Code 1975, a county has the

authority to impose franchise, excise, and privilege license taxes for the

purpose of funding education in the county. Section 40-12-4 provides, in

pertinent part:

"(a) In order to provide funds for public school purposes, the governing body of each of the several counties in this state is hereby authorized by ordinance to levy and provide for the assessment and collection of franchise, excise and privilege

3 1210353

license taxes with respect to privileges or receipts from privileges exercised in such county, which shall be in addition to any and all other county taxes heretofore or hereafter authorized by law in such county. Such governing body may, in its discretion, submit the question of levying any such tax to a vote of the qualified electors of the county. If such governing body submits the question to the voters, then the governing body shall also provide for holding and canvassing the returns of the election and for giving notice thereof. All the proceeds from any tax levied pursuant to this section less the cost of collection and administration thereof shall be used exclusively for public school purposes, including specifically and without limitation capital improvements and the payment of debt service on obligations issued therefor.

"(b) Notwithstanding anything to the contrary herein, the governing body shall not levy any tax hereunder measured by gross receipts, except a sales or use tax which parallels, except for the rate of tax, that imposed by the state under this title. Any such sales or use tax on any automotive vehicle, truck trailer, trailer, semitrailer, or travel trailer required to be registered or licensed with the probate judge, where not collected by a licensed Alabama dealer at time of sale, shall be collected and fees paid in accordance with the provisions of Sections 40-23-104 and 40-23-107, [Ala. Code 1975,] respectively. No such governing body shall levy any tax upon the privilege of engaging in any business or profession unless such tax is levied uniformly and at the same rate against every person engaged in the pursuit of any business or profession within the county; except, that any tax levied hereunder upon the privilege of engaging in any business or profession may be measured by the number of employees of such business or the number of persons engaged in the pursuit of such profession. In all counties having more than one local board of education, revenues collected under the provisions of this section shall be distributed within such county on the same basis of the total calculated costs for the Foundation

4 1210353 Program for those local boards of education within the county."

The Foundation Program referenced in § 16-13-31(b) and § 40-12-4(b)

was created by the legislature pursuant to § 16-13-230 et seq., Ala. Code

1975. The Foundation Program Fund is a fund established for the benefit

of public education in this state and is composed of appropriations made

by the legislature. § 16-13-230, Ala. Code 1975. The requirements for a

local board of education to participate in the Foundation Program and

the formulas for determining the cost of the program and how funds are

apportioned to local boards are set forth in § 16-13-231, Ala. Code 1975.

Further, § 16-13-237, Ala. Code 1975, provides that "[i]t is not the intent

of the Legislature to require, and the Legislature expressly so declares

that it does not require, any county to provide funding to any city board

of education beyond the city board of education's pro rata share of any

countywide tax."

This case involves the interplay among § 16-13-31(b), § 40-12-4, and

§ 45-2-244.077, Ala. Code 1975, a part of § 45-2-244.071 et seq., Ala. Code

1975 ("the local-tax act"), which authorizes the Baldwin County

Commission to levy a 1% sales tax in Baldwin County paralleling the

state sales tax found in § 40-23-1 through § 40-23-4, Ala. Code 1975 ("the

5 1210353

local tax"). Section 45-2-244.077 provides how proceeds of the local tax

are to be disbursed. Act No. 83-532, Ala. Acts 1983, was the initial act

authorizing the local tax; § 8 of that act provided, in part:

"All revenues arising from the taxes herein authorized to be levied shall be distributed as follows: (a) Fifty-five percent (55%) shall be distributed to the Baldwin County board of education to be utilized exclusively for capital improvement, capital construction and maintenance purposes; (b) five percent (5%) shall be distributed to Faulkner State Junior College[1] in Bay Minette to be used as other appropriations to said school are used; and (c) forty percent (40%) shall be deposited in the general fund of the county to be expended as other county funds. Provided, however, in the initial fiscal year that this sales tax is levied, prior to any distribution provided herein, a one-time disbursement of two percent (2%) of all revenues arising from said tax shall be appropriated for the erection of a suitable county animal pound as provided in Section 3-7-7, Code of Alabama 1975."

Act No. 84-523, Ala. Acts 1984, amended § 8 of Act No. 83-532 by

adding the following sentence:

"Effective for the fiscal year beginning October 1, 1984, and each fiscal year thereafter, prior to any other distribution, two percent (2%) of all net revenues herein collected shall be appropriated to the juvenile court for Baldwin County to be used for the leasing or building, staffing, and operation of a home for juveniles."

1Faulkner State Junior College is now CACC. 6 1210353 In May 2017, the legislature enacted Act No. 2017-447, Ala. Acts 2017,

which modified the designated recipients of the proceeds of the local tax

as follows:

"Prior to any other distribution, two percent of all net revenues herein collected shall be appropriated to the Juvenile Court for Baldwin County to be used for drug interdiction and education programs; staffing; and the leasing, building, staffing, and operation of a home for juveniles; and one percent of all net revenues collected shall be appropriated to the Baldwin County District Attorney's Office to be expended for education and intervention programs, with emphasis on grades kindergarten through 12, aimed at the prevention of drug and alcohol abuse, sexual misconduct, bullying and other issues, and for other prosecution services. After the distribution to the Juvenile Court and District Attorney's Office as provided in this section, the remaining net revenues arising from the taxes herein authorized to be levied shall be distributed as follows: (1) 40 percent shall be distributed to the Baldwin County Board of Education to be utilized exclusively for capital improvement, capital construction, and maintenance purposes; (2) five percent shall be distributed to Coastal Alabama Community College in Bay Minette and shall be used only in the county as other appropriations to the school are used; and (3) 55 percent shall be deposited in the general fund of the county to be expended as other county funds provided that not less than 20 percent of the proceeds shall be expended for road and bridge construction, capacity improvements, paving, resurfacing, and/or maintenance of roads and bridges."

Act No. 2017-447 became effective on June 1, 2018. The disbursement

scheme set forth in Act. No. 2017-447 is codified at § 45-2-244.077.

7 1210353

On October 9, 2017, the Gulf Shores Board was created to oversee

an independent city school district pursuant to a resolution adopted by

the City of Gulf Shores. Thereafter, the Gulf Shores Board and the

Baldwin County Board entered into negotiations that resulted in a

separation agreement pursuant to which the Gulf Shores Board obtained

certain assets and assumed certain liabilities of the Baldwin County

Board. Additionally, the separation agreement provided that taxes

collected specifically to fund public schools in Baldwin County --

including ad valorem taxes authorized under § 16-13-160 and § 16-13-

180 and franchise, excise, and privilege license taxes authorized under §

40-12-4 -- would be apportioned according to the apportionment

provisions in § 16-13-31(b) and § 40-12-4(b) so as to include the Gulf

Shores Board as a recipient. However, the separation agreement did not

address apportionment of the proceeds of the local tax. The president of

the Gulf Shores Board stated in his affidavit that the "parties specifically

agreed to disagree [as to] whether the [local] tax was required to be

apportioned." The Gulf Shores Board has demanded but has not received

a share of the local-tax proceeds. The Baldwin County Board has received

all of the local-tax proceeds apportioned to it in § 45-2-244.077.

8 1210353 On September 2, 2021, the plaintiffs filed their initial complaint

against the superintendent, the revenue commissioner, and the county

commissioners, seeking mandamus relief requiring that the local-tax

proceeds be apportioned to include the Gulf Shores Board as a recipient

and/or a judgment declaring that the local-tax act is unconstitutional.

On September 13, 2021, the Baldwin County Board moved to

intervene in the action, arguing that it would lose substantial revenue if

the local-tax proceeds were apportioned to include the Gulf Shores Board

as a recipient or the local-tax act was found to be unconstitutional. The

Baldwin County Board also moved to require the joinder of the judicial

defendants, pursuant to Rule 19, Ala. R. Civ. P., because § 45-2-244.077

provides for the distribution of a portion of the local-tax proceeds to the

Baldwin County Juvenile Court and the Baldwin County District

Attorney's Office. On that same day, CACC moved to intervene in the

action.

On September 14, 2021, the circuit court entered separate orders

granting the motions to intervene filed by the Baldwin County Board and

CACC. The circuit court ordered that those parties be added so that they

could oppose the claims asserted in the complaint. On September 15,

9 1210353

2021, the circuit court entered an order granting the Rule 19 motion to

join the judicial defendants and ordered that the judicial defendants be

joined as parties to the action.

On September 23, 2021, the plaintiffs filed their amended

complaint asserting four counts. In the first three counts, the Gulf Shores

Board sought identical relief against the superintendent, the county

commissioners, and the revenue commissioner, respectively: mandamus

relief directing the superintendent, the county commissioners, and/or the

revenue commissioner to "allocate the proceeds of all sales and use taxes

raised for educational purposes within Baldwin County, Alabama, in

accordance with Ala. Code §§ 40-12-4 and 16-13-31(b)" or, alternatively,

a judgment declaring the local-tax act to be unconstitutional on the basis

that it violates Art. IV, § 105, of the Alabama Constitution of 1901. In

count four, Walker asserted that the local-tax act imposes a tax upon the

citizens located in the Gulf Shores school district that is not apportioned

to and used in the Gulf Shores school district and, thus, sought a

judgment declaring the local-tax act unconstitutional. The plaintiffs

included a "joinder" section in the amended complaint, joining the

judicial defendants as ordered by the circuit court and asserting the same

10 1210353 claims against those defendants. It does not appear that the plaintiffs

expressly added the Baldwin County Board or CACC as party opponents,

as ordered by the circuit court.

On October 5, 2021, the revenue commissioner and the county

commissioners moved the circuit court to dismiss the claims asserted

against them pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that the

plain language of the local-tax act did not require apportionment to the

Gulf Shores Board and that the local-tax act is constitutional.

On October 7, 2021, CACC moved the circuit court to dismiss the

claims asserted against it pursuant to Rule 12(b)(6), arguing that the

local-tax act is constitutional and does not violate § 105 of the Alabama

Constitution. CACC further argued that the plaintiffs' assertion that the

local-tax proceeds make up funds needed for the Foundation Program

was incorrect.

On October 26, 2021, the superintendent moved the circuit court to

dismiss the claims asserted against him pursuant to Rule 12(b)(1) and

Rule 12(b)(6), arguing that, in his official capacity, he is not a proper

party to this action for declaratory and mandamus relief. Alternatively,

the superintendent argued that the claims asserted against him were due

11 1210353

to be dismissed because he cannot be compelled to exercise his discretion

as the superintendent in favor of the plaintiffs.

On October 27, 2021, the judicial defendants moved the circuit

court to dismiss the claims asserted against them pursuant to Rule

12(b)(1), Rule 12(b)(6), and Rule 12(b)(7). The judicial defendants argued

that the plaintiffs' amended complaint failed to join the Baldwin County

Board and CACC as ordered by the circuit court and that the failure to

join those parties is a jurisdictional defect that required dismissal of the

complaint; that the plaintiffs lacked standing to pursue their

constitutional claims because those claims were nonjusticiable; and that

the plaintiffs had failed to state a claim upon which relief could be

granted. Also on October 27, 2021, the Baldwin County Board moved the

circuit court to dismiss the claims asserted against it and adopted the

arguments of the other defendants.

On January 10, 2022, the plaintiffs filed their omnibus response in

opposition to the motions to dismiss, arguing that the question whether

the tax levied pursuant to the local-tax act is for "public school purposes"

as that term is defined in § 40-12-4 is not suitable for resolution on a

motion to dismiss; that the requirements for a local board of education's

12 1210353 participation in the Foundation Program include accounting for all

countywide taxes used to fund education, including sales and use taxes

such as the local tax; that the plaintiffs have standing to challenge the

constitutionality of the local-tax act; that the plaintiffs' complaint states

a valid claim that the local-tax act violates § 105 of the Alabama

Constitution; that Walker's claim asserted in count four states a claim

upon which relief can be granted; that the superintendent is a proper

party to this action and that the claims were sufficiently pleaded against

him; and that the plaintiffs have joined all necessary parties.

Following a hearing, the circuit court, on February 2, 2022, entered

an order granting the motions to dismiss the plaintiffs' claims. The

plaintiffs appeal, challenging primarily the circuit court's determinations

that they lacked standing and that they had failed to state claims upon

which relief could be granted.

Standard of Review

The standard of review applicable to a judgment granting a motion

to dismiss based on a lack of standing is as follows:

" 'A ruling on a motion to dismiss is reviewed without a presumption of correctness. This Court must accept the allegations of the complaint as true. Furthermore, in reviewing a ruling on a

13 1210353

motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail.'

"Newman v. Savas, 878 So. 2d 1147, 1148-49 (Ala. 2003) (citations omitted). 'Matters of subject-matter jurisdiction are subject to de novo review.' DuBose v. Weaver, 68 So. 3d 814, 821 (Ala. 2011). ' " 'When a party without standing purports to commence an action, the trial court acquires no subject- matter jurisdiction. ' " ' Blevins v. Hillwood Office Ctr. Owners' Ass'n, 51 So. 3d 317, 321 (Ala. 2010) (quoting Riley v. Pate, 3 So. 3d 835, 838 (Ala. 2008), quoting in turn State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1028 (Ala. 1999))."

Poiroux v. Rich, 150 So. 3d 1027, 1033 (Ala. 2014).

The standard of review applicable to a judgment granting a motion

to dismiss pursuant to Rule 12(b)(6) is as follows:

" 'On appeal, a dismissal is not entitled to a presumption of correctness. ... The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief. ... In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [the plaintiff] may possibly prevail. ... We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. ' "

Carr v. International Refin. & Mfg. Co., 13 So. 3d 947, 952 (Ala. 2009)

(quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)).

Discussion

14 1210353

I. The Gulf Shores Board

The plaintiffs argue that the circuit court's judgment, insofar as it

determined that the Gulf Shores Board lacked standing to pursue its

claims asserted in counts one through three of the complaint, ignores

specific relief requested in those counts, namely, mandamus relief

requiring the superintendent, the county commissioners, and/or the

revenue commissioner "to allocate the proceeds of all sales and use taxes

raised for educational purposes within Baldwin County, Alabama, in

accordance with Ala. Code §§ 40-12-4 and 16-13-31(b)." The circuit court,

in its judgment, addressed the standing issue, which had been raised by

the judicial defendants in their motion to dismiss, as follows:

"[T]he Plaintiffs cannot establish a likelihood that the injury complained of will be redressed by a favorable decision. It is not within the province of this Court to re-write the local 1983 tax act (as amended) in order to re-apportion tax proceeds earmarked for the Baldwin County Board of Education (BCBOE) for capital improvements, etc. between BCBOE and GSCBOE; rather, it is the duty of any Court to strike down those laws which are unconstitutional. In the instant matter, if, as the Plaintiffs argue, the local tax act impermissibly apportions tax proceeds for public school purposes to one school district to the exclusion of another school district within the county, it follows that the provision of the act allocating money exclusively to Baldwin County Board of Education must fail. Alternatively stated, if the provision at issue in this action fails, neither BCBOE nor GSCBOE would receive any tax proceeds. GSCBOE would receive no tangible

15 1210353

benefit. While the undersigned has cogitated on the Plaintiffs' argument that the local statute can still be saved by applying the distribution scheme undergirding Ala. Code § 40-12-4, to hold so would effectively result in re-writing the local statute. Based on the foregoing, it does not appear the injury in fact suffered by GSCBOE is redressable by this Court, and as such, GSCBOE has no standing to proceed."

Although the circuit court certainly did not provide an in-depth analysis

regarding the claims seeking an order appropriating funds to the Gulf

Shores Board based on the provisions set forth in § 40-12-4 and § 16-13-

31(b), we cannot say that the circuit court ignored or wholly failed to

address those claims; the circuit court expressly found that the provisions

of the local-tax act could not be rewritten by the courts to provide for an

appropriation to the Gulf Shores Board of a portion of the tax proceeds

raised pursuant to the local-tax act. The issue whether, under the local-

tax act or § 40-12-4 and § 16-13-31(b), the Gulf Shores Board is entitled

to an appropriation of a portion of the tax proceeds raised pursuant to

the local-tax act will be thoroughly discussed infra.

The plaintiffs argue that § 16-13-31(b) provides that all taxes

"collected for the purposes of participating in the Foundation Program"

shall be apportioned among the school districts in each county. They

contend that the taxes collected by Baldwin County pursuant to the local-

16 1210353 tax act are taxes that are required to be paid into the Foundation

Program and, thus, are subject to the apportionment mandate in § 16-13-

31(b). The plaintiffs contend that the complaint asserts a claim that the

apportionment mandate of § 16-13-31(b) and § 16-13-237 apply to the

taxes collected pursuant to the local-tax act that are earmarked for

education purposes, i.e., the taxes apportioned to the Baldwin County

Board. Section 16-13-31(b) provides that the tax collector/revenue

commissioner of each county shall apportion countywide taxes "collected

for the purposes of participating in the Foundation Program" to each local

board of education in the county. Therefore, the plaintiffs conclude that

the complaint alleges an injury to the Gulf Shores Board that is connected

to the conduct complained of and that could be redressed by a favorable

ruling ordering an apportionment of a portion of the local-tax proceeds to

the Gulf Shores Board.

This Court has often stated:

" ' "When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning -- they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature." ...

17 1210353

" ' "In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:

" ' " ' "Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect. " ' " ' "

Ex parte Dorough, 773 So. 2d 1001, 1003 (Ala. 2000)(quoting Ex parte

Pfizer, Inc., 746 So. 2d 960, 964 (Ala. 1999)).

By enacting the local-tax act, the legislature has authorized the

Baldwin County Commission to "levy and impose, in addition to all other

taxes, … a special county privilege license tax paralleling the state sales

tax." § 45-2-244.072. As originally enacted, the local-tax act expressly

provided, in pertinent part:

"All revenues arising from the taxes herein authorized to be levied shall be distributed as follows: (a) Fifty-five percent (55%) shall be distributed to the Baldwin County board of education to be utilized exclusively for capital improvement, capital construction and maintenance purposes; (b) five percent (5%) shall be distributed to Faulkner State Junior College in Bay Minette to be used as other appropriations to said school are used; and (c) forty percent (40%) shall be

18 1210353 deposited in the general fund of the county to be expended as other county funds."

Act No. 83-532, § 8. As discussed above, the legislature, in May 2017,

enacted Act No. 2017-447, which, among other things, modified the

designated recipients of the local-tax proceeds and the amount of the

local-tax proceeds the recipients would receive. Act No. 2017-447

provided for distribution of those tax proceeds as follows:

"Prior to any other distribution, two percent of all net revenues herein collected shall be appropriated to the Juvenile Court for Baldwin County to be used for drug interdiction and education programs; staffing; and the leasing, building, staffing, and operation of a home for juveniles; and one percent of all net revenues collected shall be appropriated to the Baldwin County District Attorney's Office to be expended for education and intervention programs, with emphasis on grades kindergarten through 12, aimed at the prevention of drug and alcohol abuse, sexual misconduct, bullying and other issues, and for other prosecution services. After the distribution to the Juvenile Court and District Attorney's Office as provided in this section, the remaining net revenues arising from the taxes herein authorized to be levied shall be distributed as follows: (1) 40 percent shall be distributed to the Baldwin County Board of Education to be utilized exclusively for capital improvement, capital construction, and maintenance purposes; (2) five percent shall be distributed to Coastal Alabama Community College in Bay Minette and shall be used only in the county as other appropriations to the school are used; and (3) 55 percent shall be deposited in the general fund of the county to be expended as other county funds provided that not less than 20 percent of the proceeds shall be expended for road and bridge construction, capacity

19 1210353

improvements, paving, resurfacing, and/or maintenance of roads and bridges."

See § 45-2-244.077. Although Act No. 2017-447 was enacted by the

legislature in May 2017, it did not become effective until June 1, 2018,

after the Gulf Shores Board and school district were created. Nothing in

the plain language of the local-tax act, as originally enacted or as

amended, can be read as requiring and/or authorizing an allocation of a

portion of the local-tax proceeds that are earmarked for the Baldwin

County Board to the Gulf Shores Board. The plaintiffs conceded this point

during the hearing on the motions to dismiss, stating:

"If you look just at 1983 Tax Act is what we call it -- if you look just at that in a vacuum, we don't really argue that allocation is required, if that's all you're looking at. That's what the defendants want you to do is just look at the terms of that statute and see what it says. I agree it doesn't say that you have to allocate."

Based on the plain language of the local-tax act, none of the tax proceeds

generated by the local-tax act are allocable to the Gulf Shores Board.

Although the tax proceeds generated by the local-tax act are not

allocable to the Gulf Shores Board based on the clear language of the

local-tax act, the plaintiffs further contend that those tax proceeds may

20 1210353 be allocated to the Gulf Shores Board under the provisions of § 40-12-4

and § 16-13-31(b). Section 40-12-4 provides, in pertinent part:

"(a) In order to provide funds for public school purposes, the governing body of each of the several counties in this state is hereby authorized by ordinance to levy and provide for the assessment and collection of franchise, excise and privilege license taxes with respect to privileges or receipts from privileges exercised in such county, which shall be in addition to any and all other county taxes heretofore or hereafter authorized by law in such county. … All the proceeds from any tax levied pursuant to this section less the cost of collection and administration thereof shall be used exclusively for public school purposes, including specifically and without limitation capital improvements and the payment of debt service on obligations issued therefor.

"(b) … In all counties having more than one local board of education, revenues collected under the provisions of this section shall be distributed within such county on the same basis of the total calculated costs for the Foundation Program for those local boards of education within the county."

(Emphasis added.) The plain language of § 40-12-4 requires that, in order

for tax proceeds to be apportioned under that Code section, the taxes

must be "levied pursuant to [that] section" and "collected under the

provisions of [that] section." Obviously, the local tax is not a tax that is

"levied pursuant to" or "collected under the provisions" of § 40-12-4.

Section 16-13-31(b) provides:

"(b) The tax collector/revenue commissioner of each county shall apportion county-wide taxes collected for the

21 1210353

purposes of participating in the Foundation Program to each local board of education in the county on the basis of the total calculated costs of the Foundation Program for those local boards of education within the county. The total calculated costs of the Foundation Program for each local board of education shall be the sum of state funds received from the Foundation Program and the amount of local effort required pursuant to paragraph a. of subdivision (3) of subsection (b) of Section 16-13-231."

(Emphasis added.) The plain language of § 16-13-31(b) expressly

provides that the tax proceeds apportioned pursuant to that Code section

must be "collected for the purposes of participating in the Foundation

Program." The plaintiffs contend that the tax proceeds generated by the

local-tax act are included in the Foundation Program and can be

apportioned to the Gulf Shores Board. However, the plaintiffs have not

demonstrated to this Court how the local tax is "collected for the purposes

of participating in the Foundation Program" and, therefore, how the

proceeds of the local tax are allocable to the Gulf Shores Board pursuant

to § 16-13-31(b). The Foundation Program itself was not approved by the

legislature until July 1995, and it was predated by the enactment of Act

No. 83-532, which initially authorized the local tax, by approximately 12

years. Act No. 2017-447, the most recent amendment of the local-tax act,

did not provide that the local tax be "collected for the purposes of

22 1210353 participating in the Foundation Program." Section 16-13-231(b)(3)

identifies the funds available for funding the Foundation Program Fund

and requires a local effort on the part of each participating local board of

education to share in the cost of the Foundation Program. Section 16-13-

231(b)(3)a. specifically provides:

"a. The funds available to meet the cost of the Foundation Program shall be appropriated by the Legislature taking into consideration an amount of local effort required on the part of each local board of education. The required local effort charged against each local board of education for its share of the cost of the Foundation Program shall be as follows:

"....

" 3 . … the equivalent of ten mills of local school tax district ad valorem tax as reported pursuant to subsection (b)(1)a. "

Nothing in § 16-13-231 supports the conclusion that the local tax, in

addition to the required 10 mill of ad valorem taxes, be considered a tax

"collected for the purposes of participating in the Foundation Program."

In anticipation of the eventual formation of the Gulf Shores Board

and school district, the Baldwin County Board sought an opinion of the

attorney general on the precise issue presented here, i.e., whether any

statutes or state laws required the proceeds of the local tax to be

23 1210353

distributed between the Baldwin County Board and the Gulf Shores

Board. The attorney general addressed the issue as follows:

"The plain language of local Act [No. 83-532, as amended by Act No. 84-523,] provides that 55 percent of the sales tax revenues shall be distributed to the Baldwin County Board of Education to be used for capital improvement, capital construction, and maintenance purposes. Nothing in the act provides that a portion of the sales tax revenues shall be distributed to municipal school systems in the county, and nothing in the act states that the tax is levied for 'public school purposes.'

"The language of Act [No. 83-532, as amended by Act No. 84-523,] should be contrasted with the language of section 40- 12-4 of the Code of Alabama. Section 40-12-4 of the Code authorizes counties to collect 'franchise, excise and privilege license taxes with respect to privileges or receipts from privileges exercised in such county' to provide funds for 'public school purposes.' Ala. Code § 40-12-4 (2003). This section also provides that the county tax must parallel, except for the rate of the tax, the state sales tax. Id. The last sentence of this section states that '[i]n all counties having more than one local board of education, revenues collected under the provisions of this section shall be distributed within such county on the same basis of the total calculated costs for the Foundation Program for those local boards of education within the county.' Id. (emphasis added). Thus, any taxes collected for 'public school purposes' by a county under this section must be distributed among the local boards of education in the county on the same basis of the total calculated costs for the Foundation Program for those local boards of education.

"Article 2 of chapter 13 of title 16 generally provides for the apportionment and distribution of public school funds. Ala. Code § 16-13-30 to 16-13-40 (2001). Section 16-13-31 specifically discusses the apportionment of countywide taxes

24 1210353 for the Foundation Program. Section 16-13-31(c) states as follows:

" 'The apportionment of countywide taxes collected for the purposes of participating in the Foundation Program as determined in Section 16- 13-31(b) shall be used unless the local boards of education in a county sign a mutual agreement and secure the approval of the State Superintendent of Education to use some other plan involving desirable special adjustments.'

"Ala. Code § 16-13-31(c) (2001).

"The sales taxes collected in this situation, however, are collected pursuant to a local act and are not collected under section 40-12-4 for 'public school purposes.' Act [No.] 83-532 specifically states that the one percent sales tax provided by the act is in addition to all other taxes, including a special county privilege license tax paralleling the state sales tax. Accordingly, the requirement for distribution of sales taxes collected under section 40-12-4 to all the local boards of education in the county is not applicable to the taxes collected under [Act No. 83-532, as amended by Act No. 84-523]."

Ala. Att'y. Gen. Op. No. 2007-034 (Jan. 12, 2007). Both the local-tax act

and § 40-12-4 were amended after the attorney general issued the opinion

addressing the issue presented here. As discussed above, in 2017,

significant changes were made to the local-tax act regarding the entities

that receive appropriations under the local-tax act and the amount of

those appropriations. Section 40-12-4 was amended in 2018 to provide

that the terms "collection" and "administration," as used in § 40-12-4,

25 1210353

would have the same meaning as in § 11-3-11.3(i), Ala. Code 1975. See §

40-12-4(c). Neither amendment changed the relevant language of the

local-tax act or § 40-12-4 and § 16-13-31(b) discussed and analyzed in the

opinion of the attorney general, which concluded that the local-tax

proceeds were not subject to allocation or distribution to the Gulf Shores

Board. Although an attorney general's opinion is only advisory and not

binding upon this Court, we find the legislative amendment of the local-

tax act and § 40-12-4, without materially changing the relevant portions

of the local-tax act and the other statutes discussed and relied upon in

the attorney general's opinion, to be significant indication that the

legislature approved of the attorney general's interpretation of the

interplay between the local-tax act and § 40-12-4 and § 16-13-31(b). See

Farmer v. Hypo Holdings, Inc., 675 So. 2d 387 (Ala. 1996) (holding that

reenactment of a statute without material change from administrative

interpretation is not binding on this Court but is especially persuasive).

We conclude that tax proceeds collected pursuant to the local-tax

act may not be distributed to the Gulf Shores Board pursuant to § 40-12-

4 and § 16-13-31(b). As the circuit court acknowledged, it is not within

the province of the courts to rewrite the local-tax act in order to

26 1210353

redistribute to the Gulf Shores Board those tax proceeds collected

pursuant to the local-tax act and earmarked for the Baldwin County

Board. "In Alabama, legislation cannot originate with the judiciary." Ex

parte Christopher, 145 So. 3d 60, 69 (Ala. 2013); see also Echols v. State,

24 Ala. App. 352, 353, 135 So. 410, 411 (1931) ("[C]ourts are without

authority to add to or take from the written statutory law as passed by

the Legislature and approved."). "[T]he judicial branch may not exercise

the legislative ... power." Art. III, § 42(c), Ala. Const. 1901 (Off. Recomp.).

Federal courts also follow the same principle. See Ali v. Federal Bureau

of Prisons, 552 U.S. 214, 228 (2008); Badaracco v. Commissioner of

Internal Revenue, 464 U.S. 386, 398 (1984) ("Courts are not authorized

to rewrite a statute because they might deem its effects susceptible of

improvement."); and Nguyen v. United States, 556 F.3d 1244, 1256 (11th

Cir. 2009) ("We are not authorized to rewrite, revise, modify, or amend

statutory language in the guise of interpreting it ...."). Accordingly, the

Gulf Shores Board is not entitled to an order "allocat[ing to the Gulf

Shores Board] the proceeds of all sales and use taxes raised for

educational purposes within Baldwin County, Alabama, in accordance

with Ala. Code §§ 40-12-4 and 16-13-31(b)."

27 1210353

In counts one through three of the complaint, the Gulf Shores Board

also sought, in the alternative, a judgment declaring the local-tax act to

be unconstitutional on the basis that it violates § 105 of the Alabama

Constitution. The Gulf Shores Board asserted that, to the extent that the

local-tax act requires distribution of tax proceeds earmarked for

educational purposes differently than provided for in § 40-12-4, the local-

tax act violated § 105, which prohibits a local law from being enacted on

any subject that is already provided for by a general law. If, as the Gulf

Shores Board requests, the local-tax act is declared unconstitutional as

violative of § 105, then not only would the entities identified in the local-

tax act as intended recipients of the local-tax proceeds not receive those

tax proceeds, but also it would be impossible for the Gulf Shores Board to

receive an appropriation of the local-tax proceeds. This Court has stated

the following regarding standing to bring an action:

"In determining whether a party has standing in Alabama courts, we are guided by whether the following exist: '(1) an actual, concrete and particularized "injury in fact" -- "an invasion of a legally protected interest"; (2) a "causal connection between the injury and the conduct complained of"; and (3) a likelihood that the injury will be "redressed by a favorable decision. " ' Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So. 2d 70, 74 (Ala. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992))."

28 1210353

Ex parte Merrill, 264 So. 3d 855, 862-63 (Ala. 2018). The first two

requirements of the standing inquiry are satisfied here. The Gulf Shores

Board has asserted that it is entitled to an appropriation of the tax

proceeds raised pursuant to the local-tax act and has not heretofore

received an appropriation of those tax proceeds. However, we conclude

that the third requirement -- likelihood that the injury will be redressed

by a favorable decision -- is not satisfied here. The Gulf Shores Board

has sought a judgment declaring that the local-tax act is

unconstitutional. If the Gulf Shores Board was successful on that claim

and the local-tax act was declared unconstitutional, it would be

impossible for the alleged injury to be redressed by that decision because

there would no longer be any tax proceeds generated by the local-tax act.

See Ex parte Merrill, supra.

The plaintiffs contend that the local-tax act would not necessarily

be invalidated if it was declared unconstitutional. The plaintiffs argue

that the circuit court could declare the local-tax act unconstitutional in

part, insofar as it relates to the allocation of local-tax proceeds to fund

public education in Baldwin County, and then determine that the

Baldwin County Commission has the authority to allocate a portion of

29 1210353

the local-tax proceeds pursuant to § 40-12-4. It appears, in other words,

that the plaintiffs are contending that that component of the local-tax act

could be severed from the act as a whole and the relevant portion of the

local-tax proceeds could then be distributed under the provisions of § 40-

12-4. That, however, would necessarily require the circuit court to

rewrite the local-tax act, which, as discussed above, the courts are

prohibited from doing. Accordingly, we conclude that the Gulf Shores

Board lacks standing to bring its constitutional claim asserting that the

local-tax act violates § 105 of the Alabama Constitution.

II. Walker

Walker is a taxpayer and resides in Gulf Shores within the Gulf

Shores school district. In count four of the complaint, Walker asserted

an "equality-of-taxation" claim alleging that the local-tax act

unconstitutionally imposes upon her and the residents of the Gulf Shores

school district a tax whose proceeds are used completely outside the Gulf

Shores school district and without providing any benefit to the citizens of

the Gulf Shores school district. Walker sought in count four a judgment

declaring the local-tax act unconstitutional.

30 1210353 The circuit court determined that Walker lacked standing to assert

her constitutional claim, holding that the claim presented a

nonjusticiable controversy because, it determined, the real matter in

controversy was whether the Gulf Shores Board should receive an

appropriation of a portion of the local-tax proceeds earmarked for the

Baldwin County Board.

"We have recognized that a justiciable controversy is one that is ' "definite and concrete, touching the legal relations of the parties in adverse legal interest, and it must be a real and substantial controversy admitting of specific relief through a [judgment]. " ' MacKenzie v. First Alabama Bank, 598 So. 2d 1367, 1370 (Ala. 1992)(quoting Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So. 2d 385, 387 (1969))."

Harper v. Brown, Stagner, Richardson, Inc., 873 So. 2d 220, 224 (Ala.

2003).

The plaintiffs argue that Walker is the master of her complaint and

that the circuit court may not ignore the clear allegations contained in

count four of the complaint and treat those allegations as what it

determines the "real" matter in controversy to be. See Wright v. Cleburne

Cnty. Hosp. Bd., Inc., 255 So. 3d 186, 192 (Ala. 2017) (stating that, "of

course, it is the plaintiff who is 'the master of his complaint.' … It is for

the court to address the merit of the claim as framed by the plaintiff, not

31 1210353

to reframe it."). Walker has alleged that she is a taxpayer living in the

Gulf Shores school district and that she pays the tax levied pursuant to

the local-tax act. Walker has further alleged that, although the local-tax

act imposes a tax burden upon her and the other residents of the Gulf

Shores school district, they receive no benefit from the local tax because

the proceeds of the tax are apportioned to benefit public schools outside

of, and to the exclusion of, the Gulf Shores school district. Walker sought

a judgment declaring the local-tax act unconstitutional. Based on the

foregoing, we conclude that a justiciable controversy does exist and that

Walker has standing to assert her constitutional claim.

However, it is well settled that this Court may affirm a circuit

court's judgment of dismissal "for any legal, valid reason, even one not

raised in or considered by the circuit court, unless due-process fairness

principles require that the ground have been raised below and it was not."

State v. Epic Tech, LLC, [Ms. 1210012, May 20, 2022] __ So. 3d __, __

(Ala. 2022). The revenue commissioner and the county commissioners

argued in their motion to dismiss that Walker's "equality-of-taxation

claim" fails because it ignores the facts that the local-tax act does not levy

solely a "school tax" and that a majority of the local-tax proceeds are

32 1210353 apportioned to fund other entities that benefit all the residents of

Baldwin County, including Walker and the other residents who reside in

the Gulf Shores school district.

The plaintiffs rely upon the decision in Garrett v. Colbert County

Board of Education, 255 Ala. 86, 50 So. 2d 275 (1950), in support of

Walker's constitutional claim. In Garrett, the legislature had enacted a

local sales and use tax in Colbert County that paralleled the state sales

and use tax. The local act allocated 75% of the tax proceeds to the Colbert

County Board of Education ("the Colbert County Board") and the

remaining 25% to the City of Tuscumbia Board of Education ("the

Tuscumbia Board") and the City of Sheffield Board of Education ("the

Sheffield Board"), to be split based on the percentage of population in

each city. The local act provided that the tax proceeds allocated to the

three boards of education were to be used exclusively for public-school

purposes.

An action was brought challenging the local law and seeking to

enjoin the custodian of public-school funds for Colbert County from

collecting the tax levied under the local act. In the alternative, the action

33 1210353

sought to enjoin the Colbert County Board from receiving 75% of the tax

proceeds. The circuit court denied the relief sought.

In affirming the judgment of the circuit court, this Court upheld

the apportionment formula in the local act, finding that the allocation of

the tax proceeds was purely a legislative matter that was not subject to

review by this Court if the apportionment formula was based upon a

reasonable foundation. Garrett, 255 Ala. at 94, 50 So. 2d at 281. Further,

it was argued on appeal that the local act violated the principle -- which

forms the basis of Walker's claim -- that prohibits the "levy of special

taxes from the citizens of a definite locality to be expended in some other

locality." Garrett, 255 Ala. at 94, 50 So. 2d at 281. In upholding the local

act, this Court stated:

"In this connection, it is also insisted that the apportionment violates the principle which prevents the levy of special taxes from the citizens of a definite locality to be expended in some other locality. That principle was very carefully considered by the Supreme Court of Florida in the case of Amos v. Mathews, 99 Fla. 1, 23, 24, 26, 126 So. 308 [(1930)]. It is of universal application so far as we have been able to find. In 1 Cooley on Taxation (4th Ed.) section 314, with reference to a district tax it is said: 'The purpose to be accomplished thereby (the tax) shall be one which in a special and peculiar manner pertains to the district within which it is proposed that the contribution called for shall be collected.'

34 1210353 "We do not think that principle here serves to strike down Act No. 485 on account of the apportionment feature of it. The tax is a county wide one, having the county as the unit. It is not a tax on one district to be applied to another. It is paid by persons in the two cities and outside the two cities, all alike and for one fund. The question is one of apportionment rather than as above insisted on, although by exact measurement more of the tax may be paid in the cities than is apportioned to them. If the apportionment is not invalid, the other principle has no application here."

Garrett, 255 Ala. at 94-95, 50 So. 2d at 281-82.

Although the plaintiffs rely upon the principle stated in Garrett

that prohibits the levy of special taxes on the citizens of a definite locality

to be expended in some other locality, the holding in Garrett is actually

supportive of the defendants' position and is dispositive of Walker's

claim. Like the tax levied in Garrett, the local tax levied by the Baldwin

County Commission pursuant to the local-tax act is a countywide tax that

is apportioned on a countywide basis not only to the Baldwin County

Board, but also to the Baldwin County Juvenile Court, the Baldwin

County District Attorney's Office, CACC, and the Baldwin County

general fund. Walker, and the other citizens residing in the Gulf Shores

school district, undoubtedly benefit from the allocation of the local-tax

proceeds to those other entities because those entities provide services on

a countywide basis. Because the local-tax act levies a tax that is allocated

35 1210353

on a countywide basis to support services that are provided countywide,

the principle set forth in Garrett that prohibits the levy of special taxes

on the citizens of a definite locality to be expended in some other locality

has not been violated, and Walker's constitutional claim therefore fails.

Accordingly, the circuit court's order dismissing Walker's constitutional

claim is due to be affirmed.

Conclusion

We affirm the circuit court's judgment dismissing the plaintiffs'

claims.

AFFIRMED.

Wise, Sellers, and Mendheim, JJ., concur.

Parker, C.J., and Mitchell, J., concur in part and concur in the

result, with opinions.

Shaw, Bryan, and Stewart, JJ., concur in the result.

36 1210353 PARKER, Chief Justice (concurring in part and concurring in the result).

I agree with the main opinion except its omission to address Kelly

Walker's claim that the local-tax act, §§ 45-2-244.071 - .077, Ala. Code

1975, violates § 105 of the Alabama Constitution. As Justice Mitchell

points out in his special writing, this claim was asserted by both

plaintiffs. And unlike the Gulf Shores City Board of Education, Walker

had standing to raise this claim. Even though success on the claim would

have resulted in invalidation of the local tax, Walker was allegedly

harmed by paying the tax and presumably would have received redress

through a refund, see Graves v. McDonough, 264 Ala. 407, 409, 88 So. 2d

371, 373 (1956), or at least relief from future collection of the tax.

Further, Walker's § 105 claim must be addressed by this Court. Although

Walker's equality-of-taxation claim fails for the reasons explained by the

main opinion, nevertheless if her alternative § 105 claim were correct,

the local-tax act would be invalid and the judgment would have to be

reversed.

Regarding the merits of Walker's § 105 claim, that section of the

constitution provides:

"No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is

37 1210353

provided for by a general law, or when the relief sought can be given by any court of this state; and the courts, and not the legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court; nor shall the legislature indirectly enact any such special, private, or local law by the partial repeal of a general law."

Art. IV, § 105, Ala. Const. 1901 (Off. Recomp.). I fully agree with Justice

Mitchell's analysis of this claim, with one exception and one caveat. First,

I do not believe that the ordinary presumption of constitutionality applies

to § 105 claims. Second, I join Justice Mitchell in commending some of

the parties' use of contemporaneous dictionaries to aid this Court in the

search for the original public meaning of § 105. But I also caution parties

against relying solely on dictionaries. As Justice Mitchell and I have

previously made clear, an originalist approach to interpreting § 105 must

also draw from deeper wells. See Barnett v. Jones, 338 So. 3d 757, 766-

67 (Ala. 2021) (Mitchell, J., concurring specially); Glass v. City of

Montgomery, [Ms. 1200240, Feb. 11, 2022] ___ So. 3d ___, ___ n.3 (Ala.

2022) (Mitchell, J., concurring in part and concurring in the result); id.

at ___ n.4 (Parker, C.J., dissenting). And those wells include the

historical and legal context in which § 105 was adopted.

I. Inapplicability of presumption of constitutionality

38 1210353

Ordinarily, courts owe deference to the Legislature in the form of a

presumption that statutes do not violate the constitution. This

presumption does more than place the burden of persuasion on the party

asserting unconstitutionality; it imposes a substantive duty on courts to

hold a statute constitutional if reasonably possible, see Clay Cnty.

Comm'n v. Clay Cnty. Animal Shelter, Inc., 283 So. 3d 1218, 1229 (Ala.

2019). In § 105, however, that duty "is forbidden to us by the

constitution's express command." Glass v. City of Montgomery, [Ms.

1200240, Feb. 11, 2022] ___ So. 3d ___, ___ (Ala. 2022) (Parker, C.J.,

dissenting). Section 105 provides that "the courts, and not the legislature,

shall judge as to whether the matter of [a special, private, or local] law is

provided for by a general law." Art. IV, § 105, Ala. Const. 1901 (Off.

Recomp.).

This language is unique within the Alabama constitution. It

appears to have been a reaction to this Court's prior holding, under a

predecessor of § 105, that the question whether the matter of a particular

local law could have been provided for by a general law was "one of

legislative discretion," Clarke v. Jack, 60 Ala. 271, 278 (1877). The people

of Alabama rejected that deference in 1901, as this Court recognized

39 1210353

within seven years:

"Prior to the adoption of the present Constitution this court held [in Clark] that it was the province of the Legislature to determine whether or not the 'cause' was provided for by a general law .... But this section (105) provides that the courts, and not the Legislature, shall judge as to whether the matter of said law is provided by a general law."

Forman v. Hair, 150 Ala. 589, 593-94, 43 So. 827, 829 (1907).

Notably, other states have similar constitutional provisions. For

example, Minnesota's provides: "Whether a general law could have been

made applicable in any case shall be judicially determined without

regard to any legislative assertion on that subject." Art. XII, § 1, Minn.

Const.; see also, e.g., Art. 4, § 40, subsec. 30, Mo. Const.; Art. 4, § 13, Ill.

Const.; Art. 2, § 19, Alaska Const.

Here, excluding the presumption of constitutionality that Justice

Mitchell applies, I still agree with the remainder of his explanation of

why the local-tax act does not provide for the same subject matter as the

general laws at issue. I simply add the observation that, in operation, tax

laws are often sui generis in the sense that they contemplate unique

sources and allocations of revenue. Thus, even when two tax laws raise

revenue by similar means and for similar purposes, they may still provide

40 1210353 for different subject matters for purposes of § 105.

II. A broad originalist approach to § 105

Some of the defendants in this case have focused on using

contemporaneous dictionaries to understand the original meaning of §

105. Such dictionaries are a useful starting point, but they are by no

means the ending point of originalist analysis. This is especially so when

the provision in question uses broad language, words with a variety of

potential meanings, or potential terms of art. For example, one cannot

discover the original meaning of the federal Religion Clause by simply

pulling out Samuel Johnson's and Noah Webster's dictionaries, looking

up "free," "exercise," "establishment," and "religion," and collating those

definitions. Likewise for the Second Amendment: Understanding the

original meaning requires more than combining dictionary definitions of

"keep," "bear," and "arms." Rather, genuine originalism frequently

requires practitioners and scholars to look deeper into the historical and

legal context in which a provision was adopted. See Barnett v. Jones, 338

So. 3d 757, 767 (Ala. 2021) (Mitchell, J., concurring specially); Glass v.

City of Montgomery, [Ms. 1200240, Feb. 11, 2022] ___ So. 3d ___, ___ n.3

(Ala. 2022) (Mitchell, J., concurring in part and concurring in the result);

41 1210353

see, e.g., Town of Greece v. Galloway, 572 U.S. 565, 576 (2014); District

of Columbia v. Heller, 554 U.S. 570, 584-603 (2008).

Thankfully, when it comes to § 105, a wealth of data about that

context is presently available, including information about the historical

impetus for American states' proscriptions of special laws, the 1901

constitutional convention's extensive debate regarding § 105, the similar

language of earlier Alabama constitutions, other states' similar

constitutional provisions adopted during the same period, and pre-1901

court decisions interpreting all those provisions.

Historically, constitutional prohibitions of special laws were rooted

in a fundamental presupposition, derived from natural law, that civil

government is divinely instituted to legislate for the common good, not

for the individual benefit of private parties and groups. See Justin R.

Long, State Constitutional Prohibitions on Special Laws, 60 Clev. St. L.

Rev. 719, 725 (2012). James Madison observed that "a great proportion

of the errors committed by the State legislatures proceeds from the

disposition of the members to sacrifice the comprehensive and permanent

interest of the State to the particular and separate views of the counties

or districts in which they reside." The Federalist No. 46, at 296 (James

42 1210353

Madison) (Clinton Rossiter ed., 1961). Thus, state-constitutional

prohibitions of special laws were developed in response to a 19th-century

glut of special legislation that resulted from state legislatures'

succumbing to special interests and ignoring the public welfare. See

Harrisburg Sch. Dist. v. Zogby, 574 Pa. 121, 136, 828 A.2d 1079, 1088

(2003). See generally Robert M. Ireland, The Problem of Local, Private,

and Special Legislation in the Nineteenth-Century United States, 46 Am.

J. Legal Hist. 271 (2004).

Alabama's § 105 was no exception. At the 1901 constitutional

convention, delegate (and former governor) Emmet O'Neal declared in

his introduction of the provision that became § 105:

"Local, special or private bills are condemned because they destroy the harmony of the law, consume the time of the legislature, obscure in the eyes of members of the General Assembly the importance of general laws, furnish opportunity for perpetrating jobs,[2] inflict injustice on individuals or localities in the interest of a favored few. It has been truly declared that they are one of the scandals of the country. They have been in the past and will continue to be in the future the prolific sources of corruption. … The bribery and flagrant corruption which has disgraced the Legislature of some of the States of the Union can all be traced to the effort to secure the passage of local or private bills, conferring some special or

2At the time, one meaning of "job" was "a public duty or trust performed or conducted with a view to improper private gain." 4 The Century Dictionary 3235 (The Century Co. 1889). 43 1210353

valuable privilege, franchise or pecuniary advantage on the promoters or syndicate interested in the proposed legislation."

2 John Knox et al., Official Proceedings of the Constitutional Convention

of the State of Alabama 1779-80 (Wetumpka Printing Co. 1940). 3

Following O'Neal's introduction, the delegates extensively debated

the proposed provision; the whole discussion extends almost 300 pages.

See id. at 1774-2068. Many of their comments suggest a broad

understanding of § 105. The overarching goal of the proponents was that

"local or special legislation will be largely eliminated." Id. at 1785. One

proponent explained that § 105 "started out with a view of stopping up

every possible gap which the Legislature could get through on this

question of local legislation." Id. at 1966. Section 105 was described as

"let[ting] the courts and not the Legislature be the exclusive judge of

whether the subject matter of local law could be reached by some general

law in operation." Id. at 1932-33 (emphasis added). Under § 105, the

question before the Legislature in deciding whether to pass a local or

3On the date this opinion was released, this document was available online through the Alabama Department of Archives and History at the following Web address: https://digital.archives.alabama.gov/digital/collection/constitutions/id/12 0/.

44 1210353

special law would be "whether or not a matter before them was covered

by a general law." Id. at 1940. The proponents likewise emphasized that

"this provision is to prohibit [the Legislature] from passing any law of the

same nature in regard to other subjects which are not mentioned [by §

104's list of prohibited subjects of special, private, or local laws] and

which are provided for by the general law." Id. As an example of how §

105 would apply, a proponent explained that it would prevent the

Legislature from passing a law granting emancipation to a specific minor,

because a general law already defined the process whereby a minor could

seek emancipation. Id. at 1967. Moreover, § 105 would operate by

refusing "to delegate to the Legislature to determine whether or not a

matter of local concern which was introduced before them had already

been provided for by general law." Id. at 1966. One delegate explained:

"Suppose, for instance, that a general law should be passed on any matter, why should any county or municipality be exempted from the operation of that law. …

"It is not the working of the law, but it is the manner of creating the law that you desire to reach, and that you desire to make uniform throughout the state."

Id. at 1810.

On the other hand, a few statements in that debate have been read

45 1210353

by commentators as espousing a narrow view of § 105. For example, one

proponent asserted:

"[I]s there any hardship saying to any man, any individual, corporation or association that if the laws of the State have already provided for your case and you can get everything you could possibly get by appealing to the legislature, you ought not to consume the public time in trying to get the legislature to do what has already been done for you[?] That is all this provision means."

Id. at 1997. Some scholars have taken those statements to mean that the

delegates understood § 105 to forbid a local law only "if there were an

existing general law having precisely the same operation." James N.

Walter, Jr., Local Legislation in Alabama: The Impact of Peddycoart v.

City of Birmingham, 32 Ala. L. Rev. 167, 181 (1980); see J. Russell

McElroy, No ... Local Law ... Shall Be Enacted in Any Case Which Is

Provided for by a General Law, 7 Ala. Law. 243 (1946).

Of course, the goal of sound, textualist-type originalism is to

understand and apply the original public meaning of the text, not the

subjective intent of its framers. So the convention debate is relevant only

to the extent that it sheds light on what the ratifying public understood

the text to mean at the time.

As additional evidence regarding original meaning, it is significant

46 1210353

that § 105 was based on provisions in Alabama constitutions that had

been adopted earlier in that period of constitutional reform. The 1865

constitution provided: "No special law shall be enacted for the benefit of

individuals or corporations, in cases which are provided for by a general

law, or where the relief sought can be given by any court of this State."

Art. IV, § 38, Ala. Const. 1865. The 1875 constitution strengthened that

prohibition: "No special or local law shall be enacted for the benefit of

individuals or corporations, in cases which are or can be provided for by

a general law, or where the relief sought can be given by any court of this

State ...." Art. IV, § 23, Ala. Const. 1875 (emphasis added).

We have recognized that the Alabama constitution should be

interpreted in light of its predecessors. See Lockridge v. Adrian, 638 So.

2d 766, 768 (Ala. 1994); Moog v. Randolph, 77 Ala. 597, 606 (1884). In

particular, when a constitutional provision was adopted after earlier

similar provisions had been interpreted by our Court, those

interpretations may provide evidence of the original public meaning of

the provision in question. See State v. Sayre, 118 Ala. 1, 27-28, 24 So. 89,

92 (1897). And notably, in the years before § 105 was adopted, the 1875

provision was analyzed several times by our Court. See Clarke v. Jack,

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60 Ala. 271, 278 (1877); McKemie v. Gorman, 68 Ala. 442, 448 (1880);

Jones v. Jones, 95 Ala. 443, 449, 11 So. 11, 12 (1892); Holt v. City of

Birmingham, 111 Ala. 369, 373, 19 So. 735, 736 (1896).

Further, most constitutional prohibitions of special or local laws by

other states also originated in that same 19th- and early 20th-century

period of reform. See 2 Shambie Singer, Sutherland Statutes and

Statutory Construction § 40:1 (8th ed. 2022); Anthony Schutz, State

Constitutional Restrictions on Special Legislation as Structural

Restraints, 40 J. Legis. 39, 44-46 (2014). Indeed, the Alabama convention

delegates who introduced § 105 expressly referenced other states' similar

provisions and relied on their example as the "best considered

constitutions." Knox et al., supra, at 1777-80. They also acknowledged

that they drafted § 105 in the context of "numerous decisions of the courts

of the States." Id. at 1799. Thus, those states' pre-1901 court decisions

interpreting those provisions could be relevant to the original meaning of

§ 105. See, e.g., State ex rel. Van Riper v. Parsons, 40 N.J.L. 1 (Sup. Ct.

1878); State v. Dalon, 35 La. Ann. 1141 (1883); Mathis v. Jones, 84 Ga.

804, 11 S.E. 1018 (1890); City of Louisville v. Kuntz, 104 Ky. 584, 47 S.W.

592 (1898). And to the extent that those states' post-1901 decisions and

48 1210353

secondary literature have wrestled with the original meaning of their

provisions, those efforts can benefit Alabama courts as well.

As we continue to seek the original meaning of § 105, I join Justice

Mitchell in urging advocates and scholars to make use of

contemporaneous dictionaries, but not to stop there. The goal is to

interpret § 105 by seeking to understand "[w]hat was the most plausible

meaning of the words of the Constitution to the society that adopted it."

Antonin Scalia, Scalia Speaks 183 (Crown Forum 2017). Achieving that

goal requires understanding the words in the context in which they were

ratified. Thus, those who would help us uncover the original meaning of

§ 105 should research the history of anti-special-law provisions and

carefully examine the debate at the 1901 convention for evidence of the

public's understanding of the meaning and operation of § 105. In

addition, they should review the language of earlier Alabama

constitutions and of other states' pre-1901 constitutions, along with pre-

1901 court decisions interpreting those constitutions. Any

contemporaneous lay-audience advocacy, such as in newspaper articles

or recorded stump speeches, should be examined. Further, the research

should more broadly examine contemporaneous public usage of the

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language in § 105 and in analogous provisions of our earlier constitutions,

perhaps through corpus linguistics as Justice Mitchell cogently suggests.

Analysis of all the available data will help ensure, to the extent possible,

that we have a firm foundation for moving toward an approach that

conforms to the original public meaning of the constitution.

50 1210353 MITCHELL, Justice (concurring in part and concurring in the result).

I agree that we should affirm the judgment of the Montgomery

Circuit Court. Nothing in the text of §§ 16-13-31(b) or 40-12-4, Ala. Code

1975, requires a portion of the revenue collected from the Baldwin

County tax imposed by § 45-2-244.071 et seq., Ala. Code 1975 ("the local-

tax act"), to be distributed to the Gulf Shores City Board of Education

("the Gulf Shores Board"). But I believe the alternate argument made by

the Gulf Shores Board and its co-plaintiff Kelly Walker ("the plaintiffs")

-- that this tax violates § 105 of the Alabama Constitution -- is properly

before our Court and must also be addressed.4 As explained below, I

ultimately find that argument to be without merit; therefore, I

respectfully concur in part and concur in the result.

This Court's § 105 framework

Section 105 generally prohibits the enactment of a "local law … in

any case which is provided for by a general law." Ala. Const. 1901 (Off.

Recomp.), Art. IV, § 105 (emphasis added). The provision further

4A majority of the Court concludes that the Gulf Shores Board lacks standing to bring its claim asserting that the local-tax act violates § 105 of the Alabama Constitution. Even if that is correct, as I read the plaintiffs' complaint, Walker has asserted that same claim and has standing to assert it. 51 1210353

provides that "the courts, and not the legislature, shall judge as to

whether the matter of said law is provided for by a general law." Id.

(emphasis added). Our caselaw considering § 105 has rightfully focused

on the terms "case," "matter," and "provided for." In Barnett v. Jones,

338 So. 3d 757, 761 (Ala. 2021), we reviewed this caselaw and a plurality

of this Court concluded that "the key to assessing a local law under § 105

is determining the subject covered by the general law or -- in the phrasing

of the text of § 105 -- determining the 'case' or 'matter' 'provided for' by

the general law." The Barnett Court further reiterated the general rule

laid down in Peddycoart v. City of Birmingham, 354 So. 2d 808 (Ala.

1978), that "if the 'case' or 'matter' of the local law is 'provided for' by a

general law -- that is, it covers 'matters of the same import' -- § 105 has

been violated. But if not -- that is, if the laws cover things not of the same

import -- the local law does not offend § 105." Id. at 762 (quoting § 105

and Peddycoart, 354 So. 2d at 811). 5

5In Glass v. City of Montgomery, [Ms. 1200240, Feb. 11, 2022] ___ So. 3d ___, ___ (Ala. 2022) (plurality opinion), a different configuration of Justices agreed "with the Barnett plurality's affirmation of Peddycoart's 'same import' standard." By my count, between Barnett and Glass, a majority of the Justices on this Court have now indicated their agreement with this aspect of Peddycoart's approach to § 105. 52 1210353

Analysis

Briefly summarized, the plaintiffs argue that the local-tax act

violates § 105 in two ways. First, they contend that § 40-12-4(a) is a

"general law" that "provide[s] for" a specific "case" -- the enactment of a

countywide tax to raise funds for education. Therefore, they argue, the

local-tax act, which they say addresses that same case (i.e., a countywide

tax that raises funds for education) is unconstitutional. Second, they say

that multiple statutes of statewide application -- including §§ 16-13-31(b)

and 40-12-4(b) -- constitute general laws providing that the revenue

raised from a countywide tax for education must be apportioned between

the school systems in the county on a pro rata basis. Accordingly, they

argue, the local-tax act is unconstitutional because it addresses that

same matter, i.e., how the revenue raised from a countywide tax for

education must be apportioned.

The defendants counter that the plaintiffs have defined the

relevant case or matter too broadly, despite this Court cautioning parties

not to do so. 6 See Barnett, 338 So. 3d at 763 (emphasizing "the

6The defendants include Eric Mackey, in his official capacity as Superintendent of the Alabama State Board of Education; Teddy J. Faust, Jr., in his official capacity as the Revenue Commissioner of 53 1210353

importance of not extending the boundaries of subject matter too

broadly"); Drummond Co. v. Boswell, 346 So. 2d 955, 958 (Ala. 1977)

(explaining that "[i]t is not the broad, overall subject matter which is

looked to in determining whether the local act, taken together with the

general law, is violative of § 105"). Thus, they argue, it is inappropriate

to define the case provided for by § 40-12-4(a), or, alternatively, the

matter of the local-tax act, as being simply countywide taxes that raise

funds for education. Rather, the defendants say, the case provided for by

§ 40-12-4(a) is a county's authority to levy "franchise, excise and privilege

license taxes" that are to "be used exclusively for public school purposes."

In contrast, they argue, the matter provided for by the local-tax act is

Baldwin County's authority "to levy … a special county privilege license

tax paralleling the state sales tax." While a portion of the funds raised

Baldwin County; James E. Ball, Joe Davis III, Billie Jo Underwood, and Charles F. Gruber, in their official capacities as Commissioners of Baldwin County; the Baldwin County Board of Education; Judge Carmen E. Bosch, in her official capacity as Presiding Judge of the Baldwin County Juvenile Court; Robert Wilters, in his official capacity as the Baldwin County District Attorney; and Coastal Alabama Community College. These government officials and entities have collectively filed five appellee briefs. Their arguments largely overlap, and some defendants have expressly adopted the arguments made by other defendants in their briefs. For convenience, I have treated their arguments about § 105 as a collective argument. 54 1210353 by this tax are allocated to the Baldwin County Board of Education, some

of the funds are allocated to other entities for noneducational uses, and

some of the funds are even allocated to Baldwin County's general fund

"to be expended as other county funds." Thus, the defendants argue, the

case provided for by § 40-12-4(a) -- a county's authority to levy a

franchise, excise, or privilege license tax to raise funds for public schools

-- is different from the matter of the local-tax act -- Baldwin County's

authority to levy a privilege license tax to raise funds generally.

Similarly, the defendants argue that §§ 16-13-31(b) and 40-12-4(b),

and the local-tax act, cannot be reduced to laws addressing the broad case

or matter of how revenue raised from a countywide tax should be

allocated between local boards of education in a county. To be sure, § 16-

13-31(b) provides for how countywide taxes collected for the purpose of

participating in the Foundation Program, see generally § 16-13-230 et

seq., Ala. Code 1975, should be allocated between the "local boards of

education within the county," and § 40-12-4(b) provides that, in counties

with multiple school systems, "revenues collected under the provisions of

this section shall be distributed within such county on the same basis of

the total calculated costs for the Foundation Program." But the

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defendants emphasize that the revenue collected under the local-tax act

is not collected either for purposes of participating in the Foundation

Program or under the grant of authority made by § 40-12-4. Thus, they

reason, the case provided for by those statutes is not the same as the

matter addressed by the local-tax act. Or, in Peddycoart terms, the laws

do not address "matters of the same import." 354 So. 2d at 811.

The defendants' argument is convincing. The plaintiffs' broad

characterization of the legislative acts is not supported by the text of

those acts. And defining the case provided for by a general law in broad

terms that create a conflict with local laws is contrary to the fundamental

principle that " '[w]e approach the question of the constitutionality of a

legislative act " ' "with every presumption and intendment in favor of its

validity, and seek to sustain rather than strike down the enactment of a

coordinate branch of the government." ' " ' " Bynum v. City of Oneonta,

175 So. 3d 63, 66 (Ala. 2015) (citations omitted). Consistent with our

previous decisions, the case provided for by the relevant statutes and the

matter provided for by the local-tax act can be narrowly defined to avoid

running afoul of the § 105 prohibition. See, e.g., Barnett, 338 So. 3d at

762-63 (describing how this Court, in Town of Vance v. City of Tuscaloosa,

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661 So. 2d 739 (Ala. 1995), and Birmingham v. Vestavia Hills, 654 So. 2d

532, 538 (Ala. 1995), "refused to treat the matter [provided for by the

subject legislative acts] as annexation generally. Rather, it treated the

matter provided for as annexation in certain contexts.").

Properly viewed, the case provided for by § 40-12-4 is not simply a

county's authority to implement a countywide tax, or even a county's

authority to implement a countywide tax that raises revenue for

education. Rather, it is a county's authority to levy a franchise, excise,

or privilege license tax to raise revenue exclusively for public-school

purposes. The local-tax act, by contrast, provides for a different

matter -- the authority of a county (Baldwin County) to levy a special

privilege license tax to raise revenue for the county (the smaller part of

which is allocated for educational purposes and the rest of which is used

to support various other government purposes). Likewise, the case

provided for by §§ 16-13-31(b) and 40-12-4(b) is not the allocation of tax

revenue between school systems in a county "generally," it is the

allocation of tax revenue between school systems in a county "in certain

contexts." Barnett, 338 So. 3d at 762-63. The local-tax act, meanwhile,

addresses such an allocation in a different context. When the case

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provided for by the general laws is properly delineated in this way, it is

apparent that the local-tax act does not run afoul of § 105.

The defendants, like the City of Montgomery in Glass v. City of

Montgomery, [Ms. 1200240, Feb. 11, 2022] ___ So. 3d ___ (Ala. 2022),

have provided this Court with "valuable supporting evidence" of the

original public meaning of the terms "case" and "matter" that buttresses

this understanding of § 105. ___ So. 3d at ___ (Mitchell, J., concurring

in part and concurring in the result). Specifically, they point to the

definitions of those terms found in dictionaries from the period when the

Alabama Constitution was adopted. See Barnett, 338 So. 3d at 767

(Mitchell, J., concurring specially) ("When seeking to determine the

original public meaning of a constitutional provision, it is necessary to

examine relatively contemporaneous sources and older, pre-enactment

sources that shed light on a provision's historical context."). Their

discussion of the term "case" is particularly helpful. 7

7In my special concurrence in Barnett, I encouraged parties "in future state-constitutional cases to provide appropriate research and arguments about the original public meaning of the provision they are asking us to interpret," noting specifically that "[w]hat the words 'case' or 'matter' were understood by the Alabama public to mean in 1901 would be of great interest to me in determining the scope of § 105." 338 So. 3d at 768-69 (Mitchell, J., concurring specially). 58 1210353

The relevant definitions of "case" in The Century Dictionary are "[a]

particular determination of events or circumstances; a special state of

things coming under a general description or rule" and "[a] state of things

involving a question for discussion or decision." 1 The Century

Dictionary 840 (The Century Co. 1889). And Webster's New

International Dictionary defines case as "[a]n instance or circumstance

of the kind; a special state of affairs; as, a case of injustice." Webster's

New International Dictionary 339 (1910). 8 Notably, both of these

contemporaneous dictionaries indicate that the term "case" carried with

it an emphasis on the particular or special (as opposed to the broad and

general) at the time the current Alabama Constitution was ratified.

Courts should "give words the meaning they had at the time the law was

adopted," Barnett, 338 So. 3d at 766 (Mitchell, J., concurring specially)

(emphasis omitted), and these definitions indicate that the term "case"

8The defendants explain that they selected these two dictionaries because they were published in the period surrounding the ratification of the Alabama Constitution in 1901, and our courts have previously relied on them when determining the meaning of terms used in constitutional provisions and statutes. See, e.g., State v. Towery, 143 Ala. 48, 49, 39 So. 309, 309 (1905) (citing Webster's International Dictionary); Lovelady v. State, 15 Ala. App. 615, 618, 74 So. 734, 735-36 (1917) (citing The Century Dictionary). 59 1210353

would have been understood by the informed public at the beginning of

the 20th century as referring to a set of particular circumstances, not a

broad general category. This evidence further supports the defendants'

argument about the original public meaning of § 105, a provision that has

vexed this Court since it became law. See, e.g., Board of Revenue of

Jefferson Cnty. v. Kayser, 205 Ala. 289, 290-91, 88 So. 19, 20-21 (1921)

(discussing the meaning of § 105); see also Barnett, 338 So. 3d at 766

(Parker, C.J., concurring specially) (questioning whether this Court's

current § 105 jurisprudence bears any resemblance to the original

meaning of this constitutional provision).

Before ending, I would like to highlight an emerging research tool

that courts are beginning to employ in cases presenting difficult issues of

constitutional and statutory interpretation -- corpus linguistics. In short,

corpus linguistics involves the use of an electronic database -- called a

corpus -- that contains thousands or even millions of examples of

everyday usage of a given word or phrase in a particular time period. By

examining how a word had been used across a wide range of sources --

including not only academic works, but also sources in general public

circulation (newspapers, periodicals, and works of fiction) -- corpus

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linguistics can shed light on what the public would have understood a

constitutional provision or statute to mean at the time it was ratified or

enacted. See Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary

Meaning, 127 Yale L.J. 788 (2018) (providing a broad overview of corpus

linguistics). As one respected jurist has noted, corpus linguistics has the

potential to be "a powerful tool for discerning how the public would have

understood a statute's text at the time it was enacted." Wilson v. Safelite

Grp., Inc., 930 F.3d 429, 440 (6th Cir. 2019) (Thapar, J., concurring in

part and concurring in the judgment).

Courts at both the state and federal levels are now using corpus

linguistics alongside other traditional research tools to help determine

the meaning of disputed terms. 9 The Supreme Court of the United States

9See, e.g., United States v. Rice, 36 F.4th 578, 583 n.6 (4th Cir. 2022) ("[C]orpus linguistics supports the conclusion that the ordinary public meaning of strangulation at the time North Carolina passed § 14- 32.4(b) involved intentional conduct."); United States v. Woodson, 960 F.3d 852, 855 (6th Cir. 2020) (applying corpus linguistics to a defendant's argument that the term "scheme" in a sentencing statute referred to a physical place as opposed to plans and actions); Health Freedom Defense Fund, Inc. v. Biden, [No. 8:21-cv-1693-KKM-AEP, Apr. 18, 2022] ___ F. Supp. 3d ___, ___ (M.D. Fla. 2022) (noting that a corpus-linguistics analysis of the term "sanitation" supported the conclusion that the term most frequently referred to "a positive act to make a thing or place clean"); Richards v. Cox, 450 P.3d 1074, 1078-81 (Utah 2019) (using corpus linguistics to determine what it means to enjoy "employment … 61 1210353

even discussed corpus linguistics during a recent oral argument in ZF

Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. ___, 142 S.Ct. 2078

(2022) (orally argued on March 23, 2022). And while that Court has not

published a majority opinion containing a full-blown corpus-linguistics

analysis, Justice Thomas has conducted searches using popular corpora,

see Carpenter v. United States, 585 U.S. ___, ___ n.4 and accompanying

text, 138 S.Ct. 2206, 2238 n.4 and accompanying text (2018) (Thomas, J.,

dissenting) (citing the Corpus of Historical American English,

https://corpus.byu.edu/coha; and the Corpus of Founding Era American

English, https://lawncl.byu.edu/cofea, and explaining that the phrase

"expectation(s) of privacy" does not appear in "collections of early

American English texts"), and Justice Alito has stated that "perhaps

someday it will be possible to evaluate the[] canons [of interpretation] by

in the state's education systems" under Utah Const. Art. X, § 9); State v. Lantis, 165 Idaho 427, 433, 447 P.3d 875, 881 (2019) (noting that corpus linguistics supported the conclusion that a statute criminalizing disturbing the peace barred the disturbance of a "public, external peace" as opposed to a private, internal, or emotional peace); People v. Harris, 499 Mich. 332, 347, 885 N.W.2d 832, 838-39 (2016) (applying corpus- linguistics techniques to help determine whether a statute prohibiting "information" provided by a law-enforcement officer during an internal- affairs investigation from later being used against that officer in a criminal proceeding applied only to true information provided by the officer, or to both true and false information). 62 1210353

conducting what is called a corpus linguistics analysis, that is, an

analysis of how particular combinations of words are used in a vast

database of English prose." Facebook, Inc. v. Duguid, 592 U.S., ___, ___,

141 S.Ct. 1163, 1174 (2021) (Alito, J., concurring in the judgment) (citing

Lee & Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788 (2018)).

Clearly, corpus linguistics is on the rise.

Convinced of the potential of this tool, some courts have even asked

parties and amicus curiae to include corpus-linguistics analyses in

supplemental briefs in pending cases. See, e.g., Jones v. Bonta, 34 F.4th

704, 714 n.6 (9th Cir. 2022) (noting that the court had "asked the parties

to file supplemental briefing addressing in part the applicability of corpus

linguistics to [the] case"); Wright v. Spaulding, 939 F.3d 695, 700 n.1 (6th

Cir. 2019) ("We asked the parties to file supplemental briefs on the

original meaning of Article III's case-or-controversy requirement,

specifically whether the corpus of Founding-era American English helped

illuminate that meaning."). While supplemental briefing is not necessary

here, I echo those courts' general invitation and urge parties appearing

before this Court in future state-constitutional and statutory cases to

include corpus-linguistics analyses to help us wrestle with the original

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public meaning of relevant provisions -- especially where key words or

phrases are older and may have had a different meaning than they would

have today. Corpus linguistics will often serve only as a method to "check

our work" and confirm the results of the underlying textual analysis, but

"[i]n future cases where the ordinary meaning is debatable, … the results

[of a corpus-linguistics analysis] could be determinative." Wilson, 930

F.3d at 445 (Thapar, J., concurring in part and concurring in the

judgment).