Opinion of the Justices

417 So. 2d 936, 1981 Ala. LEXIS 3964

Supreme Court of Alabama·Decided August 18, 1981·No. No. 280·Published·Cited by 10 cases

Opinion

To the Members of the Senate

State Capitol

Montgomery, Alabama

Gentlemen:

In Senate Resolution 29¹ you requested our opinion regarding “S.B. 87 of the 1981 First Special Session,”² which pertains to the creation, appointment, qualifications, powers, duties, compensation and appropriation for three proposed new judicial offices in the Tenth Judicial Circuit. The questions asked are as follows:

“1. Does Section 1 of this bill contravene Amendment 83 of the Constitution of 1901?”

“2. Does Section 2 of this bill contravene Amendment 83 of the Constitution of 1901?”

“3. Does Section 1 of this bill violate the provisions of Amendment 328, Section 6.14 of the Constitution?”

“4. Does Section 2 of this bill violate the provisions of Amendment 328, Section 6.14 of the Constitution?”

Since the passage of Act No. 43, Acts of Alabama, Regular Session 1923 (now codified at § 12-2-10, Code of Alabama 1975), the individual Justices, within permissible limits, have been privileged under the law to give advisory opinions on important constitutional questions then pending in the Legislature; and, in the spirit of harmony and cooperation, a majority of the individual Justices have frequently exercised this privilege. However, this procedure is not without difficulty in that the opportunity is not generally available for opposing views to present their respective positions, nor are pertinent facts presented as is usual in the adversary nature of our judicial system. The Supreme Court’s primary function is one of appellate review, exercised in the context of adversary proceedings. The very nature of our judicial process mandates that decisions be rendered only after all sides have presented their respective views, together with appro[937]*937priate legal precedent and authority supporting such views. When the constitutionality of statutes is so tested, the end result is of binding force and effect; whereas the opinions of the individual Justices, promulgated under § 12-2-10, Code of Alabama 1975, are not so binding under this law. Opinion of the Justices, 254 Ala. 177, 47 So.2d 655 (1950); Opinion of the Justices, 291 Ala. 581, 285 So.2d 87 (1973); and Opinion of the Justices, 294 Ala. 589, 319 So.2d 715 (1975). Thus, opinions of the Justices are merely advisory — consultative only. Opinion of the Justices, 209 Ala. 593, 96 So. 487 (1923).

Although pending legislation, involving important constitutional issues, falls within the purview of this statutory prerogative, expressions of opinions, hastily and abstractly considered, may well pose a greater danger of confusion and uncertainty than the exercise of judicial restraint in declining to respond to the questions submitted. The issues presented by Senate Resolution 29 relating to S.B. 87 of the 1981 First Special Session has been submitted to the Justices of this Court without the benefit of the expression of opposing views by way of written briefs or oral presentation. In our study of the questions posed in Senate Resolution 29, we have noted that the Legislature has created a number of additional circuit judgeships since the ratification of Amendment 328 of the Constitution of 1901 providing for the initial selection of the person to fill the newly created judgeship either by authorizing appointment by the governor, or in some instances providing that the judgeship be filled by election at the next general election. In one such instance, Act No. 79-692 creating the office of circuit judgeship number twenty of the Tenth Judicial Circuit of Alabama, the Legislature provided that the first judge be appointed in the manner provided by Amendments 83 and 110 to the Constitution of Alabama. Thus, the Legislature has authorized additional judgeships, and has further provided for the filling of such judge-ships by several different methods. Pending S.B. 87 proposes to establish even another method of initially filling the newly created judgeship. To date, our research has revealed no decided cases by the Supreme Court since the adoption of Amendment 328 which could serve as a precedent or authority to express our opinion with respect to the questions posed by Senate Resolution 29.

Respectfully and regretfully, we are compelled to decline to answer the questions here submitted. Because of the complexity of the constitutional issues, the absence of any clear apparent authority readily discernible from a plain reading of the pertinent language of the present State Constitution and statutes, and the serious legal and political implications here involved, our considered judgments constrain us to await the appropriate adversary context of a more deliberative litigated proceeding in which to address and postulate a definitive response to these issues.

Respectfully submitted,

C. C. TORBERT, Jr.

Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RICHARD L. JONES

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

SAM A. BEATTY

OSCAR W. ADAMS, Jr.

Justices

APPENDIX A

SR 29 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO PENDING S.B. 87 OF THE 1981 FIRST SPECIAL SESSION.

BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we do respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions of the important constitutional questions [938]*938which have arisen concerning the pending S.B. 87 of the 1981 First Special Session, which bill pertains, inter alia, to creating three new judgeships in the Tenth Judicial Circuit, providing for their appointment, qualifications, powers, duties and compensation and benefits. Copies of said bill are attached hereto and made a part hereof by reference.

1. Does Section 1 of this bill contravene Amendment 83 of the Constitution of 1901?

2. Does Section 2 of this bill contravene Amendment 83 of the Constitution of 1901?

3. Does Section 1 of this bill violate the provisions of Amendment 328, Section 6.14 of the Constitution?

4. Does Section 2 of this bill violate the provisions of Amendment 328, Section 6.14 of the Constitution?

5. Does Section 2 propose a local law within the meaning of Article 4, Section 106 of the Constitution?

6. Does Section 6 propose a local law within the meaning of Article 4, Section 106 of the Constitution?

7. Does the provisions of this bill violate the provisions of Article 4, Section 110?

RESOLVED FURTHER, That the Secretary of the Senate is hereby directed to send sufficient copies of the pending S.B. 87 with attachments to the Clerk of the Supreme Court of Alabama and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this resolution.

APPENDIX B

S. 87

By Mr. Pearson

RFD — Finance & Taxation

Rd 1-8-6-81

SYNOPSIS: This bill creates three additional judgeships for the Tenth Judicial Circuit.

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