2017 Legislative Update: Week 2

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The Alabama Legislature met in Montgomery this week for the third and fourth legislative days of the 2017 Regular Session. Because the Alabama Constitution requires each bill to be “read” on three different days before it can be passed out of the House or the Senate, this was the first week that any legislation could clear its house of origin. Like most sessions, the 2017 session is ramping up with a flurry of activity and bill introductions on hundreds of issues before it settles into the grind of working through the most important matters: the budgets.

Activity in the Senate

Accountability Act Modifications

A bill sponsored by Senate President Pro Tem Del Marsh (R–Anniston) that would make changes to the Alabama Accountability Act came out of the Senate Committee on Finance & Taxation Education on Wednesday. The bill is primarily designed to assist the state’s Scholarship Granting Organizations (“SGOs”) in raising funds up to the statutorily imposed cap of $30 million. It would permit corporations with utility tax liability in excess of $100,000 to receive a tax credit against that liability for contributions to SGOs. By extending the eligible taxes against which credits may be taken, the hope is that more funds can be raised to assist poor students in receiving a quality education. The expectation is that the bill that was voted out of Committee on Wednesday will be substituted on the floor of the Senate with a compromise measure that reserves a portion of the available tax credits for contributions made by individuals (rather than corporations). The bill is expected to be addressed by the full Senate in the next week.

Memorial Preservation Legislation

On Thursday, the Senate brought up a bill that would prohibit monuments that are at least 50 years old from being relocated or removed. The bill, SB60, is part of the House Republican Caucus agenda this year. The bill, which is sponsored by Senator Gerald Allen (R–Tuscaloosa), was carried over in the Senate after the adoption of the Budget Isolation Resolution. It will undoubtedly be brought back to the floor on a later date.

Judicial Re-allocation

A bill sponsored by Senator Arthur Orr (R–Decatur) that would create a commission to study and evaluate the allocation of judicial resources—i.e., how and when judgeships are created or abolished in the state—passed the Senate 22-5 on Tuesday. The commission includes the Attorney General, the Governor’s legal advisor, Circuit and District Judges, and three attorneys. It would meet quarterly beginning in 2018. The Commission, which would be chaired by the Chief Justice, is charged with providing a report to the Governor and the Legislature that sets forth the “need for increasing or decreasing judgeships in the district and circuit courts . . . .” SB90 has been assigned to the House Committee on Constitution, Campaigns, and Elections. That Committee favorably reported the House companion legislation, HB65 sponsored by Representative Jim Hill (R–Moody) on Wednesday.

The House: Agenda Items and Sunset Bills

Tuesday’s Slow Day on the House Floor

On Tuesday, the Alabama House attempted—with limited success—to focus on some of its agenda items. Specifically, the House spent three hours debating a resolution sponsored by Representative Barry Moore (R–Enterprise) expressing support for President Donald Trump and his “ambitious government reform agenda.” Democrats objected to the resolution, arguing it accomplished nothing, but nevertheless prolonged the time spent on the matter prior to its passage by a vote of 72-31 along party lines.

Following the vote on the Trump resolution, the House took up one of the Republican Caucus agenda items, a bill that would block funding to any public college or university in Alabama that adopts “sanctuary” policies by declaring that it would not comply with federal or state laws on immigration. Alabama’s tough immigration law, passed in 2011, blocks any funding to cities in Alabama that adopt sanctuary city policies. In late January, Birmingham passed a resolution that appeared to begin a process of examining whether to become a sanctuary city, but no college or university is known to have considered doing something similar. After a two-hour debate, the House passed HB100, sponsored by Representative Phil Williams (R–Huntsville), by a vote of 72-38.

A Busy Committee Day

As in the Senate, Wednesday was a very busy day of committee meetings, with at least 13 different House committees addressing legislation.

Judicial Override

Alabama is the only state in the country that still allows a judge to impose the death penalty when the jury recommends a sentence of life in prison. The state took another step towards ending that distinction when it favorably reported HB32, sponsored by Representative Chris England (D–Tuscaloosa). A similar bill, sponsored by Senator Dick Brewbaker (R–Montgomery), cleared the Senate Committee on the Judiciary last week. One difference between the England and Brewbaker bills is that HB32 would also require unanimity from the jury in order to impose the death penalty. The Brewbaker bill would not change current law, which requires only a 10-2 vote of the jurors. Both bills are now in a position to be brought before the full bodies.

Changing the Age of Majority

The age of majority in Alabama is currently 19. As a result, 18-year-olds in the state cannot sign leases, contracts, or loan documents, even though they can work. Representative Poole, (R–Tuscaloosa), has proposed a bill, HB70, that would bring Alabama into line with the 47 other states by lowering the age of majority to 18. The legal age to buy tobacco would remain 19, and the change would not affect family insurance plans, the jurisdiction of juvenile courts, or child support payments. After some discussion, and a substitution, the House Committee on the Judiciary gave the bill a favorable report.

Defining United Appeals

In 2015, the Alabama Legislature passed a law requiring entities—typically charities and other nonprofits—that have exemptions from sales and use taxes to receive a certificate from the Alabama Department of Revenue annually. The law has created some difficulties for so-called united appeal funds, such as the United Way, that serve as umbrella organizations over many smaller charities. Representative Terri Collins (R–Decatur) has introduced legislation, HB130, which would clarify the definition of a united appeal funds, and offer guidance to them and the Department of Revenue on how they should be treated. The House Committee on Ways & Means Education favorably reported HB130.

Thursday’s Calm

Things settled down in the House on Thursday as the body spent most of its time in session passing 21 sunset bills. Under Alabama law, nearly all government boards, agencies, and commissions automatically terminate—or “sunset’—typically at the end of three years. In order for the government body to remain in existence, therefore, the Legislature must pass legislation reauthorizing it. In practice, the procedure is typically a routine one, and it rarely—if ever—leads to significant changes to the bodies.

Impeachment and Investigations

On Wednesday, new Attorney General Steve Marshall, whom Governor Robert Bentley appointed last week to fill the vacancy left by now-Senator Luther Strange, confirmed that the Special Prosecutions Division of the office was investigating the Governor. Marshall announced on Wednesday that he had recused himself from the investigation and had appointed former Montgomery County District Attorney Ellen Brooks to oversee the matter going forward. Brooks served as D.A. for Montgomery County for more than 20 years and is a highly respected prosecutor.

Meanwhile, a new impeachment resolution regarding Governor Bentley is circulating in the Alabama House of Representatives. The resolution appears to be spearheaded by Representatives Corey Harbison and Randall Shedd, both Republicans from Cullman. There were reports during the week that the new resolution was close to reaching the required 21 signatures, but nothing official has materialized and no new hearings or proceedings have been scheduled at this point.

Senate Special Election

There is a growing dispute over when the Special Election to fill the remainder of former Senator—now U.S. Attorney General—Jeff Sessions’ Senate seat. Last week, Governor Bentley appointed Alabama Attorney General Luther Strange to the seat. On Tuesday of this week, the Governor set the Special Election for the seat for the November 2018 general election. Other state officials, however, argue that the election is required to take place sooner. State Auditor Jim Ziegler has argued that the code, stating that the Governor must order the election “forthwith,” does not permit a November 2018 election.

This week, a group of Democrats in the Legislature, led by Representative Chris England (D–Tuscaloosa), weighed in. They also argue that the election is required to be held much sooner. Today, a memo from the Legislative Reference Service, which is statutorily authorized to render opinions on the meaning and interpretation of legislation, indicated agreement with Ziegler and the Democrats. But the Governor has not changed his view, arguing that holding a special election at a date other than November 2018 will cost the State millions of dollars it does not have and would result in very low turnout, thus risking that the election will not truly represent the views and desires of the broader electorate.

The Week Ahead

The House of Representatives will convene on Tuesday at 1:00 p.m. for the fifth legislative day of the session. The Senate will begin its session at 2:00 p.m. on the same day. It is expected that next week will be another two meeting-day week, with committees meeting on Wednesday. The Legislature has met for four of its allotted 30 legislative days, with 26 remaining.

If you have any questions or would like to reach out for more information, please contact Edward A. "Ted" Hosp or Edward A O'Neal. To read more about Maynard's Governmental and Regulatory Affairs Practice, please click here.

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