By Bill Britt
Alabama Political Reporter
MONTGOMERY—In 1956, Governor James Folsom asked the State Supreme Court for an opinion on which statute applied to a vote on a constitutional amendment during a legislative Special Session.
This is a question that may be at issue when Gov. Robert Bentley calls for a Special Legislative Session which is expected in August.
In his request, Gov. Folsom asked, “If during a Special Session of the Legislature, a proposal for a constitutional amendment is submitted, which is not within the purview of the Governor’s special call, would it not merely require a three-fifths vote of the legislature pursuant to Section 284 of Article l 8, Constitution of Alabama, 1901, Amendment 24, or would it require two-third vote of each house according to Section 76, of Article 4 of the Constitution?”
The court found that the legislature could, in fact, bring up any issue for a Constitutional Amendment beyond the scope of the Governor’s Call with the required votes.
“They can bring up anything, introduce anything they want to during Special Session. They don’t have to just introduce just what is in the call,” according to Clerk of the Senate Pat Harris.
In 1956, the Supreme Court citing case law stating, “The proposal of an amendment does not constitute legislation.” (Johnson v. Craft, 205 A la. 386, 87 So. 375.) The justices further stated, “Proposed amendments to the Constitution are governed by sections 284-287, inclusive, of our Constitution, and limitations and restrictions applicable to the legislative function of enacting statutes are without application.”
Harris explains, “The opinion of the Justices in 1956, says that proposing a constitutional amendment is controlled by Section 284 and not by Section 76,” it is therefore not considered legislation.
Since it is not legislation, it is not subject to Governor’s call or approval. According to Harris, the Governor may included it in the call but the legislature can introduce it without the governor’s approval.
Two introduce a CA from require three-fifths vote of the Legislature according to statute which would be 21 votes in the Senate and 63 votes in the House.
“Where this might get interesting,” says Harris, “is if there is a need for a cloture vote.”
The Court found in its opinion that proposing a constitutional amendment during a special session did not require the two-thirds vote to introduce legislation but rather three-fifths as prescript in sections 284-287.
Senate President Pro Tem Del Marsh (R-Anniston) has said that rather than raising taxes he would like to propose a constitutional amendment allowing the people to vote of a omnibus gaming bill.
Governor Bentley has stated that he would not include any CA for gambling in the call. According to the Court’s 1956 opinion, Marsh’s lottery and gaming bill does NOT have to be in the call and does NOT need 2/3 vote to get it in the special. The 60-year-old case concludes that says a constitutional amendment is not “legislation” so a CA can always be introduced in a special and it only needs 3/5 (like every other CA) for passage.
