Accountability Act: When a Judge Becomes a Super Legislator

Since its passage, plenty of ink has been spilled regarding the Alabama Accountability Act of 2013 (Accountability Act). Unfortunately, precious little has been devoted to examining the peculiar ruling by Montgomery Circuit Judge Charles Price.

Judge Price recently issued an order preventing the legislature from transmitting the Accountability Act to Governor Bentley for his signature, effectively preventing the legislation from becoming law. To be clear, there is absolutely nothing inappropriate about the Alabama Education Association (AEA) or others challenging the Accountability Act or even seeking an order to prevent it from being implemented once the Governor signs it. But halting the political process is an extraordinary remedy and an egregious violation of the constitutional separation of powers.

Take the Alabama Accountability Act out of the picture for a minute. For those of a more liberal persuasion, consider the political fallout if a Democrat controlled legislature had passed a substantial property tax increase to raise more education revenues and a Republican judge reached into the political process to stop the bill from becoming law. There would be thunderous objection from the media and the education bureaucracy in Alabama. But with a few exceptions, criticism of Judge Price’s injunction has been light.

Even Judge Price struggles to give voice to his own improper judicial intervention.

As justification for his injunction order, Judge Price notes that there “will be implementation costs associated with [the Accountability Act] that cannot be recovered or returned in the event the implementation…is not enjoined.” The only problem is that Judge Price enjoined the bill from being transmitted to the Governor, not from being implemented. Even assuming that the opponents of the legislation have a probability of success on the merits, the proper time for an injunction is after the bill becomes law.

But what about the Alabama Open Meetings Act issues that have been the focal point of the opposition? The AEA and the Accountability Act’s detractors conveniently forget to mention, and apparently Judge Price declined to consider, section 9(f) of the Alabama Open Meetings Act which states that “any action taken at an open meeting conducted in a manner consistent with [the Act] shall not be invalidated because of a violation…which occurred prior to such meeting.” Even in the unlikely event that the Accountability Act’s opponents successfully demonstrate that that sidebar Republican meeting during Conference Committee was contrary to the Alabama Open Meetings Act, the actions of the committee and the subsequent passage of the legislation are not invalidated.

Well then what about the much ballyhooed rule 21 which states that conference committees shall not introduce a new appropriation item? The Joint Rules of the Alabama Legislature are precisely that. They are procedural rules for the legislature, to be raised in the legislature and which are properly adjudicated by those presiding over the legislature. Senators and Representatives could have asserted rule 21 objections during the legislative proceedings rather than making multiple efforts to adjourn and generally create chaos. Instead, the rule 21 objections were apparently raised in court by lawyers reaching for theories to block the legislation. For separation of powers to have any meaning, legislative rules must not be subject to judicial intervention absent clear constitutional authority to the contrary.

Alabamians have a lot more to worry about than reforming education if any elected judge in the state is able to substitute his or her judgment for the legislative process. If Price’s ruling is upheld, what prevents a judge from stopping a bill from being transmitted from one legislative body to the other? Judges across Alabama will have the capacity to second guess the legislature’s rules and proceedings as they see fit. In short, they will have direct control over the political process.

There is one reason that Judge Price issued such a far-reaching order, and it is overtly political. Judge Price created an additional opportunity for the Accountability Act’s opponents to run out the legislative clock and kill the legislation simply by keeping it tied up in court and off the Governor’s desk for the remainder of the session.

Alabama’s education bureaucracy is not accustomed to losing battles in the legislature, and it is now calling on the courts to stop education reform dead in its tracks. While the Democrat politics of Judge Price may be easy for the Accountability Act’s opponents to activate, Alabamians can only hope that the Alabama Supreme Court will honor the separation of powers and quickly reverse his injunction.

Cameron Smith is Policy Director and General Counsel for the Alabama Policy Institute, an independent, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.

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