Community Service Grants
I have not seen the judge’s ruling upholding the new version of the Grants, but based on what I have seen it looks like he probably made the right decision.
The old version and the new version work essentially the same way. The legislature set up a committee and appropriated money to the committee. The money is evenly divided between the legislative districts; every senate district is entitled to an equal amount, and every house district is entitled to an equal amount. The money is only for educational purposes. To get it, the individual legislator must ask for it and the committee must approve the grant. When approved, a check is cut in the grantee’s name, but the legislator decides on the manner of delivery. So the legislator can make a big show of giving a check to some local school or whatever.
The big difference is the makeup of the committee. The voting members of the old committee were all legislators. Two members of the executive branch served in an advisory capacity. The voting members of the new committee are members of the executive branch: the Lt. Governor, State Treasurer, Agricultural Commissioner, and Superintendant of Education.
The change was made because the State Supremes held in McInnish v. Riley, 925 So.2d 175 (Ala. 2005)(yes, that McInnish) that the legislative make-up of the old committee meant the Grant program violated Alabama’s rules on separation of powers.
Sections 42 and 43 of the state constitution explicitly provide for the seperation of powers:
The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.
In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.
The court held, relying on a long line of state and federal cases, that deciding how to spend appropriated money is an executive function. That is exactly what the committee was doing, using its discretion to decide how to spend appropriated funds. Hence, the committee was performing an executive function.
But the committee was clearly a legislative body. The voting members served by virtue of their offices as legislators, and the only two executives on the committee had no vote.
Thus, the committee violated the separation of powers. It was a legislative attempt to exercise executive powers.
So it was back to the drawing board. If the problem was that a legislative committee was exercising executive powers, the solution would be either change the powers or change the committee. The legislature chose to change the committee. That is why the new one consists of members of the executive branch. Now, they argue, it is an executive committee performing executive functions.
The opposition counters that the committee is still illegitimate because it does not include the chief executive. I do not know where they got the idea that in order for a committee to be an executive committee it must include the governor. My best guess is that in the previous case, the court contrasted the old committee with another one that had featured legislators but was chaired and controlled by the governor. The governor’s involvement saved that committee from similar seperation of powers arguments.
If this is the only source for their argument, it is a very thin reed on which to lean. The opinion uses as an example the committee with the governor as chair, but it generally speaks of the need for executive branch – not chief executive – control. Also, according to the news reports, the judge who just upheld the new Grants did so in part because the opponents offered no cases in support for their argument that the governor had to be included. Finally, it seems like the contention would lead to absurd results. How well would the state function if every committee that distributes funds had to have the governor as a member?
So, based on the old opinion and what I’ve read in the news, I think the Grant program is going to survive the court challenge.
If it does survive, I think it’s worthwhile to point out that in addition to the odd fact that the state’s chief attorney – Troy King – is arguing that a state law is unconstitutional, he and Bob Riley will have lost both of these cases. They argued for the old Grants, and are now arguing against the new Grants. They lost the old case, and may lose this one as well. The court spoke pretty disparagingly about their previous arguments, and if they are arguing what I think they are in this one, they may once again get smacked down. Not that this would be the first time Troy King has wasted state funds on a politically popular but legally frivolous case.
Of course, as the Advertiser points out today, that the Grants are legal does not mean they are a good idea. It just means the remedy will have to come at the ballot, instead of through the courts.