Opinion of the Justices , 384 So. 2d 1056 ( 1980 )

Members of the Senate

State Capitol

Montgomery, Alabama

Gentlemen:

We acknowledge receipt of Senate Resolution No. 154 requesting an advisory opinion on the constitutionality of House Bill No. 320. Senate Resolution No. 154 and House Bill No. 320 read:

SR 154 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO H. B. 320, AS AMENDED.

BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we 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 on the following important constitutional question which has arisen concerning the pending bill, H. B. 320, as amended, a copy of which is attached to this resolution and made a part hereof by reference:

1. Does H. B. 320, as amended, conflict with the 14th or 15th Amendment to the United States Constitution?

2. Does H. B. 320, as amended, conflict with the U. S. Civil Rights Act, Chapter 21 of Title 42 of the United States Code?

RESOLVED FURTHER, That the Secretary of the Senate is hereby directed to send sufficient true copies of the pending bill, H. B. 320, as amended, 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.

SYNOPSIS: The bill proposes to amend the merit system law to allow the Attorney General to appoint attorneys and legal research aides from a register certified to him by the director of the Personnel Department without regard to the ranking of eli-gibles.

A BILL

TO BE ENTITLED

AN ACT

To amend Section 36-26-17 of the Code of Alabama, 1975 relating to the manner of filling vacancies in the classified service to allow the Attorney General to appoint attorneys and legal research aides from a register without regard to the ranking of eligibles.

Be It Enacted by the Legislature of Alabama:

Section 1. Section 36-26-17, Code of Alabama, 1975, is hereby amended to read as follows:

“Section 36-26-17. Vacancies in the classified service shall be filled either by transfer, promotion, appointment, reappointment or demotion.

Whenever a vacancy is to be filled by appointment, the appointing authority shall submit to the director a statement of the title of the position and, if requested by the director to do so, the duties of the position and desirable qualifications of the person to be appointed and a request that the director certify to him the names of persons eligible for appointment to the position. The director shall thereupon certify to the appointing authority the name of the three ranking eligibles from the most appropriate register and, if more than one vacancy is to be filled, the name of one additional eligible for each additional vacancy or all the names on the register if there are fewer than three.”

Except that in the appointment of attorneys or legal research aides under this section by the Attorney General the director shall certify to the Attorney General the names of all eligibles who meet the minimum qualifications for the particular class of attorneys. The Attorney General may then appoint any person on the register of eligibles without regard to position on that register.

“If it should prove impossible to locate any of the persons so certified or should it become known to the director that any person is not willing to accept the position, the appointing authority may request that additional names be certified until three persons eligible and available for appointment have been certified. Within 10 days after such names are certified, the appointing authority shall appoint one of those whose names are certified to each vacancy which he is to fill; except, that, in the event that he has fewer than the authorized number of persons from which to make his selection, he may choose from the remaining certified names or may elect to make a provisional appointment as provided by section 36-26-18. In the event that there does not exist an employment register which the director deems to be appropriate for the class in which the position is established, he shall prepare such a register within a reasonable time after receipt of the request of the appointing authority that eligibles be certified. Whenever an eligible has been certified to and rejected by appointing authorities three times, the director may remove the name of such person from the employment register.”

Section 2. All laws or parts of law in conflict with this Act are hereby repealed.

Section 3. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

Senate Resolution 154

We respectfully decline to answer the questions posed. Code 1975, § 12-2-10, permits us to answer only important constitutional questions of a general public nature. Opinion of the Justices, 209 Ala. 593, 96 So. 487 (1923); Opinion of the Justices, 280 Ala. 692, 198 So.2d 269 (1967). Additionally, we may answer only narrow questions directed to specific provisions of the State or Federal Constitutions.

Question 1 is too broad and indefinite to come within the purview of § 12-2-10, supra. Opinion of the Justices, 294 Ala. 604, 320 So.2d 622 (1975).

We have no authority to answer Question 2 because it does not pose a constitutional question.

Answers declined.

Respectfully submitted,

C. C. Torbert, Jr. Chief Justice Hugh Maddox James H. Faulkner Reneau P. Almon Janie L. Shores T. Eric Embry Sam A. Beatty Justices