- Associated Press - Sunday, March 9, 2014

MONTGOMERY, Ala. (AP) - Alabama’s highest court is divided over whether the state Legislature is acting legally by rewriting the state Constitution a few portions at a time.

In advisory opinions sent to legislators, Supreme Court Chief Justice Roy Moore and Justice Tom Parker said the Legislature’s article-by-article approach is not allowed by the Constitution.

Moore said putting out a few new provisions each year for voters to approve does not change the reality that the Legislature has undertaken a near total revision of the Constitution through an in-house constitutional convention.

“By wresting the convention process from the people, the Legislature has unconstitutionally made itself the paramount mechanism of constitutional revisions,” the chief justice wrote in an advisory opinion that was supported by Parker.

The court’s other seven justices, all Republicans like Moore and Parker, declined to weigh in on the issue.

But in 2013, many of the same justices upheld the dismissal of a lawsuit filed by Sandra Bell, executive director of the Association for Judeo-Christian Values, who challenged the Legislature’s article-by-article approach to rewriting the Constitution.

The decision came after the state attorney general argued that the state officials had immunity from suit.

Republican Bryan Taylor of Prattville, chairman of the Senate’s Constitution and elections committee, said he sought the court’s advice after some critics questioned the legality of what lawmakers were doing.

When the justices’ replies were distributed to senators on Wednesday, Taylor said it was significant that seven justices did not join Moore and Parker in their positions.

The Alabama Constitution can be changed in two ways. Two-thirds of the Legislature can approve an amendment to one part, and it will take affect if a majority of voters approved it in a statewide referendum. The entire document can be rewritten in a majority of the Legislature and a majority of voters decide to have a constitutional convention with delegates from across the state.

The current Constitution was written with a constitutional convention in 1901. But it has been amended more than 800 times since then and is now the longest of any state.

When Republicans won control of the Legislature in 2010, the new GOP leadership made revision of the Constitution a priority. They wanted to delete portions that were outdated or negated by court rulings, and they modernize the portions addressing businesses.

They chose not to seek a constitutional convention. Instead, the Legislature created a commission that includes public officials and others to recommend revisions to a few articles each year, with the goal of addressing 11 of the 18 articles in the Constitution.

Then the Legislature reviews and passes the recommendations and submits each article individually to voters for approval.

An advocate of the article-by-article approach, Republican Rep. Paul DeMarco of Homewood, said members of the Supreme Court shouldn’t have any problem with it because the Legislature used that approach 40 years ago to rewrite Article 6 on the state court system. The court system, headed by Moore, is still operating that article, DeMarco said.

So far, the Legislature has rewritten the articles on banking and corporations, which have been approved by voters.

In the current legislative session, lawmakers are considering rewrites of Article 3 on the separation of powers, Article 4 on the Legislature, Article 5 on the Executive Department, Article 7 on impeachment of elected officials and Article 10 on homestead exemptions, which gives Alabamians tax breaks on their homes.

With only eight meeting days left in the legislative session, the House and Senate haven’t voted on any of the revised articles.

Bell said it’s clear the Legislature’s enthusiasm for constitutional revision cooled off after the advisory opinions from Moore and Parker. She said legislators are beginning to come around to her view that the process the Legislature is using is limited to making small changes to an article of the constitution, but it can’t be used for a large rewrite of an article.

“I think they got a little afraid of this,” she said.

Senate President Pro Tem Del Marsh, R-Anniston, said the opinions from the Supreme Court have put “a little cold water” on the process but that it would continue.

If the Legislature does approve any of the pending articles, “we will sue them again,” Bell said.

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