As I noted last year in Gavel to Gavel publication, legislatures in 10 states are permitted to ask their supreme court for an advisory opinion on a given legal issue or particular bill. Two states appear poised to exercise that option this year.
WHEREAS, there is now pending in the Legislature Senate Bill 563 which provides and directs the appropriation and distribution of funds received by Jackson County as its portion of the in-lieu-of tax payments received by the State of Alabama from the Tennessee Valley Authority and which specifically provides in part for a portion of the fund to be appropriated to the Jackson County Discretionary Board consisting of the Chair of the Jackson County Commission, the senator, and two representatives, respectively, that are legislators representing all or part of Jackson County…
The resolution asks the court whether the bill violates the state’s constitution in any one of three ways: separation of powers (Article III, Sections 42 and 43), payment of public funds (Article IV, Section 72), or enactment of local laws (Article IV, Section 105).
The resolution was reported out of the Senate Rules Committee yesterday. Under state law, the House or Senate may separately ask for an advisory opinion, thus only Senate approval is required here.
Delaware’s HCR 42 deals not with a particular piece of current legislation but on a legal situation. According to the resolution, the sheriff of Sussex County is claiming the power to make arrests as “a Conservator of the Peace.” The Office of Attorney General has twice issued opinions concluding sheriffs may not make arrests, but adding most recently that the legislature should clear the matter up. HCR 42 poses the question of “whether or not the county sheriffs and their deputies have the authority to arrest under any provision in the Constitution of this State.”
Unlike in Alabama, Delaware’s statutes require both House and Senate approval of the resolution before it may be submitted to the Supreme Court.
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