MEMORANDUM OF DECISION
RUSH, J.T.R.
The plaintiff, Santa Buckley Energy, instituted the present action against the defendant, Blue Sky Holdings, Inc., d/b/a Manchester Athletic Club, to recover monetary damages for natural gas furnished to the defendant for which the defendant has not paid. In March of 2007, the defendant executed an agreement with the Celeren Corporation (hereinafter "Celeren") to "negotiate and execute on (defendant's) behalf . . . purchase agreements for the delivery of" natural gas to the defendant's facility in Atwater, MA. The agreement also provided that the defendant "hereby agrees that, as of the Effective Date; Celeren shall be and otherwise act as . . . the sole energy procurement consultant, agent, aggregator, broker supplier and/or energy marketer . . . on behalf of the" defendant (emphasis supplied). Celeren also agreed to provide "utility bill payment services" wherein Celeren agreed to make all payments due to the third-party suppliers. On its failure to do so, the defendant was entitled to make direct payments to such suppliers and reduce Celeren's fees accordingly. In return for the services provided by Celeren, Celeren received monthly payments of $17,101.00 from the defendant.
In July of 2007, Celeren entered an agreement with the plaintiff to provide natural gas to the defendant's facility in Manchester, MA. Under the agreement Celeren was listed as the "buyer." The agreement, however, was signed by Celeren as "agent for Blue Sky Holdings, Inc."
Effective April 30, 2008, the defendant terminated its agreement with Celeren and notified the plaintiff that the defendant would be responsible for payments from May 1, 2008 onward. The defendant has paid all sums due to Celeren as well as payments due to the plaintiff for fuel delivered after May 1, 2008.
There is a balance due to the plaintiff in the amount of $29,377.29 for natural gas provided by the plaintiff to the defendant prior to May 1, CT Page 15736 2008. The plaintiff claims that the defendant is responsible for that sum, together with interest and attorneys fees, as provided in the agreement between Celeren (on behalf of the defendant) and the plaintiff, on the ground that Celeren was an agent, both actual and apparent, of the defendant. The defendant claims that up until the time that the agreement with Celeren was terminated it had never received an invoice from the plaintiff and did not even know of the plaintiff's existence. The defendant also asserts that it has already paid Celeren for the natural gas and claims it will have to pay for the same fuel twice.
"The existence of an agency relationship is a question of fact. In, . . . we set forth the elements to show the existence of any agency relationship (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." (Citations omitted; internal quotation marks omitted.) National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 677-78 (2008).
"[A]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include; (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking.
"Moreover, it is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the [agency relationship]." An agent's authority may be actual or apparent. (Citations omitted; internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 849 (2003).
"Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses . . . Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal . . . The issue of apparent authority is one of fact to be determined based on two criteria. . . . First, it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority . . . Second, the CT Page 15737 party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action." (Citations omitted; internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832 fn8 (2006).
The agreement between the defendant and Celeren specifically describes Celeren as a "agent" who is authorized to "negotiate and execute on (defendant's) behalf" delivery of natural gas. There are no limitations expressed in the agreement on the authority of the agent. The agreement also provides that Celeren "will provide utility bill payment services" for the natural gas supplied to the defendant's facility. The agreement also provides that if Celeren fails to make payments for such purchases the defendant may make those payments directly and reduce the monthly payment to Celeren. The natural gas sales agreement between Celeren and the plaintiff does describe Celeren as the "buyer" of natural gas provided to the facility of the Manchester Athletic Club. However the agreement signed between the plaintiff and Celeren specifically states that Celeren is signing the agreement as "agent for Blue Sky Holdings Inc." Prior to supplying the natural gas, the plaintiff performed a credit check not as to Celeren but only as to the credit standing of the defendant.
The court finds that Celeren was the actual agent of the defendant, and also had apparent authority to act on behalf of the defendant, and accordingly the defendant is responsible to the plaintiff for the sums due for natural gas supplied by the plaintiff to the defendant's facility. The defendant is also responsible for interest in accordance with the agreement executed by Celeren with the plaintiff as well as "reasonable attorneys fees."
The judgment in this case will not be effective however until a hearing is held with respect to the attorneys fees and interest to which the plaintiff is entitled. Accordingly, the court therefore schedules a hearing, which may be evidentiary, with respect to the issue of attorneys fees and the calculation of interest. That hearing is scheduled for Monday, August 23, 2010 in Courtroom 6D at 10:00 a.m.
CT Page 15738
officials, rather than by Attorney General King, if it is to serve the stated purpose of ensuring the faithful execution of the laws.
In the appeal of the preliminary injunction in the above-discussed declaratory-judgment actions, Cornerstone and FTV supported their argument, in part, by citing remarks made by Attorney General King concerning electronic bingo that they considered favorable to their position.
Further, the declaratory-judgment actions described by Attorney General King appear to contemplate only a request for determinations as to "whether" gaming machines are illegal under the constitution and laws of Alabama. As this Court has recently ruled in a similar declaratory-judgment action with respect to machines and operations of this nature, the courts of this State have no subject-matter jurisdiction over requests for advisory opinions. Etowah Baptist Ass'n v. Entrekin, 45 So.3d 1266 (Ala. 2010). Accordingly, Attorney General King's proposed course of conduct would be a nullity. Moreover, with certain exceptions not applicable here, the courts of this State do not have subject-matter jurisdiction in independent civil actions to interfere with the enforcement of the criminal laws. See Tyson v. Macon County Greyhound Park, Inc., 43 So.3d 587 (Ala. 2010).
In this regard, we also take cognizance of the number of cases, including, but not limited to this one, that have been appealed to this Court during the course of the last year and that concern disputes over the necessity for law-enforcement action with respect to so-called electronic or computerized "bingo" machines and related operations. See, e.g., Etowah Baptist Ass'n v. Entrekin, 45 So.3d 1266 (Ala. 2010); Tyson v. Macon County Greyhound Park, Inc., 43 So.3d 587 (Ala. 2010); Barber v. Houston County Econ. Dev. Ass'n, [Ms. 1090444] (on rehearing); Surles v. City of Ashville, [Ms. 1080826, Jan. 29, 2010] (Ala. 2010); Barber v. Cornerstone Cmty. Outreach, Inc., 42 So.3d 65 (Ala. 2009). Compare State v. McPhail, 182 Miss. 360, 368-69, 180 So. 387, 388-89 (1938):
Note from the reporter of decisions: On February 17, 2010, the Alabama Supreme Court placed this case on rehearing ex mero motu. On January 14, 2011, it issued an opinion withdrawing the January 29, 2010, opinion and substituting a new one.
"In [the area of Mississippi known as the Gold Coast] for some time, and in numerous places, intoxicating liquors have been openly displayed and sold in the manner as if in licensed saloons, and gambling in its most vicious forms has been carried on. The salient facts with reference to the general situation in the area in question have persisted for such a considerable length of time; have been of such glaring notoriety and have aroused such general public interest; have been the subject of such extensive public comment both in the daily and weekly press and of common conversation throughout the state; have been so open and flagrant and without dispute
anywhere that the court may notice as a matter of current history the import of said facts, when taken in connection with the evidence before us dealing with those facts."
Based on the foregoing, we conclude that the statutes discussing the powers and duties of the attorney general do not authorize the attorney general to interfere with or to direct and control litigation being pursued by officers who are acting pursuant to directions from the governor under § 12-17-184(10), § 12-17-216, and/or § 36-13-2.
Attorney General King, Cornerstone, and FTV argue that this Court's decision in Weaver supports their position. Because that decision is inconsistent with the reasoning and conclusions we express today, we hereby overrule Weaver.
Other cases relied upon by Attorney General King, Cornerstone, and FTV do not involve the issue whether the attorney general can direct and control litigation that is being pursued by an attorney authorized or directed by the governor. We therefore do not perceive such other cases as being in conflict with our holding today. See Chapman v. Gooden, 974 So.2d 972 (Ala. 2007) (attorney general intervened and assumed control over a case involving the secretary of state; governor's power not involved); Graddick v. Galanos, 379 So.2d 592 (Ala. 1980) (attorney general superintending litigation over the objection of a district attorney; governor's power not involved); State ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So.2d 280 (1949) (attorney general could, over the objection of the director of the Department of Revenue, settle an action the attorney general had filed; governor's power not involved); In re Stephenson, 113 Ala. 85, 21 So. 210 (1897) (attorney general, rather than county solicitor, was the proper party to request a remedial writ; governor's power not involved).
In Weaver, some subscribers of health-insurance benefits filed a class action against Blue Cross and Blue Shield of Alabama seeking declaratory relief and a refund of what they considered to be excess reserves. The subscribers later amended their complaint to add the Alabama Insurance Department as a defendant.
"In March 1989, the circuit court entered orders certifying the plaintiffs' class; directing the Insurance Department to perform certain tasks under certain procedural rules and to report to the court; entering partial summary judgment in favor of the plaintiffs; and denying all other pending motions. The partial summary judgment in favor of the plaintiffs was entered by the trial judge on the issue of liability, i.e., he held as a matter of law that Blue Cross was illegally calculating reserves.
"Blue Cross filed a petition for writ of mandamus or prohibition or both, in the Court of Civil Appeals. Mike Weaver, as Commissioner of Insurance, in June 1989 filed an appeal or, in the alternative, a petition for a writ of mandamus from the Court of Civil Appeals to vacate the trial court's order.
"Attorney General Don Siegelman filed a motion on October 12, 1989, in the Court of Civil Appeals to dismiss the appeal and the alternative petition for writ of mandamus brought by the Department of Insurance. Briefs were filed and oral argument was held on November 14, 1989, in the Court of Civil Appeals on the issue of control of litigation of the Insurance Department. The Court of Civil Appeals granted the motion to dismiss, ruling that the attorney general has the power to manage and control all litigation on behalf of the State of Alabama and all of its departments.
"The petition for writ of mandamus before us seeks to vacate the decision of the Court of Civil Appeals. We must
determine whether the attorney general of the State of Alabama has the authority to move to dismiss the State Insurance Department's proceedings in the Court of Civil Appeals over the objection of the commissioner of insurance."
570 So.2d at 676-77.
The commissioner of insurance argued, among other things, that the governor was the supreme executive and that the governor had the right to hire counsel other than the attorney general to represent the Department of Insurance. After analyzing various precedents from this State and other states concerning the powers of the attorney general, this Court concluded:
"We have carefully reviewed the law and the precedents in this case. The overwhelming authority supports the decision of the Court of Civil Appeals that the attorney general has the power to manage and control all litigation on behalf of the State of Alabama. We hold that the attorney general of the State of Alabama has the authority to move to dismiss the State Department of Insurance's proceedings in the Court of Civil Appeals over the objection of the commissioner of insurance.
"We recognize that there may be times when the Governor disagrees with the attorney general about matters in litigation. Although we determine that the attorney general is authorized to direct the course of all litigation involving the State and its agencies, the Governor, as `chief magistrate' of the State, may intervene in any such litigation. Rule 24, [Ala]. R. Civ. P. As an intervenor, the Governor may express his views and take positions contrary to those argued by the attorney general."
570 So.2d at 684 (footnotes omitted).
Justices Houston, Steagall, and Maddox dissented from the main opinion in Weaver. Justice Steagall, joined by Justice Maddox, offered the following opinion, which we find meritorious:
"The Governor is the highest constitutional officer in this state. Our Constitution provides that `the supreme executive power of this state shall be vested in a chief magistrate, who shall be styled "the Governor of the state of Alabama."' Article V, § 113, Alabama Constitution of 1901. `The Governor shall take care that the laws be faithfully executed.' Article V, § 120.
"I believe that this Court would be correct and wise to allow the Governor to make important executive decisions affecting the lives and health of our citizens. Indeed, this is required by our Constitution.
"This view is not inconsistent with the right of the attorney general to intervene in a case when he disagrees with the action of a state agency. The Supreme Court of Mississippi stated this position in
State ex rel. Allain v. Mississippi Public Service Comm'n, 418 So.2d 779, 784 (Miss. 1982):
"`The unique position of the Attorney General requires that when his views differ from or he finds himself at odds with an agency, then he must allow the assigned counsel or specially appointed counsel to represent the agency unfettered and uninfluenced by the Attorney General's personal opinion. If the public interest is involved, he may intervene to protect it.'
"I think this position is practical and is in the best interests of all the people of this state. I, therefore, respectfully dissent."
570 So.2d at 690.
In a similarly well reasoned, but more thorough dissent, Justice Houston stated:
"POWER! That is what this appeal is about. This appeal does not address in
any way the merits of the underlying litigation.
"`[W]hich entity [the attorney general or the commissioner of insurance] controls whether [Mike Weaver, as commissioner of insurance of the State of Alabama] remains a party to the appeal[?]'
"This is the issue posited in the majority opinion of the Court of Civil Appeals. To me, the issue is much broader.
"Does the attorney general of the State of Alabama under his legislative mandate to direct and control litigation concerning the interest of the State or any department thereof, Ala. Code 1975, § 36-15-21, have the power to make substantive policy decisions contrary to the decisions of the department or agency that he is representing?"
570 So.2d at 684-85. After a lengthy discussion of constitutional and statutory provisions concerning the governor, the attorney general, and the Department of Insurance, Justice Houston concluded:
"When considered in the light of the Governor's constitutional mandate, the seemingly broad power granted to the attorney general by § 36-15-21 to direct and control litigation is clearly restricted. To give the section the broad construction that the majority gives it clearly puts § 36-15-21 at odds with §§ 113 and 120 of our Constitution, for it allows the attorney general's statutory or even common law power (if such was not `altered or repealed' by § 36-15-21,
see Ala. Code 1975, § 1-3-1) to detract or take away from the Governor's `
supreme executive power.' (Emphasis added.) When a statute is susceptible to two constructions, and one would render it unconstitutional while the other would not, we must give the statute the construction that would make it constitutional.
Whitson v. Baker, 463 So.2d 146 (Ala. 1985).
"In my opinion, the phrase `[a]ll litigation concerning the interest of the State, or any department thereof, shall be under the direction and control of the attorney general' does not vest in the attorney general the authority to make substantive policy decisions concerning matters in litigation.
"From time to time, Governors have intervened in cases in which they thought the public interest was involved and was not being adequately protected.
See Continental Telephone Co. of the South v. Alabama Public Service Commission, 479 So.2d 1195 (Ala. 1985);
General Telephone Co. of the Southeast v. Alabama Public Service Commission, 356 So.2d 612 (Ala. 1978);
Alabama Public Service Commission v. South Central Bell Telephone Co., 348 So.2d 443 (Ala. 1977);
Alabama Gas Corp. v. Wallace, 293 Ala. 594,
308 So.2d 674 (1975);
State v. Alabama Public Service Commission, 293 Ala. 553,
307 So.2d 521 (1975).
Under the majority opinion, does the attorney general, by his authority to direct and control litigation involving the State's interest, have authority to dismiss the intervention of the Governor, the supreme executive?
"Recently, this Court issued its writ of certiorari without being requested to do so by the attorney general or anyone else.
White v. Reynolds Metals Co., 558 So.2d 373 (Ala. 1989).
White involved millions of dollars of State funds (franchise tax on corporations that were incorporated in states other than Alabama).
Under the majority opinion, would the attorney general, by his authority to direct and control litigation involving the State's interest, have the right to prevent this Court from issuing its writ of certiorari in litigation involving the State's interest?
"The Legislature has designated that the substantive policy decisions in the underlying matters in litigation are the responsibility of another member of the executive department. The power to direct and control normally gives the attorney general the authority to decide what is and what is not worth taking to court or defending there and what is or what is not to be appealed, and the executive official involved should normally yield to the judgment of the attorney general so that the State may speak to the courts in a consistent and coherent manner. However, the attorney general's right to manage litigation must end when it interferes with a State agency's authority and duty to enforce substantive matters relating to its legislative purpose. When this happens, I would adopt the position of the Mississippi Supreme Court:
"`The unique position of the Attorney General requires that when his views differ from or he finds himself at odds with an agency, then he must allow the assigned counsel or a specially appointed counsel to represent the agency unfettered and uninfluenced by the Attorney General's personal opinion. If the public interest is involved, [the Attorney Genera)] may intervene to protect it.'
" State v. Mississippi Public Service Commission, 418 So.2d 779, 784 (Miss. 1982)." 570 So.2d at 688-89 (emphasis added, other than as indicated).
We cannot agree to extend § 36-15-21 or any other statute concerning the power and duties of the attorney general in a manner that effectively negates the authority under which the Governor has acted here. The fact that Weaver announced a position inconsistent with our conclusion today does not detract from this Court's obligation to properly ascertain and apply the law. See Ex parte Marek, 556 So.2d 375, 382 (Ala. 1989) (doctrine of stare decisis does not render the courts helpless to correct their past errors); Ex parte Cranman, 792 So.2d 392, 404 (Ala. 2000) (plurality decision) ("We cannot, in blind obedience to the doctrine of stare decisis, continue to accept an expansive application of caselaw characterizing as a discretionary function conduct remote from the execution of governmental policy; to do so would perpetuate an erroneous construction of the Constitution."); Marsh v. Green, 782 So.2d 223, 232 (Ala. 2000) ("[W]hen the Constitution is misinterpreted, the doctrine of stare decisis is not entitled to the deference it otherwise receives.").
The erroneous nature of the conclusion reached in Weaver is further revealed by a contradiction inherent in its own holding. In a case upholding the right of the attorney general to represent the Department of Insurance and dismiss an appellate proceeding on its behalf, the Weaver Court purported to recognize the right of the governor to intervene if he disagreed with the position of the attorney general. Such a right of intervention by the governor under such circumstances obviously begs the question — to what end? If the position of the attorney general cannot be countermanded by the governor, what is the purpose of allowing intervention? The only alternative would be to read Weaver as standing for the proposition that the governor can intervene to offer an opinion that can have no bearing on the right of the attorney general to do as he pleases as counsel of record; to so read Weaver would reduce the governor to the position of an amicus curiae.
As all the parties before us note in their respective briefs, Attorney General King discussed the meaning of the governor's explicit constitutional authority and duties in his brief to this Court in State ex rel. King v. Morton, 955 So.2d 1012 (Ala. 2006). That brief stated:
"While the Executive Branch has several members (see Ala. Const. 1901, § 112), only one of those members, the Governor, is at the top of the chain of command:
"`The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled "The Governor of the State of Alabama.
"` "Ala. Const. 1901, § 113. Only the Governor is given this duty: `The Governor shall take care that the laws be faithfully executed.' Ala. Const. 1901, § 120.
"Defendants contend that the grant of `supreme executive power' does not require that the Governor play any role in executing the [Community Services Grants] Act [Ala. Code 1975, § 29-2-120, et seq.]. However, the word `supreme' means something and the word is in the Constitution for a reason. A `supreme' power or right is one that is `highest; superior to all others.'
Black's Law Dictionary [1481] 8th ed. (2004). When construing a document, the Court must presume `that every word, sentence or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.'
Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala. 2000).
"Clearly `supreme' means that the Governor holds a higher rank and power than other members of the Executive Branch, and this was clearly recognized by the drafters of Alabama's current Constitution:
"`The Governor is the chief executive officer of the state. The Constitution clothes him with the duty of seeing to it that the laws are faithfully executed. What folly would it be to clothe him with that power and yet say to him you have no control over the inferior executive officers of the commonwealth. . . ."
`"
Official Proceedings of the Constitutional Convention of 1901 (Vol. 1) at 882-82, quoted in
Parker v. Amerson, 519 So.2d 442, 444 (Ala. 1987). There is a constitutional hierarchy within the Executive Branch and one office — the Governor — is at its top.
"The wisdom of this system is self-evident. The Executive Branch is a large fleet with many ships (departments, boards and agencies), and a large fleet needs an admiral. There must be a single voice speaking through the various members and a single oversight over them all if they will ever work for the public good. If each of the many boards and commissions of the Executive Branch worked only for its own purpose, if none had to answer to any higher executive power, each would go its own direction, canceling others out at best and working squarely against others at worst."
Our decision today is consistent with the fundamental but simple notion that "there is a constitutional hierarchy within the executive branch and one office — the Governor — is at its top." The "supreme executive power" is more than a "mere verbal adornment" of the office of Governor.
Consistent with the foregoing, we find the other arguments of the respondents unpersuasive.
IV. Conclusion
A writ of mandamus will be issued where there is "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). Based on our discussion above, we hold that the actions of the attorneys and other officers authorized by Governor Riley to act in this case are not "nullities," despite the lack of approval by the Attorney General and the District Attorney, and that the Attorney General may not take over or countermand the litigation efforts of those officers in either the trial court or in this Court. The counsel authorized by the Governor have the right to represent the State in this case and to see it through to completion. Also, Cornerstone and FTV have no right to complain in any event. McCain v. City of Montgomery, 38 Ala. App. 568, 571, 92 So.2d 678, 680 (1956) ("So long as the conduct of [a] special prosecutor comports to due and orderly procedure a defendant is in no position to complain as to who conducts the prosecution.")
Based on the foregoing, Attorney General King's motion to dismiss is denied; the State and the Riley defendants' petition for a writ of mandamus is granted; and the trial court's March 8, 2010, and March 16, 2010, orders are vacated. Further, the trial court is ordered to expedite consideration of the forfeiture proceeding.
MOTION TO DISMISS DENIED; PETITION GRANTED; WRIT ISSUED WITH INSTRUCTIONS.
WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.
LYONS, J., concurs specially.
COBB, C.J., concurs in part and concurs in the result.
LYONS, Justice (concurring specially).
I concur in all aspects of the main opinion except note 22, describing "a contradiction inherent in" Ex parte Weaver, 570 So.2d 675 (Ala. 1990), as to which I express no opinion.
The Chief Justice's special writing refers to " the fact that the attorney general has the right — some might say the duty — to intervene in a civil action in the event that his opinion of the law, as applied to the facts, differs from the governor's." (Emphasis added.) Whether such status is indeed a fact or a duty is a matter not before us in this proceeding. The extent to which the supremacy of the governor may be frustrated by a discordant voice from the attorney general beyond use of the attorney general's bully pulpit in the arena of public opinion must await another day.
COBB, Chief Justice (concurring in part and concurring in the result).
I agree with the majority's decision to overrule Ex parte Weaver, 570 So.2d 675 (Ala. 1990), because had I been on the court when that case was decided I would have dissented. I also agree with most of the majority's detailed analysis comparing and contrasting the positions and responsibilities of the governor and the attorney general. To me, the analysis can be condensed to a simple concept: Governor Riley is the governor. He is the leader of the executive branch. For our democratic form of government in our State to work as intended, someone must have the final say. The Alabama Constitution makes it clear that that person, for the executive branch, is the governor.
The majority "conclude[s] that the statutes discussing the powers and duties of the attorney general do not authorize the attorney general to interfere with or to direct and control litigation being pursued by officers who are acting pursuant to directions from the governor" under the governor's statutory authority. 57 So.3d at 736. Thus, Attorney General King may not interfere with Governor Riley's direction and control over the persons and agencies carrying out Governor Riley's directions in this case, and he may not assume direction or control of Governor Riley's counsel and legal positions.
In this case, Attorney General King has intervened in an attempt to displace Governor Riley's control over Governor Riley's case, his lawyers, and his legal positions. Thus, this is not a case addressing the attorney general's right to intervene in a case and to present his own legal positions without assuming control of the governor's case, and the parties have not pointed us to any constitutional or statutory authority that excludes that possibility. Accordingly, nothing in our opinion today addresses the fact that the attorney general has the right — some might say the duty — to intervene in a civil action in the event that his opinion of the law, as applied to the facts, differs from the governor's.
Ala. Code 1975, § 36-15-1(2) ("[The attorney general] shall attend, on the part of the state, to all criminal cases pending in the Supreme Court or Court of Criminal Appeals, and to all civil actions in which the state is a party in the Supreme Court or Court of Civil Appeals. He or she shall also attend to all cases other than criminal that may be pending in the courts of this state, in which the state may be in any manner concerned, and shall appear in the courts of other states or of the United States, in any case in which the state may be interested in the result." (emphasis added)).
The attorney general's right and duty to form his own legal opinions and, if necessary, to resolve any difference of opinion with the governor on legal matters in the courts does not call into question the separation-of-powers doctrine. It is the duty of the executive to faithfully carry out the laws; it is the courts' "`job to say what the law is.'" Munnerlyn v. Alabama Dep't of Corr., 946 So.2d 436, 439 (Ala. 2006) (quoting DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-77 (Ala. 1998)). See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."); Opinion of the Justices No. 338, 624 So.2d 107, 110 (Ala. 1993); Ex parte Weaver, 570 So.2d at 685 (Houston, J., dissenting) (" Black's Law Dictionary, at 511 [(5th ed. 1979)], defines `executive powers': `Power to execute laws. . . . The executive powers vested in governors by state constitutions include the power to execute the laws, that is, to carry them into effect, as distinguished from the power to make the laws and the power to judge them.'").