Board sues to stop transfer of $30 million to education budget

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Those managing a fund intended to help people with impairments communicate filed a lawsuit on Tuesday to stop state officials from transferring $30 million from that fund into the state’s education budget.

Landline telephone customers in the state pay a surcharge that goes into a fund to help pay for equipment to help the deaf, blind and those with other impairments to communicate.

The board that oversees the Alabama Dual Party Relay Fund filed the lawsuit trying to stop a state law the Legislature passed this year that would allow the money to be transferred to the Education Trust Fund, the state budget that funds education functions in the state.

Alabama Public Service Commissioner Terry Dunn argues that if telephone customers in the state are being told that the money is being collected to assist those who are deaf and blind with telephone access then that is what it should be used for.

“As I told the Legislature this past spring, if you’re not going to use the money as intended, it ought to be refunded to telephone customers,” Dunn, a Republican in his first term, said in a statement.

Dunn and fellow Commissioners Lucy Baxley and Twinkle Andress Cavanaugh were named as defendants in the lawsuit by virtue of their positions, but Dunn pointed out that all three opposed the Legislature directing the money elsewhere.

“This new law is unfair and I hope, for the sake of Alabama’s deaf and blind residents, that the court will overturn it,” Dunn said.

State Rep. Jay Love, a Montgomery Republican who is chairman of the education budget committee in the Alabama House of Representatives, sponsored the legislation. He did not return a message left on his cell phone Tuesday evening seeking comment.

The lawsuit seeks to stop enforcement of the law as passed, stop the transfer of the $30 million or any other funds from the relay fund, declare the defendants acted without lawful authority, and declare the defendants do not have the right to seize the funds, which they argue are in a private fund.

Looking at the acts passed by the Legislature, according to the lawsuit, “it is abundantly clear … that the funds collected in the Dual Party Relay Fund were to be used solely to provide telephone services to the deaf and other handicapped persons.”

The plaintiffs contend that the Legislature acted beyond its authority and without legal authority to seize private property “for public use without just compensation,” which they argue is forbidden by the U.S. Constitution.

The Legislature passed the law creating the fund and requiring the Public Service Commission to “impose a surcharge” in 1988, according to the lawsuit.

“The surcharge was to be collected by local exchange companies from their customers and placed in a ‘private fund to be held separate from all other funds and used solely for the administration of this system,” according to the lawsuit and its reference to state law.

The Legislature, this year, amended the law to have the money deposited, not into a private fund, but into a “special fund established by the state treasurer,” according to the lawsuit. The amendment allowed the money collected through the surcharge to be used, not just to administer the dual party relay system, but for “other purposes,” according to the lawsuit.

Dunn is concerned the entire $30 million fund will be consumed, in one year, by education spending unrelated to deaf and blind services.

Bobby Segall with the firm of Copeland, Franco, Screws & Gill P.A. filed the lawsuit in Montgomery County Circuit Court on Tuesday afternoon.

The Montgomery Advertiser, which received the complaint shortly before 5 p.m., could not reach Baxley for a comment Tuesday.

Sally Robinson Corley, chief of staff for Cavanaugh, said they had received the lawsuit less than an hour before the Advertiser called and that the commissioner did not want to comment until she had an opportunity to read and evaluate the lawsuit.

Representatives for Attorney General Luther Strange, who was also supposed to receive a copy of the complaint, could not be reached for comment Tuesday evening.

State Treasurer Young Boozer, who is also a defendant in the lawsuit, did not return a call to his office placed just before 5 p.m. Tuesday seeking comment.

– posted by Sebastian Kitchen

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