Lt. Gov. Kay Ivey

A Montgomery County Circuit judge Wednesday morning delayed a ruling on a bill extending tax credits to students who transfer from designated failing public schools to non-failing ones or private schools after attorneys representing Lt. Gov. Kay Ivey filed a motion to dismiss.

Judge Charles Price said he had been prepared to rule on a lawsuit brought by the Alabama Education Association to block the law, but that he needed time to consider the new motion, filed this morning.

The AEA argues in its suit that the passage of the legislation, known as HB84, violated the Open Meetings Act.  Republican lawmakers introduced a drastically rewritten version of the legislation in a conference committee Thursday, which included the tax credits.   Lawmakers passed the bill amid angry scenes in the Senate. The AEA asserts Reublican lawmakers violated the Joint Rules of Legislature in introducing what they consider an appropriation to a bill in conference, and in meeting prior to the committee to discuss issues of legislation, in violation of the Open Meetings Act.

In the motion, attorneys representing Ivey argue that the suit is unlikely to succeed, and says the court is being asked to violate a section of the Alabama Constitution that requires transmission of legislation passed by the Legislature to the Governor.  The motion argues that the action against the lieutenant governor is invalid, as Ivey is covered by “absolute legislative immunity,” and that the court lacks authority to intervene in the legislative process.

Ivey’s attorneys also argue that even if a Open Meetings Act violation occurred — which they do not concede — that the bill is valid because subsequent passage of the legislation conformed with the Open Meetings Act, preventing the court’s ability to decide the case.

Price asked the parties to return at 1:30 this afternoon.

Attorney James Anderson, representing the AEA in the suit, argued the Open Meetings Act trumps legislative immunity.

“The Legislature that passed the Open Meetings Act, that said they were under the Open Meetings Act,” he said.

In a joinder to Ivey’s filing, Senate President Pro Tem Del Marsh, R-Anniston and Sen. Gerald Dial, R-Lineville, argued that even if the AEA could prove the existence of a “secret meeting,” the fact the changes were discussed in an open meeting of the conference committee.

“Even accepting Plaintiffs’ allegations at face value, they cannot avoid the fact the alleged ‘secret meeting’ conducted by the legislators “occurred prior to” the unchallenged meeting at which the conference committee actually adopted HB84,” the joinder says.  “Without that crucial link, Count One of the Complaint fails as a matter of law under the plain text of the Act and must be dismissed.”

The joinder also argues the court has no jurisdiction over the Legislature’s rule-making, saying “the interpretation, application, and enforcement of the Legislature’s self-created and self-imposed internal rules are solely within the province of the Legislature, unless there is a clear conflict with some specific constitutional provision.”

– posted by Brian Lyman (updated at 11:39 a.m.)