The state of Alabama last week asked a court to throw out a lawsuit by Hartselle resident Tom Fredricks that challenges the constitutionality of a gas tax increase that allocates some funds to improvements at the Port of Mobile.
The 6-cent-per-gallon increase went into effect Sept. 1. Signed into law March 12, the Rebuild Alabama Act requires additional 2-cent increases in 2020 and 2021. Depending on an index of construction costs, it could increase by up to a penny every two years thereafter.
The law sets aside up to $10.2 million annually and a total of up to $150 million to finance improvements at the Port of Mobile.
Fredricks’ complaint, filed in April, focuses on Amendment 354 of the state Constitution, which generally requires that the state use gas tax money only for the “cost of construction, reconstruction, maintenance and repair of public highways and bridges.”
The legal dispute rests almost entirely on the question of whether the Port of Mobile is a “highway” as contemplated by Amendment 354.
“This case presents a single legal question: whether a navigable waterway constitutes a ‘highway’ for purposes of allocating revenue from taxes on motor fuels,” according to the motion for summary judgment filed last week by state Attorney General Steve Marshall’s office.
Fredricks and his lawyer, William Love of Florence, focus on the commonly understood meaning of “highway” and on Amendment 354, adopted in 1975. The state’s focus is on Section 24 of the state Constitution, initially adopted a century earlier in 1875 and ratified in 1901. That section provides “that all navigable waters shall remain forever public highways, free to the citizens of the state and the United States, without tax, impost or toll.”
If the court determines the Port of Mobile is a public highway, the state wins. If it concludes it is not a highway, Fredricks wins.
In its motion, the state points to a frequently cited rule of interpreting constitutional provisions: If possible, they should be construed in such a way as to prevent laws from being ruled unconstitutional.
“This is exactly the situation here,” wrote Assistant Attorney General Laura Howell. “The term ‘highway’ in Amendment 354 is susceptible to two interpretations, one of which would permit the Legislature’s allocation of gas tax revenues to the Port of Mobile, and one of which would forbid it.”
Howell argues that, while Amendment 354 generally prohibits the use of gas tax money for non-highway uses, it does not define the term “highway.” Fredricks’ position that a highway is a road, not a waterway, “turns on his own chosen dictionary definitions of ‘highway,’” she argued.
In his complaint, Fredricks argued that when Amendment 354 was approved by voters in 1975, a "highway" was understood by voters to mean a road.
Fredricks, a longtime member of the Morgan County Republican Executive Committee and an unsuccessful candidate in a 2018 race for a state House seat, said he filed the lawsuit in part to demand that lawmakers adhere to the constitution, and in part to focus attention on problems caused by Amendment 354 and other earmarks.
“In Alabama we earmark 93% of our resources. It hamstrings the legislative body and is a reflection of the level of trust that the voting public has in their legislative body,” said Fredricks, who owns Fredricks Outdoor in Priceville.
That mistrust, he said, is understandable given the amount of special interest money received by lawmakers, money he believes played a part in the passage of the Rebuild Alabama Act. Until campaign finances are better regulated in the state, he said, lawmakers should expect to deal with earmarks.
“No other state distrusts its legislative officials like Alabama does. No other state hamstrings their officials like Alabama does. No state has such an egregious influx of outside influence from non-elected people as Alabama does,” he said last week. “Without any type of constraints on the amount of money that special interests can provide to elected officials and their campaigns, invariably these groups get an excessive amount of influence. That influence at this point in time is what’s really driving the affairs of state.”
Montgomery County Circuit Judge J.R. Gaines will rule on the state's motion to dismiss Fredricks' lawsuit, but Fredricks does not expect his ruling to end the case.
"It’s going to bounce straight to (state Chief Justice) Tom Parker and the Supreme Court," Fredricks said. "Win or lose doesn’t matter at this level; it’s going to move forward, and should move fairly quickly."