Bobby and Troy

On 7 October 2005, Attorney General Troy King released the Lowder Opinion, which is sure to infuriate a large portion of the Auburn Nation. While King doesn't explicitly state that Lowder is able to serve on the Auburn University Board of Trustees until 2011, his statement of the law certainly dictates that conclusion.

Unfortunately, King's interpretation of the law doesn't stand up to scrutiny when applying the standards King's claims to be using. Some have argued the quality of King's legal reasoning was influenced by more than a sober reading of the law and keen analytical skills. There may be something to that. More on that later in this entry.

King begins his discussion of applicable law by citing the following statement by the Alabama Supreme Court:

"It is plain and unambiguous, and where this is the case, the framers of the constitution should be intended to mean what they have plainly expressed and consequently no room is left for construction. Possible or even probable meanings, when one is declared in the instrument itself, the courts are not liberty to search for elsewhere... When the language is plain, no discretion is left to us. We have no right to stray into the mazes of conjecture, or to search for imaginary purposes." [The State vs McGough, 118 Ala. 196]

He then goes on, not to apply the law as plainly written, but to strain at a gnat to develop a legal argument that is not supported by the plain language of the constitution. Basically, his argument is that "term of office" refers to the length of time that a person may be a member of the Board of Trustees, not to some set time period that a term runs regardless of who holds the position. The constitution states that a trustee "... shall be appointed by the governor, by and with the advice and consent of the senate, and shall hold office for a term of twelve years, and until their successors shall be appointed and qualified." [Amendment 161, Constitution of Alabama].

He further argues that since the constitution says a trustee shall serve 12 years, plus the length of time it takes to appoint and confirm a new trustee, then it is only logical that one trustee's term ends only when the succeeding trustee takes his or her seat. For example, if Trustee #1 has served her 12 years, but it takes 6 more months to appoint her successor, then Trustee #1's 12.5 year term is legal and Trustee #2's term begins at that point in time.

However, King's conclusion contradicts the plain language of Amendment 161. Amendment 161 provides that "[t]he board shall be divided into three classes, as nearly equal as may be, so that one-third may be chosen quadrennially", meaning every four years. This provisions continues the previous practice under Article XIV, §266, in which members of the Board of Trustees were also appointed for terms of 12 years with terms staggered so that one-third of the members would be chosen every four years. In fact, Article XIV, §266, even explicitly provided for when this system of staggered terms would begin.

"The board shall be divided into three classes, as nearly equal as may be, so that one-third may be chosen quadrennially... Successors to those trustees whose terms expire in nineteen hundred and three shall hold office until nineteen hundred and eleven; successors to those whose terms expire in nineteen hundred and five shall hold office until nineteen hundred and fifteen; and successors to those whose terms expire in nineteen hundred and seven shall hold office until nineteen hundred and nineteen."

Amendment 161 honors and leaves in place the staggered terms set up by §266:

"The members of the board of trustees as now constituted shall hold office until their respective terms expire under existing law, and until their successors shall be appointed as herein required."

In contrast to King's conclusion, the history of the appointment process for trustees to Auburn's board reflects the creation of set terms (12 years) with specific expiration dates (the end of the third quadrennium after appointment). While the constitution, both in §266 and in Amendment 161, states that a trustee serves until his replacement is appointed and qualified, it wouldn't appear that the constitution, or its writers, intended that post-12-year period to shift the beginning and end dates of a trustee's term of office. The constitution clearly states that new board members are to be chosen each quadrennium.

Of course, the drafters of §266 and Amendment 161 weren't as clear as they could have been regarding untimely confirmation of a trustee. They could have stated that the new appointee serves the remainder of the 12-year term, when the previous trustee serves over 12 years. Or they could have stated that the new trustee's term begins immediately upon confirmation. However, they didn't do either of these things. But they did state that a third of the board would be replaced each quadrennium. I suppose they didn't expect the Legislature to shirk its duty to provide timely confirmation of new trustees.

The question that we raise now is why did King go to such lengths to make the case for rolling beginning dates for trustee terms? I have no answer to that question but have found some interesting background information.

As reported by The Auburn Plainsman, King tried to avert any appearance of a conflict of interest by returning a $10,000 contribution to Bobby Lowder, the main trustee whose term is in question. However, some digging has revealed some other ties:

• Bobby Lowder is the head of Colonial Bank.
  
• Colonial Bank utilizes the services of Miller , Hamilton, Snider and Odom for lobbying the U.S. House of Representatives.
  
• One of Miller, Hamilton, Snider and Odom's attorneys is Matthew C. McDonald.
  
• Records on file with the Alabama Secretary of State show that Matthew C. McDonald is the registered agent for "Troy King for Attorney General, Inc."
  

Not quite a smoking gun. Too circumstantial for that. However, putting the dots together may provide some insight as to why King strained to make the legal case he put his name on.