Opinion
298.
December 22, 1982.
Oakley Melton, Jr. of Melton Espy, Montgomery, and William J. Samford, Jr., Legal Advisor to Governor and Thomas R. DeBray of Wood, Minor Parnell, Montgomery, for Governor.
Julian L. McPhillips, Jr. and L. Gilbert Kendrick, Montgomery, for amicus curiae.
Honorable Fob James Governor of Alabama State Capitol Montgomery, Alabama 36130
Dear Governor James:
The undersigned Justices of the Supreme Court acknowledge receipt of your request for an advisory opinion on the following question presented in your letter of August 4, 1982:
"Does the payment of an increase in compensation to a State official whose compensation is fixed at parity with certain judicial officers who themselves have received an increase in compensation violate constitutional prohibitions against increase of compensation of State officials during their term of office?"
After a careful review of the question and the facts surrounding the inquiry, we are compelled to respectfully decline to answer your request for an advisory opinion.
In your brief filed with the request, you indicated that there is a legal proceeding pending in Montgomery Circuit Court concerning the same subject matter as this inquiry. We recognize that this lawsuit was filed after the request for an advisory opinion was filed. In past cases, when a lawsuit is pending on the date an advisory opinion is requested, this Court has declined to answer the request. Opinion of the Justices, No. 217, 294 Ala. 578, 319 So.2d 705 (1975); Opinion of the Justices, No. 289, 410 So.2d 388 (Ala. 1982). Further, this Court has also declined to respond where no lawsuit has yet been filed but where it appeared that "the appropriate adversary context of a more deliberative litigated proceeding" would facilitate a response to the issues raised. Opinion of the Justices, No. 280, 417 So.2d 936, 937 (1981).
This Court has stated that adversary proceedings are preferred, "when available or when at all possible." Opinion of the Justices, No. 114, 254 Ala. 177, 179, 47 So.2d 655, 657 (1950). This approach is preferred, because "[T]he adversary system permits all interested parties to have their `day in court.' The very nature of the judicial process mandates that decisions be rendered only after all sides have presented their respective views." Opinion of the Justices, No. 212, 291 Ala. 581, 586, 285 So.2d 87, 91 (1973). Further, where, as here, a lawsuit has been filed, an advisory opinion could, in effect, "prejudice the rights of litigants." Opinion of the Justices, No. 214, 294 Ala. 589, 590, 319 So.2d 715, 716 (1975).
In conclusion, we respectfully decline to issue an advisory opinion in view of the pending litigation.
Respectfully submitted, C.C. TORBERT, Jr., Chief Justice HUGH MADDOX JAMES H. FAULKNER RICHARD L. JONES RENEAU P. ALMON JANIE L. SHORES T. ERIC EMBRY SAM A. BEATTY OSCAR W. ADAMS, Jr. Justices