Alabama Republican Party v. McGinley

• Decision Date: 18 May 2004
• Citation: 893 So.2d 337
• Parties: ALABAMA REPUBLICAN PARTY v. Kelly McGINLEY.
• Court: Alabama Supreme Court

893 So.2d 337

ALABAMA REPUBLICAN PARTY v. Kelly McGINLEY.

1031166.

Supreme Court of Alabama.

May 18, 2004.

Edward S. Allen, Ed. R. Haden, and James J. Goodman of Balch & Bingham, LLP, Birmingham; and William B. Sellers of Balch & Bingham, LLP, Montgomery, for appellant.

Johnny B. Davis, Ozark, for appellee Kelly McGinley.

Troy King, atty. gen., and John J. Park, asst. atty. gen., for Nancy Worley, in her official capacity as Secretary of State; Don Davis, in his official capacity as Probate Judge of Mobile County; Adrian Johns, in his official capacity as Probate Judge of Baldwin County; Rachel Agerton, in her official capacity as Probate Judge of Escambia County; Susan Wilson, in her official capacity as Circuit Clerk of Mobile County; Jody Campbell, in his official capacity as Circuit Clerk of Baldwin County; and James K. Taylor, in his official capacity as Circuit Clerk of Escambia County; and Roy Wylie Granger III, Office of the Secretary of State, for Nancy Worley, in her official capacity as Secretary of State. (The state election officials, named as defendants in the circuit court action, were not named as appellants or appellees on the notice of appeal filed in the Supreme Court. They did, however, file a brief in the Supreme Court.)

HOUSTON, Justice.

This is an expedited appeal. The Alabama Republican Party appeals the order of the Montgomery Circuit Court's issuing a writ of mandamus 1) ordering that Kelly McGinley's name be restored to the June 1, 2004, Alabama Republican Party primary ballot, and 2) directing the Alabama Republican Party and various state and local election officials to "count and certify any properly cast votes" for McGinley in that election. We reverse.

I. Facts

The material facts do not appear to be in dispute. On April 2, 2004, Kelly McGinley filed a qualifying form with the Alabama Republican Party ("the Party") to qualify as a candidate for Place 1 on the State Board of Education. The form was properly filled out and timely submitted. Among other things, the form requires a potential candidate to certify as follows: "I am a Republican and am in accord with, and endorse, the principles and policies of the Republican Party."

On April 4, just before midnight, the members of the Party's steering committee — who also constitute the members of the Party's candidate committee¹ — received an e-mail from Clay Barclay, a member of the Mobile County Republican executive committee, raising certain objections to McGinley's qualifications to run for office as a Republican; specifically, the objections were to her loyalty to the Republican Party. The e-mail indicated that several Republican constituents who live in State School Board District One (the district in which McGinley was attempting to run as a candidate) had complained about McGinley's candidacy and had indicated that they were concerned because, according to the constituents, McGinley was listed on various Web sites as being a member of the Constitution Party and because she had articles and links on her own Web site that were anti-President George W. Bush, anti-Republican, and pro-Constitution Party. The e-mail stated that the constituents had requested that the candidate committee consider this information when reviewing McGinley's qualifications to run for office as a Republican.

On the morning of April 5, the chairman of the Alabama Republican Party, Marty Connors, telephoned Jim Zeigler, an attorney who had filed McGinley's qualifying papers, and informed him that when the candidate committee met on April 7, it would consider a challenge to McGinley's qualifications. Connors testified that he informed Zeigler of the general complaints in the April 4 e-mail and that he informed Zeigler that he and McGinley could come to the meeting and would have the opportunity to testify. Later that evening, Zeigler telephoned McGinley and informed her that her candidacy was being challenged. McGinley testified that, at that time, she did not know why her candidacy was being challenged and that she discovered all of the bases for the challenge only after the publication of certain newspaper articles and during the court proceedings below.

On the morning of April 6, McGinley, Zeigler, Chris Brown, the Party's executive director, and Barclay appeared as guests on a Birmingham radio talk show. McGinley testified that during that show she stated that she had not seen the charges against her and that she had not been invited to the hearing. McGinley also testified that during the show Brown and Barclay alleged that McGinley's disqualification as a candidate was being considered because, he alleged, she did not support the "Party line," did not support President Bush, and was supporting the Constitution Party.²

That same day, shortly after the radio talk show had ended, Brown faxed a letter to McGinley and Zeigler; that letter stated:

"Dear Ms. McGinley,

"Let this serve as a formal notification that the Alabama Republican Party will hold a Candidate Committee to verify your qualification to run for School Board (Place 1) on the Republican Party ticket.

"You will have the opportunity to speak on behalf of yourself at the Committee meeting being held at Alabama Republican Party Headquarters on April 7th at 6 p.m.

"Chairman Marty Connors also gave verbal notice of the Committee meeting to your attorney, Jim Zeigler, on Monday, April 5th at 9:30 a.m.

"The address of ALGOP headquarters is as follows:

"3321 Lorna Road

"Suite 6

"Hoover, AL 35216

"State law gives Political Parties a very short window of time to certify its candidates with the Secretary of State. This alone is the reason for the speed in calling the Committee meeting.

"Enclosed is the agenda of the meeting."

The agenda indicated that McGinley's qualifications and the qualifications of two other candidates would be discussed at the meeting.

At 10:29 a.m. on April 7, Zeigler, identifying himself as "Attorney for Kelly McGinley," e-mailed to the members of the candidate committee McGinley's lengthy response, prepared by Zeigler, to the challenge to McGinley's qualifications. The e-mail indicated that McGinley had "twice been promised a copy of the allegations against her, but sadly they had not been furnished." The response detailed McGinley's history as a lifelong Republican and a continued supporter of Republican candidates, and stated that her admittedly strong critiques of, in her view, many liberal tendencies in the Party were based upon her status as an "outspoken `conservative Christian.'" Among other things, the response also addressed her admiration for, and certain of her articles concerning, the platform of the Constitution Party (but adamantly claims that she has neither joined that party nor quit the Republican Party); and claimed that she completely endorses the true Republican platform and wishes to see the Party "repent and come back to its platform." The response also contained a motion to dismiss the challenge to McGinley's candidacy based on, among other things, inadequate notice of the hearing and the failure of the Party to provide a copy of the allegations contained in the April 4 e-mail.

On the afternoon of April 7, Elizabeth Perry, executive assistant to Marty Connors, telephoned McGinley four times and Zeigler twice at Connors's direction in order to, in her words, "make sure we give her every opportunity to participate in the [hearing]." During these calls, Perry informed McGinley and Zeigler that if it was not possible for them to appear personally at the hearing, they could participate by telephone.

At 6:00 p.m. on April 7, the candidate committee met and considered the challenge to McGinley's candidacy along with the challenges to two other candidates. After discussing the issues referenced in the April 4 e-mail and Zeigler's response, the committee voted unanimously, by a vote of 20-0, to disqualify McGinley so that her name would not appear on the primary ballot. Later that evening, McGinley was notified of her disqualification. The next day, the Party filed an amendment to its earlier certification with the secretary of state, removing McGinley's name from the ballot.

On April 19, three days before the deadline for delivering absentee ballots and other materials to the absentee-election managers, McGinley filed this lawsuit challenging her disqualification. Following two hearings, the Montgomery Circuit Court held that in disqualifying McGinley the Party had violated McGinley's constitutional right to substantive due process under the Fourteenth Amendment to the United States Constitution, because it found that the Party had failed to demonstrate a "clearly articulated [P]arty rule" that McGinley had violated that would result in her disqualification and that it thereby had acted in an arbitrary manner:

"There is no doubt that McGinley has strong criticisms of the Republican Party, but the Court has been presented with no clearly articulated [P]arty rule violated by such criticisms. Without a clear standard by which a candidate's allegedly disloyal conduct can be measured, the candidate cannot reasonably know what conduct is prohibited, and the Party cannot determine an alleged violation of its qualifying oath in a fair and evenhanded fashion.

"If a party is constitutionally bound to follow its own standards, as in [Gartrell v. Knight, 546 F.Supp. 449 (N.D.Ala.1982)], it follows that a lack of any clear standards in this case by which to judge the candidate's eligibility would, by its own nature, be constitutionally insufficient. To hold otherwise would allow decisions to be made in an arbitrary manner. Accordingly, because the Party has no clear articulated standard capable of being applied in an objective manner, the Court holds that the actions of the Alabama Republican Party violate due process."

(Emphasis added.) The circuit court ordered that McGinley's name be restored to the June 1, 2004, Party primary ballot and that the...