Bandy v. City of Birmingham

• Decision Date: 17 June 2011
• Docket Number: 1091412.
• Citation: 73 So.3d 1233
• Parties: Leroy BANDY and David Russell v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

73 So.3d 1233

Leroy BANDY and David Russell

v.CITY OF BIRMINGHAM.

1091412.

Supreme Court of Alabama.

June 17, 2011.

George N. Davies of Quinn, Walls, Weaver & Davies LLP, Birmingham; and Jeffrey J. Toney and Jonathan K. Waldrop of Sutherland Asbill & Brennan, Atlanta, Georgia, for appellants.

Thomas Bentley III, Julie P. Barnard, and Nicole E. King of City of Birmingham Law Department, for appellee.

WISE, Justice.¹

The plaintiffs, Leroy Bandy and David Russell, appeal from a summary judgment entered by the Jefferson Circuit Court in favor of the City of Birmingham (“the City”). We affirm.

Facts and Procedural History

In 2009, the Birmingham City Council adopted Ordinance No. 09–36, which changed the dates of the general and runoff elections for the mayor, the city council, and the city board of education from the second Tuesday in October and the third Tuesday thereafter to the fourth Tuesday in August and the sixth Tuesday thereafter. Bandy and Russell were candidates in the first general election held after the adoption of Ordinance No. 09–36. Bandy was in a runoff against incumbent Roderick Royal for a city council seat and lost to Royal in the runoff election.

On November 24, 2009, Bandy and Russell (“the plaintiffs”) filed in the Jefferson Circuit Court a “Verified Complaint for Injunctive Relief,” challenging the results of the 2009 Birmingham City Council and Birmingham Board of Education elections on the basis that, by adopting Ordinance No. 09–36, the City allegedly had unilaterally changed the Mayor–Council Act of 1955, Act. No. 452, Ala. Acts 1955, without petitioning the Alabama Legislature to amend the Mayor–Council Act. The plaintiffs also sought injunctive relief to prevent the swearing in of the newly elected Birmingham City Council members. The trial court ordered a hearing on the request for a preliminary injunction on December 11, 2009. The City then filed a motion to dismiss or for a summary judgment; the parties submitted a joint stipulation of facts; and the plaintiffs filed a motion for a summary judgment.

The parties agreed that the facts were not in dispute and that the only question for the trial court was the application of the law to the facts. Counsel for the plaintiffs prepared the following “Plaintiffs' Statement of Undisputed Material Facts” for the trial court: ²

“(1) The Alabama Mayor–Council Act, Act No. 55–452, was approved by the Alabama legislature on September 9, 1955....

“(2) On September 6, 1961, the Alabama legislature adopted Act No. 61–663.... This Act sets forth the requirements for municipal election laws.... These provisions are now codified in Article 2, Chapter 46 of Title 11, Ala.Code, 1975. Class 1 municipalities are excluded from the provisions of that Act. ( See § 11–46–20, Ala.Code, 1975).

“(3) As of 1963, the citizens of Birmingham adopted the Mayor–Council form of government.... The first city council and mayor are elected thereafter....

“(4) The City of Birmingham has more than 300,000 inhabitants as of the 1970 Federal decennial census. Birmingham therefore is classified as a Class 1 municipality. Birmingham remains a Class 1 municipality today....

“(5) In March 1980, the Alabama legislature approves Act No. 80–94.... This Act amends various provisions of the Code of Alabama ‘so as to change and set new dates for municipal elections conducted under the provisions of Article 2, Chapter 46 of Title 11, Code of Alabama, 1975....’ ....

“(6) On April 18, 1980, the Alabama legislature approved Act No. 80–243.... Act. No. 80–243 is codified at § 11–46–5, in Article 1, Chapter 46 of Title 11, Ala.Code, 1975....

“(7) In 1982, the Alabama legislature approved Act No. 82–458.... Act No. 82–458 amended Ala.Code § 11–46–20.... Act No. 82–458 provided ‘General and special elections in cities and towns of this state, in all municipalities except Class 1 municipalities and except cities and towns organized under a commission form of government, shall be held and conducted at the times and in the manner prescribed in this article....’ ....

“(8) In 1985, the Alabama legislature approved Act No. 85–919 amending the Mayor–Council Act, Act No. 55–452 including Sections 3.01 and 4.01 pertaining to times of elections and date of taking office for council and mayor. Specifically, Section 3.01 was amended to provide that the regular election of council members be held on the second Tuesday in October with any runoff election to be on the third Tuesday thereafter....

“(9) On June 16, 1987, the Alabama legislature approved Act No. 87–191. This Act allowed for a change to single-member districts. The Act did not amend Title 11 of the Alabama Code 1975....

“(10) On May 25, 1993, the Alabama legislature adopted Act No. 93–760. This Act amended § 11–46–5 to allow other municipalities, other than Class 3 municipalities, to change their elections dates to the dates provided in Article 2 Chapter 46 of Title 11, Ala.Code, 1975.... This Act did not remove the exclusion of Class 1 municipalities in § 11–46–20.

“(11) On April 13, 2006, the Alabama legislature approved Act No. 2006–354, amending various sections of Title 11 and of Title 17, Ala.Code, 1975, pertaining to elections. Specifically, this Act amended § 11–46–21, providing for regular municipal elections on the fourth Tuesday in August 1984, and quadrennially thereafter, and runoff elections on the sixth Tuesday thereafter.... This Act did not remove the exclusion of Class 1 municipalities in § 11–46–20.

“....

“(13) On February 17, 2009, the Birmingham City Council discussed the proposed election date change during Mayor's report to Council at the regular Birmingham City Council meeting....

“(14) On February 19, 2009, the proposed election date change discussed at City Council Committee of the whole meeting....

“(15) On February 24, 2009, the Birmingham City Council adopted Ord. No. 09–36, changing the time of holding regular and runoff municipal elections for mayor, council and school board to August 25 and October 6, respectively....

“(16) On March 3, 2009, the Mayor of Birmingham signed Ord. No. 09–36 into law....

“(17) On March 10, 2009, Ord. No. 09–36 was published....

“(18) On June 23, 2009, the City of Birmingham Election Commission met and called for the Birmingham City Council and Board of Education elections to be held on August 25, 2009, with any runoff to be held on October 6, 2009, pursuant to Ord. No. 09–36....

“(19) On June 25, 2009, the Notice of Election published in The Birmingham News....

“(20) On August 5, 2009, the Jefferson County Probate Judge certified names of duly qualified candidates for City of Birmingham City Council and Board of Education elections to Birmingham City Clerk; Leroy Bandy and David Russell included as qualified candidates for the District Nine Birmingham City Council seat....

“(21) On August 25, 2009, the City of Birmingham conducted the general elections for the Birmingham City Council and Board of Education. When no candidate received a majority of the votes cast in the District Nine Birmingham City Council race, a runoff election was declared between Plaintiff Leroy Bandy (‘Bandy’) and the incumbent councilor, Roderick Royal (‘Royal’). Runoff elections were also required in certain other council districts....

“(22) On October 6, 2009, the City of Birmingham held runoff elections, including the runoff for the District Nine Birmingham City Council seat involving Bandy and Royal. Royal was declared the winner of the October 6, 2009 runoff election....

“(23) On November 24, 2009, the City of Birmingham swore in the winners of the October 6, 2009 election on the fourth Tuesday in November following the election, as provided by the Mayor–Council Act and Ordinances No. 89–46 and [No.] 09–36....

“(24) On November 24, 2009, Bandy and Royal filed their Verified Complaint and Motion for Temporary Restraining Order seeking preliminary and permanent injunctive relief to prevent the swearing-in of the elected Birmingham City Council members....

“(25) On November 24, 2009, the Court found the motion for temporary restraining order moot, but ordered a preliminary injunction hearing on December 11, 2009....

“(26) On December 9, 2009, the City of Birmingham filed its Motion to Dismiss/Motion for Summary Judgment....

“(27) On January 12, 2010, the Alabama Legislative Reference opined that § 11–46–5 does not apply to the City of Birmingham as a Class 1 municipality. Specifically, the Alabama Legislative Reference stated that § 11–46–21 expressly excludes Class 1 municipalities from the election provisions, such as § 11–46–5, of Article 2, Chapter 46 of Title 11 of the Code of Alabama 1975....

“(28) On February 5, 2010, the Court orders a status conference....

“(29) On February 26, 2010, the Court held a Status Conference between the parties, wherein it was agreed that the only issue presented is a matter of law. The Court set forth the following dates: March 12, 2010 the parties must submit stipulations of fact; March 19, 2010 the Plaintiffs must submit their response to Motion to Dismiss and/or Motion for Summary Judgment; and March 29, 2010 the City of Birmingham must Reply and Respond to Plaintiffs' Response and/or Motion....

“(30) From its adoption of the Mayor–Council form of government, for at least the past twenty-five years and in all elections held before 2009, Defendant conducted its City Council elections on the Second Tuesday in October.”

Ordinance No. 09–36 provides as follows:

“WHEREAS, times for holding regular and runoff elections and for taking office for the offices of mayor and city council for the City of Birmingham are provided in the Mayor–Council Act, Ala. Acts, 1955, Act No. 452, as amended, Sections 3.01 and 4.01, as amended; and,

“WHEREAS, times for holding regular and runoff elections and for taking office by city council members elected by single-member district are further provided by City of Birmingham Ordinance No. 89–46, codified at Sec. 2–2–51, et...