Bryan v. Hubbard

• Decision Date: 10 October 2008
• Docket Number: 1071662.,1071590.
• Parties: Raymond C. BRYAN et al. v. Mike HUBBARD and Gene Howard. Gene Howard v. Raymond C. Bryan et al.
• Court: Alabama Supreme Court

6 So.3d 491

Raymond C. BRYAN et al. v. Mike HUBBARD and Gene Howard.

Gene Howard v. Raymond C. Bryan et al.

1071590.

1071662.

Supreme Court of Alabama.

October 10, 2008.

Algert S. Agricola, Jr., of Ryals, Plummer, Donaldson, Agricola & Smith, P.C., Montgomery, for appellants/cross-appellees Raymond C. Bryan, Rodney James, and Jonathan Thompkins.

Albert L. Jordan of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Christopher M. Hopkins of Campbell & Hopkins, Anniston, for appellee/cross-appellant Gene Howard.

Edward S. Allen, Ed R. Haden, and Aaron L. Dettling of Balch & Bingham, LLP, Birmingham, for appellee Mike Hubbard.

BOLIN, Justice.

This is an expedited appeal and cross-appeal. Raymond C. Bryan, Rodney James, and Jonathon Thompkins appeal from a summary judgment in favor of Mike Hubbard and Gene Howard, upholding the Alabama Republican Party's revocation of Bryan's certificate of nomination as a candidate for judicial office. Howard cross-appeals, arguing that the summary judgment is not a final judgment. We affirm in case no. 1071590 and dismiss the cross-appeal in case no. 1071662.

Facts and Procedural History

On April 4, 2008, Bryan, a licensed attorney in Alabama residing in the Seventh Judicial Circuit, filed a candidate-qualifying form with the Alabama Republican Party formally declaring his intention to seek election to the office of circuit judge of the Seventh Judicial Circuit, place 4. The Seventh Judicial Circuit comprises Calhoun and Cleburne Counties. James and Thompkins are registered voters who reside in the Seventh Judicial Circuit. Both James and Thompkins voted for Bryan in the Republican Party primary election. Hubbard is the chairman of the Alabama Republican Party executive committee. Howard is a registered voter who resides in the Seventh Judicial Circuit and who voted for Bryan's opponent and the incumbent judge, Mannon Bankson, Jr., in the Republican Party primary election.

Bryan and Bankson were certified to the secretary of state's office as candidates for the office of circuit judge of the Seventh Judicial Circuit by the Alabama Republican Party for placement on the ballot for the primary election set for June 3, 2008. Both names appeared on the Republican Party primary-election ballot. No candidate qualified to run for the judgeship in the Democratic Party primary election.

On May 29, 2008, five days before the primary election, Bryan mailed to the secretary of state's office by certified mail, return receipt requested, his pre-election report of campaign contributions and expenditures required by the Fair Campaign Practices Act, § 17-5-1 et seq., Ala.Code 1975 (hereinafter "the FCPA"). Bryan's report arrived at the United States post office in Montgomery at 5:14 a.m. on Monday, June 2, 2008. June 2, 2008, was a state holiday, and no one from the secretary of state's office retrieved the mail from the post office that day. Bryan's report was delivered to the secretary of state's office at 7:42 a.m. on June 3, 2008. Bryan's report was posted on the secretary of state's Web site later that same day.

On June 13, 2008, Hubbard, as chairman of the Alabama Republican Party executive committee, certified the vote totals from the June 3, 2008, Republican primary election: Bryan received 3,051 votes and Bankson received 2,838 votes. On that same day, Bankson wrote a letter to Hubbard, which stated:

"Please accept this correspondence as a contest of the June 3, 2008 Republican Primary Election held in Calhoun and Cleburne Counties for the position of Circuit Judge, Place 4. I wish to contest the election and the Republican nomination of candidate Raymond C. Bryan, and his position on the ballot as the candidate for November General Election. I contend and aver that due to Mr. Bryan's willful failure to comply with the Fair Campaign Practices Act in this election therefore renders him ineligible to be a candidate for this position. Furthermore, I contend that his failure to comply is compounded by the fact that in Mr. Bryan's previous election, he failed to also comply with the Fair Campaign Practices Act."

Bryan received a telephone call from someone in Hubbard's office, informing him of the receipt by the Alabama Republican Party of Bankson's statement of election contest. Bryan responded to the telephone call by sending a letter to Hubbard on June 16, 2008. That letter stated:

"This letter is in response to the election challenge filed by Mannon Bankson to my victory over him in the June 3rd primary. Mr. Bankson contends the Party should not issue a certificate of election to me due to my alleged `... willful failure to comply with the Fair Campaign Practices Act (FCPA) in this election.'

"I strongly deny that I have willfully failed to comply with any requirement of the FCPA and have filed all reports required by the Act. The following is the time line of reports mailed to the Secretary of State by certified mail/return receipt requested with copies of supporting documents attached:

"1). April 7, 2008—Appointment Of Principal Campaign Committee.

"2). April 19, 2008—45 day Candidate Pre-Election Report.

"3). May 29, 2008—10/5 day Candidate Pre-Election Report.[¹] Attached are receipts showing date/time stamp of this report being posted at the Anniston Post Office on Thursday, May 29, 2008, at 02:07:40 PM. When the report had not posted to the Secretary of State's web site by Tuesday morning, June 3rd, I contacted the Election's Division of the Secretary of State. I was informed they were not in possession of this report. I then used the United States Postal Service tracking service to trace the report having arrived at the Montgomery Post Office on Monday, June 2nd at 05:14 AM (June 2nd was a State holiday for Jefferson Davis' birthday.) The tracking service showed the report was delivered to the Secretary of State Tuesday, June 3rd at 07:42 AM. After contacting the Secretary of State with this information a search was conducted within the Secretary of State's office and it was discovered the report had been erroneously delivered to the Corporation's division of that office. I was informed the report would be immediately scanned into the system for posting to the web site.

"I learned at the time that I was trying to trace the 10/5 day Report that the Secretary of State had a deadline for certified mail of this report to be May 27th. I honestly did not know the deadline for mailing this report was different than the actual deadline when the report was due on May 29th. Had I known, I would most certainly have mailed the report on the 27th or driven the report to the Secretary of States' office that Thursday for filing. At the time I mailed the report I believed mailing by certified mail was effective on the date it was mailed just as it is done in the law by the Rules of Civil Procedure and as is done when mailing tax returns.

"Mr. Bankson requests the Republican Party disqualify me from being the Republican candidate for election in the November General Election due to the 10/5 day report having been tardy in mailing. The Alabama Supreme Court has spoken to the issue of a campaign report having been late in filing as opposed to not having been filed at all pursuant to the FCPA. So long as the untimely report is filed before the election to which it applies the law is that an untimely filed FCPA-required report does not impose the harsh penalty of disqualifying the candidate pursuant to Ala.Code § 17-22A-21. Instead, there may be criminal penalties for failing to file the report timely pursuant to Ala. Code § 17-22A-22(b). See, Davis vs. Reynolds, 592 So.2d 546 (Ala.1991).

"I contend that my election should stand as it is undisputed that the 10/5 day `Candidate Pre-Election Report' was mailed by certified mail five (5) days before the election and would have been received by the Secretary of State no later than Monday, June 2nd, had there not been a state holiday for Jefferson Davis' birthday. To deny the popular vote of the people of Calhoun and Cleburne County of my election over Mannon Bankson due to the state having been on holiday would be a severe injustice and unconstitutional. I pray the leaders of our Party will not grant Mr. Bankson what he could not win by popular election and certify me as the Republican party candidate for election in the November general election for Circuit Judge in the 7th Circuit Place 4.

"Due to Mr. Bankson having raised a prior election in which I was a candidate, although it should have no bearing on the decision of the Steering Committee in this matter, I feel I should speak to the matter. My opponent raises as purported evidence of my willfulness in not complying with the requirements of the FCPA in missing the certified mail deadline that I did not close out my campaign account in another election in which I ran in 2006. I lost that election and it has no relation to the present election which I won on June 3, 2008. However, I would point out for my opponent's sake that he also ran for election in 1998 and lost. He also did not close out his campaign account or file annual reports after the 1999 annual report reflecting a balance in his campaign account of $1,720.25. Having not filed an annual report since January, 1999, on January 31, 2008, Mr. Bankson filed a waiver with the Secretary of State that reflected a zero balance in the 1998 campaign account. This was done without there being any previous report having been filed explaining what Mr. Bankson did with the campaign contributions that had been present in his account in 1999 and which no longer exist. The disappearance of these campaign funds is a violation of the FCPA. This violation is compounded by the fact that all receipts of funds to Mr. Bankson's campaign accounts in the 1998 election were from contributors to his campaign and there were no personal loans made by Mr. Bankson to his campaign account. Thank you for considering my defense in this...