Burkes v. Franklin

• Decision Date: 18 November 2022
• Docket Number: SC-2022-0649
• Parties: Frederick A. Burkes, Sr. v. James Franklin
• Court: Alabama Supreme Court

Frederick A. Burkes, Sr. v. James Franklin

No. SC-2022-0649

Supreme Court of Alabama

November 18, 2022

Appeal from Jefferson Circuit Court (CV-22-18)

WISE Justice.

This appeal arises from a quo warranto action ("the present action") initiated by a February 4, 2022, complaint filed in the Jefferson Circuit Court by Frederick A. Burkes Sr., on the relation of the State of Alabama, in which he alleged that James Franklin "has unlawfully usurped the public office of the constable for District 59 in Jefferson County, Alabama." Franklin filed a motion to dismiss the present action, which the circuit court granted. We reverse and remand.

Facts and Procedural History

This is not the first time these parties have been before this Court. The following facts from this Court's decision in Burkes v. Franklin, [Ms. 1210044, July 15, 2022] __So. 3d__ (Ala. 2022), will be helpful to an understanding of this case:

"In March 2020, Burkes defeated Franklin, the incumbent in a primary election for the office of constable for District 59 in Jefferson County. Burkes was unopposed in the general election and was declared and certified as the winner of the election on Friday, November 13, 2020.

"Thereafter, Franklin sent a letter to the Jefferson Probate Court informing the probate court that Burkes had not filed an official bond within 40 days of the declaration of Burkes's election to the office of constable. On January 8, 2021, the probate court sent a letter to Governor Kay Ivey stating, in relevant part:

"'Under Ala[.] Code [(1975),] § 11-2-3, the official bonds of all county officials (except for the bond of the judge of probate) are to be recorded in the office of judge of probate. This includes the official bonds of duly elected county Constables.

"'Alabama Code [(1975),] § 36-5-2 provides that "[i]n all cases, official bonds must be filed in the proper office within 40 days after the declaration of election ...." Alabama Code [(1975),] § 36-5-15 provides in turn that "[i]f any officer required by law to give bond fails to file the same within the time fixed by law, he vacates his office. In such case it is the duty of the officer in whose office such bond is required to be filed at once to certify such failure to the appointing power, and the vacancy be filled as in other cases." Finally, Ala[.] Code [(1975),] § 36-23-2 provides that "[v]acancies in the office of constable shall be filled by appointment of the Governor, and the person appointed shall hold office for the unexpired term until his successor is elected and qualified."

" '....

"'It is this office's understanding that by statute it is required to notify the Governor (as the "appointing power") of any duly elected Constable failing to file his or her bond within 40 days after election results are declared, as the office is then, by statute, vacated. Please consider this letter to be such declaration and certification with respect to Constable for District 59, Jefferson County, Alabama. This office takes no position with respect to any appointment to fill any vacancy; I would note, however, that Mr. Burkes, the duly elected Constable for District 59, ran unopposed in the November 2020 General Election.'

"The governor thereafter appointed Franklin to the office of constable for District 59.

"On April 22, 2021, Burkes, acting pro se, initiated this action, which he identified as a quo warranto action, in the circuit court. Burkes alleged in his complaint that he had been sworn into the office of constable on January 4, 2021, and that he had filed an official bond on December 31, 2020, which he contended was timely pursuant to § 36-23-4, Ala. Code 1975 ('Before entering upon the duties of his office, the constable must give bond as prescribed by law.'). Burkes requested that Franklin be ordered to return 'all Constable paperwork back to the clerk's office and to cease and desist all actions concerning this office.'

"Also acting pro se, Franklin filed an 'answer' in which he also moved for a 'summary judgment.' In summary, Franklin asserted that Burkes had vacated the office of constable by failing to comply with the pertinent statutory procedure concerning the payment of official bonds. Franklin requested, among other things, that Burkes be ordered to cease and desist all activities concerning the office of constable and that Burkes's quo warranto action be 'dismissed with prejudice.' Franklin attached to his filing a copy of the probate court's letter to the governor and a copy of a February 26, 2021, letter from the governor to Franklin appointing Franklin to the office of constable.

"On August 19, 2021, the circuit court entered a judgment that provided, in relevant part:

"'This matter came on before the Court for hearing on [Franklin]'s motion for summary judgment. [Burkes] neither filed a response nor appeared for oral argument. Accordingly, and after due consideration of the pleading and exhibits attached, the Court finds [that Franklin]'s motion is due to be granted.

"'Therefore, [Franklin]'s motion for summary judgment is hereby granted. Judgment is entered in favor of [Franklin] and against [Burkes]. [Burkes]'s complaint is dismissed with prejudice. Costs taxed as paid.

"'This constitutes a final order in this case. The Jefferson County Circuit Clerk is directed to remove this matter from the Court's active docket.' "Still acting pro se, Burkes sent a letter to the circuit court on August 24, 2021, asserting that he had 'never received notices for court' and asking the circuit court to set a new court date. The circuit court appears to have construed Burkes's letter as a postjudgment motion to alter, amend, or vacate the circuit court's judgment. See Rule 59(e), Ala. R. Civ. P. On September 15, 2021, after conducting a hearing on Burkes's postjudgment motion, the circuit court entered an order that provided, in pertinent part:

"'This matter came on before the Court for hearing on [Burkes]'s motion to vacate or modify this Court's order dated August 19, 2021, granting [Franklin]'s motion for summary judgment. All parties were present and presented pro se argument during the hearing. After due consideration of the pleadings and argument from the parties, the Court finds as follows:

"'1. [Burkes], who was elected to the position of Constable, District 59[,] at the time of the November 2020 general election[,] failed to timely file his bond with the probate court and thereby vacated his office pursuant to [§] 36-5-2[, Ala. Code 1975].

"'2. Subsequent thereto, the probate court wrote Governor Ivey certificating a vacancy in office of Constable, District 59[,] pursuant to [§] 36-5-15[, Ala. Code 1975].

" '3. While regrettable in cases of mistake, the law regarding failure of an officer to timely file a bond is clear; by statute, if any duly elected Constable fails to file his/her bond within fort[y] (40) days after election results are declared, he/she vacates his/her office.

"'4. On or about February 26, 2021 (Revised: March 4, 2021), Governor Ivey reappointed ... Franklin as Jefferson County Constable, as representative of District 59.

"'5. Accordingly, judgment remains entered in favor of ... Franklin against ... Burkes ....

"'6. Per his reappointment, ... Franklin is hereby the Jefferson County Constable representing District 59.

"'7. However, all papers served by [Burkes] during the period after January 20, 2021, shall remain declared as "good service[,]" as this Court finds he was acting as a "de facto officer" while exercising the duties of a de jure officer under color of election. Gwin v. State, 808 So.2d 65 [(Ala. 2001)].

"'[Burkes]'s motion to modify/vacate is hereby denied. As there is no just reason delay, the Court hereby directs the entry of a final judgment as to claims plead[ed].'"

__So. 3d at __-__. Burkes appealed to this Court, challenging the circuit court's judgment entered in the action initiated by the filing of his April 22, 2021, complaint ("the prior action").

On February 2, 2022, while the appeal in Burkes was pending in this Court, Burkes commenced the present action. In the present action, Burkes asserted that he had been certified the winner of the general election for the office of constable on or about December 31, 2020; that he had "timely filed the appropriate bond with the Probate Court of Jefferson County on January 4, 2021, as required by Alabama law … and said timeliness is confirmed by John H. Merrill, Secretary of State"; and that he had then been sworn into the office of constable on January 4, 2021. He asked the circuit court to enter an order holding that Franklin had unlawfully usurped the office of constable for District 59 in Jefferson County. Burkes further asked the circuit court to find that he was the properly elected constable for District 59 in Jefferson County; to find that the bond he had posted for that office had been timely filed; and to order that he assume the duties of constable as soon as practicable.

On March 3, 2022, Franklin filed a pro se motion to dismiss the present action "on the grounds that the parties, facts, issues, and claims raised in this case have already been heard and decided" in the prior action.

On April 20, 2022, Burkes filed his reply to Franklin's motion to dismiss. After addressing the merits of his underlying claims, Burkes went on to assert:

"Of significant relevance to the issue before the court in whether or not to dismiss the present action without an adjudication of the facts and a determination about whether or not this

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