City of Birmingham v. Graffeo

• Decision Date: 19 September 1989
• Citation: 551 So.2d 357
• Parties: CITY OF BIRMINGHAM, a municipal corporation v. Michael G. GRAFFEO. 88-1525.
• Court: Alabama Supreme Court

Page 357

551 So.2d 357

CITY OF BIRMINGHAM, a municipal corporation v.Michael G. GRAFFEO.

88-1525.

Supreme Court of Alabama.

Sept. 19, 1989.

Donald V. Watkins and Joe R. Whatley, Jr. of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for appellant.

J. Scott Greene of Bishop, Colvin & Johnson, Birmingham, for appellee.

PER CURIAM.

The issue presented by this appeal is whether the City of Birmingham, acting pursuant to Ala.Code 1975, § 11-43-63, was authorized to enact OrdinanceNo. 89-46, which effectively removed Michael G. Graffeo, an elected City Council member, from office before the end of his elected term.The trial court answered this issue in the negative.Because of the reasons set forth below, we hold that the trial court erred in granting the injunctive relief.

Facts

In the October 1987 municipal election, Michael G. Graffeo was elected as a Birmingham City Council member.At the time Graffeo was elected to his four year-term, the election of members to the Birmingham City Council, (hereinafter "the City Council") was governed by the Mayor-Council Act of 1955, Ala. Acts 1955, No. 452.The Mayor-Council Act established a system for election of nine at-large city council members with a staggered election system.In October of every odd numbered year, five members of the council were elected.

Under the then existing Mayor-Council Act, the four candidates with the largest number of votes in the election served four year terms.The candidate with the fifth greatest number of votes was elected to a two-year term.In the October 1987 election, David Herring, William Bell, Jeff Germany and Graffeo were the four candidates with the largest number of votes and, thus, were elected to serve four year terms.

After the election in 1987, a group of qualified voters commenced an action in federal court challenging the City of Birmingham's (hereinafter the "City") at-large system of election of city council members.That case, Slaughter v. City of Birmingham, CV87-PT-1947-S alleged that the at-large system violated the United States Constitution and the federal Voting Rights Act because it discriminated against the white citizens of the City.

In 1987, the Alabama legislature adopted Ala.Code, 1975 § 11-43-63 which authorized municipalities to establish single-member districts for the election of council members.Section 11-43-63 provides:

"Any city or town council of this state not currently electing its members from single-member districts pursuant to state law may, not less than six months prior to the regular general municipal election, by ordinance adopted by a majority of the membership of the council, divide the municipality into single-member districts (wards) of not less than five nor more than seven districts (wards).Provided, however, that the number of districts (wards) in any Class 1, 2 or 3 municipality may not exceed nine districts (wards).Such ordinance shall be considered only after two weeks public notice has been given, outlining generally the voting districts under consideration.The ordinance shall provide that candidate for election for a place on the council, where the council has been divided into districts, shall reside within the boundaries of said district (ward) for which he or she seeks election, and shall continue to reside in the district he or she represents so long as he or she remains a member of said council and further that candidates for election to a place on the council shall have resided within the district from which he or she seeks election for a period of 90 days immediately preceding the date of the election.Only electors residing within a district shall be entitled to vote for candidates seeking election for said district.

"The ordinance establishing the districts shall describe the territory composing the district by metes and counts, or census tracts, and the municipal clerk, within five days after the adoption of the ordinance, shall file with the judge of probate of the county or counties in which the municipality lies a certified copy of such ordinance accompanied, by a map or plat of the city or town, showing the boundaries of all such districts."

In March of 1989, pursuant to § 11-43-63, the Mayor proposed OrdinanceNo. 89-46.Graffeo was present at a public hearing and voiced his opposition to the proposed ordinance.On March 28, 1989, the ordinance was adopted by a majority of the city council.Graffeo and David Herring voted in opposition to the ordinance.William Bell and Jeff Germany, who, like Graffeo were serving four year terms, voted in favor of the ordinance.

After adoption of the ordinance providing for single member districts for election of council members, the City submitted the ordinance to the United States Justice Department for preclearance under Section 5 of the Voting Rights Act.Graffeo informed the Justice Department of his contention that the ordinance unconstitutionally shortened his term of office.On June 23, 1989, the Justice Department precleared OrdinanceNo. 89-46, and the City proceeded to implement the new system for election of city council members.The election pursuant to OrdinanceNo. 89-46 is scheduled for October 10, 1989.

On June 26, 1989, three days after the preclearance, the City moved to dismiss the Slaughter v. City of Birmingham case in federal court as being moot.On July 31, 1989, the federal court granted the City's motion.An amended complaint was later filed primarily challenging the ordinance's allocation of districts as illegally diluting white voting strength.The court then rescinded its order declaring the suit moot.

On August 1, 1989, Graffeo filed a complaint seeking an injunction; it sought a temporary restraining order, a preliminary injunction and a permanent injunction.In addition, Graffeo also filed motions to waive security and to consolidate the preliminary injunction and the permanent injunction.

On August 2, 1989, the trial court heard Graffeo's request for a temporary restraining order.The trial court expressed concerns about its ability to assume jurisdiction of Graffeo's case due to the pending action in federal court.Pursuant to the trial court's order, Graffeo petitioned the federal court for intervention, but asked that the intervention be denied because his case was based primarily upon state law.The federal court denied Graffeo's petition for intervention.

On August 16, 1989, the trial court ruled that the City could not present evidence on its federal constitutional and pre-emption defenses.On August 31, 1989, a trial was held on the merits of the injunctive relief, based in large part on detailed stipulations by the parties.

On September 6, 1989, the trial court entered its final judgment granting Graffeo's requested injunctive relief.The trial court's order held, in part, as follows:

"ONE: The Plaintiff has standing to maintain this action.

"TWO: The Plaintiff is not barred by laches from bringing this action.

"THREE: The City Council may not reduce, cut-short or terminate the terms of any of its members and to the extent that Ordinance 89-46 attempts to accomplish that result it is unenforceable.

"FOUR: The City Council may not abolish itself or the office of any city council member.

"FIVE: The City Council may not by passage of an ordinance amend a state statute and thus Ordinance 89-46 may not be construed to amend the Mayor-Council Act or change the terms of city council members which are set out in the Mayor-Council Act.

"SIX: Section 11-43-63 may not be interpreted so as to authorize the removal of a city council member from office prior to the expiration of such member's term.

"SEVEN: Section 11-43-63 does not amend the Mayor-Council Act so as to authorize the City Council to abolish itself or the office of any city council member.

"EIGHT: Section 11-43-63 does not amend the Mayor-Council Act so as to authorize the City Council to change the term of office of any city council member.

"NINE: To the extent that there is a conflict in the provisions of the Mayor-Council ActandSection 11-43-63, the provisions of the Mayor-Council Act control because they are specific provisions whereas the provisions of 11-43-63 are general provisions.

"TEN: The City of Birmingham is enjoined from implementing the provisions of Ordinance 89-46 calling for an election of council members from single-member districts on October 10, 1989.

"ELEVEN: The costs of this action are taxed to the defendants."

On September 8, 1989, we granted a motion to expedite the appeal and stayed that portion of the trial court's order that prohibited the City of Birmingham from preparing for the October 10, 1989 election.

I.

The City argues that the trial court erred when it held that § 11-43-63 did not amend the Mayor-Council Act, and that the trial court erred when it held that the provisions of the Mayor-Council Act were specific provisions that controlled the general provisions of § 11-43-63.If, as the City argues, § 11-43-63 amended the Mayor-Council Act, then the trial court's ruling concerning whether the provisions of the two acts were specific or general was error, because those provisions that the trial court relied on will have been amended.

The Mayor-Council Act, Ala. Acts 1955, No. 452 authorized the City to establish the office of at-large council members.That office was not established until the City voted to change the form of government.Connor v. State, 275 Ala. 230, 153 So.2d 787(1963);Reid v. City of Birmingham, 274 Ala. 629, 150 So.2d 735(1963).The office of at-large council members resulted, accordingly, from the City's exercise of the option given the City by the legislature to create the office.

Thirty-two years after the Legislature passed the Mayor-Council Act, it passed § 11-43-63, which authorizes municipalities to establish single member districts for the election of council members.The legislature has the inherent power to prescribe, alter...