Dunning v. Reynolds

• Decision Date: 10 October 1990
• Citation: 570 So.2d 668
• Parties: Etta E. DUNNING and Jan Judkins v. George REYNOLDS, as Probate Judge of Jefferson County, et al. 89-1758.
• Court: Alabama Supreme Court

Page 668

570 So.2d 668

Etta E. DUNNING and Jan Judkins v. George REYNOLDS, as Probate Judge of Jefferson County, et al.

89-1758.

Supreme Court of Alabama.

Oct. 10, 1990.

Cellie W. Miller of Barnes, Dunning & Miller, and Jerome Tucker, Birmingham, for appellants.

Edwin A. Strickland, Birmingham, for appellees George Reynolds and Polly Conradi.

Michael L. Edwards of Balch & Bingham, Birmingham, for appellee Jeff Germany.

Gregory H. Hawley of Maynard, Cooper, Frierson & Gale, and James L. North, Birmingham, for appellees John Baker and the Democratic Party of Alabama.

Terry McElheny, Birmingham, for appellee Sheriff Mel Bailey.

Richard F. Allen of Capell, Howard, Knabe & Cobbs, Montgomery, for amicus curiae Secretary of State Perry A. Hand.

PER CURIAM.

Etta Dunning and Jan Judkins appeal from an order dismissing their complaint seeking a declaratory judgment and a writ of mandamus to have Jeff Germany's certificate of nomination revoked and his name removed from the general election ballot. The trial judge dismissed the complaint ex mero motu for lack of jurisdiction. We affirm.

The complaint avers that on May 23, 1990, petitioner Jan Judkins filed a formal complaint with the Jefferson County Democratic Executive Committee challenging the qualifications of Germany. The record fails to show affirmatively that petitioner exhausted her remedies before the State Democratic Executive Committee prior to filing the instant action. Therefore, we find no error in the trial court's order of dismissal. Ex parte Skidmore, 277 Ala. 221, 168 So.2d 483 (1964).

AFFIRMED.

HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.

MADDOX, J., dissents.

MADDOX, Justice (dissenting).

The sole question presented in this expedited appeal is whether this Court will enforce the penalty provisions of the Fair Campaign Practices Act of 1988, relating to disclosure of contributions made after a person becomes a candidate for election.

The specific legal question presented is whether a circuit court has jurisdiction of a declaratory judgment action seeking a determination of whether a political candidate for a local office could be certified as the nominee of his party when he had failed to comply with the provisions of Ala.Code 1975, § 17-22A-4, which require that "[w]ithin five days after [a] person becomes a candidate, such person shall file with the secretary of state or judge of probate ... a statement showing the name of not less than two nor more than five persons elected to serve as the principal campaign committee for such candidate." ¹

The complaint here reads, as follows:

"Come now Etta E. Dunning and Jan Judkins, petitioners herein, by and through their attorneys, the Honorable Cellie W. Miller and the Honorable Jerome Tucker, and move this Honorable Court for Declaratory Judgment and an Order Directing all Electing Officials to refuse to issue a certificate of election or nomination to Jeff Germany as the Democratic Nominee for Jefferson County Commissioner for Jefferson County Commission District One or to revoke any certificate of election or nomination heretofore issued to Jeff Germany as the Democratic Nominee for Jefferson County Commissioner for Commission District One and to exclude Jeff Germany's name from the November 1990 General Election Ballot, and further to direct that Etta E. Dunning be issued a certificate of election or nomination as the Democratic Nominee for Jefferson County Commissioner for Jefferson County Commission District One, and for cause would show the following:

"1. Petitioner Etta E. Dunning duly qualified as a Democratic candidate for the June 5, 1990 Primary Election and the June 26, 1990 Primary Run-off Election for nomination for a seat on the Jefferson County Commission as the Commission's District One Commissioner.

"2. Jeff Germany announced his candidacy for the position of Jefferson County Commissioner, District One on October 10, 1989, and thereafter accepted campaign contributions in his bid for election to said office.

"3. Jeff Germany failed to name his principal campaign committee within five (5) days after becoming a candidate for the Democratic nomination for the office of Jefferson County Commissioner, District One in violation of the Fair Campaign Practices Act of Alabama.

"4. Jeff Germany filed a Summary of Contribution and Expenditures report on January 31, 1990, which stated that he received total contributions of $10,750.00 during the period October 17, 1989 and January 26, 1990, a copy of said report is attached hereto and incorporated by reference herein as Exhibit 'A'.

"5. On or about April 4, 1990, Jeff Germany filed documents with the Jefferson County Democratic Party and the Jefferson County Probate Court to qualify as a Democratic candidate for Jefferson County Commissioner, District One.

"6. On April 20, 1990, Jeff Germany filed a pre-election report in Jefferson County Probate Court which listed contributions well in excess of $1,000.00 during the period March 15, 1990 and April 2, 1990, a copy of said report is attached hereto and incorporated by reference herein as Exhibit 'B'.

"7. Mr. Germany did not name his principal campaign committee until April 10, 1990, a copy of said appointment is attached hereto and incorporated by reference herein as Exhibit 'C'.

"8. On May 23, 1990, Petitioner Jan Judkins, a resident citizen of Jefferson County, Alabama and a registered voter in Jefferson County Commission District One filed a formal complaint with the Jefferson County Democratic Party which requested that Jeff Germany's name be removed from the ballot and further that he not be certified as the winner of the primary election should his name not be removed from the ballot, a copy of said complaint is attached hereto and incorporated by reference herein as Exhibit 'D'.

"9. The Democratic Party of Alabama failed to take appropriate action in that it failed to remove Jeff Germany's name from the ballot and it failed to refuse to certify him as the party's nominee for Jefferson County Commissioner, District One despite their knowledge of his failure to comply with the Alabama Fair Campaign Practices Act.

"10. Your petitioners bring this action on their individual behalf and on behalf of the citizens of Jefferson County Commission District One and aver that they have no adequate remedy at law and are in need of the protection of this Court and therefore demand an immediate hearing and redress in this Honorable Court.

"Wherefore, premises considered, your petitioners pray that this Honorable Court will take jurisdiction of this cause and will issue an order directing the respondents to appear before this Honorable Court to answer the allegations of your petitioners filed herein and upon a final hearing direct that Jeff Germany not be issued a certificate of election or nomination or in the event a certificate of election or nomination has been issued to said candidate that said certificate of election or nomination be ordered revoked, and his name be excluded from the November, 1990 General Election Ballot and further direct that Etta E. Dunning be issued a certificate of election as the Democratic Nominee for Jefferson County Commissioner for Jefferson County Commission District One, [and] petitioners further pray for such other, further or different relief to which they may be entitled."

The trial court, apparently on its own motion, on August 2, 1990, entered the following order:

"It has come to the attention of the Court that the above-styled case has been assigned to it. Since this case involves a contest of a primary election, the Court finds that, based upon the ruling of the Alabama Supreme Court in Ex parte Baxley, 496 So.2d 688 (Ala.1986), the Court has no jurisdiction to hear the case.

"It is, therefore, ordered, adjudged and decreed by the Court as follows:

"ONE: This case is dismissed for want of jurisdiction.

"TWO: The costs of this action are taxed to the Petitioners.

"Done and ordered this 2nd day of August, 1990.

"s/ Jack D. Carl

"Circuit Judge"

The majority, in affirming the action of the trial court, states, in part, that

"The complaint avers that on May 23, 1990, petitioner Jan Judkins filed a formal complaint with the Jefferson County Democratic Executive Committee challenging the qualifications of Germany. The record fails to show affirmatively that petitioner exhausted her remedies before the State Democratic Executive Committee prior to filing the instant action. Therefore, we find no error in the trial court's order of dismissal. Ex parte Skidmore, 277 Ala. 221, 168 So.2d 483 (1964)."

I think that the complaint is sufficient to state a claim under the provisions of the Rules of Civil Procedure, because I am of the opinion that the trial court had jurisdiction of the complaint, and could have enforced the sanctions of the Fair Campaign Practices Act, without first filing a proceeding before the democratic executive committee. To vest in a political party the absolute power to enforce the sanctions, in my opinion, fails to carry out legislative intent. It is my opinion that the legislature, in adopting the Fair Campaign Practices Act, and in providing serious penalties for its violation, including the filing of criminal proceedings against a person who violates it, never intended that a political party would be able to judge whether the Act, in fact, had been violated. In this case, the plaintiffs claim that the party has illegally certified Jeff Germany as the nominee of that party. That is a justiciable controversy which a circuit court clearly has the power to resolve. I do not believe that a circuit court is powerless to order the probate judge of a county not to place the name of a defaulting candidate on the November general election ballot. This Court, by divesting the trial court of jurisdiction, in my judgment, fails to follow prior precedents of this Court, which...