Eubanks v Hale

• Decision Date: 05 November 1999
• Docket Number: 1980596
• Parties: SUPREME COURT OF ALABAMA
• Court: Supreme Court of Alabama

SUPREME COURT OF ALABAMA

NOVEMBER 5, 1999

OCTOBER TERM, 1999-2000

1980596

Della F. Eubanks et al.

v

Mike Hale

Appeal from Jefferson Circuit Court

(CV-98-07033)

On Return to Second Remand

MADDOX, Justice.

On August 20, 1999, this Court reversed the trial judge's dismissal of this election-contest case and remanded the cause with instructions for the trial judge to "conduct, within 14 days ..., such further proceedings as are necessary to allow the parties to introduce any evidence they may have concerning votes they allege were illegally cast in the election for sheriff of Jefferson County." ___ So. 2d at ___. This Court further "instructed [the trial judge] to enter a judgment, as required under § 17-15-32, which [includes] a calculation of the total number of votes legally cast for the contestant and the total number of votes legally cast for the contestee." ___ So. 2d at ___. This Court also instructed the trial judge to include with his calculations "a detailed statement of findings of fact that [he] consider[ed] in reaching [his] judgment." ___ So. 2d at ___.

On remand, the trial judge conducted proceedings at which the parties introduced evidence tending to prove that certain votes were either legally cast or were illegally cast. On September 3, the 14th day following the release of this Court's August 20 remand order, and the date by which all proceedings below were to have been completed and the trial court's judgment entered, the trial court filed with this Court a request for an extension of time, which this Court granted.

On Friday, September 10, 1999, this Court received from the trial court a copy the trial court's order, along with several boxes of evidence.[1] In his order, a copy of which is attached to this opinion as Appendix A,[2] the trial judge found that Jim Woodward, the contestant, had received a total of 106,276 legal votes and that Mike Hale, the contestee, had received a total of 106,282 votes, giving Hale a 6-vote margin of victory. Although the trial judge's order contains a lengthy discussion of whether certain challenged votes were due to be excluded, his order does not contain a clear explanation of the calculations by which he got those totals.

Despite the trial judge's finding that Hale had received the most legal votes, he declared both Woodward and Hale "[i]neligible to be sheriff insofar as the November 3, 1998, election only" [sic], and he ordered the Governor to call a new election. See Appendix A, ___ So. 2d at ___. We have reviewed the record, the trial court's order, and the briefs of the parties. For the reasons discussed below, we reverse, and we render a judgment in the contestants' favor and declare Woodward the winner of the November 3, 1998, election.

I.

We first consider whether the trial court was authorized to declare both candidates ineligible and to order that a new election be held. We conclude that he was not, and that, in purporting to do so, he exceeded the scope of his authority.

In his order, the trial judge stated:

"Despite the apparent majority attributable to Mike Hale, in light of all the evidence and the well- intentioned but conflicting or irreconcilable occurrence of statutory and constitutional law as cited hereinabove, a judgment under § 17-15-2 and § 17-15-32, [Ala. Code 1975], are the only proper statutes which can be followed in order to attain the legality necessary to state of the law and evidence as adduced. [Sic.] Thus, each candidate is declared ineligible to be sheriff insofar as the November 3, 1998, election only. [Sic.]

"The election of November 3, 1998, insofar as the election of Sheriff of Jefferson County is hereby annulled. [Sic.]"

Appendix A, ___ So. 2d at ___.

Our reading of the trial judge's order suggests to us that he thought Alabama's laws pertaining to the contests of elections for sheriff were inconsistent and that this Court should clear up that inconsistency by declaring that contests of elections for sheriff should be decided by the Legislature.[3] We refuse to make such a declaration.

We note that neither the contestants nor the contestee agree with the trial judge's stated belief that the Legislature is the proper venue for contests of the election of sheriffs. The parties agree that the trial judge's belief is without basis in the law. Although we do not disagree with the trial court's conclusion that sheriffs are executive officers of the state,[4] we point out that the Legislature has specifically provided in §§ 17-15-20 through 17-15-35 for the contests of elections for sheriff.[5]

Based on the foregoing, we decline the trial judge's invitation to "mandate" that contests of elections for sheriff be governed by Code sections other than those that the Legislature clearly provided would apply. Despite the trial court's apparent conclusion that §§ 17-15-50 through 17-15-63 ought to govern contests of the election of sheriffs, he appears to have concluded that he was nonetheless bound to apply the provisions of §§ 17-15- 20 through 17-15-35. Because we find that conclusion to be correct, we now consider whether those Code sections, or other applicable sections, authorized him to declare both candidates ineligible and to order the Governor to call a new election.

The trial judge cites §§ 17-15-2 and 17-15-32, Ala. Code 1975, as authority for his order that "each candidate is declared ineligible to be sheriff insofar as the November 3, 1998, election only," and, presumably, for his decision to call upon the Governor to schedule a new election. Although the trial judge does not explain why he believed these Code sections, or any others, authorized him to do so, we have examined the two Code sections he mentioned, and we conclude that neither of them authorized him to declare both candidates ineligible and to order a new election.

Section 17-15-2 provides:

"No malconduct, fraud or corruption on the part of the inspector, clerk, marker, returning officer, board of supervisors or other person, nor any offers to bribe, bribery, intimidation or other malconduct which prevented a fair, free and full exercise of the elective franchise can annul or set aside any election unless thereby the person declared elected and whose election is contested is shown not to have received the highest number of legal votes, nor must any election contested under the provisions of this title be annulled or set aside because of illegal votes given to the person whose election is contested, unless it appears that the number of illegal votes given to such person, if taken from him, would reduce the number of votes given to him below the number of legal votes given to some other person for the same office. No election shall be annulled or set aside because of the rejection of legal votes unless it appears that such legal votes, if given to the person intended, would increase the number of his legal votes to or above the number of legal votes received by any other person for the same office."

Did this Code section authorize the trial judge to declare both candidates ineligible and to call upon the Governor to schedule a new election for sheriff of Jefferson County? A careful reading of § 17-15-2 reveals that it does not contemplate the action the trial judge took. In fact, that Code section actually speaks more in terms of when a trial judge should not enter a judgment altering the result of an election as previously certified by election officials. It provides that malfeasance or misfeasance by election officials, among others, is insufficient to cause a previously certified winner to be ousted from his or her office, in the absence of certain evidence. Specifically, a contestant must prove that he or she would have the highest number of legal votes once illegal votes previously counted are subtracted and legal votes previously excluded are counted.

When this Code section speaks of annulling an election, it refers to the declaration that the candidate previously certified as the winner is not, actually, the winner of the election. It does not refer to declaring the entire election void and calling for a new election. The language of the Code section does not, therefore, authorize the trial court's action, and we cannot, in the absence of a clearer statement that it intended to do so, conclude that the Legislature intended to grant such broad authority. Our conclusion is further strengthened by considering § 17-15-2 in pari materia with § 17-15-32, as we must because the two statutes relate to the same general subject matter. See Opinion of the Justices No. 334, 599 So. 2d 1166 (Ala. 1992).

Section 17-15-32 provides:

"If, on the trial of the contest of any election, either before the judge of probate or the circuit court, it shall appear that any person other than the one whose election is contested, received or would have received, had the ballots intended for him and illegally rejected been received, the highest number of legal votes, judgment must be given declaring such person duly elected, and such judgment shall have the force and effect of investing the person thereby declared elected, with full right and title to have and to hold the office to which he is declared elected. If it appears that two or more persons have, or would have had, if the ballots intended for them and illegally rejected had been received, the highest and equal number of votes for such office, judgment must be entered declaring the fact, and such fact must be certified to the officer having authority to fill vacancies in the office the election to which was contested. If the person whose election is contested is found to be ineligible to the office, judgment must be entered declaring the election void and the fact certified to the appointing power. If the party whose election is contested is found to have been duly and legally elected, judgment must be entered declaring him entitled to have and to hold the office to which he was so...