Eubanks v. Hale

• Decision Date: 02 July 1999
• Citation: 752 So.2d 1113
• Parties: Della F. EUBANKS et al. v. Mike HALE.
• Court: Alabama Supreme Court

752 So.2d 1113

Della F. EUBANKS et al. v. Mike HALE.

1980596.

Supreme Court of Alabama.

July 2, 1999.

Opinion on Return to Remand August 20, 1999.

Opinion on Return to Second Remand November 5, 1999.

Albert L. Jordan, Michael L. Jackson, and Shara L. Gray of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Algert S. Agricola, Jr., of Wallace, Jordan, Ratliff & Brandt, L.L.C., Montgomery, for appellants Della F. Eubanks, Daniel J. Nichols, and Jim Woodward.

Russell Jackson Drake of Whatley Drake, L.L.C., Birmingham; Fournier J. Gale III of Maynard, Cooper & Gale, P.C., Birmingham, and C.C. Torbert, Jr., of Maynard, Cooper & Gale, P.C., Montgomery, for appellee.

PER CURIAM.

This appeal involves the contest of an election for the office of sheriff of Jefferson County. Many of the facts relating to the contest are undisputed. Nonetheless, we set out the pertinent facts to show the nature of the controversy and the legal issues presented.

On November 3, 1998, an election was held in Jefferson County for the office of sheriff of Jefferson County. Jim Woodward and Mike Hale were candidates for this office. On November 6, 1998, the Board of Supervisors/Canvassing Board for Jefferson County declared the results of the election. The declaration was based on a canvass of election returns provided by the returning officers of the various precincts, including a canvass of the returns of the absentee box made by the absentee-election manager. The canvass showed that Hale had received 106,269 votes and that Jim Woodward had received 106,232 votes—the difference was 37 votes. The Board declared Mike Hale the winner.

After several proceedings related to the election had occurred, Della F. Eubanks, Daniel J. Nichols, and Jim Woodward (hereinafter together referred to as "the contestants") filed a statement of election contest in the Jefferson Circuit Court. When they filed the contest, they also filed a "motion for random assignment of judge by the presiding judge." After seven of the circuit judges recused themselves, Judge William Wynn was chosen by a random drawing to preside over the election contest.

Judge Wynn ordered the contestants to file, in camera, a list of the names and addresses of persons who the contestants believed had cast illegal votes. The contestants complied with the order, presenting two lists containing the names and addresses of 274 voters suspected of having cast illegal or invalid ballots. On December 9, 1998, the contestants served notice to the adverse party of the number of alleged illegal votes and certain information regarding those votes, as required by § 17-15-21, Ala.Code 1975. This notice listed 64 voters in the Bessemer Division of Jefferson County as having cast illegal absentee ballots for Mike Hale; the notice also stated that the contestants intended to introduce evidence tending to show that between 100 and 200 on-site absentee ballots from the Birmingham Division had not been counted because on those ballots the box indicating the reason for voting absentee was not marked. The contestants contend that those ballots should have been counted.

The trial court set the trial for January 6, 1999, and scheduled a pretrial conference for December 29, 1998. At the December 29, 1998, conference, Judge Wynn asked the contestants to "show with particularity what they expect to prove at the trial of this case." The contestants described two general categories of evidence they intended to offer: (1) the on-site absentee ballots in the Birmingham Division that they claim were not counted, but should have been, and (2) the 64 absentee ballots from the Bessemer Division that they claim were illegally cast.

Before the December 29, 1998, conference, Judge Wynn allowed the contestants access to the absentee-ballot applications and affidavits of the 64 voters in the Bessemer Division that the contestants had identified as having cast illegal votes for Mike Hale. The record indicates that the contestants could locate the affidavits of only 48 of those 64 voters, and that of those 48 only 46 might have cast illegal ballots.

On January 4, 1999, Judge Wynn entered an order dismissing the election contest and certifying Mike Hale as having been elected sheriff of Jefferson County.

The contestants appealed, arguing, among other things, that the trial court had erred in not considering the disputed on-site absentee ballots cast in the Birmingham Division and in not allowing the contestants to observe his in camera examination of those absentee ballots.

In dismissing the contest, Judge Wynn stated:

"The [contestants'] first argument was that votes not counted because of failure of voters to mark the block—should have been counted. I counted every single uncounted ballot and added the totals to Woodward and Hale. Hale still received the majority of votes."

(Emphasis added.)

The contestants argue that they were not permitted to observe all of the examination proceedings conducted by the court. They claim that under § 17-15-7(2), Ala. Code 1975, they should have been permitted to observe those proceedings. That statute provides, in part, that "[e]xamination procedures shall be within the discretion of the court," but it also states that "[t]he court must, when so requested by any party or candidate involved in the contest, allow such party or candidate, and his agents, to observe all of the examination proceedings." (Emphasis added.)

From the record before us, we cannot determine whether the parties were allowed to observe all of the examination proceedings and we cannot determine what election materials the trial judge examined in camera. Consequently, we remand this case with instructions for the trial judge to conduct a hearing at which he specifies the election materials he examined in camera and allows the parties to examine those materials and to file such exceptions and objections to the January 4, 1999, dismissal order as they deem proper. The trial court is directed to make a return to this Court within 14 days, and, consistent with the need to preserve the integrity of the ballots, voting machines, and voting-machine computations and printouts, as provided by § 17-15-7(2), Ala.Code 1975, to keep and transmit to this Court, under seal, any and all materials it reviews or has reviewed in this case, so that this Court can view the same evidence the trial judge considered in making his decision in this case, together with any objections and exceptions made by the parties.

REMANDED WITH DIRECTIONS.

HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and JOHNSTONE, JJ., concur.

BROWN, J., recuses herself.

On Return to Remand

PER CURIAM.

On July 2, 1999, this Court remanded this election-contest case with instructions for the trial judge "to conduct a hearing at which he specifies the election materials he examined in camera [and to allow] the parties to examine those materials and to file such exceptions and objections to the January 4, 1999, dismissal order as they deem[ed] proper." 752 So.2d at 1120. This Court further directed the trial court "to make a return to this Court within 14 days, and, consistent with the need to preserve the integrity of the ballots, voting machines, and voting-machine computations and printouts, as provided by § 17-15-7(2), Ala.Code 1975, to keep and transmit to this Court, under seal, any and all materials it ... reviewed in this case, so that this Court [could] view the same evidence the trial judge considered in making his decision in this case, together with any objections and exceptions made by the parties." 752 So.2d at 1120.

In conformity with this Court's remand order, the trial court held a hearing on July 7-8, 1999, and allowed the parties and their attorneys to review the contents of several boxes of evidence that the trial judge stated he had reviewed in camera in making his decision to dismiss the election contest. At the close of those proceedings, the trial court, as directed by this Court, ordered that the evidence be placed under seal and transferred to this Court. The records of this Court show that, on the evening of July 8, 1999, the clerk of this Court accepted the evidence that had been placed under seal. That evidence remained in the custody of the clerk of this Court, under seal, until August 10, 1999, when this Court, in conference, using a method consistent with the need to preserve the integrity of the ballots, as required by § 17-15-7(2), Ala.Code 1975, examined the evidence for the purpose of deciding the legal issues presented to this Court.¹ For a better understanding of this case, this Court directed that the parties appear before this Court on July 29, 1999, and present their respective arguments on the propriety of the trial court's order dismissing this case.

All absentee ballots must "be accompanied by an envelope upon which shall be printed an affidavit." § 17-10-7(a), Ala. Code 1975. Throughout this opinion, we will refer to ballots authorized by § 17-10-3(c), the form of whose associated affidavits is governed by § 17-10-7(c), as "on-site" absentee ballots. We will refer to ballots authorized by § 17-10-3(a), the form of whose associated affidavits is governed by § 17-10-7(b), as "regular" absentee ballots. We attach as Appendix A to this opinion a copy of the "on-site" absentee-ballot affidavit used in this election, and we attach as Appendix B a copy of the "regular" absentee-ballot affidavit used in this election.

The question presented in this case is: Which candidate for sheriff of Jefferson County received the largest number of legal votes in the 1998 General Election? That, and that alone, is what this Court seeks to ascertain. A determination of this issue has been delayed by the failure of the trial judge to follow a statutory mandate in election contests. See Ala. Code 1975, § 17-15-7(2): "The court must, when so requested by any party or candidate involved in the contest, allow such party...