Ex parte Baxley

• Decision Date: 07 August 1986
• Citation: 496 So.2d 688
• Parties: Ex parte William J. BAXLEY, et al. (In re Charles A. GRADDICK v. John BAKER, etc., et al.) Ex parte John BAKER, etc., et al. (In re Charles A. GRADDICK v. John BAKER, etc., et al.) William J. BAXLEY v. Charles A. GRADDICK. John BAKER, etc., et al. v. Charles A. GRADDICK. Charles Kennith PIKE and Nellie Kent Pike v. Charles A. GRADDICK. 85-1242, 85-1260 and 85-1308 to 85-1310.
• Court: Alabama Supreme Court

Page 688

496 So.2d 688

Ex parte William J. BAXLEY, et al.

(In re Charles A. GRADDICK v. John BAKER, etc., et al.)

Ex parte John BAKER, etc., et al.

(In re Charles A. GRADDICK v. John BAKER, etc., et al.)

William J. BAXLEY v. Charles A. GRADDICK.

John BAKER, etc., et al. v. Charles A. GRADDICK.

Charles Kennith PIKE and Nellie Kent Pike v. Charles A. GRADDICK.

85-1242, 85-1260 and 85-1308 to 85-1310.

Supreme Court of Alabama.

Aug. 7, 1986.

David Cromwell Johnson and Edward Still, Birmingham, for William J. Baxley.

Herman Watson and Michael L. Fees of Watson, Gammons & Fees, Huntsville, for Kennith and Nellie Pike.

Joe Espy, III, Montgomery, for John Baker, individually, and as Chairman of the State Democratic Executive Committee, William B. Blount, Jack Boggan, Franklin Kellett, John Knight, and the Alabama Democratic Party.

Champ Lyons, Jr., Mobile, and Hobart A. McWhorter, Jr., and Walter J. Sears, Birmingham, for Charles A. Graddick.

PER CURIAM.

In the June 24, 1986, Democratic run-off primary, Charles A. Graddick and William J. Baxley were the contending candidates for the Democratic nomination for Governor. On Saturday, June 28, John Baker, Chairman of the State Democratic Executive Committee (SDEC) announced the completion of the vote tally in the run-off primary election and that tally showed that Graddick was the winner by 8,756 votes. On or about noon on June 30, 1986, a subcommittee of the SDEC declared the results of the election at the State Capitol in Montgomery, according to Code 1975, § 17-16-35.

On or about 9:30 a.m. on July 1, 1986, Baxley filed a contest of the primary election with the SDEC pursuant to Code 1975, § 17-16-70. This contest alleged malconduct by Graddick and his campaign, conspiracy, and illegal votes--all in violation of Code 1975, § 17-16-71(1), (3), and (5).

Before Baker announced the results of the tally on June 28, Kennith Pike and Nellie Pike, on that same day at 10:25 a.m., filed a contest of the election alleging that illegal votes had been cast.

In response to the contests, Baker appointed a subcommittee to hear and determine them.

On July 1, Graddick filed a motion with the SDEC to dismiss the contests. On July 14, 1986, the Democratic subcommittee held the first hearing on the Pike and Baxley contests, but did not rule on Graddick's motion to dismiss the contests. It set its next meeting for July 21, 1986, but that meeting was continued until July 28, 1986.

On July 24, Graddick filed a petition for a temporary restraining order, a writ of prohibition, and other extraordinary and equitable relief against Baker, the SDEC, the Pikes, Baxley, and members of the subcommittee appointed by Baker to hear the contest. The petition sought to halt the election contest proceeding and all discovery by Baxley. Judge Jack Carl issued ex parte a temporary restraining order forbidding the SDEC from holding hearings on the contests and stopping depositions scheduled by Baxley. The other defendants were likewise enjoined. The court set a hearing on the petition on July 29. This Court issued an order staying the temporary restraining order and requiring Judge Carl to conclude the matter and issue a final order by 5 p.m. on July 31. On July 31, Judge Carl entered a judgment finding in favor of Graddick and against the defendants.

The defendants appealed this judgment and also filed a motion to vacate the judgment.

Judge Carl made no findings of fact nor did he state any conclusions of law. He merely held in favor of Graddick. Graddick's petition sought to halt the election contest proceeding before the SDEC subcommittee on four grounds.

I.

First, Graddick contends that the contests were untimely under Code 1975, § 17-16-70 (amended 1979), which provides that "all nominations made by primary election may be contested within 24 hours after the results of the primary election have been declared, weekends excluded...."

The Baxley Contest. Graddick argues that the 24-hour period for contesting the election commenced at the time Baker announced the results of the tally on Saturday, June 28, and that Baxley's contest filed on July 1 came too late. We reject that argument. Baker's announcement of the results of the tally of the returns is not the declaration required by the governing statute. Code 1975, § 17-16-70 requires, and all parties agree, that contests of primary elections must be made "within 24 hours after the results of the primary election have been declared...." Section 17-16-35 requires that the final results of a primary election be declared not later than noon on the Monday following the primary election, at which time "the state executive committee ... shall meet at the state Capitol in Montgomery and receive said returns ... and publicly declare on that day the results thereof...." Thus, the SDEC is required to make a public declaration of the results. The chairman appointed a subcommittee of the SDEC, which did meet in the Secretary of State's office at the state Capitol at noon on Monday, June 30. It filed a declaration at that time. The nominee for office of Governor was not certified, but the document explained that because a contest had been filed and not resolved, a nominee was not certified and no vote totals were stated. Baker testified that legal counsel had advised this course of action. Inasmuch as the total figures had been previously publicly announced, we hold that this substantially complies with § 17-16-35. This statute and § 17-16-70 must be read in pari materia. Doing so eliminates uncertainty which could result from statements made by the chairman and establishes a time certain for the commencement of the 24 hours in which to contest a primary election. We hold that Baxley's contest is timely, having been filed within 24 hours of the declaration of the result.

The Pike Contest. Graddick argues that this contest is untimely because he says it was prematurely filed. We agree that it was prematurely filed but do not agree that this destroyed its effect. It remained filed and was on file with the SDEC when the formal declaration was made as required by § 17-16-35. Therefore, it too was timely. There is no requirement that a pleading, although prematurely filed, be re-filed if it is on file at the time required for filing. See Foster v. Greer & Sons, Inc., 446 So.2d 605 (Ala.1984).

II.

Graddick next contends that the SDEC has not complied with § 17-16-85, and, therefore, that it has lost jurisdiction to hear the contest. He says that the statute requires that the contest be heard and decided not less than 10 nor more than 20 days after the contest is filed. Section 17-16-85, in its entirety, provides:

"The state executive committee shall, upon the filing of a contest with the chairman, be called by such chairman to meet at a time not less than 10 days nor more than 20 days from the time of filing such contest for the purpose of hearing and determining the same, or without calling the committee to meet, the chairman may appoint a subcommittee as herein provided for."

This statute authorizes the chairman either to call a meeting of the state executive committee to meet not less than 10 days nor more than 20 days to hear the contest or to appoint a subcommittee. In this case, the chairman appointed a subcommittee 2 days after the Pike contest was filed; the subcommittee met on July 14, which is more than 10 days and less than 20 days from the date the contests were filed. Since that time, the committee has scheduled other hearings. Any delay in conducting these hearings has in large part been caused by court orders obtained by Graddick and issued by the trial court without authority and in express violation of statutory and case law. Code 1975, § 17-15-6; State v. Albritton, 251 Ala. 422, 37 So.2d 640 (1948); Ex parte State ex rel. Tucker, 236 Ala. 284, 181 So. 761 (1938).

Perloff v. Edington, 293 Ala. 277, 302 So.2d 92 (1974), held that in a primary election contest it is mandatory that the chairman comply with § 17-16-85 by setting the date for the subcommittee to hear the contest. Here, the chairman did so. The contest was filed on July 1. A hearing was set for July 14. That hearing was held and others were scheduled. In Perloff, the Court stated:

"After that initial meeting, the schedule of hearings and proceedings may be set by the committee and the interested parties, but the time limit is jurisdictional because there can be no contest until the hearings begin and the first hearing must be held within twenty days after the filing of the contest." (Emphasis added.)

293 Ala. at 281, 302 So.2d at 96.

This has been done here. Obviously, the legislature could not have intended to require that all primary election contests be concluded within twenty days of the filing of the contest. Many of our cases have commented on the obvious desirability of resolving such matters as expeditiously as possible, but it is certainly not mandated that the entire matter be determined within 20 days.

III.

Graddick next argues that the SDEC is without authority to act through subcommittees in election contests because Title 17, § 394, of the 1940 Code, which expressly authorized the appointment of a subcommittee, is no longer in the Alabama Code. This argument is without merit.

Prior to 1975, Alabama law provided:

"The state executive committee ... of any political party shall have the right, power, and authority to appoint, or to authorize and empower the chairman thereof to appoint ... a subcommittee ... to hear, consider, and decide any contest of any election ... and generally to delegate to and confer upon such subcommittee the right, power, and authority to do and perform any act or thing which such executive committee could do or perform. The chairman of a subcommittee shall also have and be authorized to perform any act, and exercise any power or authority which the chairman of such executive committee has or could exercise under this chapter."

...