Ex parte Krages

• Decision Date: 07 February 1997
• Citation: 689 So.2d 799
• Parties: Ex parte Bert P. KRAGES. (Re Thomas A. CARDER, et al. v. CITY OF ORANGE BEACH, et al.). Thomas P. CARDER, et al. v. CITY OF ORANGE BEACH. Bert P. KRAGES v. Thomas A. CARDER, et al. 1952161, 1960063 and 1960114.
• Court: Alabama Supreme Court

Page 799

689 So.2d 799

Ex parte Bert P. KRAGES.

(Re Thomas A. CARDER, et al. v. CITY OF ORANGE BEACH, et al.).

Thomas P. CARDER, et al. v. CITY OF ORANGE BEACH.

Bert P. KRAGES v. Thomas A. CARDER, et al.

1952161, 1960063 and 1960114.

Supreme Court of Alabama.

Feb. 7, 1997.

L. P. Sutley and Spencer of E. Davis of Murchison & Sutley, L.L.C., Foley; and P. David Matheny of Bishop & Matheny, P.C., Bay Minette, for Thomas P. Carder, et al.

Algert S. Agricola, Jr., and Charles B. Campbell of Wallace, Jordan, Ratliff & Brandt, L.L.C., Montgomery; and Gregory L. Leatherbury, Jr., and Bryan A. Thames of Hand, Arendall, L.L.C., Mobile, for Bert Krages.

J. Patrick Courtney III and William E. Screve, Jr., of Lyons, Pipes & Cook, P.C., Mobile, for City of Orange Beach.

C. Bennett McRae, Gulf Shores, for Haywood Baker.

Charles C. Partin, Circuit Judge, Bay Minette, pro se.

PER CURIAM.

These cases arise out of an election contest commenced in the Baldwin County Circuit Court challenging the results of a municipal election in the City of Orange Beach. More specifically, they arise out of a runoff election held on September 17, 1996, to choose members of the city council of the City of Orange Beach ("the City") and to choose between Bert Krages and Jerry Davidson for mayor.

On September 23, 1996, Thomas A. Carder, Anne M. Douglas, V.L. Arnold, Gerald Davidson, Stuart Gilliam, and Mike Reilly, residents and electors of the City, filed a three-count complaint initiating the contest. The individual defendants were Bert Krages, candidate for mayor, and Haywood Baker, candidate for city council, Place Two. ¹ Other defendants were the City, the city council, and the Mayor.

Count One alleged that certain absentee ballots cast for Krages "should not have been counted in determining the [mayoral] election ..., because ... the electors were either unqualified, or the ballots were not properly executed." Count Two alleged that "in accordance with Ala.Code § 11-46-69 and the provisions of the 'Fair Campaign [Practices] Act,' [Ala.Code 1975, §§ 17-22A-1 to -23] ... Krages ... and Baker were not eligible candidates for the offices for which they ran ..., because they failed to properly file the appropriate reports of 'contributions and expenditures' as required by Ala.Code § 17-22A-8." Count Three alleged that "illegal votes were counted in determining the winner[s] of the election" for mayor and members of the council.

By October 1, 1996, the city council had not certified the election results or issued a certificate of election. On September 30, 1996, Krages filed an answer, which included, as a cross-claim, a petition for a writ of mandamus directing the city council to certify him as the winner of the mayoral election. The same day, Circuit Judge Pamela Baschab issued a writ of mandamus, writing and holding in pertinent part:

"1. The run-off election for the office of mayor and for three seats on the City Council of the City of Orange Beach, Alabama was held on September 17, 1996;

"2. In accordance with Ala.Code § 11-46-55 ..., the City Council, having assembled a quorum, met on September 18, 1996, to canvass the results of the runoff election;

"3. The City Council failed to canvass the results of the election and has still not done so;

"4. There is reason to believe that the City Council will not act as required and it is necessary and appropriate that the court assume jurisdiction and issue its writ of mandamus as requested;

"Therefore, it is hereby ORDERED, ADJUDGED AND DECREED that the writ of mandamus be and [it] is hereby issued to the City Council of the City of Orange Beach, Alabama as follows:

"1. That the City Council assemble at 4:45 p.m. on Tues[day] Oct. 1, 1996 at City Hall in Orange Beach, Alabama and promptly canvass the results of the run-off election held on September 17, 1996 for the office of mayor and city council members without regard to any alleged irregularities in the conduct of the election and in precise concurrence with the returns of the inspectors for both the polling place and the absentee ballot box;

"2. Thereafter, the City Council shall forthwith issue a certificate of election to the candidate in each race who received the most votes and immediately file a copy of each certificate of election in the office of the Baldwin County Probate Judge as required by law;

"3. A copy of the resolution canvassing the results of the election and a copy of each certificate of election is to be filed with the clerk of this court in this action contemporaneously with the filing of the certificates of election in the Baldwin County Probate Judge's office;

"4. It is this court's intention that the City Council shall do nothing to inquire [into] or to investigate election irregularities or fraud or to determine the legality of any votes. There is pending in this court an election contest in which any such allegations will be determined after a full and fair hearing to all parties."

On October 1, 1996, before the city council had complied with the writ, Judge Baschab recused, in response to a motion by the plaintiffs, and the action was reassigned to Judge Charles C. Partin. On that same day, Judge Partin issued an order stating in pertinent part:

"1. The Writ of Mandamus dated September 30, 1996, shall remain in effect in that the City Council shall assemble at 4:45 P.M. on October 1, 1996, or as soon as possible after teleconference is completed, and promptly canvass the results of the run-off election held on September 17, 1996, for the office of Mayor and City Council members without regard to any alleged irregularities in the conduct of the election and in precise concurrence with the returns of the inspectors for both the polling place and the absentee ballot box; and

"2. Thereafter, the City Council shall forthwith issue a certificate of election to each candidate who received the most votes in his or her race in all races except the office of Mayor and council member place 2.

"3. The City shall withhold certification of a candidate in the two races, i.e., the Mayor's race and the race for Council member place number 2, which shall be the subject of a hearing before this Court at 2:30 o'clock P.M. at the Baldwin County Courthouse in Bay Minette, Alabama, on the 3rd day of October, 1996."

(Emphasis added.)

Judge Partin heard oral argument on October 3, 1996, and, on October 4, 1996, granted the contestants' "motions for a judgment on the pleadings" as to Krages and ordered the city council "to convene before October 7, 1996, and issue a certificate of election to Jerry Davidson in the mayoral race due to the disqualification of ... Krages." Judge Partin also ordered the City council to issue a certificate of election to Baker for Place Two on the city council. He certified the judgment as final, pursuant to Ala. R. Civ. P. 54(b).

Also on October 4, Krages filed in this Court an "Emergency Petition for Writ of Mandamus," asking this Court to direct Judge Partin to "withdraw his order ... commanding the City Council of Orange Beach ... to issue a certificate of election to ... Jerry Davidson." On October 5, 1996, the city council met and issued a certificate of election to Davidson and scheduled his investiture for 7:30 p.m. on October 7. On October 7, Krages filed in this Court a "Motion for Leave to File Amended Emergency Petition for Writ of Mandamus," in which he "requested that the swearing in be prevented from taking place." However, on October 7, Davidson took the oath of office as scheduled.

The plaintiffs and Krages appealed and cross-appealed, respectively, the October 4 judgment. Krages's mandamus petition is case 1952161; the plaintiffs' appeal is case 1960063; and Krages's cross-appeal is case 1960114.

I. Krages's Mandamus Petition

The respondents--Judge Partin, the City, and the plaintiffs--contend that the writ of mandamus should not issue because, they insist, the requisites for the extraordinary writ are not present. Those requisites are: "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) a lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Martin, 598 So.2d 1381, 1383 (Ala.1992). In particular, the respondents argue that Krages had "another adequate remedy," namely, the right to appeal the judgment.

As to this third requisite, we have stated:

"Mandamus will not issue when there is an adequate remedy by appeal, and a writ cannot be used as a substitute for appellate review. Ex parte Brooks, 572 So.2d [409, 411 (Ala.1990) ]; see Ex parte Fowler, 574 So.2d 745, 747 (Ala.1990); Ex parte Furnace & Corrosive Services, Inc., 418 So.2d 891, 893 (Ala.1982). Generally, the writ will not be granted if the matter complained of can be raised on appeal. Ex parte Furnace & Corrosive Services, 418 So.2d at 893. The test to be applied in deciding whether the writ of mandamus should be granted is whether an appeal would provide an adequate remedy. Id."

598 So.2d at 1383 (emphasis added).

Krages, however, insists that the third requisite is met here, because of City of Talladega v. Pettus, 602 So.2d 357 (Ala.1992), which stated: "A court can prevent the issuance of a certificate of election to a municipal office, but, once the certificate is issued, the court is without authority to revoke it." Id. at 359. In his mandamus petition, Krages stated: "[I]f the City Council meets and issues the certificate of election to candidate Jerry Davidson, Petitioner Krages ... will be deprived of any remedy if it is subsequently determined that the order [to certify Davidson] should not have been issued."

Also, the City contends that Pettus is inconsistent both with caselaw and with statutes governing the duties of municipal governing bodies in municipal elections. The City requests that this Court define or clarify the procedure that must be...