Harris v. McKenzie
| Decision Date | 06 June 1997 |
| Parties | Bobby Lee HARRIS v. Paul Earl McKENZIE. 1960085. |
| Court | Alabama Supreme Court |
Allan L. Armstrong of Cartwright & Armstrong, P.C., Birmingham; and Michael G. Graffeo, Birmingham, for appellant.
James R. Kramer and Brent L. Callihan of the Law Offices of James R. Kramer, Alabaster, for appellee.
Bobby Lee Harris appeals from a judgment voiding his election on August 27, 1996, to the office of City Council, Ward 1, of the City of Alabaster. The election contest was filed by Paul Earl McKenzie, who had received the second largest number of votes in the election. The circuit court held that Harris was not eligible to be elected because, it found, he was not a resident of the City of Alabaster and, in particular, of Ward 1. See Ala.Code 1975, §§ 11-43-1 and 11-43-63. The issue is whether the circuit court erred in finding that Harris was a resident of Sylacauga, in Talladega County, rather than of Ward 1 of the City of Alabaster, which is in Shelby County.
The dispute arises because Harris and his wife own a house in Sylacauga that undisputedly was their residence from 1979 until 1987 and that Harris continues to use for some purposes, discussed below. Harris contends, however, and he submitted evidence indicating, that he and his family moved to Alabaster in 1987, with the intention to reside there permanently.
It appears that Harris was the incumbent. His brief states that he was elected to the position in 1992. We do not find that fact in the record, but several items in the record support it. Included in Harris's Exhibit 7 is Harris's "Statement of Economic Interests" filed with the Alabama Ethics Commission in April 1995; that statement shows him to be an assistant school principal in Shelby County and an "Alabaster City Councilman." McKenzie's verified motion for a temporary restraining order includes the statement: "Bobby Lee Harris ... vacated his office of Councilmember due to the fact that he was not a resident of the City of Alabaster from April 8, 1995" (emphasis added). The April 1995 date derives from Harris's jury service in Talladega County in April 1996, as explained below, together with the requirement of residence for a year in a county before being eligible for jury service there, Ala.Code 1975, § 12-16-60(a)(1). Harris could have "vacated his office" only if he was a council member in 1995 and 1996, before the August 1996 election disputed here.
The parties stipulated to the introduction of documentary evidence for both sides, which we shall discuss below. They then stipulated as to the testimony that Harris's wife would give:
Weissinger, 247 Ala. at 117-18, 22 So.2d at 514. Harris was registered to vote in Alabaster, Ward 1, at the time of the election in question, as we shall show below when we discuss his exhibits.
In 1987, Harris was appointed assistant principal at Thompson High School in Alabaster. When he and his wife moved back to Alabaster at that time, they bought a mobile home that was located on property that he did not, and still does not, own. In 1995, the Harrises replaced the mobile home they had bought in 1987 with another that they bought and placed on the same property. Harris testified that their mobile home is on Dilcy Daniel Drive, off Simmsville Road, in Ward 1 in Alabaster. He testified that he, his wife, and his three sons had lived in a mobile home at this location since buying the mobile home in 1987 and moving into it. His children attended Thompson High School in Alabaster, with the two older sons graduating from there in May 1996, as shown by copies of their diplomas entered as Harris's Exhibit 3.
Harris's attorney asked him Those questions led to the following exchange:
Harris further testified that because he does not have a street address for mail at his residence in Alabaster, he receives his mail at a post office box in Siluria, Alabama. No discussion of the location of Siluria took place during the trial; from a current map of Alabama, we judicially notice that Siluria is immediately west of Alabaster in Shelby County. Harris testified that he gets very little mail at the Sylacauga address, principally just the utility bills for the house.
The only two items of evidence that might tend to support the circuit court's finding that Harris is a resident of Sylacauga are the fact that the Harrises have continued to claim a homestead exemption for taxation of the house they own there and the fact that Harris served on a jury in Talladega County in April 1996. Harris did not dispute the evidence as to either of these facts. He was asked about the homestead exemption, as follows:
Both his attorney and McKenzie's attorney asked him about the jury service. To his attorney's question as to how he responded when the Talladega County judge asked the jury venire whether everyone was a resident of Talladega County, Harris responded, "I must have said yes like everyone else." McKenzie introduced as a stipulated exhibit an excerpt from a transcript of the organization of court in Talladega County on April 8, 1996, in which the circuit court told the prospective jurors that they must be residents of Talladega County and instructed them, if they were not, to "come forward at this time." One person came forward and was excused. The transcript then continues:
When asked about this by McKenzie's attorney, Harris answered that he remembered someone else going forward to the judge and acknowledged that he did not.
One of McKenzie's exhibits was Harris's response to McKenzie's request for admissions, but the only fact it establishes that is not mentioned above is that Harris has a telephone listing at the house in Sylacauga. Harris's Exhibit 2 1 is a copy of a page from the "Greater Birmingham Residence" telephone book showing a listing for "Rev. Bobby Harris" on Simmsville Road in Alabaster. Harris's Exhibit 1 is the "Voter List by Name" for "District 001" of the City of Alabaster, showing a date of Friday, August 23, 1996, including "Harris, Bobby Lee" and "Harris, Brenda McKin--[cut off by the data format]." 2 Harris introduced exhibits showing his use of the Siluria post office box as his address; those exhibits included his motor...
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