Hooper v. Siegelman, 79-668

Decision Date01 July 1980
Docket NumberNo. 79-668,79-668
Citation386 So.2d 207
PartiesCharles HOOPER v. Don SIEGELMAN, as Secretary of State for the State of Alabama; and Hartwell B.Lutz. . Date of
CourtAlabama Supreme Court

George M. Beason, Jr. of Martinson & Beason, Huntsville, for appellant.

Linda C. Breland, Asst. Atty. Gen. and Robert D. Segall of Hobbs, Copeland, Franco & Screws, Montgomery, for appellees.

PER CURIAM.

This expedited appeal, submitted on briefs and arguments of counsel on July 1, 1980, presents the issue whether a judge, appointed to a judicial office vacated by a prior appointee, may offer for election for a full term before he has completed one year in office, and such an election be valid. Immediately upon submission and after careful consideration, we issued an order affirming the judgment below which decreed that the Appellee, Judge Hartwell B. Lutz, was lawfully elected for a six-year term in the General Election of 1978, which term commenced January 16, 1979, and that the Appellee, Don Siegelman, correctly ruled that the office of this Judgeship is not due to be on the General Election ballot in 1980. The opinion of this Court follows.

The issue presented is clarified by Appellant's Statement of the Facts. 1 James C. Esco was elected as Judge of the District Court of Madison County in November of 1976 for a six-year term ending in January, 1983. Judge Esco resigned his office in May of 1977, and Daniel B. Banks, Jr., was appointed to succeed him. Judge Banks served from the day of his appointment, May 27, 1977, until September 11, 1978, when he was appointed Circuit Judge. Subsequent to his appointment to the District Court Judgeship and prior to his appointment to the Circuit Court Judgeship, Judge Banks qualified as a candidate for election to the District Court Judgeship and was so chosen the Democratic candidate for District Judge in the September, 1978, Democratic Primary Election. On September 11, 1978, subsequent to winning the Democratic Primary Election to the District Court Judgeship, Place 1, and prior to the General Election of 1978, Judge Banks was appointed as Circuit Judge by the Governor.

On October 6, 1978, Hartwell B. Lutz was appointed District Court Judge to fill the vacancy created by the appointment of Judge Banks to the Circuit Court. Upon the appointment of Judge Banks to the Circuit Court on September 11, 1978, his name was withdrawn as a candidate for District Judge for the General Election of 1978. On October 7, 1978, one day after his appointment, the name of Hartwell B. Lutz was placed on the ballot as the Democratic candidate for the District Court Judgeship, Place 1, Madison County, Alabama, for the General Election of 1978.

In March of 1980, the Plaintiff and Thomas Woodall, Chairman of the Madison County Democratic Executive Committee, inquired of the Defendant Don Siegelman, Secretary of State for the State of Alabama, whether the District Court Judgeship, Place 1, Madison County, Alabama, would be on the September, 1980, Primary Election ballot. The Defendant Don Siegelman replied that, in his opinion, "an election for the position of District Judge, Place 1, Madison County, will next occur in the year 1984."

On May 30, 1980, an order was issued by the Circuit Court of Montgomery County, Alabama, in which summary judgment was granted to the Defendants, ruling that Hartwell B. Lutz had been elected to a six-year term as District Court Judge, Place 1, Madison County, Alabama, in November of 1978; thus, this appeal.

Under the particular facts of this case, then, the issue may be more specifically posed: Pursuant to the provisions of § 6.14 of Amendment 328 of the Constitution, what is the initial term of a judge appointed to fill a vacancy in a judicial office which was held by a prior appointee, not the elected judge? 2

The parties are represented by highly competent counsel whose briefs and oral arguments have materially aided us in defining the issue and analyzing the principles pertinent to its resolution. Appellant contends:

"It . . . appears clear from a reading of Section 6.14, that a judicial appointee can only run for election to that appointed office 'after' he has completed one year in office. There is one exception to this one year requirement and that is when the original term ends prior to the appointee's serving one year in office. McDonnell v. State ex rel. Jones, 199 Ala. 240, 74 So. 349 (1917), provides that one appointed to a judicial vacancy can hold only to the end of the original six year term.

"Reading Section 6.14 and the McDonnell case together we see that a judicial appointee can run for election to his appointed office only 'after' he has served one year in office or if the original six year term expires prior to the end of the one year period of time.

"Judge Esco was elected to an original six year term in November of 1976 with said original term expiring in January of 1983. When Judge Esco resigned in May of 1977, Judge Banks was appointed to fill the vacancy and said appointment was made pursuant to Section 6.14. Judge Banks' appointment did not create a new 'original term' since Judge Esco's term had not expired and Judge Banks had not served one year in office and been elected to a new 'original term.' At the time Judge Banks resigned he was in the process of creating a new 'original term' in that he had served one year in office as the judicial appointee and he has been elected the Democratic candidate for such office. Judge Banks never completed the creation of the new 'original term' since he resigned prior to being elected to office . . . ."

Appellant's position is "that the lower Court has become confused in distinguishing between Judge Esco's original six year term and Judge Banks' tenure as a judicial officer of that same Court (citing State ex rel. Foster v. Rice, 230 Ala. 608, 162 So. 292 (1935), which states that, 'The term of an office, as fixed in the Constitution or statute creating the office, is not to be confused with the tenure of an officer . . .'; and § 36-3-2, Ala. Code 1975, which fixes the term of an inferior Court Judge at six years)."

In summary, then, Appellant contends that § 6.14 requires that all appointees, regardless of whether they replace an elected or an appointed judge, serve at least one year in office before an election may be held; consequently, the 1978 General Election should not have been held and was invalid. Accordingly, says Appellant, an election for District Court...

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2 cases
  • Allen v. Bennett
    • United States
    • Alabama Supreme Court
    • December 28, 2001
    ...703 So.2d 932, 939 (Ala.1997). Thus, Amendment No. 328, of which § 6.14 is a part, controls in this state. Id. See Hooper v. Siegelman, 386 So.2d 207, 209-10 (Ala.1980) (noting that § 6.14 has specifically replaced § 158). The circuit court rejected Allen's argument that § 158 governs the t......
  • Thomason v. Florence
    • United States
    • Alabama Supreme Court
    • October 3, 1980
    ...not merely the first appointees, should have the opportunity to share equally in this advantage and responsibility. In Hooper v. Siegelman, 386 So.2d 207 (Ala.1980), in construing Section 6.14 of Amendment No. 328 of the Alabama Constitution, we held that no appointee to a circuit judgeship......

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