Hornsby v. Sessions

• Decision Date: 19 September 1997
• Citation: 703 So.2d 932
• Parties: Sonny HORNSBY v. Jeff SESSIONS, as attorney general of the State of Alabama; and Jimmy H. Baker, as acting director of the Department of Finance of the State of Alabama. 1 1950376.
• Court: Alabama Supreme Court

Page 932

703 So.2d 932

Sonny HORNSBY v. Jeff SESSIONS, as attorney general of the State of Alabama; and Jimmy H. Baker, as acting director of the Department of Finance of the State of Alabama. ¹

1950376.

Supreme Court of Alabama.

Sept. 19, 1997.

J. Doyle Fuller, Montgomery, for appellant.

Bill Pryor, atty. gen., and William P. Gray, legal advisor to Governor Fob James, for appellee.

JOHN M. KARRH, Special Justice. ²

E.C. "Sonny" Hornsby, former Chief Justice of the Alabama Supreme Court, appeals the dismissal of an action in which he had sought a judgment declaring that he was holding the office of Chief Justice in a de jure capacity during the period following the expiration of his elective term, while no successor had been elected and qualified, and that during that period he had all the powers, rights, functions, duties, obligations, and benefits attendant upon the office of Chief Justice. The Montgomery Circuit Court dismissed Hornsby's declaratory judgment action as moot, on motion of the defendants, Jimmy H. Baker, who was then acting director of the Department of Finance of the State of Alabama, and Jeff Sessions, who was then attorney general of the State of Alabama. Before the action was dismissed, the parties had agreed that the sole issue in the case was whether Hornsby had de jure been Chief Justice of the Alabama Supreme Court for the period beginning at the end of his elective term and running through October 20, 1995. We hold that Hornsby was holding the office of Chief Justice in a de jure capacity during that period; we reverse the judgment of the trial court and render a judgment for Hornsby.

In 1988, Sonny Hornsby was elected to the office of Chief Justice of the Alabama Supreme Court. He assumed the duties of that office in January 1989. Chief Justice Hornsby sought re-election to that office in the November 1994 general election. His opponent in that race was Perry O. Hooper, Sr. As of February 1995, when this declaratory judgment action was filed, no winner had been certified in the race for the position of Chief Justice. In the interim between the election and the filing of this declaratory judgment action, actions had been filed in state and federal courts regarding the validity of certain absentee ballots cast in the November 1994 general election. In one of those actions, Roe v. Alabama, CV-94-0885, the United States District Court for the Southern District of Alabama on December 5, 1994, enjoined the counting of contested absentee ballots. An appeal to the United States Court of Appeals for the Eleventh Circuit followed. Perry O. Hooper, Sr., was a named plaintiff in the Roe action. Sonny Hornsby was not a named defendant.

By letter of January 16, 1995, Baker, as acting director of finance, requested an opinion from the attorney general as to whether the state comptroller could legally issue state warrants to pay the salaries or expenses of Chief Justice Hornsby and state treasurer George C. Wallace, Jr., after January 16, 1995, and until the winners of the races for the offices of Chief Justice and state treasurer had been officially certified and installed in office. The winner of the 1994 election to the office of state treasurer had not been certified at the time the acting director of finance requested the attorney general's opinion. On February 1, 1995, Attorney General Sessions issued an opinion, stating that the terms of the offices of the Chief Justice and the treasurer had expired and, thus, that the state comptroller could not legally issue state warrants to pay the salary or expenses of Hornsby or Wallace.

On February 2, 1995, Hornsby filed his declaratory judgment action in the Circuit court of Montgomery County. He sought a judgment declaring that by virtue of §§ 12-2-1, 17-2-6, and 36-3-2, Ala. Code 1975, his term of office continued until his successor was "elected and qualified" or until he was declared the winner of the November 1994 election for Chief Justice, and declaring that during that period he had all the powers, rights, functions, duties, obligations, and benefits attendant upon the office of Chief Justice of the Supreme Court of Alabama; and he further asked that the circuit court issue an injunction permanently enjoining Sessions and Baker from interfering or attempting to interfere with his performance of the duties of the office of Chief Justice and from attempting to withhold from him the attendant benefits of that office.

On March 9, 1995, Hornsby moved for a summary judgment. On that same day, the parties jointly stipulated that there were no material facts in dispute in this cause; that Hornsby had previously been duly elected and qualified as Chief Justice of the Supreme Court of Alabama, having taken the oath of office on January 17, 1989; that in the general election of November 8, 1994, Hornsby had sought reelection and had been opposed in that election by Perry O. Hooper, Sr.; that although the election took place on November 8, 1994, no winner of the race for Chief Justice had been determined; that there was then pending other litigation relating to the counting of certain absentee ballots in the November 1994 election; that the result of the election for the office of Chief Justice had not been certified; that no election contest had been filed; that no one had qualified for the office of Chief Justice; and that no one could predict with certainty when the other litigation would be resolved or when the result of the election would be certified. Based on the stipulated facts, the parties agreed that the questions presented by the case "are ... purely questions of law and may be decided by this court pursuant to Rule 12(c), Alabama Rules of Civil Procedure, or Rule 56, Alabama Rules of Civil Procedure."

On April 21, 1995, Sessions and Baker moved for recusal of the trial judge assigned to the case, Circuit Judge Eugene Reese, because of an order Judge Reese had issued in a separate case, Odom v. Bennett, CV-94-2434. In Odom v. Bennett, certain absentee voters had sought an order requiring Secretary of State Jim Bennett to count their ballots cast in the November 1994 election. Judge Reese issued an order in Odom v. Bennett requiring that the ballots be counted if they met a standard adopted by prior Alabama caselaw. Sessions and Baker argued that the issuance of that order in Odom v. Bennett gave an appearance of impropriety in this case.

On May 1, 1995, the trial court entered a consent order stating that during the course of a hearing the defendants had acknowledged that, pursuant to § 36-1-2 et seq., Chief Justice Hornsby's actions taken in performance of the duties of the office of Chief Justice, since the expiration of the elective term that had begun in 1989, were lawful actions and, therefore, that his actions and decisions were binding and valid: "[T]his Court ORDERS, ADJUDGES AND DECREES that the Honorable Sonny Hornsby is performing the duties and functions of the Office of Chief Justice of the Supreme Court of Alabama, and that all acts performed by him in that capacity are at a minimum valid and binding acts." All remaining issues were taken under advisement for disposition by further order of the court.

On May 26, 1995, Sessions and Baker filed a memorandum in opposition to Hornsby's motion for summary judgment.

On September 18, 1995, Hornsby filed a second motion for summary judgment. On October 24, 1995, Sessions and Baker filed a motion to dismiss, citing in support thereof an order of the United States District Court for the Southern District of Alabama, issued September 29, 1995, in the case of Roe v. Alabama; that order in Roe permanently enjoined the State of Alabama from counting any of the contested absentee ballots; ordered Secretary of State Bennett to certify (nunc pro tunc December 5, 1994) the election of Perry O. Hooper, Sr., as Chief Justice of the Supreme Court of Alabama; ordered the State of Alabama to swear in Hooper "as soon after certification as practicable"; and ordered that Hooper "receive all of the emoluments and benefits, including all compensation, that accompany his office nunc pro tunc January 16, 1995." The district court also ruled: "Any orders issued by any Court of the State of Alabama that in any way conflict with the ruling of this Court are null and void and of no effect." Roe v. Alabama, 904 F.Supp. 1315, 1336 (S.D.Ala.), aff'd, 68 F.3d 404 (11th Cir.1995). On October 20, 1995, Hooper was certified as the winner of the election for Chief Justice and on that same day was sworn in as Chief Justice. Thus, asserted Sessions and Baker in their motion to dismiss, the question whether Hornsby had served as a de jure officer after the expiration of his elective term was moot.

On November 2, 1995, Judge Reese entered an order denying the motion to recuse and dismissing the case as moot. Hornsby appealed.

Hornsby makes two arguments on appeal: (1) that the trial court erred to reversal in dismissing the action as moot and (2) that the trial court erred in not granting his motion for summary judgment. In support of his argument that the trial court erred in dismissing the action as moot, Hornsby contends that not all of the issues raised in his complaint in this action were resolved by the final judgment in Roe. Hornsby contends that the action of the trial court in delaying a ruling on the summary judgment motion by six months cannot change the fact that under the facts and the law at the time of submission the motion was due to be granted. Hornsby asks that this Court, based on the law and the facts of the case, enter an order granting his motion for summary judgment. The defendants contend that because Hornsby did not respond to their motion to dismiss, he acquiesced in the dismissal. They argue that this Court may not consider Hornsby's argument that his declaratory judgment action was not rendered moot by the order in Roe because, they say, he is raising that argument for the...