Horwitz v. Kirby

• Decision Date: 30 September 2015
• Docket Number: 1130246.
• Parties: Kelly HORWITZ v. Cason KIRBY.
• Court: Alabama Supreme Court

197 So.3d 943

Kelly HORWITZ

v.Cason KIRBY.

1130246.

Supreme Court of Alabama.

Sept. 30, 2015.

Rehearing Denied Dec. 11, 2015.

James H. Anderson of Jackson, Anderson & Patty, P.C., Montgomery; and M. Virginia Buck, Northport, for appellant.

Andrew P. Campbell, A. Todd Campbell, and John C. Guin of Leitman, Siegal, Payne & Campbell, PC, Birmingham, for appellee.

PER CURIAM.

Kelly Horwitz appeals from the Tuscaloosa Circuit Court's denial of her contest of an election for the office of Tuscaloosa Board of Education, District 4. We reverse and remand.

Facts and Procedural History

Horwitz and Cason Kirby were both candidates in the August 27, 2013, election for District 4 of the Tuscaloosa Board of Education. Kirby was certified as the winner of the election. The certified vote totals were 416 votes for Kirby and 329 votes for Horwitz.

On September 6, 2013, pursuant to § 11–46–69, Ala.Code 1975,¹ Horwitz filed a statement of contest regarding the August 27, 2013, election. On September 13, 2013, the trial court conducted a hearing to establish dates for trial and further procedures. With the agreement of the parties, the trial court ordered that on October 11, 2013, Horwitz would provide Kirby with notice of the number of alleged illegal voters and the grounds for challenging each voter. The parties agreed that the case would be given priority and that it would be set for trial on October 31, 2013. The trial court also stated:

“It was further recognized and agreed that no voter would be compelled to testify for whom he or she voted under Section 17–16–42 of the Code of Alabama and Rule 506 of the Alabama Rules of Evidence until his or her vote was determined to be illegal.”

On October 11, 2013, Horwitz filed a “Notice of the Nature of the Evidence” and listed 397 allegedly illegal votes, which included votes cast by approximately 375 students and members of Greek organizations on the University of Alabama campus, i.e., fraternities and sororities. Horwitz argued that the votes were illegal based on lack of residency, bribery or misconduct, and ineligibility. In her memorandum of law supporting her notice, Horwitz argued that the primary basis for her claim regarding lack of residency was an assertion that a substantial number of voters had not resided in or had their domicile in District 4 for 30 days prior to the August 27, 2013, election, as required by § 11–46–38(b), Ala.Code 1975. According to the trial court, Horwitz

“contended that a substantial number of students, particularly members of Greek organizations, moved into sorority and fraternity houses or other dwellings, such as apartments, within thirty days of August 27, 2013, but, prior to that time, did not reside in the district.”

Kirby denied Horwitz's allegations and argued that, before moving into the sorority houses, fraternity houses, or other dwellings in August 2013, the students had either resided in other dorms or dwellings in District 4 or had lived in District 4 the previous year but had simply visited their family homes or resided elsewhere during the summer. Kirby also argued that those voters had established their domicile in District 4 and their intent to return to the district before their temporary absence from the district during the summer.

Kirby filed an objection and a motion to dismiss, in which he argued that Horwitz's notice of the evidence was not sufficient to comply with the requirements set forth in § 17–16–48, Ala.Code 1975.²

On October 15, 2013, the trial court conducted a hearing to determine whether Horwitz's notice of the evidence was sufficient and to address Kirby's objection and motion to dismiss. On October 17, 2013, the trial court entered an order denying the motion to dismiss and holding that Horwitz's notice was sufficient and that the election contest would proceed.

On October 21, 2013, the trial court conducted a status conference for the purpose of determining the procedure for the trial of the case. During this status conference, a procedure was established whereby the evidence of the legality or illegality of the ballots challenged by Horwitz would be presented to the trial court on October 31 and November 6 by way of affidavits to be collected from challenged voters. The purpose of this approach was to avoid the necessity of a weeks-long trial involving live testimony from approximately 400 voters and other witnesses on the variety of factual issues that could bear on such issues as domicile and possible illegal inducements to vote. Moreover, this approach also dovetailed with the trial court's properly announced intention of not requiring any voter to testify as to for whom he or she had voted until it was first determined that his or her vote was illegal. If, based on the affidavit testimony submitted by Horwitz in this first phase of the trial (“Phase I”), at least 87 votes were found to be illegal, the contest would proceed to a second phase or “final hearing” on November 18 (“Phase II”), in which the voters who cast the illegal ballots could be subpoenaed to testify at trial as to for whom they voted. (Also in Phase II, those who cast the allegedly illegal ballots who did not return an affidavit for purposes of Phase I could be subpoenaed to testify regarding issues relating to the legality of their ballots and, if their votes were found to be illegal, for whom they had voted.)

As recounted in Kirby's brief to this Court:

“[T]he Court ordered, and the parties agreed, that the trial proceedings would begin on October 31st and would essentially be bifurcated. The Court ordered, and the parties agreed, that Contestant and Contestee would prepare an affidavit form with questions addressing the issues in this contest to be submitted to all challenged voters rather than have a hearing with nearly 400 challenged voters. The parties elected to use these affidavits as trial evidence to establish qualifications of the voters or lack thereof. The affidavit, if possible, would solicit certain information to allow the Court to sufficiently determine the legality of each vote and would be trial evidence. The Court placed no restrictions on the parties as to what questions would be included in the affidavit other than to instruct the parties that, if an agreement could not be reached, the Court itself would develop the questions for the affidavit.

“Pursuant to the Order, for all affidavits submitted prior to October 31st, the Court would hold a hearing on October 31, 2013, on evidence and arguments as to whether the testimony contained in the affidavits sufficiently established domicile or inducement to vote. The Court further set a second hearing for November 6, 2013, to determine the same issues for affidavits gathered at or after the October 31st hearing.”

(Emphasis added.)³

The parties subsequently submitted an agreed-upon affidavit. The trial court accepted the affidavit and ordered that it be distributed to the challenged voters.

On October 31, 2013, and November 6, 2013, the trial court conducted hearings on the affidavits that had been submitted. On or about November 7, 2013, Horwitz filed a post-hearing memorandum of law. In her memorandum, Horwitz attached exhibits in which she provided a “detailed analysis” regarding various categories of votes that she contended were illegal.

On November 13, 2013, the trial court entered its “Final Order Denying Contest” (“the final order”) in which, among other things, it concluded that the affidavits established that no more than 70 illegal votes had been cast in the election. On November 24, 2013, Horwitz filed a motion to alter, amend, or vacate the trial court's judgment; that motion was denied by operation of law on February 24, 2014. Horwitz appealed the trial court's order denying her election contest.

Standard of Review

“Before we begin our discussion, we first consider the standard of review applicable. At oral argument, the contestee Hale argued that the ore tenus standard of review should apply and that applying that standard would support the dismissal. This Court has stated:

“ ‘In reviewing the trial court's findings of fact in [an] election contest, we apply the same standard used by appellate courts when the trial court in a nonjury case has taken a material part of the evidence through ore tenus testimony; that is, we will not disturb the trial court's findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence.’

Williams v. Lide, 628 So.2d 531, 534 (Ala.1993), citing Mitchell v. Kinney, 242 Ala. 196, 200, 5 So.2d 788, 797 (1942). That same principle of law is also stated in such cases as Gaston v. Ames, 514 So.2d 877 (Ala.1987), and Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981).

“Should we apply the ore tenus standard to this case, in which there was no evidence presented ore tenus that was relevant to the main legal issues before this Court and in which, as to the number of votes cast for the two candidates, the case was decided based upon deposition testimony and a review of documentary evidence, consisting mostly of absentee affidavits and ballots? We think not. Our appellate courts have held on several occasions that, where no testimony is presented ore tenus, a reviewing court will not apply the presumption of correctness to a trial court's findings of fact and that the reviewing court will review the evidence de novo. See Hospital Corp. of America v. Springhill Hospitals, Inc., 472 So.2d 1059, 1060–61 (Ala.Civ.App.1985), where the Court of Civil Appeals stated:

“ ‘The rationale behind the ore tenus rule has historically been that the trial court deserves a presumption of correctness when it is in a position to actually see [the witnesses] and hear the testimony, observing firsthand the demeanor of the witnesses. Christian v. Reed, 265 Ala. 533, 92 So.2d 881 (1957) ; Steed v. Bailey, 247 Ala. 407, 24 So.2d 765 (1946) ; Barran v. Barran, 431 So.2d 1278 (Ala.Civ.App.1983). Considering that

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