King v. Campbell, 1060804.

• Decision Date: 30 November 2007
• Docket Number: 1060804.
• Parties: Attorney General Troy KING, in his official capacity v. Harvey B. CAMPBELL, Jr.; Chad Woodruff; and the Talladega County Judicial Commission.
• Court: Alabama Supreme Court

988 So.2d 969

Attorney General Troy KING, in his official capacity v. Harvey B. CAMPBELL, Jr.; Chad Woodruff; and the Talladega County Judicial Commission.

1060804.

Supreme Court of Alabama.

November 30, 2007.

Rehearing Denied February 1, 2008.

Troy King, atty gen., and Margaret L. Fleming and Misty S. Fairbanks, asst. attys. gen., for appellant.

Huel M. Love, Jr., Talladega, for appellee Harvey B. Campbell, Jr.

George C. Douglas, Jr., Birmingham, for appellee Chad Woodruff.

Harriet Thomas Ivy and Henry I Frohsin of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellee Talladega County Judicial System.

Robert L. Rumsey III of Rumsey & Wilkins, Sylacauga; and Steven D. Adcock, Talladega, for appellees.

LYONS, Justice.

Attorney General Troy King appeals from a judgment entered by the trial court declaring unconstitutional an act of the legislature creating an additional circuit judgeship in the 29th Judicial Circuit. We reverse and remand.

I. Factual Background

On five separate occasions the legislature has provided for the creation of a third judgeship for the 29th Judicial Circuit (Talladega County). Each time, the legislature pushed back the creation of the judgeship. On the first four occasions, the legislation contemplated filling the office by an election to be held several years after the enactment of the act establishing the judgeship for a term commencing in the January following the election. On the fifth occasion the legislature opted for a different method of filling the office—appointment by the governor.

The third circuit judgeship was originally created by Act No. 85-546, Ala. Acts 1985 ("the 1985 Act"). Section 9 of the 1985 Act provided:

"There is hereby created and shall be established the office of circuit judgeship No. 3 in the 29th Judicial Circuit, which shall be in addition to the two circuit judgeships now existing. Provided, the additional circuit judgeship hereby created shall first be filled at the general election to be held in 1988, and the first judge so elected shall serve a full term of office beginning on the first Monday following the second Tuesday in January, 1989."

(Emphasis added.) Section 11 of the 1985 Act appropriated funding for the additional judgeship for fiscal year 1988-89.

Act No. 87-348, Ala. Acts 1987, amended Sections 9 and 11 of the 1985 Act. Section 9, as amended, provided:

"There is hereby created and shall be established the office of circuit judgeship No. 3 in the 29th Judicial Circuit, which shall be in addition to the two circuit judgeships now existing. Provided, the additional circuit judgeship hereby created shall first be filled at the general election to be held in 1994, and the first judge so elected shall serve a full term of office beginning on the first Monday following the second Tuesday in January, 1995."

(Emphasis added.) The amendment to Section 11 appropriated funding for the additional judgeship for fiscal year 1994-95.

Act No. 93-302, Ala. Acts 1993, further amended these two sections. Section 9, as amended, provided:

"There is hereby created and shall be established the office of circuit judgeship No. 3 in the 29th Judicial Circuit, which shall be in addition to the two circuit judgeships now existing. Provided, the additional circuit judgeship hereby created shall first be filled at the general election to be held in 2000, and the first judge so elected shall serve a full term of office beginning on the first Monday following the second Tuesday in January, 2001."

(Emphasis added.) The 1993 amendment to Section 11 appropriated funding for the additional judgeship for fiscal year 2000-01.

Act No. 99-566, Ala. Acts 1999 ("the 1999 Act"), further amended Sections 9 and 11. Section 9, as amended, provided:

"There is hereby created an additional judgeship in the Twenty-ninth Judicial Circuit which shall be Circuit Judgeship No. 3. The additional judgeship created by this act shall be filled at the general election to be held in 2006 and the judge elected shall serve a full term of office beginning on the first Monday following the second Tuesday in January 2007."

(Emphasis added.) The 1999 amendment to Section 11 appropriated funding for the additional judgeship for fiscal year 2006-07.

Act No. 2006-355, Ala. Acts 2006 ("the 2006 Act"), the subject of this litigation, again amended Sections 9 and 11. Section 9, as amended, provided:

"There is hereby created an additional judgeship in the Twenty-ninth Judicial Circuit which shall be Circuit Judgeship No. 3. The additional judgeship created by this act shall be filled by appointment of the Governor on or after October 1, 2009, from a list of nominees by the Talladega County Judicial Commission.¹ The judgeship shall be subject to election at the general election to be held in 2010 and the judge elected shall serve a full term of office beginning on the first Monday following the second Tuesday in January 2011."

(Emphasis added.) The 2006 amendment to Section 11 appropriated funding for the additional judgeship for fiscal year 2009-10. The 2006 Act was signed by the governor on April 13, 2006.

On April 7, 2006, Chad Woodruff, acting pursuant to the 1999 Act, filed a candidate-declaration form and a qualification form with the Alabama Democratic Party, and paid the filing fee to become a candidate for the newly created third circuit judgeship. On April 12, 2006, one day before the 2006 Act was signed into law, the chair of the Alabama Democratic Party certified to the secretary of state the names of the Party's candidates for the June 2006 primary election. The certification further provided that "[c]andidates who are unopposed are nominated." Woodruff's name appeared on page 8 of the list of candidates as the only Democratic candidate seeking to be elected to the third circuit judgeship; thus, he was certified as the Party's candidate.

II. Course of Proceedings

On July 5, 2006, Harvey B. Campbell, Jr., a registered voter in Talladega County, filed this declaratory-judgment action, naming as defendants Attorney General Troy King (hereinafter "the State") and the Talladega County Judicial Commission. Campbell alleged that the provision of the 2006 Act for initially filling the office by gubernatorial appointment violated Art. VI, § 152, Ala. Const. 1901 (Off.Recomp.) ("All judges shall be elected by vote of the electors within the territorial jurisdiction of their respective courts."). Campbell further alleged that the provision of the 2006 Act for initially filling the office by appointment impermissibly expanded the ways a vacancy can occur and be filled by gubernatorial appointment as contemplated by Art. VI, § 153, Ala. Const. 1901 (Off.Recomp.) ("The office of a judge shall be vacant if he dies, resigns, retires, or is removed. Vacancies in any judicial office shall be filled by the governor ...."). Campbell also contended that the 2006 Act, with its requirement that the Talladega County Judicial Commission submit names to the governor from which the third judgeship appointment would be made, violated §§ 152 and 153 for the reasons previously stated.

Campbell requested a judgment declaring that the 2006 Act was unconstitutional and that the third judgeship be filled in the November 2006 election pursuant to the 1999 Act. On August 14, 2006, Campbell filed an amended complaint, which added the secretary of state, Nancy Worley, as a defendant and requested a temporary restraining order and/or preliminary injunction directing Secretary of State Worley to certify Woodruff as the candidate for the third judgeship to the Talladega County Probate Judge and requiring that his name appear on the ballot in the general election to be held November 7, 2006.

The State and the secretary of state (hereinafter referred to collectively as "the State defendants") filed an opposition to the request for a preliminary injunction and a motion for a judgment on the pleadings. On August 31, 2006, the trial court denied the motion of the State defendants for a judgment on the pleadings and granted Campbell's motion for a preliminary injunction directing Secretary of State Worley to place Woodruff's name on the November 7, 2006, general-election ballot as the Democratic candidate for the third judgeship for the 29th Judicial Circuit.

Woodruff had no Republican opposition in the general election, and he received an overwhelming number of votes, approximately 14,000. On December 22, 2006, the Talladega County Judicial Commission filed a cross-claim against the State defendants, alleging essentially the same grounds as Campbell's complaint as to the unconstitutionality of the 2006 Act.² On January 12, 2007, the State defendants filed a motion to dismiss for failure to join a necessary party, or in the alternative, a motion to join, Woodruff. Upon Woodruff's joinder as a coplaintiff, the trial court denied the State defendants' motion. Woodruff thereupon alleged that he had properly qualified with the Alabama Democratic Party on April 7, 2006, for the third judgeship; that he had been duly certified on April 12, 2006, as the Party nominee; that he had been duly elected in the November 7, 2006, general election; and that he had since then been certified by the secretary of state as the elected candidate for the third judgeship. Woodruff also adopted by reference all factual allegations and pleadings of Campbell and the Talladega County Judicial Commission. Woodruff requested that the trial court declare the 2006 Act unconstitutional and that he be allowed immediately to commence his judicial term of office.

The trial court held a hearing on February 2, 2007, at which ore tenus evidence was presented, and heard testimony from Campbell, Woodruff, Judge Julian M. King (place no. 1 circuit judge and ex officio chairman of the Talladega County Judicial Commission), and Clarence Haynes (clerk of the Talladega Circuit Court). On February 21, 2007, the trial court entered a...