Melton v. Bowie

• Decision Date: 25 October 2019
• Docket Number: 1180324
• Citation: 296 So.3d 281
• Parties: Darrio MELTON, as Mayor of the City of Selma v. Corey D. BOWIE, in his official capacity as a member of the Selma City Council, et al.
• Court: Alabama Supreme Court

296 So.3d 281

Darrio MELTON, as Mayor of the City of Selma

v.Corey D. BOWIE, in his official capacity as a member of the Selma City Council, et al.

1180324

Supreme Court of Alabama.

October 25, 2019

Kenneth J. Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery, for appellant.

Randall Morgan, Elizabeth Brannen Carter, and Reed Morgan Coleman of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellees.

BRYAN, Justice.

Darrio Melton ("the mayor"), as mayor of the City of Selma ("the city"), appeals from a judgment entered in favor of the members of the Selma City Council ("the council"). We affirm.

In September 2018, the council adopted Ordinance No. O108-17/18 ("the ordinance"). The ordinance gives the council the power to appoint the city's tax collector, chief of police, and chief of the fire department "in accordance and pursuant to [§] 11-43-5, [Ala. Code 1975]." In relevant part, § 11-43-5, Ala. Code 1975, provides that "[t]he council may provide for a ... tax collector, chief of police, and chief of the fire department and shall specifically prescribe their duties." The mayor vetoed the ordinance shortly after it was passed by the council. However, the council later overrode the mayor's veto, making the ordinance a part of the city's municipal code.

In October 2018, the mayor sued the members of the council in their official capacities. Named as defendants were council members Corey D. Bowie, Angela Benjamin, Samuel Randolph, Michael Johnson, Johnnie Leashore, Miah Jackson, Susan Youngblood, Jannie Thomas, and Carl Bowline (hereinafter referred to collectively as "the defendants"). In his complaint, the mayor alleged that the ordinance violates § 11-43-81, Ala. Code 1975, which provides, in part, that the mayor "shall have the power to appoint all officers [of the city or town] whose appointment is not otherwise provided for by law." The mayor sought a judgment declaring the ordinance invalid; the complaint also sought preliminary and permanent injunctions preventing the implementation of the ordinance.

The defendants filed a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., asserting that the complaint failed to allege a claim on which relief may be granted. The mayor did not file a response to the motion to dismiss. Following a hearing, the trial court entered a judgment granting the motion to dismiss, without providing a specific reason for its ruling. Shortly thereafter, the mayor filed a motion to stay the judgment pending an appeal to this Court, and the trial court denied the motion to stay. In its order denying the motion to stay, the trial court stated, in part, that the law "is very clear on the issue presented in this case. The Court finds that the [mayor] will not be successful on the merits of an appeal, unless the Alabama Supreme Court decides to break with years of precedent." The mayor then appealed.

"The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d 640, 641 (Ala. 1985) ; Hill v. Falletta, 589 So. 2d 746 (Ala. Civ. App. 1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala. 1985) ; Rice v. United Ins. Co. of America, 465 So. 2d 1100, 1101 (Ala. 1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So. 2d 616, 617 (Ala. 1986) ; Hill v. Kraft, Inc., 496 So. 2d 768, 769 (Ala. 1986)."

Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993).

The parties disagree about which statutory provision governs the council's adoption of the ordinance. The council argues that this case is governed by § 11-43-5, which is found in Chapter 43 of Title 11. Chapter 43 is titled "Mayor and Council, Other Officers, Employees, Departments, etc." In his complaint challenging the ordinance, the only pertinent substantive statutory provision the mayor referenced was § 11-43-81, Ala. Code 1975, also found in Chapter 43. At the hearing on the motion to dismiss, the parties continued to focus on Chapter 43, arguing about how § 11-43-5 and § 11-43-81 should be read. However, during the hearing, the mayor's attorney shifted gears at some point by arguing briefly, for the first time, that a provision found in Chapter 43 D should apply in this case. The mayor's attorney also mentioned, without explanation, that Chapter 43C "relates to a Class 5 municipality" (the parties agree that the city is a Class 5 municipality).

However, the trial court here granted a Rule 12(b)(6) motion to dismiss, which tests the allegations made in the complaint. Nance, supra. The complaint referenced Chapter 43, not Chapter 43C or Chapter 43D. As we will explain below, we have no basis on which to believe that Chapter 43C or Chapter 43D applies to this case. However, we will first address the allegations in the complaint concerning provisions in Chapter 43, which are the only relevant allegations.

Viewing the allegations in the complaint most strongly in the mayor's favor, as we must, see Nance, we conclude that the trial court did not err in dismissing the mayor's action. The complaint alleges that the ordinance giving the council the power to appoint the city's tax collector, chief of police, and chief of the fire department "is in direct violation of § 11-43-81." Section 11-43-81 provides, in part:

"The mayor shall be the chief executive officer, and shall have general supervision and control of all other officers and the affairs of the city or town, except as otherwise provided in this title. He shall have the power to appoint all officers whose appointment is not otherwise provided for by law."

(Emphasis added.) As noted, the ordinance states that it was passed "in accordance and pursuant to [§] 11-43-5," a provision the council relied on in moving to dismiss. In relevant part, § 11-43-5 provides that "[t]he council may provide for a ... tax collector, chief of police, and chief of the fire department and shall specifically prescribe their duties." Thus, the issue presented by the complaint and the motion to dismiss was whether the mayor's general appointment power granted by § 11-43-81 is limited by the specific provision in § 11-43-5 granting the council the power to "provide for" a tax collector, chief of police, and chief of the fire department. That issue turns on the interpretation of what the term "provide for" in § 11-43-5 means, and this Court touched on that issue in Beasley v. McCorkle, 237 Ala. 4, 184 So. 904 (1938).

Like this case, Beasley essentially involved a power struggle between a mayor and a city council. Tuscumbia's city council adopted an ordinance creating the office of chief of police, and the city council then appointed someone to that office. However, the mayor refused to approve the warrant issued by the city clerk for the police chief's salary, which led to the police chief suing the mayor. The Court in Beasley first quoted statutory provisions regarding the broad powers of the city council:

"Section 1908 of the [1923 Alabama] Code provides, inter alia: ‘All legislative powers and other powers granted to cities and towns shall be exercised by the council, except those powers conferred on some officers by law or ordinance. They shall perform the duties required in this chapter, including, the following: ... 9. They shall prescribe by an ordinance the powers to be exercised and the duties to be performed by the officers appointed or elected so far as such duties and powers are not prescribed by law.

" ‘10. Except as otherwise provided, they shall have power to establish a police force and to organize the same under the general supervision of the chief of police, and to provide one or more station houses, and to require all things necessary for the maintenance of an efficient police department.’ "

Beasley, 237 Ala. at 6, 184 So. at 905. The above sections of the 1923 Alabama Code are now found in § 11-43-43, Ala. Code 1975, § 11-43-47, Ala. Code 1975, and § 11-43-55, Ala. Code 1975. The current versions of those Code sections indicate that the pronoun "they" used in the above-quoted sections from the 1923 Code refers to the antecedent "council." See, e.g., § 11-43-47 ("The council shall prescribe by an ordinance the powers to be exercised and the duties to be performed by the officers appointed or elected ....").

Of particular relevance here, the Court in Beasley then quoted part of § 1951, Ala. Code of 1923: " ‘The council may provide for a tax assessor, tax collector, chief of police ....’ " 237 Ala. at 6, 184 So. at 905. Section 1951 is the predecessor to the Code section in question here, § 11-43-5. Importantly, the relevant language of the two sections is the same (§ 1951 also stated that the council may provide for a chief of the fire department, although that part of § 1951 was not quoted in Beasley ).

The Court in Beasley concluded that the city council, not the mayor, had the power to appoint the chief of police:

"Practically the entire argument made on this appeal, on behalf of [the mayor], is directed to the invalidity of the appointment of [the chief of police], taking the point that the council exhausted its power with the adoption of the ordinance creating the office, fixing the term of office, and the salary to be paid. That the power to appoint the chief of police was in the mayor, not in the council. There is no approach to merit in such a contention. Ingram v. Evans et al., 227 Ala. 14, 148 So. 593 [ (1933) ]; Peinhardt v. West et al., 212 Ala. 83, 101 So. 736 [ (1924) ]; [Ala.] Code [1923], Sections 1908, 1951 and 1887."

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