SEARS v. McCRORY

• Decision Date: 05 March 2010
• Docket Number: 1080728.
• Citation: 43 So.3d 1211
• Parties: Steven R. SEARS v. Ben McCRORY.
• Court: Alabama Supreme Court

43 So.3d 1211

Steven R. SEARS v. Ben McCRORY.

1080728.

Supreme Court of Alabama.

December 18, 2009.

Rehearing Denied March 5, 2010.

COPYRIGHT MATERIAL OMITTED.

John A. Hamilton, Jr., Brierfield, for appellant.

James W. Porter II and Lauren G. Goodman of Porter, Porter & Hassinger, P.C., Birmingham, for appellee the amount, date, and purpose of such expenditure.

"(9) The grand total of all expenditures made by such committee or elected official during the calendar year.

"(10) The amount and nature of debts and obligations owed by or to the committee or elected official, together with a statement as to the circumstances and conditions under which any such debt or obligation was extinguished and the consideration therefor."

Finally, § 17-5-8(d) also requires that each of the above-described reports be signed by the candidate and accompanied by the candidate's sworn affidavit "setting forth in substance that such report is to the best of his or her knowledge and belief in all respects true and complete, and, if made by a candidate, that he or she has not received any contributions or made any expenditures which are not set forth and covered by such report."

Between 50 and 45 days before the August 26, 2008, mayoral election, Sears, McCrory, and Wheeler each filed waivers stating that they were exempt from filing the then due financial-disclosure reports mandated by § 17-5-8 because their campaigns had not reached the minimum filing threshold. See § 17-5-2(a)(1), Ala.Code 1975 (stating that no person shall be considered a candidate for a local elected office within the meaning of the FCPA until he or she has either received contributions or made expenditures exceeding $1,000). The next disclosure reports were due to be filed between 10 and 5 days before the August 26 election, or between August 16 and August 21. There is no dispute that Sears, McCrory, and Wheeler all filed some reports within that time period, and the sufficiency of the reports filed by Sears and Wheeler has not been questioned. However, the gravamen of Sears's claim against McCrory is that the various reports filed by McCrory both within and outside that time period were not sufficiently complete and/or timely so as to comply with the between-10-and-5-days' reporting requirement of the FCPA. Specifically, McCrory filed the following reports with the probate court between August 15 and September 8:

1. On August 15, McCrory filed a two-page report with the probate court. The first page was the official "Appointment of Principal Campaign Committee" form used to show compliance with § 17-5-4, Ala.Code 1975, and which McCrory had previously filed.² At the bottom of this form, McCrory signed a statement affirming that "to the best of my knowledge and belief ... the information contained herein is true and correct." The second page was the official "Form 2" used to list contributions received by candidates. It indicated that McCrory's campaign had received only two contributions— $100 on July 18, 2008, and $1,000 on July 20, 2008.

2. On August 19, McCrory filed three more pages with the probate court. The first page was another signed Appointment of Principal Campaign Committee form, and the next two pages were another Form 2 report again listing the two contributions totaling $1,100 from the August 15 report, as well as an additional 13 contributions received between July 25, 2008, and August 7, 2008, totaling $2,160.

3. On August 22—four days before the election and one day after the filing deadline for the between-10-and-5-days report—McCrory filed three more pages with the probate court. The first page was another signed Appointment of Principal Campaign Committee form. The second page was the official "Form 3" used to list in—kind contributions received by candidates. It indicated that McCrory's campaign had received two in-kind contributions worth approximately $105 for advertising and rent. The third page was the official "Form 5" used to list expenditures made by candidates. It indicated that McCrory had paid administrative and advertising expenses totaling $1,469.58.

4. On August 28, two days after the election, McCrory filed a five-page report labeled "corrected copy." It was prefaced by a notarized official "Summary Form 1" indicating that it was the "10-5 Day Pre-Election Report" and which indicated that McCrory's campaign had: (1) a beginning balance of $1,100; (2) itemized cash contributions of $2,160; (3) in-kind contributions of $105; (4) no receipts from other sources; (5) expenditures of $1,469.58; and (6) an ending balance of $1,790.42. It also included a copy of the two-page Form 2 report previously filed on August 19 with the two contributions (totaling $1,100) that were also listed on the August 15 report crossed out with the notation "covered in last report" written next to them. This filing also included copies of the Form 3 and Form 5 filed on August 22.

5. On September 8, McCrory filed another Summary Form 1 indicating that it was an "Amended Pre-Election Report" and which indicated cash contributions of $1,100.

On August 26, the mayoral election was held. No candidate received a majority of the votes cast, however, and a runoff election between Sears and McCrory—the two candidates receiving the most votes—was scheduled for October 7, 2008. Following the runoff election, it was determined that McCrory had prevailed over Sears by a tally of 412 votes to 403 votes, and, on October 20, 2008, McCrory was certified as the winner of the election. That same day, Sears filed the instant election contest pursuant to § 11-46-69, Ala.Code 1975,³ alleging that McCrory was not qualified to be a candidate in the mayoral election because, Sears alleged, he had failed to file a proper financial-disclosure report between 10 and 5 days before the August 26 general election as required by § 17-5-8 of the FCPA. Sears accordingly argued that McCrory's certificate of election should be declared void. Both parties thereafter moved for a summary judgment, and, on January 21, 2009, the trial court granted McCrory's motion and entered a summary judgment in his favor. The trial court subsequently denied a motion filed by Sears asking it to alter, amend, or vacate the judgment, and, on March 19, 2009, Sears filed his notice of appeal to this Court.

II.

The standard for reviewing a summary judgment is well settled:

"This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce `substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. [S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989)."

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III.

The only issue for us to decide in this case is whether McCrory complied with the requirement of the FCPA that candidates for public office file a financial-disclosure report between 10 and 5 days before the election in which they are a candidate.⁴ Sears argues that § 17-5-8 of the FCPA requires each candidate to file a single report between 10 and 5 days before the election that includes: (1) complete and detailed information on all contributions and expenditures; (2) a summary statement of all receipts and expenditures for that calendar year; and (3) a notarized affidavit attesting that the report is true and complete. He also alleges that none of the reports filed by McCrory met this requirement. However, McCrory, quoting Bryan v. Hubbard, 6 So.3d 491, 499 (Ala.2008), argues that "[t]he legislature's primary purpose in enacting the FCPA was to require candidates for public office in Alabama to disclose campaign contributions and expenditures before an election," and, he argues, the reports he filed before the election, when considered together, did in fact provide complete and full disclosure of all contributions received and expenditures made.

We agree with McCrory that the signed reports he filed before the August 26 election did provide the disclosure required by the FCPA. Those reports detailed every campaign contribution received and every expenditure made by McCrory, and any citizen desiring to review that information before the election could have had the opportunity to do so. The reports filed by McCrory after the election—on August 28 and September 8— did not disclose any previously unidentified contributions or expenditures; instead, they appear to be an attempt to clarify the previous filings and to summarize in one report all the information previously submitted.

Of course, it is nevertheless true that the report filed by McCrory on August 22, which did contain new information regarding contributions and expenditures, and which was outside the between-10-and-5-day period before the election, was untimely. In Davis v. Reynolds, 592 So.2d 546, 555-56 (Ala.1991), this Court considered a similar election...