State ex rel. Allison v. Farris

• Decision Date: 18 September 2015
• Docket Number: 1140034.
• Parties: STATE of Alabama ex rel. Rick ALLISON, in his official capacity as Walker County Probate Judge v. Jill FARRIS, in her official capacity as administrator for Walker County.
• Court: Alabama Supreme Court

194 So.3d 214

STATE of Alabama ex rel. Rick ALLISON, in his official capacity as Walker County Probate Judge

v.Jill FARRIS, in her official capacity as administrator for Walker County.

1140034.

Supreme Court of Alabama.

Sept. 18, 2015.

As Modified on Grant of Motion to Clarify Nov. 12, 2015.

Algert S. Agricola, Jr., of Ryals, Donaldson & Agricola, P.C., Montgomery, for appellant.

Richard E. Fikes and Edward R. Jackson of Jackson, Fikes, Hood & Brakefield, Jasper, for appellee.

Albert L. Jordan and Susan E. McPherson of Wallace, Jordan, Ratliff & Brandt, LLC, Birmingham, for amicus curiae Probate Judges Association, in support of the appellant.

MOORE

, Chief Justice.

The State of Alabama, on behalf of Rick Allison, Probate Judge of Walker County, appeals from a judgment of the Walker Circuit Court in favor of Jill Farris, the county administrator for Walker County. By statute, Judge Allison, as the chief elections officer for Walker County, see § 17–1–3(b), Ala.Code 1975

, must publish certain voter lists and election notices (the lists and the notices are hereinafter referred to as collectively “the notices”). § 17–4–1, § 17–8–2, § 17–9–5, and § 21–4–23(b), Ala.Code 1975. Judge Allison argues on appeal, as he did in the circuit court, that he may determine in which newspaper of general circulation the notices will be published and that he may also contract with that newspaper for the cost of publishing the notices.

Facts and Procedural History

On February 28, 2014, Judge Allison requested bid proposals from the two newspapers of general circulation in Walker County—The Daily Mountain Eagle and The Corridor Messenger. In the past the notices were simply published in both newspapers. Judge Allison initiated the bidding process to avoid the expense of publishing the notices in both newspapers. Before The Corridor Messenger began publication in 2007, the notices were published only in The Daily Mountain Eagle, which was at that time the sole newspaper of general circulation in Walker County.

Pursuant to Judge Allison's request for bids, The Daily Mountain Eagle and The Corridor Messenger on March 21, 2014, submitted their proposals. The amount of The Corridor Messenger 's proposal was approximately $17,500 less than the amount of The Daily Mountain Eagle 's proposal. On March 28, 2014, Judge Allison signed a contract with Corridor Messenger, Inc., authorizing publication of the notices in The Corridor Messenger and reviewed and approved a draft publication of the notices.

Although § 17–4–1

authorizes Judge Allison and the Walker County Commission (“the Commission”) to publish the voter lists, the Commission is not authorized to publish the election notices referenced in §§ 17–8–2, 17–9–5, and 21–4–23, and, for that reason, Farris focuses her argument solely on § 17–4–1.

On April 8, 2014, the Commission invited separate bids for publishing the election lists it was authorized to publish. On April 10, 2014, an attorney for the Commission notified The Corridor Messenger that “the Walker County Commission will not pay for any advertising requested by the Walker County Probate Judge regarding voter information until further notice.” A copy of this letter was sent to Judge Allison's attorney.

In response, Judge Allison, in his official capacity, filed in the Walker Circuit Court a petition for a writ of mandamus or, in the alternative, a complaint for declaratory and injunctive relief requiring Farris, in her official capacity as administrator for Walker County, to make payment on behalf of the Commission to Corridor Messenger, Inc., for that company's publication of the notices in The Corridor Messenger pursuant to its contract with Judge Allison. Judge Allison also asked the circuit court to order the Commission to pay reasonable costs and attorney fees incurred by him in pursuit of these remedies. Judge Allison requested a hearing for no later than April 30, 2014, the date by which The Corridor Messenger was required by the contract to publish the notices. The circuit court set a hearing for April 30, 2014. Farris did not answer Judge Allison's pleading. On May 2, 2014, following the hearing, the circuit court denied Judge Allison's request for relief, stating, in part:

“The crux of the issue may be framed thusly: Does the Probate Judge, as the Chief Election Officer of the County, have the authority to determine in which newspaper of general circulation the required voter information is to be published and unilaterally decide what amount to pay for this service?

“The Court thinks not. The obligation to publish does not carry with it the authority to contract. The Probate Judge is required to gather the appropriate information required by statute to be published and get it to a publisher which operates a newspaper of general circulation selected by the Walker County Commission (the ‘Commission’) at a price determined by the Commission. There is no appropriation in the Probate Judge's budget for the purchase of these services. There is, however, a line item in the Commission's budget tor these services. It is the Commission's obligation to fund the payment for these services and it does so by that specific line item in its budget. The obligation to fund in this Court's view must carry with it the right to select the publisher and the right to determine the price to be paid. In this Court's opinion this authority must reside with the Commission which is charged with expending these funds, not the Office of the Probate Judge. Because of this the Court finds that the Office of Probate Judge lacks the authority to contract with [Corridor Messenger, Inc.,] for the services required to fulfill the mandate under the statute for publishing the required voter information.”

On June 3, 2014, Judge Allison timely filed a motion for a new trial or, in the alternative, to alter, amend, or vacate the judgment. On July 31, 2014, the circuit court heard oral argument on the motion and received testimony and documentary evidence from Judge Allison and Farris. The motion was denied by operation of law on September 2, 2014. Judge Allison filed a timely notice of appeal on October 8, 2014, seeking not only payment for the costs of publishing the notices but also attorney fees for his efforts to compel the Commission to pay those costs. On appeal Judge Allison presents one issue for review: Whether Judge Allison, who is statutorily charged with publishing the notices, can decide which newspaper will publish the notices, enter into a contract for publication of the notices, and bind the Commission to pay the costs of publication.

Standard of Review

“ ‘ “Because the underlying facts are not disputed and this appeal focuses on the application of the law to those facts, there can be no presumption of correctness accorded to the trial court's ruling.” Beavers v. County of Walker, 645 So.2d 1365, 1373 (Ala.1994)

(citing First Nat'l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987) ). Appellate review of a ruling on a question of law is de novo. See Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869 (Ala.1999) ; Ex parte Graham, 702 So.2d 1215 (Ala.1997).’ ”

Wood v. Booth, 990 So.2d 314, 317–18 (Ala.2008)

(quoting Ex parte Forrester, 914 So.2d 855, 858 (Ala.2005) ).

Discussion

The parties do not dispute that the Commission ordinarily must pay for the publication of the notices. Farris conceded this point in the circuit court, stating: “We are obligated to pay for the cost of publishing. No question about it.”¹

The parties do not challenge the circuit court's holding that “[i]t is the Commission's obligation to fund the payment for these services and it does so by that specific line item in its budget.” Therefore, the dispute involves only what authority, if any, a probate judge, who is obligated by statute to publish the notices, has to bind a county commission to pay for publishing the notices in a newspaper of general circulation within the county.

Section 17–4–1, Ala.Code 1975

, states, in relevant part:

“The judge of probate shall publish from the state voter registration list a correct alphabetical list of qualified electors either by county, precinct, district, or subdivision wherein each elector is registered to vote, in some newspaper with general circulation in the county, on or before the twentieth day preceding the regularly scheduled primary election.... The lists required to be published pursuant to this section may be published, at the discretion of the county commission, as a preprinted or inserted advertising supplement at a cost no greater than the selected newspaper's lowest applicable national insertion rates ....”

This statute does not specify whether a probate judge has the authority to determine which newspaper of general circulation will publish the required voter lists and at what cost. Nor does it say that a probate judge must obtain the county commission's approval for the costs of publishing the lists. This inconvenient silence has caused the confusion below, as evidenced by the following exchange between Judge Allison's attorney, Mr. Algert S. Agricola, and Farris's attorney, Mr. Edward R. Jackson, during the April 30, 2014, hearing:

“THE COURT: ... All we're talking about right now is whether or not there's an obligation of the county to pay for the publication, as I see it.

“MR. JACKSON: Judge, I respectfully disagree. We think it's whether the obligation to pay and select is the county's. The obligation to publish is clearly Judge Allison's, but he hasn't got the money in his budget.

“THE COURT: There's no question about the money. But whose obligation is it to select?

“MR. AGRICOLA: It's the probate judge's.

“THE COURT: And you say why?

“MR. AGRICOLA: Because the statute says the probate judge shall publish.

“MR. JACKSON: That's right. And we agree with that, he shall publish.

“THE COURT: So—

“MR. JACKSON: But he can't pick and pay for where it goes, because under [§ ] 17–4–1

that Mr. Agricola has referred to, if he does that—

“THE COUR

...