Waltman v. Rowell
Decision Date | 20 May 2005 |
Docket Number | 1031960. |
Citation | 913 So.2d 1083 |
Parties | Michael WALTMAN v. William Robert ROWELL. |
Court | Alabama Supreme Court |
James B. Rossler of Rossler & Redditt, LLC, Mobile, for appellant.
Donald E. Brutkiewicz of Brutkiewicz Attorneys, Mobile, for appellee.
William Robert Rowell filed an election contest, challenging the results of an August 24, 2004, municipal election for the District 3 seat on the Citronelle City Council. Michael Waltman appeals from the trial court's judgment in favor of Rowell. We reverse and remand.
On August 24, 2004, the City of Citronelle held a municipal election. Michael Waltman, the incumbent holding the District 3 seat on the Citronelle City Council, was running for reelection. William Robert Rowell was the challenger for the District 3 seat. After the election, Waltman was declared the winner.
Rowell then filed this election challenge in the Mobile Circuit Court, arguing that illegal or ineligible votes had been included in tallying the votes for Waltman and that, upon a proper recount, Rowell should be declared the winner. Pursuant to § 17-4-127, Ala.Code 1975, and § 11-46-109, Ala.Code 1975, Rowell contested both absentee ballots and "challenged" ballots filed on the day of the election.1 Waltman responded by contesting certain votes that Waltman says were illegal or ineligible and that had been included in the tally for Rowell.
The trial court conducted a hearing on the election contest on September 8-10, 2004. By the time of the hearing, the votes had been recounted and the official vote tally had changed; Waltman and Rowell had 177 votes each. Pursuant to the trial court's order, the City of Citronelle produced election documents relevant to the contested race for the District 3 seat.2 Those documents included the "affidavits of challenged voters" filed by some of the challenged electors.3
Ore tenus evidence was presented at the hearing. However, none of the challenged electors testified at the hearing.4 Rowell called as a witness, among others, Gayther Rowell, the chief inspector of the polls for the August 24, 2004, election.5 Gayther testified as to where she knew various of the challenged electors lived, whether she believed the residences of those challenged electors were located in the city limits of Citronelle, and, if so, whether the residences were located in District 3 or in another district. Rowell also called as a witness Wesley Raymond Rowell, who also testified as to where, based on his knowledge and belief, certain of the challenged electors lived.6
Rowell also called Diane D. Barnett, who at that time was employed by the City of Citronelle as the city clerk and treasurer. Barnett, in her capacity as the city clerk, responded to the trial court's order to produce the election records. Included in those records were the "absentee manager's voter list" and a list of voters whose ballots were challenged. Barnett testified as to where various of those challenged voters lived; Barnett also testified as to each challenged voter whether, to her knowledge and understanding, the address provided by the voter on the challenged ballots as his or her then current residence was located in District 3.
Finally, Rowell called Virginia Delchamps, the chairperson of the Mobile County Board of Registrars. Delchamps testified that she had confirmed that the nine names of voters whose ballots were being challenged submitted to her by Rowell's attorney represented voters who were registered to vote on the day of the August 24, 2004, election.7 She testified, however, that many of those electors lived outside the city limits of Citronelle and were therefore ineligible to vote in a municipal election for the City of Citronelle. She also testified that a few of the nine voters lived in Citronelle but that they lived in a municipal district other than District 3.
At the close of the hearing, the trial judge orally declared Rowell to be the winner of the election. In its written order dated September 22, 2004, the trial court stated:
Waltman appealed, asserting (1) that the trial court erred by not declaring invalid those votes cast in favor of Rowell by persons who resided outside the city limits of Citronelle and (2) that the trial court erred by not declaring invalid those votes that were cast in favor of Rowell by persons who resided in council districts other than District 3. Waltman asserts that the trial court's decision is plainly and palpably wrong and that it is unsupported by the evidence of record. Rowell did not cross-appeal.
As noted in Williams v. Lide, 628 So.2d 531, 534 (Ala.1993):
"In reviewing the trial court's findings of fact in this 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."
This Court has also recognized:
Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985) (citations omitted). Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or the incorrect application of law to the facts. "[W]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment." Griggs v. Driftwood Landing, Inc., 620 So.2d 582, 586 (Ala.1993).
We first recite the statutes and legal principles applicable to this dispute.8 Section 11-46-38, Ala.Code 1975, provides:
Section 11-46-39, Ala.Code 1975, addresses the identification of challenged voters and the process of challenging voters. This section provides, in pertinent part:
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Ex Parte G.C.
... ... cloak with a presumption of correctness a trial judge's conclusions of law or the incorrect application of law to the facts." Waltman v ... Page 681 ... Rowell, 913 So.2d 1083, 1086 (Ala.2005) (citing Griggs v. Driftwood Landing, Inc., 620 So.2d 582, 586 (Ala.1993)). See, ... ...
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...and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment." ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985) ). ‘Additionally, the ore tenus rule does not extend to cloak with a pre......
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