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

913 So.2d 1083

Michael WALTMAN v. William Robert ROWELL.

1031960.

Supreme Court of Alabama.

May 20, 2005.

James B. Rossler of Rossler & Redditt, LLC, Mobile, for appellant.

Donald E. Brutkiewicz of Brutkiewicz Attorneys, Mobile, for appellee.

STUART, Justice.

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.

Facts

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:

"The Court finds that the correct count of the votes cast in the election for City Council District 3, City of Citronelle was 177 votes for Plaintiff William Rowell and 177 votes for Defendant Michael Waltman. [W.H.B.] cast a challenged ballot for Waltman, and the parties have stipulated that Mr. [B.] did not reside in District 3 and was not eligible to vote for this council seat. This left the vote at Rowell 177 and Waltman 176.

"Each party has contended that other voters who cast challenged ballots were not eligible to vote in District 3. Each of these voters asserted under oath that he or she was a resident of District 3. The Court finds that there is not sufficient evidence as to any of these voters to establish the falsity of their declaration of the fact of their alleged non-residency.

"The challenge of William Rowell is upheld and he is declared elected to the City Council of the City of Citronelle, District 3."

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.

Standard of Review

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:

"It is the policy of this court to presume correct the findings of the trial court based upon competent evidence, when the evidence is presented ore tenus. Such findings will not be disturbed upon appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust. The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment."

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).

Applicable Law

We first recite the statutes and legal principles applicable to this dispute.⁸ Section 11-46-38, Ala.Code 1975, provides:

"(a) At all municipal elections the elector must vote only in the ward or precinct of his residence where he is registered to vote and at the box or voting machine to which he has been assigned.

"(b) No person may vote at any such election unless he is a registered and qualified elector of the State of Alabama, who has resided in the county 30 days and in the ward 30 days prior to the election and who has registered not less than 10 days prior to the date of the election at which he offers to vote; provided, however, that any elector who, within 30 days next preceding the date of the election at which he offers to vote, has removed from one ward to another ward in the same city or town shall have the right to vote in the ward from which he has removed, if he would have been entitled to vote at such ward but for such removal. If any elector attempts to vote in any ward other than that of his residence, except as hereinabove authorized, his vote must be rejected.

"(c) Any qualified elector of a ward who knows or suspects that a person proposes to vote or will offer to vote in such ward who is not entitled or duly qualified to vote in such ward may challenge such person. The challenge shall be communicated to the inspector before the challenged person is permitted to vote by the person in charge of admissions to the polling place. The person so challenged shall not be permitted to vote until he takes and subscribes the oath prescribed by subsection (c) of Section 11-46-41 and identifies himself in the manner therein prescribed."

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:

"(a) Where paper ballots are used, the inspector designated as challenger, upon the elector's entering the polling place, shall examine the list of qualified electors furnished by the municipal clerk pursuant to subsection (a) of Section 11-46-36, and if it appears from this examination that the person is a qualified elector of the state authorized to vote at that box, unless such elector has been challenged by another qualified elector in the manner prescribed by subsection (c) of Section 11-46-38, the inspectors shall then give him one ballot on the stub of which one of the inspectors shall write or shall have already written his name or initials. If such person's name does not appear on the list of qualified voters for that ward or box, then the challenger shall challenge said person. Any person so challenged or challenged by a qualified elector as authorized in subsection (c) of Section 11-46-38, shall not be allowed to vote until he has taken and subscribed to the oath prescribed in subsection (c) of Section 11-46-41 and proved his identity in the manner therein prescribed. However, if such person duly executes the oath and establishes his identity in...