Working v. Jefferson County Election Comm'n

• Decision Date: 14 January 2011
• Docket Number: 1091055
• Parties: Patricia Working, Rick Erdemir, and Floyd McGinnis v. Jefferson County Election Commission
• Court: Alabama Supreme Court

Patricia Working, Rick Erdemir, and Floyd McGinnis v. Jefferson County Election Commission

1091055

SUPREME COURT OF ALABAMA

Date: January 14, 2011

Appeal from Jefferson Circuit Court

(CV-08-900316)

SMITH, Justice.

Patricia Working, Rick Erdemir, and Floyd McGinnis appeal from an order of the Jefferson Circuit Court denying their motion seeking an award of attorney fees and expenses following the conclusion of their legal action against the Jefferson County Election Cominission ("the JCEC"). For the reasons explained below, we reverse in part, dismiss the appeal in part, and remand the case with directions.I. Facts and Procedural History

These parties have previously been before this Court. See Working v. Jefferson County Election Comm'n, 2 So. 3d 827(Ala. 2008) ("Working I") Because a knowledge of the facts and procedural history of Working I is necessary for a complete understanding of the issues presented by this appeal, a detailed statement of the facts and procedural history inWorking I is set forth below:

"On October 9, 2007, Larry Langford, the member of the Jefferson County Commission representing district 1, was elected mayor of the City of Birmingham. He thereafter resigned his seat on the Jefferson County Commission. On October 29, 2007, the [JCEC], pursuant to Act No. 784, Ala. Acts 1977, ¹adopted a resolution calling for a special election to fill the seat vacated by Langford. The resolution set the special election for February 5, 2008--the date of Alabama's presidential-preference primaries. Fred L. Plump, George F. Bowman, and William A. Bell, Sr., were among those who qualified to run for the district 1 seat on the county commission.

"On November 21, 2007, Governor Bob Riley appointed George F. Bowman to fill the vacant district 1 seat on the Jefferson County Commission. The Governor's appointment was made pursuant to a general law, § 11-3-1(b), Ala. Code 1975.²

"On January 31, 2008, Patricia Working and Rick Erdemir filed a complaint for declaratory relief in the Jefferson Circuit Court, naming as defendants the [JCEC] and its individual members, namely Jefferson County Probate Judge Alan King, Jefferson County Sheriff Mike Hale, and Jefferson CountyCircuit Clerk Anne-Marie Adams.¹ Among other things, they alleged that they were residents and taxpayers in Jefferson County and that the special election was unauthorized and unconstitutional because, they said, Act No. 784, Ala. Acts 1977, violated § 105 of the Alabama Constitution of 1901,: ³ and that, even if Act No. 78 4 was not unconstitutional and authorized the special election, the date set by the [JCEC] for the special election was incorrect. Accompanying the complaint were an application for a temporary restraining order and a motion for a preliminary injunction.

"On February 1, 2008, the Jefferson Circuit Court conducted an expedited hearing in which it noted the absence of potentially interested parties and issued an order holding that it would not have subject-matter jurisdiction until the attorney general was served with a copy of the complaint pursuant to Ala. Code 1975, § 6-6-227. It further stated that the matter would be held under submission until the plaintiffs had complied with § 6-6-227. Subseguent to the entry of that order, the attorney general was served with a copy of the complaint and filed an answer stating that he was entitled to be heard on the issue of the constitutionality of Act No. 784, and that because Act No. 784 is unconstitutional, the circuit court should enjoin the [JCEC] from canvassing the votes and certifying the results of the special election. In addition, on February 6, 2008, Plump filed a motion to intervene as a defendant, which the court later granted.

"The special election was held on February 5, 2008. On February 12, Floyd McGinnis filed a 'Joinder of Verified Complaint' and, with Working

and Erdemir, amended the complaint to add Bell as a defendant. McGinnis, Working, and Erdemir (collectively referred to as 'the Working plaintiffs') each filed a verification in support of the amended complaint.

"On February 13, 2008, the Working plaintiffs filed a notice of appeal to this Court from the trial court's February 1, 2008, order and, specifically, its effective denial of a temporary restraining order and a preliminary injunction by holding the case 'under submission.' On February 14, 2008, this Court granted an emergency motion filed by the Working plaintiffs, enjoining the [JCEC] from certifying the results of the special election until further order of this Court. On February 20, 2008, this Court issued an order noting that it appeared the statutory notice reguirements pertaining to the attorney general had been met, remanding the cause to the trial court for a ruling on the merits of the Working plaintiffs' claims, and maintaining in place the injunction prohibiting the certification of the results of the February 5 special election pending further order of this Court. (Case no. 1070693.)

"On February 21, 2008, the defendants moved to dismiss the action on the bases, among others, that the Working plaintiffs lacked standing to pursue their claims because, as was undisputed, Working and Erdemir did not actually reside in district 1 of Jefferson County and McGinnis had not suffered a sufficient, particularized injury. On February 27, 2008, Plump filed an answer to the complaint and a third-party complaint asserting a quo warranto action as a relator for the State against Bowman. See Ala. Code 1975, § 6-6-597.

"On February 28, 2008, Governor Riley filed a motion, which was later granted, to intervene as a plaintiff. Also on February 28, the Working plaintiffs filed a second amended complaint, among other things, adding a claim that the [JCEC] wasrequired by Act No. 2007-488 to hold an election at the November 2008 general election to fill the district 1 vacancy and that its refusal to do so was a violation of plaintiff McGinnis's right to vote in such an election. ²

"On March 6, 2008, Bell filed, and on March 9, 2008, the trial court granted, a motion to join and to amend Plump's third-party quo warranto complaint against Bowman. The amended third-party complaint alleged that Bell was entitled to hold the office of County Commissioner for district 1 based on the result of the special election and that Bowman was unlawfully holding that office. Specifically, Bell and Plump alleged:

"'Governor Riley did not have the authority to appoint George Bowman to the District 1 seat because it is clear that a general state statute, Act 2007-488 codified at § 11-3-1 (b), that begins "Unless a local law authorizes a special election," allows local laws on the same subject to coexist without violating § 105 of the Alabama Constitution. Baldwin County v. Jenkins, 494 So. 2d 584 (Ala. 1986).'

"After conducting a hearing, the trial court issued a final judgment. In its judgment, the trial court held that the Working plaintiffs lacked standing to pursue their claims. As to the merits of the litigation, the trial court determined that the local law on which the special election was based, Act No. 784, Ala. Acts 1977, did not conflict with the general law, § 11-3-1 (b), and therefore did not violate § 105 of the Alabama Constitution of 1901, because of the proviso at the beginning of § 11-3-1 (b) allowing local laws to authorize special elections to fill vacancies on county commissions. Finally, the trial court held that the [JCEC] had set the special election for the correct day.

"Consistent with the foregoing determinations, the trial court specifically ruled that Governor Riley's appointment of Bowman to the district 1 seat for the Jefferson County Commission was unauthorized and that, when the final results of the election of February 5, 2008, are certified by the [JCEC], the winner of the election will be entitled to hold the office of Jefferson County commissioner for district 1.

1 The Alabama Legislature enacted Act No. 784 effective May 25, 1977, as a local law that purported to authorize a special election to fill a vacancy on the Jefferson County Commission caused by 'death, resignation, impeachment, or any cause except normal expiration of terms.' § 1, Act No. 7 84.

"² 'Section 11-3-1 (b) now provides:

"'Unless a local law authorizes a special election, any vacancy on the county commission shall be filled by appointment by the Governor. If the appointment occurs at least 30 days before the closing of party qualifying as provided in Section 17-13-5, the person appointed to the vacated office shall only serve until seven days after the next general election following the appointment as provided herein. The person so appointed to fill the vacancv shall meet the residency requirements in subsection (a), and shall hold office from the date of appointment until the eighth day following the nextgeneral election. If the original term in which the vacancy occurred would not have expired on the eighth day following the next general election after the appointment, the person elected at the election required by operation of this subsection shall serve for a period of time equal to the remainder of the term in which the vacancy was created. Thereafter, election for the county commission seat shall be as otherwise provided by law.'

"The emphasized language, however, was first included in this statutory scheme effective in 2004. See Act No. 2004-455, Ala. Acts 2004. The substance of the first sentence, without the emphasized language, was part of the Alabama Code prior to the enactment of Act No. 784 in 1977. Until September 1, 2007, it was codified as § 11-3-6, Ala. Code 1975. Effective September 1, 2007, the entire provision, including the emphasized language and additional language, was renumbered by Act No. 2007-488 as § 11-3-1 (b).

"-Section 105 provides:

"³ No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law, or when the

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