Working v. Jefferson County Election Com'n

• Decision Date: 30 June 2008
• Docket Number: 1070850.,1070893.,1070917.
• Parties: Patricia WORKING et al. v. JEFFERSON COUNTY ELECTION COMMISSION et al. Governor Bob Riley, in his official capacity v. Jefferson County Election Commission et al. George F. Bowman v. State of Alabama ex rel. Fred L. Plump and William A. Bell, Sr.
• Court: Alabama Supreme Court

2 So.3d 827

Patricia WORKING et al. v. JEFFERSON COUNTY ELECTION COMMISSION et al. Governor Bob Riley, in his official capacity v. Jefferson County Election Commission et al.

George F. Bowman v. State of Alabama ex rel. Fred L. Plump and William A. Bell, Sr.

1070850.

1070893.

1070917.

Supreme Court of Alabama.

June 30, 2008.

Walter E. Braswell, Birmingham; and Albert L. Jordan of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellants Patricia Working, Rick Erdemir, Floyd McGinnis, and State of Alabama ex rel. Floyd McGinnis.

Troy King, atty. gen., and James W. Davis, Margaret L. Fleming, and Misty S. Fairbanks, asst. attys. gen., for appellants Governor Bob Riley, in his official capacity.

Commissioner George Bowman, Jefferson County Commission, pro se.

Jeffrey M. Sewell, asst. county atty., Jefferson County; and Charlie D. Waldrep and Susan Walker of Waldrep, Stewart & Kendrick, LLC, Birmingham, for appellees Jefferson County Election Commission and Sheriff Mike Hale.

James U. Blacksher, Birmingham; and Edward Still, Birmingham, for appellee Fred L. Plump.

Michael K.K. Choy and Margaret Mary Fullmer of Haskell Slaughter Young & Rediker, Birmingham, for appellee William A. Bell, Sr.

PER CURIAM.

These appeals arise from challenges to the attempts to fill the district 1 seat on the Jefferson County Commission left vacant when Commissioner Larry Langford was elected mayor of the City of Birmingham in October 2007. The trial court held that the vacant seat was to be filled by a special election rather than by gubernatorial appointment. For the reasons stated herein, we reverse the trial court's judgment.

I. Facts, Procedural Background, and Applicable Statutes

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 Jefferson County Election Commission, pursuant to Act No. 784, Ala. Acts 1977,¹ adopted 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 Jefferson County Election Commission and its individual members, namely Jefferson County Probate Judge Alan King, Jefferson County Sheriff Mike Hale, and Jefferson County Circuit Clerk Anne-Marie Adams. 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. 784 was not unconstitutional and authorized the special election, the date set by the Election Commission 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. Subsequent 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 Election Commission 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.⁴

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 Election Commission 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 requirements 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 Election Commission was required 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.

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 Election Commission 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 Election Commission, the winner of the election will be entitled to hold the office of Jefferson County commissioner for district 1.

The Working plaintiffs, the Governor, and Bowman each appeal.

II. Subject-Matter Jurisdiction

We are presented with two issues pertaining to subject-matter jurisdiction. These include the standing of the Working plaintiffs to pursue their claims and the potential effect of § 17-16-44, Ala.Code 1975.

A. The Standing of the Working Plaintiffs

In the trial court, the Working plaintiffs asserted that they have standing to bring their claims in this case based on their status as residents and taxpayers of Jefferson County whose taxes go to the general fund of the County.⁵ They alleged that their status in this regard gives them standing to challenge the expenditure of moneys from the general fund for conducting an election not authorized by law.

In their February 21 motion to dismiss, the Election Commission and Sheriff Hale argued to the trial court that the Working plaintiffs did not have standing to pursue their claims because (1) Working and Erdemir were not residents or voters of district 1 and (2) McGinnis, although a district 1 voter, had "not stated or shown with particularity the injury in fact necessary to grant him standing to challenge the constitutionality of 1977 Ala. Act No. 784."⁶ The motion to dismiss did not...