Lowndes
Circuit Court, CV-16-13
PETITION FOR WRIT OF MANDAMUS
SELLERS, JUSTICE
The
Town of Hayneville ("the Town") and Carol Scrushy
petition this Court for a writ of mandamus directing the
Lowndes Circuit Court to vacate its July 7, 2017, order
denying the Town and Scrushy's motion to dismiss what
they characterize as an election contest filed by Darshini
Bandy, Connie Johnson, and Justin Pouncey (hereinafter
referred to collectively as "the electors") and to
enter an order dismissing the electors' action. We deny
the petition.
Facts
and Procedural History
The
Town's governing body is composed of three council
members from District A; two council members from District B;
and the mayor, who also serves on the council. On August 26,
2016, the Town held its quadrennial general election to elect
a mayor and five council members. The winners of the election
would take office in November 2016. Mayor David Daniel won in
a run-off election. Cynthia Perryman and Sharon Reeves
received the majority of votes for the council members for
District B. As for District A, the following five candidates
were on the ballot and received the following number of
votes: incumbent Kim Payton (129 votes); Roy Meadows (102
votes); Lula Tyson-Bailey (93 votes); incumbent Carol Scrushy
(85 votes) and incumbent Rickey Bell (71 votes). Pursuant to
§ 11-46-55, Ala. Code 1975, [1] the Town's governing
body timely met and declared Perryman and Reeves the winners
of the council seats for District B and issued certificates
of election to them. However, the Town's governing body
refused to declare the winners of any of the three council
seats for District A.
On
August 29, 2016, Scrushy and Bell filed an election contest
challenging Meadow's eligibility to serve as a council
member for District A. After conducting a hearing, the
circuit court entered an order declaring the election of
Meadows to be void, certifying this fact to the Town's
governing body and directing the Town's governing body to
fill the vacant council position in accordance with the
State's election laws.
On
November 3, 2016, the electors filed in the circuit court a
petition for a writ of mandamus, asking the circuit court to
direct the Town's governing body to perform its duties
under § 11-46-55(a) and to declare Payton and
Tyson-Bailey the winning candidates for two of the council
seats of District A and to issue to them certificates of
election.[2]
On
January 5, 2017, the circuit court granted the electors'
petition and entered an order directing that Payton and
Tyson-Bailey be sworn in as council members for District A.
Specifically, the court determined that Payton and
Tyson-Bailey had been duly elected to serve as council
members for District A; that no contest had been filed
regarding Payton's and Tyson-Bailey's candidacies;
and that the Town's governing body had failed to perform
its ministerial duties under § 11-46-55(a) to declare
Payton and Tyson-Bailey the winners of two of the council
seats of District A and to issue to them certificates of
election. The court noted in its order that it reserved the
authority to enforce its order.
The
Town's governing body issued the certificates of election
to Payton and Tyson-Bailey, and they were sworn in as council
members. After Payton and Tyson-Bailey were sworn in,
however, Mayor Daniel and Payton failed or refused to attend
any council meetings, thereby denying the Town's
governing body a quorum and, more specifically, not allowing
it to fulfill its obligation to fill the vacant council seat
that existed in District A. After the council seat had
remained unfilled for more than 90 days, then Governor Robert
Bentley directed the probate judge to call a special election
to fill the vacancy. See § 11-44G-1, Ala. Code
1975.[3]
On
February 6, 2017, the probate judge issued an order calling
the special election for March 21, 2017, and declaring that
Bell and Scrushy were to be the only candidates on the
ballot. Mayor Daniel thereafter posted notice of the special
election on the front of the town hall. After the
announcement of the special election, Pouncey, one of the
electors, attempted to file the necessary paperwork to have
his name appear as a candidate on the ballot for the special
election. The Town clerk refused to accept his paperwork
based on the probate court's order limiting the ballot to
only two candidates: Bell and Scrushy.
On
March 10, 2017, the electors moved the circuit court to
enforce its prior orders directing strict compliance with the
election laws and, more specifically, to direct the
Town's governing body to accept Pouncey's paperwork
to qualify as a candidate, to place his name on the ballot,
and to allow him to stand for election to fill the vacant
council seat in District A.
On
March 17, 2017, the circuit court entered an order holding
that the date set for the special election was defective as a
matter of law because the date fell on the third Tuesday in
March, which is not one of the Tuesdays allowed by statute.
See § 11-46-21(b), Ala. Code 1975.[4] The circuit court
further held that, in setting the date for the special
election, the probate court did not comply with the notice
requirements of § 11-46-22(a), Ala. Code 1975,
[5]
which requires a minimum of two months' notice of the
special election. Because of the illegal scheduling of the
special election, the circuit court ordered the Town's
governing body to provide a new and legal special-election
date, to give the required notice of the election, to set the
qualifying deadlines for qualified electors who desired to be
candidates, and to otherwise proceed with the special
election to fill the vacant council seat in District A. The
circuit court again stated in its order that it retained
jurisdiction "to enforce this and all previous orders
regarding the August 2016 election and the special election
to fill the vacancy in District A." Mayor Daniel
provided the circuit court with a special-election date of
May 23, 2017; the election resulted in Scrushy's
receiving the majority of votes for the vacant council seat
in District A. Despite the fact that Scrushy received the
majority of votes, the Town's governing body did not meet
to certify and declare her the winner of the special
election.
On May
26, 2017, the electors filed a "second motion to enforce
prior orders, " asking the circuit court to declare the
May 23, 2017, special election invalid on the basis that the
Town's governing body was usurped of its mandatory role
in ordering the special election. Specifically, the electors
asserted that the Town's governing body failed to comply
with § 11-46-21(b), which states, in part, that
"[s]pecial elections shall be held on the second or
fourth Tuesday of any month when ordered by the municipal
governing body." (Emphasis added.) The electors
further asserted that, pursuant to § 11-46-27(a), Ala.
Code 1975, the Town's governing body or a majority
thereof "must ... appoint from the qualified electors of
the respective wards or voting districts officers to hold the
election." The electors finally asserted that, in this
case, it was legally impossible for the Town's governing
body to order the special election because Mayor Daniel and
Council Member Payton refused to attend council meetings,
thereby denying a quorum of the council to order the
special election and/or to appoint qualified
electors to hold the election.
On June
6, 2017, the Town moved the circuit court to enforce its
prior orders and, more specifically, to declare Scrushy the
winner of the May 23, 2017, special election and to order
that she be sworn in as a member of the Town
council.[6] The Town also moved the circuit court to
dismiss the electors' second motion to enforce prior
orders on the basis that the motion to enforce was an
election contest over which the circuit court did not have
subject-matter jurisdiction.
On June
20, 2017, the circuit court conducted a hearing on the
parties' respective motions, and on July 7, 2017, it
entered an order declaring void the May 23, 2017, special
election as illegal. The circuit court made the following
findings in its order:
"After considering the pleadings, motions, arguments of
counsel, together with the testimony of the witnesses, the
Court is of the opinion that [Mayor Daniel] willfully and
deliberately chose not to follow the prior Orders of this
Court requiring the town officials to strictly follow the
Alabama statutes that govern municipal elections. [Mayor
Daniel] admitted during his testimony that he and another
council person, Kim Payton, failed to attend a single
regularly scheduled council meeting in 2017, which had the
effect of preventing any council action for lack of a quorum.
There was credible evidence that the other three members
of the current council, [Tyson-Bailey, Reeves, and Perryman],
were present at the town hall for each regularly scheduled
meeting and all were ready, willing and able to meet as a
member of the council and execute their duties as council
members, all without success because of the lack of a
quorum.
"The sanctity of the election process requires strict
adherence to the laws enacted by the Alabama Legislature
governing the conduct of elections in Alabama. Alabama
municipal elections are governed by Alabama Code [1975,
§] 11-46-1 et seq. The action(s) and or inaction(s)
of [Mayor Daniel] prevented the town council from performing
its lawful duties regarding the special election because
[Mayor Daniel] took it upon himself to set the special
election for May 23, 2017, without the knowledge or
permission of the town council. Alabama Code [1975,
§] 11-46-21(b)[, ] requires special elections to be
ordered by the municipal governing body, which did not happen
for the reasons set out herein. In addition to ignoring the
legal requirement, he ignored the clear and unambiguous prior
orders of this Court mandating strict compliance with the
municipal election laws and directing that [Mayor Daniel] and
[the] town council participate in the election process
mandated by Alabama law. Consequently, the Court has no
choice other than to declare the May 23, 2017, election to be
illegal and void;
"It is further ORDERED that [Mayor Daniel, Payton,
Tyson-Bailey, Reeves, and Perryman] are ordered and directed
to appear at the Hayneville Town Hall at 7:00 p.m. on Monday,
July 10, 2017, and then and there meet as a town council and
conduct such business as the council chooses to conduct until
the council meeting is either lawfully continued or
adjourned. In the event any council person does not meet
at the appointed time and conduct themselves in accord with
this Order, the absent member or members will subject
themselves to contempt proceedings which may result in a
monetary penalty or jail time, until such time as the council
is able to meet with a quorum present, so the council can
conduct business of the town for the benefit of its
citizens.
"Any relief not expressly granted herein is hereby
denied. The Court expressly retains jurisdiction to enforce
this and all previous orders regarding the issues in this
case."
(Emphasis added.)
On July
10, 2017, the Town's governing body met as directed,
presumably to order the special election to fill the vacant
council seat in District A. At some point before the meeting,
the probate judge entered an order purporting to void all the
orders entered by the circuit court concerning the special
election, declaring Scrushy to be the duly elected winner of
the vacant District A council seat, and directing that
Scrushy be sworn in as a council member for District A.
According to the electors, since the probate court entered
its order declaring Scrushy to be the duly elected winner of
the vacant District A council seat, Scrushy attended and has
continued to attend all council meetings.
On
August 4, 2017, the circuit court entered an order
reaffirming its July 7, 2017, order declaring the May 23,
2017, special election void. ...