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Ex parte Scrushy

Supreme Court of Alabama

March 9, 2018

Ex parte Carol Scrushy and the Town of Hayneville
v.
Carol Scrushy et al. In re: Darshini Bandy et al.

         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. ...


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