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Veitch v. Vowell

Supreme Court of Alabama

June 1, 2018

William G. Veitch
v.
J. Scott Vowell, in his capacity as acting Chief Election Official of Jefferson County, and Steve Marshall, in his capacity as Attorney General of the State of Alabama

          Appeal from Jefferson Circuit Court (CV-18-901519)

          SELLERS, JUSTICE.

         William G. Veitch is a Republican candidate for district attorney for the 10th Judicial Circuit of Alabama. He filed a petition for a declaratory judgment and for a writ of mandamus in the Jefferson Circuit Court ("the trial court"), requesting that court to direct that the names of candidates running for the office of district attorney for the 10th Judicial Circuit be included not only on the ballot to be used in the primary election in the Birmingham Division of Jefferson County, but also on the ballot to be used in the primary election in the portion of Jefferson County known as the Bessemer Cutoff. The trial court dismissed Veitch's action based on its conclusion that it lacked subject-matter jurisdiction and, alternatively, based on the doctrine of laches. Veitch appealed. We reverse the trial court's judgment and remand the cause for further proceedings.

         "Jefferson County constitutes the Tenth Judicial Circuit; that circuit is divided into two divisions--the Birmingham Division and the Bessemer Division." City of Bessemer v. McClain, 957 So.2d 1061, 1069 n.6 (Ala. 2006). "In 1893, Local Act No. 281 created the Bessemer Division; however, that division was subsequently abolished. In 1919, the Bessemer Division was recreated by Local Act No. 213." Id. at 1070.

         Act No. 138, Ala. Acts 1953 ("the 1953 Act"), states:

"[C]andidates in primary elections for nominations for Circuit Solicitor [now district attorney] of the Tenth Judicial Circuit of Alabama [consisting of Jefferson County] shall be placed upon the ballots in such primary elections only in those precincts over which the Circuit Court holding at Birmingham, Alabama, has jurisdiction; that is to say, candidates for nomination in such primary elections for [district attorney] of the Tenth Judicial Circuit of Alabama shall run and shall be placed upon the ballots used in such primaries only in those precincts which are within the jurisdiction of said Circuit Court holding at Birmingham, Alabama."

         Based on the 1953 Act, the practice in primary elections in Jefferson County is to include the names of candidates running for district attorney for the 10th Judicial Circuit on only the ballots that will be used in the Birmingham Division and not on the ballots that will be used in the Bessemer Division. That said, the parties appear to agree that the 1953 Act was ignored in 2016, because the names of Democratic candidates for district attorney for the 10th Judicial Circuit apparently were included on the ballot used in the primary election in the Bessemer Division. Veitch has suggested that the names of Republican candidates that year were not included on that ballot. The parties agree that, with respect to the general election, the candidates for district attorney are included on the ballots used in both divisions.

         Scott Vowell, the acting chief of the Jefferson County Election Commission, asserts that, on March 28, 2018, he approved the Republican and Democratic ballots for the primary election in the Bessemer Division and that those ballots did not include the office of district attorney for the 10th Judicial Circuit and, thus, did not include Veitch's or the names of other candidates for that office. Veitch, however, took the position that voters in the primary elections in the Bessemer Division should be allowed to vote on the candidates running for the office of district attorney. Accordingly, he filed his declaratory-judgment action and petition for a writ of mandamus on April 13, 2018.

         In his petition, Veitch asserted that the 1953 Act has been repealed by a later act, which, Veitch asserted, requires primary elections to be conducted in the same manner as general elections. He also challenged the validity and application of the 1953 Act under §§ 33 and 105, Ala. Const. of 1901, as well as "the due process and equal protection provisions of the Alabama Constitution and the 14th Amendment of the U.S. Constitution." Section 33, Ala. Const. 1901, provides that "[t]he privilege of suffrage shall be protected by laws regulating elections, and prohibiting, under adequate penalties, all undue influences from power, bribery, tumult, or other improper conduct." Section 105, Ala. Const. 1901, provides that "[n]o ... 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." The trial court's judgment indicates that Veitch also argued that the 1953 Act has been unconstitutionally applied because, in 2016, it was ignored with respect to Democratic candidates for the office of district attorney for the 10th Judicial Circuit and the names of those candidates appeared on the ballot for the Bessemer Division.

         Veitch requested that the trial court enter a temporary restraining order enjoining the printing of the June 2018 primary ballots for the Bessemer Division, which the trial court granted. Steve Marshall, the Attorney General for the State of Alabama, appeared in the action after being served because the constitutionality of a legislative act was being challenged and filed a motion requesting that the trial court set aside the restraining order. Vowell also asked the trial court for the same relief and to dismiss Veitch's action.[1] On April 20, 2018, the trial court entered a judgment setting aside the restraining order and dismissing the action.

         In its judgment, the trial court stated that, under § 17-16-44, Ala. Code 1975, it lacked jurisdiction to grant the relief Veitch had requested. That statute, known as the "jurisdiction-stripping statute, " provides:

"No jurisdiction exists in or shall be exercised by any judge or court to entertain any proceeding for ascertaining the legality, conduct, or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute; and any injunction, process, or order from any judge or court, whereby the results of any election are sought to be inquired into, questioned, or affected, or whereby any certificate of election is sought to be inquired into or questioned, save as may be specially and specifically enumerated and set down by statute, shall be null and void and shall not be enforced by any officer or obeyed by any person. If any judge or other officer hereafter undertakes to fine or in any wise deal with any person for disobeying any such prohibited injunction, process, or order, such attempt shall be null and void, and an appeal shall lie forthwith therefrom to the Supreme Court then sitting, or next to sit, without bond, and such proceedings shall be suspended by force of such appeal; and the notice to be given of such appeal shall be 14 days."

         The trial court relied on Rice v. Chapman, 51 So.3d 281 (Ala. 2010). In that case, the petitioners sought to prevent a candidate for the Republican nomination for Associate Justice of the Alabama Supreme Court from running in the primary election based on his alleged failure to timely file an "Appointment of Principal Campaign Committee" and a "Statement of Economic Interest, " both of which were required pursuant to statute. Pointing to § 17-16-44, a Special Supreme Court of Alabama held that the trial court in Rice did not have jurisdiction over the proceedings, stating:

"The petitioners' lawsuit implicates the jurisdiction-stripping statute because it seeks to impact the 'conduct' of the June 1, 2010, Republican primary election by having the court either remove the name of one of the candidates ... from the ballot or instruct the ...

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