Opinion
1941515.
January 17, 1997.
Appeal from the Probate Court, Jefferson County, No. 32032, George R. Reynolds, J.
Calvin D. Biggers, Bessemer, for appellants.
Albert L. Jordan and Michael L. Jackson of Wallace, Jordan, Ratliff Brandt, L.L.C., Birmingham; and Mark L. Gaines, Birmingham, for Judge Teresa B. Petelos.
This election contest concerns the November 8, 1994, election for the office of circuit judge, Tenth Judicial Circuit, Place No. 5, sitting in the Bessemer Division, Jefferson County. Ralph L. Armstrong, Herbert Kidd, Jr., Quitman Mitchell, and Gordon McDaniel (hereinafter referred to as the "petitioners") brought this action pursuant to Ala. Code 1975, § 17-15-1(3). The petitioners allege that Teresa Petelos was certified the winner based on illegal votes of voters residing in the Birmingham Division of Jefferson County and that if those purportedly illegal votes had not been counted then Judge Annetta H. Verin, who was the incumbent, would have won. Specifically, the petitioners contend that the only "legal votes" for this election are those cast by the voters residing in the area known as the Bessemer Cutoff, or the Bessemer Division, of Jefferson County, and that if only these votes are counted then Judge Verin should be declared the winner of the election. After a hearing on the contest of the election, the Probate Court of Jefferson County denied the petition of election contest and held that Teresa Petelos was entitled to hold the office.
In the general election held on November 8, 1994, there were two candidates for the office. Judge Verin was the Democratic nominee, and Teresa Petelos was the Republican nominee. Preceding that election, both candidates campaigned throughout Jefferson County, including areas outside the Bessemer Cutoff. On November 8, the election was held countywide. The results showed Teresa Petelos the winner with 102,482 votes, over Judge Verin with 94,951 votes. These results were certified by the secretary of state on January 6, 1995, and on January 17, 1995, Judge Verin vacated her office and Petelos took office as circuit judge for Place No. 5.
The petitioners contend that the probate court erred in denying their election contest; they rely on Ala. Const. 1901, Amendment 328, § 6.13 (ratified in 1973). That section provides that "[a]ll judges shall be elected by vote of electors within the territorial jurisdiction of their respective courts." The petitioners contend that it is well settled that the "territorial jurisdiction" of the circuit court of the Tenth Judicial Circuit, Place No. 5, sitting at Bessemer, is that geographical area known as the Bessemer Cutoff and, therefore, that the only legal votes for this office come from this area. The petitioners contend that in applying rules of statutory construction, one must necessarily give § 6.13 what they contend is its plain and unambiguous meaning — that votes cast by voters outside the Bessemer Cutoff are illegal as to Place No. 5 and should not be counted.
Other than their interpretation of § 6.13, the petitioners have presented no statute that would authorize conducting the general election for circuit judge, Place No. 5, of the Tenth Judicial Circuit in a manner different from the manner in which general elections of the other circuit judges of the Tenth Judicial Circuit are conducted, or conducting the election for Place No. 5 over a geographical area different from the area over which those other elections are conducted.
Section 1 of the 1919 statute creating the Bessemer Division, Local Act No. 213, provides that the judge presiding at Bessemer shall be a judge of the Tenth Judicial Circuit. That section provides:
"That the Circuit Court of the Tenth Judicial Circuit shall be held in each year [in] the City of Bessemer in and for the particular territory hereinafter described, in Jefferson County, Alabama, said court, when so held, to be presided over by Judge No. five of the Tenth Judicial Circuit. . . ."
Ala. Code 1975, § 17-2-2, provides that "General elections throughout the state shall be held for . . . judges of the circuit court in each judicial circuit. . . ." The State of Alabama is divided into 40 judicial circuits, with the Tenth Judicial Circuit being composed of Jefferson County. Ala. Code 1975, § 12-11-2.
Based on the above-cited statutes, we conclude that there is but one circuit in Jefferson County, as reflected in the statute creating the Bessemer Division. The Bessemer Cutoff is not a separate circuit, but rather a part of the entire Jefferson County circuit, i.e., it is a division of the Tenth Judicial Circuit. When Amendment 328, § 6.13, refers to the "territorial jurisdiction of their respective courts" in the context of the election of a circuit court judge, it refers to circuit courts as a whole and not to a division of the circuit court or some other entity with a more limited territorial jurisdiction. In other words, the circuit judge for Place No. 5 is to be elected by the voters of the Tenth Judicial Circuit. This conclusion is further supported by the practice by which judges were elected before Amendment 328 was ratified. The prior constitutional provision concerning the election of judges read:
"The chief justice and associate justices of the supreme court, judges of the circuit courts, judges of probate courts, and chancellors shall be elected by the qualified electors of the state, circuits, counties, and chancery divisions, for which such courts may be established, at such times as may be prescribed by law, except as herein otherwise provided."
Ala. Const., Art. VI, § 152 (repealed).
There was no evidence presented at the hearing that, pursuant to § 142, the Place No. 5 circuit judges were not elected by the qualified electors of all Jefferson County. Amendment 328, § 6.13, was ratified in 1973, and there was no evidence presented that the practice of electing the Place No. 5 circuit judge changed in any way upon that notification.
At the hearing on this election contest, Professor Charles D. Cole testified concerning the drafting and adoption of Amendment 328. Professor Cole served as the director of the Permanent Study Commission on Alabama's Judicial System during the time that Amendment 328 was drafted and adopted. Professor Cole was also the author of the text of § 6.13 of Amendment 328. Professor Cole testified that in the drafting of Amendment 328, there was no intent to change the manner in which judges were elected. While the language of old § 152 was abandoned for the language of § 6.13 of Amendment 328, Professor Cole testified that that change was for the purpose of simplifying the text. He said:
"Since, in fact, we could accomplish the same intent to maintain the jurisdictional approach that existed at that time with simplified language, my best recollection is that that simplified language . . . was intended therefore to maintain the current structure of the area for election of judges and justices without changing the substance, but merely to remove the archaic terminology."
Therefore, we cannot hold that the § 6.13 language "within the territorial jurisdiction of their respective courts" means that only those residents in the Bessemer Cutoff are permitted to vote in the election of the judge for the Tenth Judicial Circuit, Place No. 5. The probate court's judgment denying the petitioners' election contest is affirmed.
AFFIRMED.
HOOPER, C.J., and ALMON, HOUSTON, and KENNEDY, JJ., concur.
MADDOX, J., concurs specially.
SHORES and COOK, JJ., dissent.
I concur in the majority's interpretation of the clause in § 6.13, Amendment 328, that refers to the "territorial jurisdiction of their respective courts," because it is consistent with what this Court said in Cowin Equip. Co. v. Robison Mining Co., 342 So.2d 910 (Ala. 1977), that in ratifying the judicial article, the people of this State mandated a unified court system, with uniform rules applicable to all citizens of this State. It is also consistent with my interpretation of Amendment 328 and an Alabama statute relating to jury service in Jefferson County in which the Legislature used the words "a fair cross section of the population of the area served by the court." See General Motors Corp. v. Hopper, 681 So.2d 1373, 1374 (Ala. 1996) (Maddox, J., concurring specially).
In Hopper, the issue concerned § 1 of Act No. 594, now codified as § 12-16-55, which states:
"It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity, in accordance with this article, to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose."
(Emphasis added.) In interpreting this statute, I wrote:
"I do not think that it could be fairly debated that the 'area to be served by the court' could be interpreted to refer to anything other than a county, because § 12-16-57, codifying Act No. 594, provides that '[t]he jury commission for each county shall compile and maintain an alphabetical master list of all persons in the county who may be called for jury duty, with their addresses and any other necessary identifying information.' (Emphasis added [in Hopper].)
"The whole concept and purpose of the Judicial Article of our Constitution was the establishment of a Unified Judicial System, with the various courts bearing uniform jurisdiction and with each construing rules of procedure that would be uniform statewide. The jury commission for each county in Alabama compiles and maintains a master list of the names or identifying numbers of all prospective jurors from the county-at large, except Jefferson County (where the list is compiled separately from the Bessemer Division and the Birmingham Division) and Barbour County (where the list is compiled separately from the Clayton Division and the Eufaula Division). The Administrative Office of Courts, using computers, summons all jurors in all counties of Alabama from the master lists provided by the jury commissions. All the forms and rules that this Court has approved are based on the county as a whole, not divisions within the county.
"A fair interpretation of Act No. 594 suggests that the jury lists should be compiled and the selection of juries should be made county-wide, not in a division of a county."
681 So.2d at 1382-83 (emphasis added) (footnote omitted). See, also, Ex parte Boykin, 611 So.2d 322 (Ala. 1992), where this Court held that only under a statewide law could a circuit court create or maintain an equity division.
I respectfully dissent. The substantive issue presented concerns the meaning of Ala. Const. 1901, amend. 328, § 6.13, which states: "All judges shall be elected by vote of the electors within the territorial jurisdiction of their respective courts." (Emphasis added.) More specifically, this issue involves the extent of political integrity of "what is commonly known as the Bessemer Cutoff, a territorial subdivision of Jefferson County." State v. Hammonds, 281 Ala. 701, 702, 208 So.2d 81, 83 (1968). The majority holds that "the circuit judge for Place No. 5 is to be elected by the voters of the Tenth Judicial Circuit." 689 So.2d at 18. In other words, it holds that Jefferson County is not comprised of separate judicial election districts. I disagree with this holding because it ignores, among other things, the realities of past and present Alabama politics and the historical context in which § 6.13 was ratified.
At the outset, I find puzzling the majority's criticism of the appellants for not "present[ing][any] statute that would authorize" a separate judicial election district, 689 So.2d at 18 (emphasis added). The majority fails to explain why the appellants are not entitled to rely on the authority granted by the Constitution of Alabama. It hardly bears repeating here that a statute cannot alter or derogate from a constitutional provision. It does bear repeating, however, that "[l]egislative inaction [is] a 'weak reed upon which to lean' and a 'poor beacon to follow,' " 2A Sutherland Stat. Constr. § 49.10 (4th ed.) (emphasis added), and that legislative silence as to practice and procedure after the ratification of a constitutional amendment that, of itself, regulates that practice and procedure is particularly nonprobative.
Amendment 328, § 6.13, which was ratified in 1973, superseded Ala. Const. 1901, § 152. Section 152 provided:
"The chief justice and associate justices of the supreme court, judges of the circuit courts, judges of probate courts, and chancellors shall be elected by the qualified electors of the state, circuits, counties and chancery divisions, for which such courts may be established, at such times as may be prescribed by law, except as herein otherwise provided."
(Emphasis added.) Section 152 differed from § 6.13 in one crucial respect, that is, it specifically described the relevant judicial election districts, namely, as circuits and counties. Section 152 thus appears to have anticipated county-wide elections in the Tenth Judicial Circuit.
However, in 1935, the legislature adopted Act No. 343, 1935 Loc. Ala. Acts 208, which provided:
"That candidates in primary elections for nomination for circuit judgeships in the Tenth Judicial Circuit of Alabama shall run and shall be placed upon the ballots in such primary elections only in those precincts in and over which the judgeship for which nomination is sought has jurisdiction; that is to say, candidates for nomination in such primary elections for judgeships Nos. 1, 2, 3, 4, 6, 7, 8, 9, 10, and 11 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; and candidates for nomination for judgeship No. 5 of said Circuit shall run and be placed upon ballots used in such primaries only in those precincts within the jurisdiction of the Bessemer Division of said Circuit Court.
(Emphasis added.)
The effect of the 1935 legislation is particularly significant in light of Alabama's history as a "one-party" state. See V. Key, Southern Politics (1949). More specifically, when partisan opposition in the general election was essentially nonexistent, the primary election represented the only true test of a candidate's strength. Traditionally, therefore, Jefferson County voters expected that the judicial candidates of their choice in the primary elections would, ipso facto, win the general election. In effect, this procedure allowed the Bessemer Cutoff division and Birmingham division judges, although on the ballot county wide in the general election, to be elected from the respective division in which they served.
To be sure, the procedure proposed by the appellants involves the general election. However, to equate the phrase, "territorial jurisdiction of their respective courts," § 6.13, with the phrase, "those precincts within the jurisdiction of the Bessemer Division," Act No. 343 — in a real sense — merely continues the practice to which Jefferson County voters have long been accustomed.
Moreover, this Court has, at least for some purposes, already construed Act No. 213, 1919 Ala. Loc. Acts 62, amended by Act No. 362, 1935 Ala. Loc. Acts 216, amended, Act No. 199, 1943 Ala. Loc. Acts 105 ("the Act"), which divided the Tenth Judicial Circuit, as " 'in effect creat[ing] two circuit courts in one county.' " Glenn v. Wilson, 455 So.2d 2, 3 (Ala. 1984) (emphasis added). More specifically, Glenn held that "suits 'arising in' the geographical boundaries of the Bessemer Cutoff but filed in Birmingham (or vice versa, suits 'arising in' the Birmingham Division but filed in Bessemer) are subject to transfer to the proper division." Id. at 4 (emphasis added). In other words, absent a waiver of venue by the parties, judges in the Bessemer Cutoff division have no authority to adjudicate causes of action arising in the Birmingham division and vice versa. As a result, Bessemer Cutoff division judges can serve residents of the Birmingham division, and vice versa, only if the cause of action arises in the Bessemer Cutoff area or the Birmingham resident waives her "claim for transfer based on . . . improper filing." Id. See also United Supply Co. v. Hinton Constr. Development, Inc., 396 So.2d 1047, 1050 (Ala. 1981). See also General Motors Corp. v. Hopper, 681 So.2d 1373 (Ala. 1996), in which we said: "The Tenth Judicial Circuit . . . is divided into two independent divisions, the 'Bessemer Division' and the 'Birmingham Division.' The Birmingham Division essentially operates as a judicial circuit separate from the Bessemer Division. . . ." 681 So.2d at 1373. (Emphasis added.) To me, the phrase "territorial jurisdiction of their respective courts" clearly creates separate judicial election districts within the Tenth Judicial Circuit.
Also, where real estate is the subject of the controversy, the action must be brought in, or transferred to, the division in which the property is located. 455 So.2d at 4.
Indeed, the "word 'territory,' as generally used, describes a jurisdiction, — a district of country." United States v. The Danube, 55 F. 993, 995 (D. Ore. 1893) (emphasis added). Thus, " '[t]he tract of land or district within which a judge or magistrate has jurisdiction is called his territory, and his power in relation to his territory is called his territorial jurisdiction.' " Phillips v. Thralls, 26 Kan. 780, 781 (1882) (emphasis added).
Additionally, the term "territory" is broader and more flexible than the terms "circuits" and "counties" used before the ratification of § 6.13. It is not synonymous with "county" or "circuit." It may, in fact, encompass a geographical area comprised of several states, as in a "sales territory." See Cabnetware, Inc. v. Birmingham Saw Works, Inc., 614 So.2d 1034, 1035 (Ala. 1993) (geographical sales area was a "five-state territory"). Or, it may only encompass a "geographical area coterminous with the boundaries of a municipality." Ala. Code 1975, § 39-7-1. In short, the term used in § 6.13 to describe judicial election districts signifies, in ordinary parlance, the geographical area subject to the jurisdiction of the judge seeking election.
To me, therefore, and, I believe, to the voters of Jefferson County, the phrase "territorial jurisdiction of their respective courts" recognizes separate judicial election districts within the Tenth Judicial Circuit. In signifying that the judges of the respective divisions are to be elected only by the residents of the geographical area they serve, § 6.13 is fully consistent with Jefferson County voters' long expectations that the true strength of judicial candidates for Place No. 5 would be tested only in the precincts within the area served by the circuit court of the Bessemer Cutoff division. By contrast, the rule adopted in this case by the majority, pursuant to which a Bessemer Cutoff judgeship will be filled by electors the judge is not permitted to serve except under the circumstances described above, is, in fact, inconsistent with the concept of a representative democracy.
For the contrary view, the majority relies on the deposition testimony of Professor Charles D. Cole, who participated in a study and process that eventually produced Amendment 328. This reliance is misplaced. It has long been the rule in this state and elsewhere that the mental operations, intentions, and motives of individual legislators or drafters — expressed post-enactment and ad litem — are entitled to no weight or consideration by courts in construing statutes. James v. Todd, 267 Ala. 495, 506, 103 So.2d 19, 28 (1958), appeal denied 358 U.S. 206, 79 S.Ct. 288, 3 L.Ed.2d 235 (1958); Morgan County v. Edmonson, 238 Ala. 522, 525, 192 So. 274, 276 (1939); see also 2A Sutherland Stat. Constr. § 45.03 (4th ed.).
James, for example, involved a declaratory judgment action commenced to challenge to the constitutionality of a statute regulating the shipment of "milk and milk products" into Alabama. 267 Ala. at 500, 103 So.2d at 22. At trial, the parties challenging the act's constitutionality sought to introduce testimony by members of the Alabama "Legislature to show the intent and history of the legislation, the circumstances surrounding its adoption and the evil thereby sought to be remedied." Id. The trial court held the testimony inadmissible. Id.
On appeal, this Court agreed with the trial judge as to the inadmissibility of the testimony. 267 Ala. at 506, 103 So.2d at 28. It explained:
"The following from Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007, 1009, 103 A.L.R. 1208, is applicable:
" 'The appellee introduced Senator E.B. Dillon, a member of the Fiftieth General Assembly, who testified with reference to holding meetings and what the purpose of the amendment was, and testified at length about the passage of the bill through the Senate. He testified about his understanding of the intention of the Legislature and the intention of the committee in adopting section 15 as it now appears in the act.
" 'The court held that the evidence offered was incompetent and therefore did not consider it. . . .
" 'The chancery court was correct in holding the evidence introduced by appellee incompetent.
" 'The intention of the Legislature, to which effect must be given, is that expressed in the statute, and the courts will not inquire into the motives which influenced the Legislature or individual members in voting for its passage, nor indeed as to the intention of the draftsman or of the Legislature so far as it has not been expressed in the act. So in ascertaining the meaning of a statute the court will not be governed or influenced by the views or opinions of any or all of the members of the Legislature, or its legislative committees or any other person.'
"See 2 Sutherland, Statutory Construction, § 5011, 3d Ed.; 82 C.J.S. Statutes § 354, p. 745."
267 Ala. at 506, 103 So.2d at 28 (emphasis added).
This rule is not to be confused with the one allowing consideration of legislative history that is contemporaneous with "the process of enactment, from [a bill's] introduction in the legislature to its final validation." 2A Sutherland Stat. Constr. § 48.04 (4th ed.). "The contemporary history of events during this period consists chiefly in statements by various parties concerning the nature and effect of the proposed law and statements or other evidence on the evils to be remedied." Id. Consideration of this species of evidence "has generally been the first extrinsic aid to which courts have turned in attempting to construe an ambiguous act." Id.
For these reasons, I conclude that § 6.13 mandates that the principles expressed in Act No. 343 be applied to the general elections of judicial candidates in the Tenth Circuit, and that the legislature's disinclination to follow § 6.13 with a statute so stating should be interpreted as support for the view that such legislation is unnecessary, indeed, futile. Because I believe that § 6.13 as applied to Jefferson County requires the election of judges from the respective territorial division in which they serve, I respectfully dissent from the majority opinion's construction of § 6.13.
SHORES, J., concurs.