Burkes v. Franklin

Appeal from Jefferson Circuit Court (CV-22-18)

WISE, Justice.

This appeal arises from a quo warranto action ("the present action") initiated by a February 4, 2022, complaint filed in the Jefferson Circuit Court by Frederick A. Burkes, Sr., on the relation of the State of Alabama, in which he alleged that James Franklin "has unlawfully usurped the public office of the constable for District 59 in Jefferson

County, Alabama." Franklin filed a motion to dismiss the present action, which the circuit court granted. We reverse and remand.

Facts and Procedural History

This is not the first time these parties have been before this Court. The following facts from this Court's decision in Burkes v. Franklin, [Ms. 1210044, July 15, 2022] __So. 3d__ (Ala. 2022), will be helpful to an understanding of this case:

"In March 2020, Burkes defeated Franklin, the incumbent in a primary election for the office of constable for District 59 in Jefferson County. Burkes was unopposed in the general election and was declared and certified as the winner of the election on Friday, November 13, 2020

"Thereafter, Franklin sent a letter to the Jefferson Probate Court informing the probate court that Burkes had not filed an official bond within 40 days of the declaration of Burkes's election to the office of constable. On January 8, 2021, the probate court sent a letter to Governor Kay Ivey stating, in relevant part:

"'Under Ala[.] Code [(1975),] § 11-2-3, the official bonds of all county officials (except for the bond of the judge of probate) are to be recorded in the office of judge of probate. This includes the official bonds of duly elected county Constables.

"'Alabama Code [(1975),] § 36-5-2 provides that "[i]n all cases, official bonds must be filed in the proper office within 40 days after the declaration of election ...." Alabama Code [(1975),] § 36-5-15 provides in turn that "[i]f any officer

required by law to give bond fails to file the same within the time fixed by law, he vacates his office. In such case, it is the duty of the officer in whose office such bond is required to be filed at once to certify such failure to the appointing power, and the vacancy be filled as in other cases." Finally, Ala[.] Code [(1975),] § 36-23-2 provides that "[v]acancies in the office of constable shall be filled by appointment of the Governor, and the person appointed shall hold office for the unexpired term until his successor is elected and qualified."

" '....

"'It is this office's understanding that by statute it is required to notify the Governor (as the "appointing power") of any duly elected Constable failing to file his or her bond within 40 days after election results are declared, as the office is then, by statute, vacated. Please consider this letter to be such declaration and certification with respect to Constable for District 59, Jefferson County, Alabama. This office takes no position with respect to any appointment to fill any vacancy; I would note, however, that Mr. Burkes, the duly elected Constable for District 59, ran unopposed in the November 2020 General Election.'

"The governor thereafter appointed Franklin to the office of constable for District 59.

"On April 22, 2021, Burkes, acting pro se, initiated this action, which he identified as a quo warranto action, in the circuit court. Burkes alleged in his complaint that he had been sworn into the office of constable on January 4, 2021, and that he had filed an official bond on December 31, 2020, which he contended was timely pursuant to § 36-23-4, Ala. Code 1975 ('Before entering upon the duties of his office, the

constable must give bond as prescribed by law.'). Burkes requested that Franklin be ordered to return 'all Constable paperwork back to the clerk's office and to cease and desist all actions concerning this office.'

"Also acting pro se, Franklin filed an 'answer' in which he also moved for a 'summary judgment.' In summary, Franklin asserted that Burkes had vacated the office of constable by failing to comply with the pertinent statutory procedure concerning the payment of official bonds. Franklin requested, among other things, that Burkes be ordered to cease and desist all activities concerning the office of constable and that Burkes's quo warranto action be 'dismissed with prejudice.' Franklin attached to his filing a copy of the probate court's letter to the governor and a copy of a February 26, 2021, letter from the governor to Franklin appointing Franklin to the office of constable.

"On August 19, 2021, the circuit court entered a judgment that provided, in relevant part:

"'This matter came on before the