Veitch v. Friday

314 So.3d 1232

William G. VEITCH

v.Sherri C. FRIDAY, Acting Chief Election Official of Jefferson County

1180152

Supreme Court of Alabama.

June 30, 2020

Sherri Lee Mazur of The Mazur Law Firm, LLC, Montgomery, for appellant.

T.A. Lawson II, county atty., Shawnna H. Smith, deputy county atty., and Donald McKinley Carroll and French A. McMillan, asst. county attys., Jefferson County Attorney's Office, Birmingham, for appellee.

MITCHELL, Justice.

William G. Veitch was a Republican candidate in 2018 for District Attorney of the 10th Judicial Circuit ("Jefferson County D.A.") and a resident of the area of Jefferson County known as the Bessemer Cutoff. When he went to cast his vote in the Republican primary, he was not able to vote for the very office for which he was running. In fact, none of his neighbors in the Bessemer Cutoff were. Because of a local law enacted in 1953, residents of the Bessemer Cutoff do not participate in primary elections for Jefferson County D.A. Veitch challenged that law before the 2018 primary, and he continues to maintain that it violates the United States Constitution. The trial court entered a judgment against him. We reverse that judgment.

Facts and Procedural History

Jefferson County constitutes the 10th Judicial Circuit, which consists of two divisions -- the Birmingham Division, anchored by the civil and criminal courthouses in Birmingham, and the Bessemer Division, anchored by the courthouse in Bessemer. The portion of Jefferson County covered by the jurisdiction of the Bessemer Division is often referred to as the Bessemer Cutoff. Each division has its own set of officers, including district attorneys. So in addition to the Jefferson County D.A., who sits in the Birmingham Division, there is an elected Deputy District Attorney of the Tenth Judicial Circuit, Bessemer Division ("Bessemer Division D.A."). The Bessemer Division D.A. is variously referred to in the Alabama Code as a "Deputy District Attorney," § 45-37-82, Ala. Code 1975, or an "elected assistant district attorney," § 45-37-82.01, Ala. Code 1975.

Voters in the Bessemer Cutoff vote for both the Bessemer Division D.A. and the Jefferson County D.A. in the general election. But, as provided by a local law enacted in 1953, those voters are not permitted to vote for the Jefferson County D.A. (referred to in 1953 as the "circuit solicitor") in the primary election:

"Section 1: That candidates in primary elections for nomination for Circuit Solicitor of the Tenth Judicial Circuit of Alabama 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 Circuit Solicitor 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."

Act No. 138, Ala. Acts 1953 ("Act No. 138").

In 2018, Veitch ran for Jefferson County D.A. as a Republican. He was a resident of the Bessemer Cutoff, and he had previously served as the Bessemer Division D.A. Because of Act No. 138, voters in the Bessemer Cutoff, including Veitch's former constituents and Veitch himself, could not vote for him (or anyone else running for Jefferson County D.A.) in the 2018 primary election.

On April 13, 2018, Veitch filed a petition in the Jefferson Circuit Court asking for a judgment declaring Act No. 138 unconstitutional and for a writ of mandamus directing the Jefferson County probate judge to include the candidates for Jefferson County D.A. on primary ballots in the Bessemer Cutoff.¹ On April 20, 2018, the trial court dismissed Veitch's action for lack of subject-matter jurisdiction and, alternatively, based on the doctrine of laches. On June 1, 2018, four days before the primary, this Court reversed the trial court's judgment and remanded the case for further proceedings. Veitch v. Vowell, 266 So. 3d 678 (Ala. 2018).

On June 5, 2018, Mike Anderton defeated Veitch in the Republican primary for Jefferson County D.A. No voters in the Bessemer Cutoff were permitted to cast ballots in that race.

On remand, which took place after the primary, the trial court considered Veitch's arguments on the merits and, on September 28, 2018, once again dismissed the case. It concluded that Act No. 138 was not unconstitutional because it was rationally related to the division of power between the Birmingham Division and the Bessemer Division of Jefferson County, which the trial court considered to be a legitimate legislative goal. Veitch appealed.

Following Veitch's appeal and the conclusion of the general election, in which no Republican candidate for any county-wide office in Jefferson County was elected, the election official, on December 5, 2018, filed with this Court a motion to dismiss the appeal as moot.

Standard of Review

Veitch argues that Act No. 138 is unconstitutional. We review constitutional challenges to legislative enactments de novo. State ex rel. King v. Morton, 955 So. 2d 1012, 1017 (Ala. 2006) (citing Richards v. Izzi, 819 So. 2d 25, 29 n.3 (Ala. 2001) ).

Analysis

As a preliminary matter, and in light of the election official's pending motion to dismiss this appeal, we first consider the election official's argument that Veitch's appeal has been mooted by the conclusion of the 2018 primary and general elections. After concluding that the appeal is not moot, we consider the merits, which requires us to answer two questions: Does the Jefferson County D.A. have power in the Bessemer Cutoff, and, if so, does Act No. 138 pass constitutional muster?

A. Veitch's Appeal Is Not Moot

Mootness is a jurisdictional issue -- this Court cannot consider a moot case. Swindle v. Remington, 291 So. 3d 439, 453 (Ala. 2019). " ‘A moot case or question is a case or question in or on which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned.’ " Case v. Alabama State Bar, 939 So. 2d 881, 884 (Ala. 2006) (quoting American Fed'n of State, Cty. & Mun. Emps. v. Dawkins, 268 Ala. 13, 18, 104 So. 2d 827, 830–31 (1958) ). Under general principles of mootness, we might be compelled to dismiss Veitch's appeal; but different principles apply in cases involving elections.

Alabama law recognizes an exception to the mootness doctrine for questions capable of repetition but evading review:

"The capable-of-repetition-but-evading-review exception has been applied in contexts that generally involve a significant issue that cannot be addressed by a reviewing court because of some intervening factual circumstance, most often that the issue will be resolved by the passage of a relatively brief period of time. See, e.g., ... Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493, 23 L.Ed.2d 1 (1969) (involving challenges to election procedures after the completion of the election); and [ State ex rel.] Kernells [v. Ezell, 291 Ala. 440, 282 So. 2d 266 (1973) ] (same)."

McCoo v. State, 921 So. 2d 450, 458 (Ala. 2005). As the citations in McCoo illustrate, an election-law challenge is a classic example of a question capable of repetition but evading review.

This Court has applied the capable-of-repetition-but-evading-review exception to consider challenges to laws that will impact future elections. See Griggs v. Bennett, 710 So. 2d 411, 412 n.4 (Ala. 1998) ("We note that under the principles enunciated in Moore v. Ogilvie, 394 U.S. 814, 816, 89 S. Ct. 1493, 1494-95, 23 L.Ed.2d 1 (1969), the interpretation of § 6.14 of Amendment 328 [now § 153, Ala. Const. 1901 (Off. Recomp.)] for this case is not moot, because the interpretation could impact future elections."). Because Act No. 138 will operate the same way in future primary elections for the office of Jefferson County D.A., the capable-of-repetition-but-evading-review exception to the mootness doctrine permits us to consider the merits of Veitch's appeal.

B. Addressing Veitch's Challenge to Act No. 138 on the Merits

1. The Jefferson County D.A. Has Authority in the Bessemer Cutoff

We now consider Veitch's challenge to Act No. 138 on the merits. We begin by examining the Jefferson County D.A.'s statutory power within the Bessemer Cutoff. Veitch's claim that Act No. 138 unconstitutionally disenfranchises voters in the Bessemer Cutoff proceeds from the premise that those voters have a protected interest in voting for Jefferson County D.A. Veitch argues that, because the Jefferson County D.A. exercises power over residents of the Bessemer Cutoff, those residents must be allowed to vote for that office in both the primary and the general elections. The election official counters that the Bessemer Cutoff is within the exclusive jurisdiction of the Bessemer Division D.A., that the Jefferson County D.A. has no power in the Bessemer Cutoff, and that voters in the Bessemer Cutoff therefore have no constitutional interest in voting for Jefferson County D.A.

The position that was the forerunner to the modern Bessemer Division D.A., called the "deputy solicitor," was created in 1915. See Act No. 490, Ala. Acts 1915; Act No. 720, Ala. Acts 1915. The legislature made it clear in 1915 that the new deputy solicitor would not exercise power within the Bessemer Cutoff to the exclusion of the circuit solicitor (now the Jefferson County D.A.):

"[The deputy solicitor] shall, in the absence of the circuit solicitor, discharge the same duties and exercise the same authority within the territory from which he is elected as if he were solicitor; ... and [he] shall be under the supervision of the circuit solicitor of such circuit ...."

Act No. 720, § 1 (emphasis added). The position and powers of the deputy solicitor were eventually codified as follows:

"[T]here shall be elected by the qualified voters of the Bessemer division of

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