Alabama Advisory Opinions March 07, 1997: AGO 1997-126 (March 7, 1997)

Alabama Attorney General Opinions

1997.

AGO 1997-126.

Dear Judge Mitchell:

This opinion is issued in response to your request for an opinion from the Attorney General.

QUESTIONS 1 AND 4

Should the local political parties in the future require candidates for constable provide proof of attendance and completion of the course of study required by Act No. 92-473 before they certify an individual to be placed on the ballot?

Can an individual be elected and then attend and complete the course of study required by Act No. 92-473 and then be sworn in as constable of Marshall County?

FACTS AND ANALYSIS

Act No. 92-473 provides:

"AN ACT "Relating to Marshall County; to require that all constables, elected or appointed in the county after the effective date of this act, shall have attended and completed a course of study at a police academy and shall be in full compliance with the minimum standards under the Peace Officers' Standards and Training Statutes, and to exempt any constable holding office in Marshall County on the effective date of this act from its provisions.

" Be It Enacted by the Legislature of Alabama :

" Section 1. This act shall apply only to Marshall County.

" Section 2. Each constable, elected or appointed after the effective date of this act, shall have attended and completed a course of study at a police academy and shall be in full compliance with the minimum standards under section 36-21-46, Code of Alabama 1975, of the Peace Officers' Standards and Training Statutes.

" Section 3. Constables holding office on the effective date of this act shall be exempt from its provisions.

" Section 4. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.

" Section 5. This act shall become effective on January 1, 1993." (Emphasis in original.)

Act No. 92-473, which applies only to Marshall County, requires that a constable elected or appointed after January 1, 1993, shall have attended and completed a course of study at a police academy and shall be in full compliance with the minimum standards under § 36-21-46, Code of Alabama 1975, of the Peace Officers' Standards and Training statutes. A person may be elected or appointed upon his completion of study and compliance with the minimum standards of the Act, but there is no authority under the Act to allow for the election or appointment of a person who has not completed his course of study or who is not in compliance with minimum standards, even if that person intends to become qualified at a later date. The provisions of Act No. 92-473 do not authorize the election or appointment of any person who has not completed his course of study or who is not in compliance with the Act.

Act No. 92-473 sets forth qualifications which are to be met as a prerequisite or a condition precedent to the election of any person as a constable in Marshall County. A person who has not met these statutory qualifications may not be elected or appointed to the position of constable in Marshall County. It follows that the name of an unqualified person may not be placed on the ballot for possible election. Indeed, Code of Alabama 1975, § 17-16-12 provides:

" § 17-16-12. Only qualified candidates to be listed on ballots .

"The name of no candidate shall be printed upon any official ballot used at any primary election unless such person is legally qualified to hold the office for which he is a candidate and unless he is eligible to vote in the primary election in which he seeks to be a candidate and possesses the political qualifications prescribed by the governing body of his political party. (Acts 1975, No. 1196, p. 2349, § 11.)"

See Attorney General's opinion to Judge W. Mack Price, dated March 21, 1991, A.G. No. 91-00202; Attorney General's opinion to Judge Lamar Turner, dated August 14, 1996, A.G. No. 96-00291; Attorney General's opinion to Judge Luke Cooley, dated May 14, 1996, A.G. No. 96-00213.

Political parties should not certify as candidates for political office persons who are unqualified for election. Attorney General's opinion to Judge Mike Bolin, dated April 12, 1996, A.G. No. 96-00183. In the opinion to Judge Bolin, the Attorney General wrote:

"The state and county executive committees certify the names of all primary election candidates to the Secretary of State and the Probate Judge, respectively. Code of Alabama 1975, § 17-16-11. Probate judges do not certify candidates. Their function is to prepare the ballots. See opinion to Honorable Billy C. Ford, Probate Judge, dated May 4, 1988, A.G. No. 88-00283. The state and county executive committees have the power to determine who shall be entitled and qualified to vote in primary elections or be candidates or otherwise participate therein, without interference from the courts, so long as the committees do not run afoul of some statutory or constitutional provision. Knight v. Gray , 420 So.2d 247 (Ala. 1982); Perloff v. Edington , 302 So.2d 92 (Ala. 1974). We note that parties have authority to hear pre-primary challenges to the legal qualifications of their candidates. Knight v. Gray , supra . As stated above, the law is clear that a person may not be a candidate for election on a primary ballot if that person is not a qualified elector. Political parties have a responsibility to ensure that no unqualified candidate is certified to be placed on the ballot. Code of Alabama 1975, § 17-16-12. Thus, each political party should exercise due diligence and caution to ensure that only legally qualified candidates are certified to be placed on the ballot."

In the exercise of due diligence and caution, local political parties should, in the future, require candidates for constable in Marshall County to provide proof of compliance with the requirements of Act No. 92-473.

CONCLUSION

The qualifications for constable of Marshall County set forth in Act No. 92-473 are mandatory prerequisites to election, and political parties should determine that a candidate for constable is in compliance with the Act prior to certification of the candidate.

QUESTION 2

If the answer to Question No. 1 is in the affirmative, should the Judge of Probate place the name of a candidate that has not attended and completed the course of study on the ballot in future elections?

FACTS AND ANALYSIS

With respect to placing the candidate's name on the ballot for the primary election, we note that Code of Alabama 1975, § 17-16-12, as previously cited, is applicable. Political party county executive committees certify the names of all primary election candidates to the Probate Judge. Code of Alabama 1975, § 17-16-11. If there is a question as to the qualifications of a candidate in the primary election, the state and county executive committees have the power to hear pre-primary challenges to the legal qualifications of its candidates. Knight v. Gray , 420 So.2d 247 (Ala. 1982). The courts will not consider challenges to the legal qualifications of primary candidates until all remedies available through the political parties have been exhausted. Dunning v. Reynolds , 570 So.2d 668 (Ala. 1990). The probate judge, as the ballot-certifying official, must prepare the ballot based upon the names certified to him by the parties and does not have the authority to determine the legal qualifications of the candidates so certified.

Code of Alabama 1975, § 17-7-1, is applicable to the names of persons who may be placed on the ballot for the general election. This section states:

"(a) The following persons shall be entitled to have their name printed on the appropriate ballot for the general election, provided they are otherwise qualified for the office they seek :

(1) All candidates who have been put in nomination by primary election. . . ." (Emphasis added.)

The Supreme Court of Alabama stated in Kinney v. House , 243 Ala. 393 (1942):

"The [election official] need not proceed blindly in printing the ballots and if it plainly appears to him, even as a ministerial officer, that the nominations were contrary to the mandatory provisions of the statute, we think he had the right to decline to print the names on the ballot and leave the matter for the courts." Id . at 395.

However, as the Attorney General wrote in the opinion to Mr. Melvin C. Cooper, Executive Director, State Ethics Commission, dated August 15, 1988, A.G. No. 88-00424, a decision to decline to print or to remove a candidate's name on the ballot is a serious matter and should not be entered into lightly. Under the express provisions of Code of Alabama 1975, Section 17-7-4 any person who suppresses any nomination which has been duly filed is guilty of a felony and, on conviction, must be imprisoned in the penitentiary not less than one nor more than five years. If there is any doubt whatsoever in the mind of the ballot-certifying official, after investigation, the best policy is to err on the side of a person's right to run and the peoples' right to decide.

If the probate judge determines that a candidate's name should not be printed on the ballot, a mandamus action may be brought to compel the probate judge to print the candidate's name on the ballot. Dunn v. Dean , 196 Ala. 486, 71 So. 2d 709 (1916). In addition, if the probate judge decides to print a candidate's name on the ballot, another candidate, a taxpayer, voter or resident may have standing to file an action in circuit court to challenge the candidate's right to be placed on the ballot. Jones v. Phillips , 279 Ala. 354 (1966).

Thus, with respect to the general election ballot, it is the ballot-certifying official and ultimately a court of competent jurisdiction which have the authority to determine which names are to be included on the ballot. Bostwick v. Harris , 421 So.2d 492 (Ala. 1982); Kinney v. House , 243 Ala. 393, 10 So.2d 167 (Ala. 1942); Opinion of the Attorney General to Mr. Melvin C. Cooper, Executive Director, State Ethics Commission, dated March 2, 1989, A.G. No. 89-00206; Attorney General's opinion to Judge Alfonza Menefee, dated October 16, 1996, A.G. No. 97-00014.

CONCLUSION

The probate judge should place the name of a candidate on the primary ballot if certified to him by the political party. The probate judge and ultimately the courts make the final determination as to the names of candidates to be printed on the general election ballot.

QUESTION 3

Should the judge of probate, or any other person authorized to administer oaths of office, administer the Oath of Office of constable to an individual that has not attended and completed the course of study required by Act No. 92-473?

FACTS AND ANALYSIS

From the facts and questions raised in the request for an opinion, it appears that it was discovered after the election for the office of constable that the candidate who won the election had not met the requirements for election in Marshall County under the local act and that he is, therefore, unqualified to serve in the position to which he was elected. It further appears that the person elected has not been sworn in.

Probate judges have the authority to administer oaths pursuant to Code of Alabama 1975, § 12-13-40, which states:

"The probate judge shall have authority:

"(1) To administer oaths and take and certify the same in all cases in which administering such oath and taking such affidavit is not confined expressly to some other office. . . ."

There is no specific authority which requires a constable to take an oath of office, however, a constable is required to give a bond before entering the duties of his office. Code of Alabama 1975, § 36-23-4. This office held in a prior opinion that the county commission is the proper authority to approve the bond of a constable.

Opinion to Honorable Michael F. Bolin, Probate Judge, dated November 5, 1996, A.G. No. 97-00033.

If it appears to the parties involved that the person elected to the position of constable is unqualified and, therefore, not eligible to hold office, the probate judge or other official authorized to administer oaths is not required to administer the oath to the person in question. If there is a dispute between the parties, and the person elected constable believes he was qualified for election and should serve, he may petition the circuit court for an order of mandamus directing the probate judge to administer the oath of office. If the person elected has assumed the office and refuses to vacate the office and maintains his qualification for service, a quo warranto proceeding may be brought in circuit court by parties who believe the constable unqualified to hold office for a judge's determination of the issues. Code of Alabama 1975, § 6-6-591; Attorney General's opinion to Judge Mack Price, dated March 21, 1991, A.G. No. 91-00202.

Therefore, the probate judge need not administer the oath at this point, but if court proceedings are filed after the issuance of this opinion, the judge should comply with the court's directives immediately.

CONCLUSION

The probate judge is not required to administer an oath of office to an individual who has not met the qualifications mandated for constable under Act No. 92-473 and who is, therefore, not qualified for the office.

I hope this sufficiently answers your questions. If our office can be of further assistance, please contact Jane LeCroy Brannan of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

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