Alabama Advisory Opinions July 10, 2002: AGO 2002-284 (July 10, 2002)

AGO 2002-284.

Dear Judge Martin:

This opinion of the Attorney General is issued in response to your request.

If a candidate for Chilton County Superintendent of Education fails to properly qualify as a candidate for that office before the qualifying deadline, thereby leaving no candidates for that position in his party's June 4, 2002, primary, may his political party remove him as a candidate and then designate the same person as its nominee for the same position in the 2002 General Election under the provisions of section 17-16-41 of the Code of Alabama, as last amended?

The Attorney General concluded in an opinion to you dated May 10, 2002, that section 16-9-4 of the Code of Alabama requires a candidate for county superintendent of education to file with the probate judge, before the qualifying deadline, a certificate signed by the State Superintendent of Education that the candidate holds a certificate in administration and supervision. If the probate judge determines that the candidate did not meet the statutory requirements, the probate judge is prohibited from placing the candidate's name on the general election ballot. Opinion of the Attorney General to Honorable Robert M. Martin, Probate Judge, Chilton County, dated May 10, 2002, A.G. No. 2002-232 at 5.

The facts as set out in the May 10, 2002, opinion are as follows:

The deadline for qualifying for the office of county superintendent of education was at 5:00 p.m. on April 5, 2002. Your request states that only two candidates (one candidate in the Republican primary and one in the Democratic primary) filed qualifying statements to run for the office. One of the candidates did not file with his qualifying statement a certification from the State Superintendent of Education that he meets the requirements required by section 16-9-2 of the Code of Alabama. On April 11, 2002, after the qualifying deadline, the office of the State Superintendent of Education faxed a letter to the Chilton County Probate Judge's Office dated April 11, 2002, certifying that the candidate in question holds the certificate in administration and supervision as required by section 16-9-2 of the Code. Given the penalty provisions of section 16-9-4 of the Code, you ask whether that candidate's name should be printed on the ballot for the general election when the candidate did not timely file the certification from the State Superintendent.

Based on the facts presented, the candidate in question did not file the certificate from the State Superintendent of Education with the pro-bate judge before the deadline for qualifying for the nomination for the office of county superintendent of education (April 5, 2002). Accordingly, the probate judge is prohibited by section 16-9-4 from printing that candidate's name on the ballot for the general election. Id. at 4.

You stated in your most recent request:

When I received the May 10, 2002, opinion, I furnished a copy to both the affected candidate and the local chairman of his political party. I informed both that the opinion indicated the candidate could not have his name appear on the General Election ballot. Thereafter, in a letter dated May 20, 2002, I was officially notified by the local chairman of the candidate's political party that its Executive Committee had met and had taken action concerning the candidate. According to the letter, the Executive Committee voted to remove the candidate, who was unopposed in his party's primary scheduled for June 4, 2002, and to fill the resulting "vacancy" with the same person. The letter stated that the action was taken pursuant to section 17-16-41 of the Code of Alabama, as last amended.

Section 17-16-41 of the Code of Alabama reads:

The state executive committee, in cases where the office to be filled is not a county office, and the county executive committee, in cases where the office to be filled is a county office, but subject to the approval of and in accordance with the method prescribed by the state executive committee, where a vacancy may occur in any nomination , either by death, resignation, revocation or otherwise, or in case of any special election, shall have the power and authority to fill such vacancy, either by action of the committee itself or by such other method as such committee may see fit to pursue.

This Office concluded in a previous opinion that a political party may fill the vacancy by nominating the candidate for superintendent who previously failed to file with the probate judge the proper certificate of administration:

The Alabama Supreme Court has held that a political party may remove its candidate due to the candidate's failure to timely file a statement naming his principal campaign committee, thus creating a vacancy in its nomination which the party could fill. Megginson v. Turner , 565 So. 2d 247 (Ala. 1990). Applying this rationale to the present facts, the Republican Party could remove the candidate for her failure to file the required certificate of administration and supervision, thus creating a vacancy in the nomination. Since the candidate has now received a certificate and has filed it with the probate judge, the party may fill the vacancy by naming her as the nominee.

The first issue is whether a vacancy in nomination occurred. The Alabama Supreme Court has held that a vacancy can occur only if the candidate legally qualified for the office. Harris v. Weatherford , 459 So. 2d 876 (Ala. 1984); Foster v. Dickinson , 293 Ala. 298, 302 So. 2d 111 (1974); and Herndon v. Lee , 281 Ala. 61, 199 So. 2d 74 (1967). In Harris , the Court affirmed the trial court's holding based on the trial court's conclusion that the candidate did not properly file his qualifying papers with the appropriate party officials before the qualifying deadline as required by the statute; thus, he or she did not legally qualify as a candidate, and there was no vacancy for the party to fill. Harris at 880.

In Megginson v. Turner, 565 So. 2d 247 (Ala. 1990), the Alabama Supreme Court found that Megginson had properly qualified as a candidate by filing his qualifying papers with the proper party officials, but then failed to meet the five-day statutory deadline of filing with the Secretary of State a statement naming his principal campaign committee. The Court found that the facts in Harris were distinguishable from the facts involving Megginson because, unlike Megginson, Harris never filed qualifying papers with the proper party official. Id. The Court held that his failure to meet the five-day deadline required his removal as a candidate, thus creating a vacancy that the party could fill pursuant to section 17-16-41. Id. at 248. The Supreme Court of Alabama in Davis v. Reynolds , 592 So. 2d 546 (Ala. 1991), overruled the portion of its prior ruling in Megginson regarding the election forfeiture provision of the Fair Campaign Practices Act. Id. at 556. The Supreme Court, however, did not address or disturb its ruling in Megginson regarding the prerogative of a political party to fill a vacancy in the party slate of candidates by nominating, under section 17-16-41 of the Code of Alabama, an individual who was disqualified by failing to meet a deadline set by law, which created a vacancy in the nomination, but who later filed the required statement. Megginson at 248.

In this situation, the candidate in question filed his qualifying papers with the appropriate party officials; thus, he or she was qualified as a candidate. The candidate was also required to file with the probate judge, before the qualifying deadline, a certificate of administration and supervision. This filing is analogous to the required filing under the Fair Campaign Practices Act discussed in Megginson. The candidate in question did not file the certificate with the probate judge until after the deadline; accordingly, the candidate was disqualified, creating a vacancy in the nomination. Any previous opinions issued by this Office that indicate that the candidate was not properly qualified as a candidate due to a failure timely to file the certificate of administration and supervision with the probate judge are modified to the extent they conflict with this opinion and the opinion to Lamar Turner. See Opinions to Honorable Lamar Turner, Judge of Probate, Henry County, dated August 14, 1996, A.G. No. 96-00291; to Honorable Luke Cooley, Judge of Probate, Houston County, dated May 14, 1996, A.G. No. 96-00213; and to Honorable A. H. Collins, State Superintendent of Education, dated April 7, 1938.

The second issue is whether the party may fill the vacancy in nomination with the candidate who was disqualified for not timely filing the required certificate. This Office has determined that a political party cannot fill a vacancy in nomination with a candidate who was disqualified for failure to file a statement of economic interests pursuant to section 36-25-15 of the Code of Alabama or with a candidate who was disqualified pursuant to section 17-22A-21 of the Code for failure to file a statement of disclosure report required by the Fair Campaign Practices Act. Opinion of the Attorney General to Honorable Jim Bennett, Secretary of State, dated October 3, 2000, A.G. No. 2001-001. That opinion relied upon the holding in Davis v. Reynolds , 592 So. 2d 546 (Ala. 1991). The Alabama Supreme Court held that if a candidate failed to file, before the election, a statement required under the Fair Campaign Practices Act, the candidate's sanction was forfeiture of the election. Id. at 556. If a candidate filed the required statement before the election, but not within the five-day time limitation set forth in the statute, the candidate might be subject to the criminal penalties of the Fair Campaign Practices Act, but not forfeiture of the election. Id. The opinion to Secretary of State Bennett concerned failures to file two reports required by law rather than a failure timely to file a certification that one is qualified to run for county superintendent of education. The candidate in the present case, as in the opinion of the Attorney General to Honorable Lamar Turner previously discussed, filed the certification that he or she holds a certificate in administration and supervision shortly after the missed deadline. Thus, the party may fill the vacancy in nomination with that candidate who has now filed the certificate with the probate judge. CONCLUSION

A candidate for Chilton County Superintendent of Education, who failed timely to file the required certification with the probate judge before the qualifying deadline, was disqualified as a candidate; thus, there is a vacancy in nomination that can be filled by the party under section 17-16-41 of the Code of Alabama. The party may fill the vacancy with the candidate who was disqualified, if the candidate has filed the required certificate with the probate judge.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

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