Alabama Advisory Opinions May 07, 2003: AGO 2003-142 (May 7, 2003)

AGO 2003-142.

Dear Judge Davis:

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

1. Can the probate court assess, as a part of costs in an annexation election, legal fees incurred by the court to determine if all of the legal requirements have been met in order to proceed with the requested annexation election?

2. Can the probate court assess, as a part of costs in an incorporation election, legal fees incurred by the court to determine if the incorporation election petitioners have met all legal requirements in order to proceed with the requested incorporation election?

Annexations by election are provided for generally in section 11-42-1, et seq ., of the Code of Alabama, and annexations by elections in cities of 25,000 or more are provided for in section 11-42-40, et seq ., of the Code. Sections 11-42-2(5) and 11-42-48 provide that general election laws are to be applied in these elections.

Ala. Code §§ 11-42-2(5) and 11-42-48 (1989). Sections 11-42-2(8) and 11-42-53 state that the "city or town at whose instance the election is held shall pay all costs and expenses incident to the election."

Ala. Code §§ 11-42-2(8), 11-42-53 (1989).

Pursuant to section 11-41-1, et seq ., of the Code of Alabama, new municipalities may be incorporated upon application by petitioners to the probate judge.

Ala. Code § 11-41-1, et seq . (1989, Supp. 2002). Upon a determination that the petitioners have complied with the legal requirements of section 11-41-1, the probate judge orders an election to be held within the limits of the proposed municipality.

Ala. Code § 11-41-2 (1989). If the voters vote in favor of incorporation, the probate judge orders an election to elect a mayor and council members for the newly incorporated city.

Ala. Code § 11-41-5 (1989). The costs of both of these elections are paid pursuant to section 11-41-6 of the Code of Alabama, which states that "[t]he costs of all the aforesaid proceedings shall be paid by the town or city; but, if no judgment is entered establishing the town or city, they shall be paid by the petitioners."

Ala. Code § 11-41-6 (1989).

This Office has not addressed whether the legal expenses incurred in connection with an annexation or incorporation election are costs and expenses that may be assessed by the probate court pursuant to the above-referenced statutes. This Office has previously held, pursuant to the annexation election provisions, the city or town at whose instance the annexation election is held must pay the probate judge for preparing the voters list for the annexation election. Opinion to Honorable Luke Cooley, Judge of Probate, Houston County, dated March 6, 1997, A.G. No. 97-00124. That opinion also held that the cost of preparing the voters list for an incorporation election is a cost or expense that must be paid by the city or town if the incorporation is favorable or by the petitioners if the incorporation is not favorable. Id . at 3.

Your request provides that Mobile County provides legal counsel to the probate court on a retained basis. When needed, the legal counsel submits statements for services to your office, which are paid through Mobile County. Your request also states that, with respect to annexation elections, you have had legal questions arise concerning whether the territory proposed to be annexed met the legal requirements for annexation, and your legal counsel would review these issues and submit a bill for services rendered in connection with this review. Similar issues have arisen with respect to incorporation petitions concerning whether the petitions and accompanying materials complied with Alabama law. You ask whether these legal fees incurred by the probate court may be included in the costs assessed to the city that requested annexation and to the petitioners who sought incorporation.

The probate court is required to determine whether the petitions calling for annexation and incorporation comply with the legal requirements of Alabama law before an election is called.

Ala. Code §§ 11-41-2 and 11-42-2 (1989). A probate judge, pursuant to section 11-41-1, exercises judicial action. Reagan v. Rhodes , 264 Ala. 39, 44, 84 So. 2d 647, 652 (1956). Accordingly, the probate court may conduct a hearing and ask the parties to brief the court on any legal issues presented. In addition, the rules of evidence, as far as are appropriate, are applicable to the probate court.

Ala. Code § 11-13-12 (1995); A. R. Evid. 1101. Rule 706 of the Rules of Evidence allows the court, on its own motion, to appoint expert witnesses who may be compensated by the parties upon order of the court. A. R. Evid. 706. While the probate court may seek its own legal advice before calling for an election, any attorney's fees incurred to educate the court are not costs of the election that should be passed on to the petitioners or the city. This Office has similarly held that the cost for an attorney's time in reviewing potentially confidential documents may not be recouped as a part of the costs incurred in providing public documents. Opinion to Honorable Tim Parker, Jr., Member, House of Representatives, dated June 12, 1998, A.G. No. 98-00161.

The probate court may not assess, as a part of the costs of an annexation election or an incorporation election, the legal fees incurred by the court to determine whether the legal requirements have been met to proceed with the requested election, unless the fees are incurred for an expert witness appointed by the court.

I hope this opinion answers your questions. 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

BP/BFS

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