Alabama Advisory Opinions March 03, 1989: AGO 89-00208 (March 03, 1989)

Advisory Opinion Text

Honorable L. W. Noonan

Probate Judge

Probate Court of Mobile County

P. O. Box 7

Mobile, AL 36601

Probate Judges - Elections -Candidates - Corrupt Practices Act

Discussion of the duties of the probate judge with respect to §§ 21 and 22 of Act No. 88-873, the Pair Campaign Practices Act.

Dear Judge Noonan:

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

QUESTION

If it clearly appears from the records of the judge of probate that a local elected official, candidate or a person nominated to local office has failed or refused to file any required report mandated by Act No. 88-873, what action, if any, should be taken by the judge of probate? If the judge of probate has some duty and responsibility where a local elected official, candidate or a person nominated to local office has failed or refused to file such required reports, please discuss fully said duties and responsibilities and any procedures or guidelines which should be followed in this regard.

FACTS AND ANALYSIS

Act No. 88-873, 1988 First Special Session, approved September 27, 1988, is known as the Fair Campaign Practices Act. This Act repealed all of the provisions of Chapter 22 of Title 17 of the Code of Alabama 1975, which was referred to as the corrupt Practices Act.

The Fair campaign Practices Act requires numerous reports and statements to be filed by candidates, campaign committees and political committees with the Secretary of State or the Judge of Probate, depending upon which office is involved.

Your request specifically refers to Sections 21 and 22 of Act No. 88-873.

Section 21 states:

"A certificate of election or nomination shall not be issued to any person r elected or nominated to state or local office who shall fail to file any statement or report required by this act. A certificate of election or nomination already issued to any person elected or nominated to state or county office who fails to file any statement or report required by this act shall be revoked."

With respect to primary elections for county offices, fifty-five (55) days prior to the primary election each county party chairman must certify the names of all the candidates for county office to the probate judge. Code of Alabama 1975, § 17-16-11. Thus, at that time the probate judge knows the names of the candidates that are required to comply with the Act. However, declarations of nomination are issued by party officials, not the probate judge. Code of Alabama 1975, § 17-16-35. Since the probate judge does not issue declarations of nomination he has no duty to prevent a declaration of nomination from being issued. That duty rests with the party officials who issue the declarations of nomination. Those officials should inspect the probate judge's records to determine if a candidate has complied with the Act before issuing a declaration of nomination for that candidate.

After a declaration of nomination is issued, it is filed with the probate judge in order for the parties' candidates to be included on the ballot for the general election. Code of Alabama 1975, § 17-7-1. If the probate judge clearly determines from his records, after a declaration of nomination has been filed in his office, that the candidate nominated has failed to comply with the Act, he has a duty to inform the party officials who issued the declaration of nomination of that fact. The duty then rests with the party officials and, ultimately, the courts to revoke the declaration of nomination.

With respect to general elections for county offices, the names of all the candidates for county office, whether from primary elections or independent candidates, are filed with the probate judge in order to be put on the ballot. Code of Alabama 1975, § 17-7-1. Therefore, the probate judge knows which persons have a duty to comply with the Act. However, Code of Alabama 1975, § 17-14-2, provides that the board of supervisors, not the probate judge, shall make in writing a public declaration of the election results, stating the name of the officer elected and the name of the office to which he was elected. The original certificate must be filed with the probate judge. The board of supervisors consists of the sheriff, the clerk of the circuit court and the probate judge.

As a member of the board of supervisors, the probate judge, as well as the other members of the board of supervisors, has a duty to inspect the records in the probate judge's office to determine if a candidate has complied with the Act. If it clearly appears from the probate judge's records that a candidate has failed to comply with the Act, the board of supervisors should not issue a certificate of election for that candidate.

We note that since the probate judge alone does not issue certificates of election, there is no duty on the probate judge acting in his official capacity as probate judge to prevent a certificate of election from being issued.

If a certificate of election is issued and filed in the probate judge's office and the probate judge then clearly determines from his records that the candidate certified has not complied with the Act, the probate judge has a duty to inform the other members of the board of supervisors. The duty then rests with the board of supervisors and, ultimately, the courts to revoke the certificate of election.

In municipal elections statements of candidacy are filed with the mayor of the municipality. The probate judge does not officially know who the municipal candidates are. A certificate of election is issued by the municipal governing body to the person who receives a majority of the votes, code of Alabama 1975, § 11-46-55. A copy of each certificate of election is filed with the probate judge. Since the probate judge does not issue certificates of election for municipal elections there is no duty on the probate judge to prevent a — certificates of election from being issued. The municipal governing body which issues the certificates of election has a duty to inspect the probate judge's records to determine if a candidate has failed to comply with the Act before it issues a certificate of election for that candidate. If, after a certificate of election has been issued and filed with the probate judge, the probate judge clearly determines from his records that the candidate certified has failed to comply with the Act, he has a duty to inform the municipal governing body which issued the certificate of election of that fact. The duty to revoke the certificate of election then rests with the { municipal governing body and, ultimately, the courts.

Section 22 of the Act states:

"(1) A person who violates any provision of this act other than a reporting requirement under Sections 4, 5 and 8 is guilty of a Class A misdemeanor and subject to a fine of not more than $2,000, or imprisonment of not more than one year, or both such fine and imprisonment.

"(2) A person who violates any reporting requirement of Sections 4, 5 and 8 is guilty of a Class B misdemeanor, and subject to a fine of $1,000 or an amount not to exceed double the amount or value of the contributions or expenditures not reported, whichever is greater, or imprisonment of not more than six months, or both such fine and imprisonment; provided, however, that this subsection shall not apply to contributions received or to expenditures made before the effective date of this act.

"(3) The Attorney General may prosecute for violations of this act. Venue for cases involving violations of this act shall be in the county in which the alleged violator resides. No prosecution for violation of this act shall be commenced later than two years after the date of violation."

Although the Attorney General may prosecute for violations of this Act, there is no prohibition against the local district attorney prosecuting violations of the Act.

Therefore, if a probate judge clearly determines from his records that any candidate has failed to comply with the requirements of the Act, he has a duty to notify the local district attorney and the Attorney General of any information he has concerning noncompliance.

We note that the probate judge acting in his official r capacity has no special duty under the Act to report violations of the Act, but that he has a general duty to report violations as do other citizens who have information concerning violations of the Act. Nevertheless, the probate judge will usually be in a better position than other citizens to obtain information concerning violations of the Act.

CONCLUSION

With respect to primary and general elections for county offices and municipal elections, after a certificate of election or nomination has been issued and filed with the probate judge, if it clearly appears from the records of the probate judge that the candidate elected or nominated has failed to comply with Act no. 88-873, the probate judge has a duty to inform the officials who issued the certificate of election or nomination of that fact. We also note, with respect to general elections for county offices, that before the board of supervisors issues a certificate of election for a candidate, the probate judge acting as a member of the board of supervisors has a duty to inspect the records of the probate judge's office to determine if the candidate has failed to comply with Act No. 88-873.

Furthermore, if a probate judge clearly determines from his records that any candidate has failed to comply with Act No. 88-873 he has a general duty, as do other citizens with similar information, to notify the local district attorney and the Attorney General.

It should also be noted that Act No. 88-873 has been submitted for preclearance to the Justice Department under Section 5 of the Voting Rights Act; however, as of this date, it has not been precleared.

I hope this sufficiently answers your question. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

DON SIEGELMAN, Attorney General.

BRENDA FLOWERS, Assistant Attorney General