Alabama Advisory Opinions January 04, 1999: AGO 1999-066 (January 4, 1999)

AGO 1999-066.

Dear Senator Marsh:

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

Do certified Senators whose elections have been contested have the right to participate and vote in the upcoming organizational session, as well as in any regular or special sessions that follow until the outcome of the contests have been decided?

Your request states that you were elected on November 3, 1998, to represent District 12 in the Alabama Senate, and your election was certified by the Secretary of State. In the weeks following the certification, a group of individuals filed a contest to your election.

Members of the Senate are elected pursuant to section 46 of the Alabama Constitution, which provides that the term of office shall begin "on the day after the general election at which they are elected." ALA. CONST. art. IV, § 46. The Secretary of State is required to furnish certificates of election to the members of the Legislature within 10 days of receiving the election returns from the probate judge of each county. ALA. CODE § 17-14-24 (1995).

Pursuant to Amendment No. 57 of the Alabama Constitution, the members of the Legislature judge the election returns and qualifications of the members of the Legislature. ALA. CONST. amend. 57. The Code of Alabama provides that election contests must be filed within 20 days after the results of the election have been declared. ALA. CODE § 17-15-22 (1995). The contest of a Senate election must be filed in the circuit clerk's office in any county in the senate district. ALA. CODE § 17-15-23 (1995). Testimony in the contest must be taken pursuant to the procedure set forth in section 17-15-24 of the Code of Alabama. ALA. CODE § 17-15-24 (1995). The testimony, which generally consists of depositions, must be submitted to the Senate. ALA. CODE § 17-15-25 (1995). The presiding officer of the Senate must open the testimony and present it to the Senate for whatever +action the Senate deems proper. ALA. CODE § 17-15-26 (1995). Nothing in the Alabama Constitution, the election contest provisions, or any other statutory provision prohibits a Senator from taking office while an election contest is pending.

The rights being challenged in an election contest are similar to the rights challenged in a quo warranto proceeding that tests whether a person is properly holding office. ALA. CODE § 6-6-591 (1993). While the quo warranto action is pending, the public official continues to execute the duties of the office.

Actions taken by a member of the Senate whose election is the subject of a contest are valid pursuant to the authority in section 36-1-2 of the Code of Alabama:

The official acts of any person in possession of a public office and exercising the functions thereof shall be valid and binding as official acts in regard to all persons interested or affected thereby, whether such person is lawfully entitled to hold office or not and whether such person is lawfully qualified or not, but such person shall be liable to all penalties imposed by law for usurping or unlawfully holding office or for exercising the functions thereof without lawful right or without being qualified according to law.

Although a person elected and duly certified as a Senator is not prohibited by law from executing the duties of the office, any decision to oust a Senator is reserved exclusively to the Senate. In a question presented to the Alabama Supreme Court concerning the authority of the Senate to remove a Senator from office, five of the six Justices, responding but declining to opine, concurred in the proposition that:

It cannot be gainsaid that each house of the Legislature is the sole ultimate judge of the right of a person to a seat therein.

Based upon the foregoing, it is the opinion of this Office that there is no constitutional or statutory provision that would prohibit a person elected to the Senate on November 3, 1998, who has been issued a certificate of election and who has taken the oath of office, from participating and voting in any session of the Legislature, organizational, regular or special; but it ultimately is for the Senate to determine for itself whether the person is entitled to a seat.

A Senator whose election has been contested but who has been issued a certificate of election and who has taken the oath of office is not prohibited by any constitutional or statutory provision from participating in any session of the Legislature, but it ultimately is for the Senate to determine for itself whether the person is entitled to a seat.

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

BP/BFS

1368-002/1274v.4/f