Alabama Advisory Opinions December 03, 1999: AGO 2000-038 (December 3, 1999)

AGO 2000-038.

Dear Judge Smith:

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

QUESTIONS 1 and 2

1. May a petitioner's name be removed from a petition after it has been filed in this office, and especially after the petition has been ruled valid and an election date set?

2. If the answer to the above question is yes, is the removal of that signature fatal to the validity of the petition if such removal would reduce the number of registered voters for a particular quarter-quarter section to less than the required statutory minimum of four?

The following factual information was presented in your request:

A petition (with map, legal description, and signatures attached) was filed in this office on August 25, 1999, by a group of citizens in an unincorporated area of Lee County known as Smiths Station requesting that we conduct an incorporation election. After verifying that the petition met the requirements set forth in section 11-41-1 of the Code of Alabama, I entered an order setting an election for September 21, 1999. Subsequently, information came to our attention that portions of 3 out of the total of 105 quarter-quarter sections proposed to be incorporated had previously been annexed by the City of Phenix City. Accordingly, on September 10, I issued an order canceling that election and returned the petition to the petitioners.

On November 10, a petition was again submitted that was substantially the same as the previous filing, except that it excluded the three problem areas previously identified and also added two other quarter-quarter sections. (It also had a new map, legal description, and corresponding signatures.) Although not required to do so by the Code, I then set a hearing for November 15 on the validity of the petition. At that hearing, one of the petitioners spoke in support of the petition's validity and one of the opponents spoke against it. Additionally, one of my staff members addressed some of the statutory requirements. I entered an order at that hearing finding the petition valid and setting an election date of December 7, 1999. It has been advertised as required by law.

In the days following that hearing, six or seven voters called my office requesting to have their names removed from the petition. I am of the opinion that names may not be removed from such petition after it has been filed and so no action was taken on those requests, but none of these names appeared to have affected the validity of the petition in terms of reducing the number of registered voters on any given quarter-quarter section below the statutory minimum of four per quarter-quarter section.

On-site absentee voting was held in the Smiths Station community as prescribed by law on Saturday, November 27, 1999.

Yesterday, Monday, November 29, a man called requesting to have his name and his son's name removed from the petition and stating that he was also sending copies of their requests in writing. He stated that their reason was that the incorporation attempt had changed since the time that they had signed it over two years previously. The caller's signature on the petition was dated April 1997. Our staff identified his son as one of only four voters residing on his particular quarter-quarter section, and that removal of that signature could potentially invalidate the petition.

In addition, the same caller stated that two of the other persons who had signed the petition as registered voters in the same quarter-quarter section rented from him and had, in fact, moved away in the summer of 1998. Their signatures on the petition were dated December 1997. At the time that we verified the petition this month, those two persons were (and are still) shown as registered voters with an address in the quarter-quarter section in question.

The law governing the incorporation of a municipality is set forth in sections 11-41-1 through 11-41-28 of the Code of Alabama. ALA. CODE §§ 11-41-1 to 11-41-28 (1989, Supp. 1999). Section 11-41-1 requires "a petition in writing signed by not less than 15 percent of the qualified electors residing within the limits of the proposed municipality" to be filed with the probate judge of the county in which the territory is located. ALA. CODE § 11-41-1 (Supp. 1999).

This Office has previously held that a petitioner, absent fraud, may not remove his name from an incorporation petition after the petition has been filed with the probate judge. Opinion to Honorable William B. Duncan, Judge of Probate, Lauderdale County, dated August 14, 1981, A.G. No. 81-00512.

A person may not remove his name from an incorporation petition after the petition has been submitted to the probate judge. Given this answer to Question 1, an answer to Question 2 is unnecessary.

QUESTION 3

Does the subsequently received information concerning the move of two essential signatories to the petition invalidate the petition even though the voter registration records still reflect the address as reflected in the petition?

Section 11-41-1 states in pertinent part:

No platted or unplatted territory shall be included within the boundary unless there are at least four qualified electors, according to government survey, residing on each quarter of each quarter section or part thereof of the platted or unplatted land, who assent thereto in writing by signing the petition, together with the consent of the persons, firms, or corporations owning at least 60 percent of the acreage of the platted or unplatted lands, the consent to be signified by their signing the petition. Proof of residence and qualifications as electors of petitioners and of persons affected shall be made to the judge of probate by affidavit or otherwise, as he or she may direct.

This Office has previously held that the persons presenting the petition must be assured, at some point in time, that the petition complies with the requirements of the law because insufficiencies in the petition cannot be corrected after submission. Opinion to Honorable William B. Duncan, Judge of Probate, Lauderdale County, dated August 14, 1981, A.G. No. 81-00512 and Meeks v. Town of Hoover, 286 Ala. 373, 240 So. 2d 125 (1970). The probate judge makes the ultimate determination of the sufficiency of the petition. Hill v. Town of Douglas , 359 So. 2d 374 (Ala. 1978).

You have informed this Office that you verified that the petitioners were qualified electors by comparing the signatures and addresses on the petition with the list of registered voters. At that time and as of the date of this request, the two petitioners in question were registered voters (qualified electors) at the address provided in the petition. It is the duty of the voter to notify the Board of Registrars of changes with respect to the voter's residence. See ALA. CODE § 17-4-125 (1995). The fact that the petitioners in question signed the petition approximately two years before the petition was filed is immaterial. There is no statutory period of time in which the signatures on the petition must be obtained.

You also conducted a hearing to consider the validity of the petition in which you gave any opponents the opportunity to present evidence against the petition. No evidence was presented at that time with respect to the two petitioners in question, and you state that you had no reason to believe that the two petitioners were not qualified electors residing on the property to be incorporated. A hearing is not required by the Code of Alabama, and the hearing was not held for the apparent purpose of verifying signatures and addresses of petitioners. At the end of that hearing, you made a determination that the petition was valid and set a date for the election. It is the opinion of this Office that there must be a cut-off point to consider new evidence or to question the residency of petitioners. In this case, absent a showing of fraud, no new information may be presented after the petition is determined to be valid and an election date has been set.

After the probate judge determines that the petitioners to incorporate an area are qualified electors, that the petition meets the statutory requirements, and sets an election, the petition is not invalidated by the presentation of new information alleging that a petitioner no longer resides on the property to be incorporated. The petitioners are entitled to a cut-off point for the purpose of considering new evidence.

QUESTION 4

If the petition is, in fact, invalid, may I return the petition materials to the petitioners?

Given our answer to Question 3, we need not address this question at this time.

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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