Patricia Working, Rick Erdemir, and Floyd McGinnis v. Jefferson County Election Commission et al.

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REL: 04/22/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2010-2011 1091055 Patricia Working, R i c k Erdemir, and F l o y d McGinnis v. J e f f e r s o n County E l e c t i o n Appeal from Commission e t a l . Jefferson Circuit (CV-08-900316) Court On A p p l i c a t i o n f o r R e h e a r i n g PER CURIAM. The following opinion of January 14, 2011, i s substituted therefor. i s withdrawn, and t h e 1091055 Patricia Working Working, Rick plaintiffs") Circuit Court attorney fees legal and action appeal denying and Erdemir, their expenses against from the and an order following i t s members i n t h e i r o f f i c i a l McGinnis of the seeking motion Jefferson Floyd an the Jefferson award conclusion County E l e c t i o n capacities, of (hereinafter to vacate as "the JCEC"). We the namely, and their Probate Jefferson collectively order of Commission J u d g e A l a n K i n g , C i r c u i t C l e r k Anne M a r i e Adams, and County S h e r i f f Mike Hale ("the referred remand with directions. These See W o r k i n g v. (Ala. Working have this I"). will in this not be County injunctive relief the facts are repeated Court. underlying throughly here. on F e b r u a r y 5, The based set Suffice action on sought state-law election 2 infringed 827 the forth i t to 2 0 0 8 , f o r a s e a t on in say of the declaratory and In p a r t i c u l a r , the Working challenged 3d a c t i o n c h a l l e n g e d the v a l i d i t y Commission. c o n s t i t u t i o n a l grounds. that The case the Working p l a i n t i f f s ' averred before C o u n t y E l e c t i o n Comm'n, 2 So. issues I and Jefferson been Jefferson a special election held and previously ("Working 2008) substantive that parties federal plaintiffs their rights 1091055 (1) under the First "unauthorizedly voters about Amendment by light of persons the that denying right the On in the of the to of -- 1988. under f i l l as a on state-law invalid. 2 So. attorney "prevailing Subsequently, i n the trial 20, "enter an the motion[] for attorneys The in conferred on grounds We 3d at fees party" -- held pretermitted 841 had asserted n.11. filed under the a motion common- pursuant t o A l a . Code 1975, providing for mediation fees." laws, Working p l a i n t i f f s court, pursuant order Fourteenth the vacancies 2008, the W o r k i n g p l a i n t i f f s and of the to 42 filed a § 6-6¬ pending motion stated, i n p e r t i n e n t part: " P l a i n t i f f s have a t t e m p t e d to pursue d i s c u s s i o n s with counsel for the defendant [JCEC] for the purpose of r e s o l v i n g the pending [motion f o r a fee a w a r d ] , b u t t h o s e a t t e m p t s have n o t r e s u l t e d i n any agreement. T h i s c o u r t has s e t t h e p e n d i n g m o t i o n [ ] f o r a h e a r i n g , and c o n t i n u e d [ i t ] a t t h e r e q u e s t o f 3 to State." was seeking by speak the grounds the Working p l a i n t i f f s court doctrine (2) "to p r o t e c t i o n of the Court election motion to and "equal vote Amendments opportunities federal constitution. trial U.S.C. § to I, t h i s A u g u s t 27, benefit their them counties special discussion Fourteenth candidates," i n other the under diluting" the In Working and 1091055 counsel for the parties. The parties had anticipated that discussion would result in agreement. No discussions have o c c u r r e d for a number o f m o n t h s , and r e c e n t e f f o r t s by Plaintiffs' c o u n s e l t o engage i n d i s c u s s i o n have been i g n o r e d by c o u n s e l by t h e d e f e n d a n t [ J C E C ] . " F o r t h e s e r e a s o n s , an o r d e r d i r e c t i n g m e d i a t i o n (including an appointment of a mediator and a p r o v i s i o n for completion w i t h i n 45 d a y s ) i s [an] a p p r o p r i a t e way to attempt to r e s o l v e the pending m o t i o n s , a n d i s due t o be e n t e r e d as a m a t t e r o f law." The March trial 30, 2010, an award of on the for not order i t denied the Working p l a i n t i f f s ' attorney the [had] their fees. Working r e s u l t e d i n no plaintiffs litigation." no i t f o r a fee the held litigation." the the award, because, "not of "court that 4 on motion for argument concluded "prevailed, prevailing r i g h t s and focus Instead, b e n e f i t to the "alleged federal c i v i l the court had real 1988, were However, basis the plaintiffs § mediation. In r e j e c t i n g t h e i r doctrine, c l a i m b a s e d on [Working] afforded did common-benefit although victory court based that, ... public." agree[d] parties that in federal F i r s t Amendment c l a i m s " added.) As the this statute i t concluded, (Emphasis the the were 1091055 From that issue they sub order raise silentio Specifically, on the appeal Working i s whether the denying they their contend trial motion court for mediation. Section the did not We have the appealed. trial motion that f o l l o w t h e mandate o f § 6-6-20. the plaintiffs trial court erred mediation. court failed discretion to deny agree. 6-6-20 p r o v i d e s , in pertinent "(b) M e d i a t i o n i s mandatory following instances: part: for a l l parties in "(2) Upon m o t i o n by any p a r t y . The party asking for mediation s h a l l pay the c o s t s of m e d i a t i o n , except a t t o r n e y f e e s , unless otherwise agreed. "(3) I n t h e e v e n t no p a r t y requests m e d i a t i o n , t h e t r i a l c o u r t may, on i t s own motion, order mediation. The t r i a l court may a l l o c a t e t h e c o s t s o f m e d i a t i o n , e x c e p t a t t o r n e y f e e s , among t h e p a r t i e s . " ( c ) I f a n y p a r t y f a i l s t o m e d i a t e as r e q u i r e d b y t h i s s e c t i o n , t h e c o u r t may a p p l y s u c h s a n c t i o n s as i t deems a p p r o p r i a t e p u r s u a n t t o R u l e 37 o f t h e Alabama Rules of C i v i l P r o c e d u r e . " (g) W h e r e a c l a i m o f i m m u n i t y i s o f f e r e d as a defense, the c o u r t s h a l l dispose of the immunity i s s u e b e f o r e any mediation is conducted." 5 in for They c o n t e n d , i n e f f e c t , the One to that their 1091055 (Emphasis added.) "Although a trial court stay the proceedings during to order County the mediation Comm'n, trial party 20, any court Rule 2, E f f e c t i v e Mackey v. Mackey, (mediation The is, therefore, However, this In words, other trial court. immunity statute 26, 2002 (emphasis 799 S o . 2 d 2 0 3 , 207 contends immune argument that issues -- o n i t s f a c e liability i s made the immunity before of a argument § 6-6-20(g) by a 6 to (quoting t o Amendment t o See also party). agency and t h a t i t f o r attorney time was n e v e r requires mediation. -- i s d i r e c t e d 6-6¬ a court added)). f o r the f i r s t ordering "'Section ( A l a . C i v . App. 2001) i t i s a State from To b e s u r e , the motion of the p o s i t i o n of Comment i s m a n d a t o r y when r e q u e s t e d JCEC that 6 So. 3d a t 1147 Rules, Morgan (noting to require irrespective Mediation June t o deny c o u r t has Ex p a r t e ( A l a . 2008) one p a r t y to the dispute.'" Court the t r i a l (emphasis added)). of a dispute, party Civil mediation as t o w h e t h e r t o of a party." discretion 1975, a l l o w s mediation Alabama upon r e q u e s t h a d no requesting other the mediation, 6 S o . 3 d 1 1 4 5 , 1147 A l a . Code order has d i s c r e t i o n fees. on appeal. made i n the resolution However, to the " t r i a l of the court." 1091055 In other words, i t i s the t r i a l directed such to f i r s t defense cannot after trial court presented this a Court In short, t o deny addressed the case defense the of of court. been denied this i n the having been issue time. court the order of the t r i a l in of the immunity motion no A party immunity was f o r mediation, the To d a t e , immunity at this trial t h e demand merits has any d i s c u s s i o n be p r e m a t u r e because discretion Consequently, the Thus, would arguing f o r mediation without there. by Court, that i s defense. to the t r i a l the statute demand not t h i s an i m m u n i t y has been p r e s e n t e d circumvent Court by address court, for without the i t prematurely attorney fees. c o u r t i s v a c a t e d and t h e i s remanded f o r f u r t h e r p r o c e e d i n g s c o n s i s t e n t w i t h § 6¬ 6-20. APPLICATION WITHDRAWN; GRANTED; OPINION OPINION SUBSTITUTED; OF ORDER JANUARY 14, VACATED; 2011, AND CASE REMANDED. Cobb, Shaw, C . J . , and W o o d a l l , Stuart, J J . , concur. 7 Parker, Murdock, and

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