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ELECTRONICALLY FILED 9/24/2012 1:40 PM CV-2012-000140.00 CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA TED HOOKS, CLERK

IN THE CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA BEN LITTLE, an individual Plaintiff Vs CITY OF ANNISTON, ALABAMA, a municipal corporation Defendant

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CIVIL ACTION NO.: CV-12-0140

MOTION TO DISMISS ELECTION CONTEST COMES NOW the CITY OF ANNISON, a municipal corporation, by and through the undersigned counsel, and pursuant to Ala. R. Civ. Pro. 12(b)(1) and 12(b)(7) moves this Honorable Court for an Order dismissing the above-styled election contest and as grounds for this Motion states as follows: FACTS 1.

On or about August 28, 2012, the CITY OF ANNISTON held elections for municipal officers including the office of Mayor and the offices of Council Members for Wards 1, 2, 3 and 4.

2.

Following the Election the City Council canvassed the votes of the elections and, on September 4, 2012, the City Council certified the results of the elections.

3.

The Plaintiff, BEN LITTLE, was a candidate in the election for Council Member for Ward 3 but was defeated having received only 308 of the 825 votes cast in the election for Council Member for Ward 3.

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4.

On or about September 10, 2012, the Plaintiff, BEN LITTLE, filed what purports to be a contest of the municipal elections conducted by the CITY OF ANNISON.

5.

At the time of filing the Plaintiff neither gave good and sufficient security for costs of the contest as required by Ala. Code § 17-16-56 (2006) nor did the Plaintiff give good and sufficient security for costs “in form at least” as permitted by law. Dobbins v. City of Anniston, 469 So. 2d 583 (Ala. 1985).

6.

Furthermore, Plaintiff’s purported election contest fails to include as a party defendant any “party whose election is contested” as required by Ala. Code § 1716-56.

7.

Plaintiff does not allege, nor could he, that, even if the conduct about which he complains actually occurred (which the CITY OF ANNISTON denies) any of the elections (including his own) would have resulted in the election of a different candidate or candidates than those elected ARGUMENT The outcome of the Plaintiff’s purported election contest hinges upon Ala. Code §

11-46-69 - 70 which is to be read in pari materia with Ala. Code § 17-16-56. Based upon the pleadings filed as well as the relevant facts set forth above, Plaintiff’s election contest is infirmed in at least two ways: (1) the Plaintiff failed to provide security for costs of the contest within the five (5) day requirement for the filing of the election contest; and (2) the Plaintiff failed to name the “party(ies) whose election(s) is/are contested”. Either of these infirmities deprives this Court of subject matter jurisdiction; as such, this Court has no choice but to dismiss the Plaintiff’s purported election contest.

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PLAINTIFF’S FAILURE TO GIVE SECURITY FOR COSTS DEPRIVES THIS COURT OF JURISDICTION AND THE PURPORTED ELECTION CONTEST MUST BE DISMISSED. Ala. Code § 11-46-69 provides for contesting a municipal election for causes including the following: (1) misconduct, fraud or corruption…(2) the person whose election to office is contested was not eligible…(3) illegal votes; (4) the rejection of legal votes; or (5) offers to bribe, bribery, intimidation or other misconduct… Section 11-46-69(b) requires that “any contest of such election must be commenced within five (5) days after the result of the election is declared.”

This subsection further requires that “such contest shall be

instituted in the manner prescribed by § 17-15-29…” By virtue of the 2006 amendments which became effective January 1, 2007, Ala. Code § 17-15-29 was re-codified at Ala. Code § 17-16-56 and, as such, must be read in pari materia with Ala. Code §11-46-69. Ala. Code § 17-16-56 mandates that “the party contesting must file in the office of the Clerk of the Circuit Court of the county in which the election was held, a statement in writing, verified by affidavit, of the grounds of the contest as provided in this article and must give good and sufficient security for the costs of the contest, to be approved by the clerk.” (Emphasis suppled).1

The time constraints imposed for the filing of an election

contest also apply to the requirement that good and sufficient security for costs be given. As such, the failure to provide security for costs within five (5) days after the result of the election is declared also deprives the Circuit Court of jurisdiction over the election contest.

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Code § 11-46-69 is read in conjunction with § 11-46-71 which states “no election shall be annulled or set aside because of the rejection of legal votes unless it appears that such legal votes, if given to the person intended, would increase the number of his legal votes to or above the requisite number of votes for election.”

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In reading § 11-46-69 (five day requirement) in conjunction with § 17-16-56 (security for costs requirement), and in consideration of applicable case law, in order to provide the circuit court with jurisdiction over the election contest both the petition and the security requirements must be met “within five (5) days after the result of the election is declared.” In fact, in Beam v. Hart, 804 So. 2d 1106 (Ala.Civ.App. 2001), the court specifically stated that security for costs must be given within the time limits prescribed for the filing of the election contest. Based on the statutes cited as well as the case law interpreting them, it would appear that Mr. Little’s election contest is infirmed such that the trial court lacks subject matter jurisdiction over it and; therefore, it is due to be dismissed. THE ELECTION CONTEST IS DUE TO BE DISMISSED FOR PLAINTIFF’S FAILURE TO JOIN NECESSARY PARTIES. From its face, it is evident that the Plaintiff’s purported election contest includes as a party defendant only the CITY OF ANNISTON. The Alabama Supreme Court addressed a similar situation in Crouch v. Howard, 23 So. 3d 663 (Ala. 2009). Crouch involved an election contest by a mayoral candidate filed only against the town but not against the declared winner. The election contest in Crouch was held not to invoke the court’s subject matter jurisdiction. The court based its decision upon strict statutory construction which “required the clerk to issue summons to the party whose election was contested” which, the court held, clearly contemplated that person whose election was contested was a proper defendant.

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Similarly, in Washington v. Hill, 960 So.2d 643 (Ala. 2006), the Supreme Court recognized that if a complaint initiating an election contest is defective as to any of the jurisdictional requirement, it cannot be amended by adding the missing element after the time for commencing the contest has expired. Based on strict statutory construction, after the filing of an election contest, “the clerk must issue a summons, accompanied by a copy of the statement directed to the party whose election is contested, requiring the party, within five (5) days after the service of the summons, to appear and make answer to the statement…” Ala. Code § 17-16-56 (emphasis supplied). Because none of the parties who prevailed in the municipal elections Plaintiff seeks to challenge have been made parties to the election contest, this Court lacks subject matter jurisdiction over the Plaintiff’s purported election contest. As our Supreme Court recognized in Washington v. Hill, this defect in subject matter jurisdiction cannot now be remedied by amendment.

For this reason as well, this Court lacks subject matter

jurisdiction and the purported election contest must be dismissed. CONCLUSION This Court lacks subject matter jurisdiction over the Plaintiff’s purported election contest not only because the Plaintiff failed to give good and sufficient security for the costs of the contest, but also because the Plaintiff has failed to include as a defendant to the purported election contest the successful candidate(s) whose election(s) are being contested. These deficiencies cannot now be remedied by amendment or otherwise. This Court has no choice but to dismiss the purported election contest filed by the Plaintiff.

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WHEREFORE, pursuant to Ala. R. Civ. Pro. 12(b)(1) and 12(b)(7), the CITY OF ANNISTON prays this Honorable Court will enter an Order dismissing the purported election contest filed by the Plaintiff, BEN LITTLE. ADDITIONAL AFFIRMATIVE DEFENSES In order to preserve its additional defenses afforded under Ala. R. Civ. Pro. 12(b) the CITY OF ANNISTON asserts the following: 1.

The Court lacks in personam jurisdiction;

2.

Process was insufficient;

3.

Service of process was insufficient;

4.

The Plaintiff has failed to state a claim upon which relief can be granted;

5.

The CITY OF ANNISTON reserves the right to amend in order to assert additional affirmative defenses. Respectfully submitted: /s Richard A. Bearden _ Richard A. Bearden (BEA055) Attorney for City of Annison, Alabama

OF COUNSEL: MASSEY, STOTSER & NICHOLS P.C. 1780 Gadsden Highway Birmingham, Alabama 35235 Voice: 205/838-9000 Fax: 205/838-9024 Email: rbearden@msnattorneys.com

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IN THE CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA BEN LITTLE, an individual Plaintiff Vs CITY OF ANNISTON, ALABAMA, a municipal corporation Defendant

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CIVIL ACTION NO.: CV-12-0140

CERTIFICATE OF SERVICE I hereby certify that on this, the 24th day of September, 2012, I have served a true and correct copy of the above and foregoing on BEN LITTLE by placing a copy of same in the United States mail, postage prepaid and properly addressed to: Ben Little, pro se 1003 South Leighton Avenue Anniston AL 36207 This 24th day of September, 2012. /s Richard A. Bearden Richard A. Bearden (BEA055)

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Motion To Dismiss Election Contest