Quo Warranto – Appeal of Interlocutory Order, Rule 4(a)(1)(C), Ala. R. App. P.

Naftel and Ivey v. State of AL ex rel. Driggars, [Ms. 1200755, Feb. 18, 2022] __ So. 3d __ (Ala. 2022). The Court (Sellers, J.; Wise, Mendheim, and Stewart, JJ., concur; Parker, C.J., and Shaw and Bryan, JJ., dissent; Bolin and Mitchell, JJ., recuse) reverses the Jefferson Circuit Court’s order denying a motion for summary judgment filed by Governor Ivey and Jefferson county Probate Judge James Naftel, II in a quo warranto action filed by Charles Driggars challenging Governor Ivey’s authority to appoint Judge Naftel to fill a vacancy in the office of Jefferson County Probate Judge.

The Court first rejects Driggars’s argument that the order denying cross motions for summary judgment was not appealable pursuant to Rule 4(a)(1)(C), Ala. R. App. P., which authorizes appeals from “any interlocutory order determining the right to public office.” Noting that “‘[b]y and large, the construction of rules of court are for the court which promulgated them’ Alabama Pub. Serv. Comm’n v. Redwing Carriers, Inc., 281 Ala. 111, 115, 199 So. 2d 653, 656 (1967), the Court concludes the interlocutory order on appeal denied a dispositive motion based only on legal grounds and requesting a conclusive determination of the right to public office.” Ms. *7. The Court also notes that its “conclusion is buttressed by the nature of quo warranto actions, which are expedited proceedings because of the public’s interest in quickly resolving questions surrounding who holds public office in Alabama. Rule 4(a)(1)(C)itself recognizes the importance of prompt resolution of such questions by providing that appeals provided by that rule are to be filed within 14 days.” Ms. *8.

Turning to the merits, the Court explains “this case concerns the interpretation of §153 [Ala. Const. 1901 (Off. Recomp.)] and its interplay with Local Amendments, Jefferson County, § 8 and § 9, which pertain exclusively to Jefferson County. The question presented is whether, under § 153, the Governor of Alabama has the sole authority to fill, by appointment, a vacancy existing in the office of Judge of Probate of Jefferson County without considering the nominees selected by the judicial commission of that county.” Ms. *10. Applying de novo review, the Court rejects the challenge to Governor Ivey’s appointment of Judge Naftel and holds

It is a well-settled and fundamental rule that, in construing provisions of the constitution, this Court must adhere to the plain meaning of the words used, and we cannot broaden or restrict the meaning of those words. City of Bessemer v. McClain, 957 So. 2d 1061,1092 (Ala. 2006). Both Local Amendments, Jefferson County, § 8 and § 9, reference only vacancies occurring in the circuit court, specifically the Birmingham Division of the Jefferson Circuit Court, and there is nothing in the language of those local amendments that can be construed as including within their scope the Probate Court of Jefferson County.

Ms. *13.

Chief Justice Parker and Justices Bryan and Shaw dissent. In their view, the Jefferson Circuit Court’s order denying the cross motions for summary judgment did not determine Judge Naftel’s right to hold the office of Jefferson County Probate Judge, and the merits were not properly before the Court pursuant to Rule 4(a)(1)(C), Ala. R. App. P.

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