Bethune v. Nettles

738 So. 2d 850, 1999 Ala. LEXIS 169, 1999 WL 378592
Supreme Court of Alabama·Decided June 11, 1999·No. 1972248·Published·Cited by 2 cases

Opinion

MADDOX, Justice.

This appeal arises from a quo warranto action in which the complainant, Milton R. Bethune, questioned the right of Rev. John S. Nettles to continue as a member of the Board of Pardons and Paroles (the “Board”). For the reasons discussed below, this appeal is due to be dismissed as moot.

Facts and Procedural History

The factual history of this matter is somewhat complicated, but the following facts appear to be undisputed. In July 1989, Governor Guy Hunt appointed Rev. John Nettles to a seat on the Board and the Senate confirmed the Governor’s appointment. Rev. Nettles’s six-year term expired on June 30, 1995; however, Fob James, who was then serving as Governor, did not immediately make an appointment to that seat. As a consequence, Rev. Nettles continued serving as a “holdover” member of the Board until August 7, 1997, when Governor James appointed Milton R. Bethune to the seat. The Senate was not then in session, and, accordingly, Bethune took office as an ad interim member of the Board, under the provisions of § 15-22-20, Ala. Code 1975.1

[852]*852On August 13, 1997, Nettles filed an action in the Montgomery County Circuit Court, seeking declaratory and injunctive relief, challenging the validity of Bethune’s August 7 ad interim appointment. The circuit court dismissed Nettles’s complaint, and this Court, on April 17, 1998, affirmed that dismissal, without opinion. Nettles v. James, 738 So.2d 492 (Ala.1998) (table).

The selection of members of the Board is governed by § 15-22-20, Ala.Code 1975, a portion of which is quoted in footnote 1. Subsection (b) of that Code section establishes a nominating board consisting of the Chief Justice of the Supreme Court, the Presiding Judge of the Court of Criminal Appeals, and the Lieutenant Governor. The purpose of that nominating board is to consider candidates for the Board of Pardons and Paroles and to submit a list of three qualified candidates to the Governor for his consideration. The statute requires that the Governor, upon receiving that list, make an appointment from that list within 10 days. Apparently, there was some question whether the Governor’s August 7 appointment of Bethune was made within that 10-day period. Accordingly, the nominating board resubmitted a list of three names to the Governor; this list included the name of Bethune, and the Governor nominated Bethune for a second time on August 20,1997.

When the Governor resubmitted Bethune’s appointment on August 20, the Senate was meeting in special session. Although the Senate Confirmation Committee unanimously approved the appointment, the Senate adjourned sine die on September 15,1997, without the full body’s taking any action on the appointment.

Gregory 0. Griffin, Sr., general counsel for the Board, wrote Bethune a letter, which appears to be dated September 5, 1997, thanking Bethune for his service as an ad interim member and requesting that he turn over all Board property and vacate his office. Bethune did so.

When Bethune relinquished his seat, Nettles returned to the Board and resumed working on September 8, 1997, as a “holdover” member of the Board. Apparently, that action was what prompted Bethune to file the action that this Court now has on appeal. In the first count of his complaint, Bethune sought a writ of quo warranto, challenging Nettles’s right to continue serving on the Board. In the second count of his complaint, Bethune sought an injunction barring Nettles from exercising the powers of a member of the Board. Nettles answered but did not file a counterclaim.

The circuit court, after conducting an ore tenus hearing, entered a final order on April 28, 1998, holding that Nettles’s continued service on the Board was valid, and denying Bethune’s petition for a writ of quo warranto. The court also specifically held that Bethune’s August 20 appointment was null and void, noting that the validity of Bethune’s August 7 appointment was not before the court.

At some point after the circuit- court had entered its final order, Governor James appointed another ad interim member, James Littleton, to the seat in question. At that point, Nettles relinquished the seat he had claimed as a purported “holdover” member. Littleton subsequently resigned from his position as an ad interim member of the Board, and the nominating board then met and submitted three names to Governor Don Siegelman, who had succeeded Governor James. Governor Siegel-man then appointed Johnnie Johnson, and [853]*853the Senate confirmed that appointment within the time specified by statute.

Bethune appeals.

Discussion

Based on Bethune’s complaint, we think it apparent that he was challenging the right of Nettles to exercise the powers and responsibilities of a member of the Board. This seems apparent because he specifically asked the court to hold that Nettles was not legally exercising the powers of a member of the Board of Pardons and Paroles. Nettles prevailed in the circuit court; that court declared that his continued service on the Board was valid, and Bethune appealed.

Since then, however, Nettles has relinquished his seat on the Board and the seat has been filled by Governor Siegelman’s appointee, Johnson, who, from what is before us, appears to have been validly nominated, appointed, and confirmed.

Apparently, Nettles makes no further claim to the seat. He has not filed a brief with this Court, and the only brief that has been filed here to challenge the appeal is a brief filed by the Board, as amicus curiae, in which the Board urges this Court to dismiss this appeal as moot. In its brief, the Board represents that:

“Mr. Nettles has so little stake in the outcome of this appeal that he has indicated to his counsel that he does not intend to defend the judgment on appeal. It simply will not affect his interests to win this case, and he sees no point in spending more money on a moot controversy.”

The Board argues that there is presently no justiciable controversy for this Court to decide, pointing out that whether this Court affirmed or reversed the judgment of the trial court, this Court’s ruling would have no legal effect on Johnson’s status as a member of the Board. The Board further argues that neither affirming nor reversing the judgment would have any effect on Nettles’s rights, because he has relinquished his seat and has been replaced by Johnson. The Board concludes:

“However convenient it might be to grant advisory opinions, this appeal arose from a live controversy which subsequently died a natural death. It is well settled that courts don’t decide abstract questions which no longer affect the rights of the parties before the court, even if that would be convenient for other parties in the future to govern their affairs. Hornsby v. Sessions, 703 So.2d 932 (Ala.1997).”

Replying to the Board’s argument that this appeal should be dismissed as moot, Bethune states that if this Court allows the order of the circuit court to stand, his right to be appointed to the Board in the future will be adversely affected. He bases this argument on the fact that § 15-22-20(b), Ala.Code 1975, provides:

“In the event the Senate fails or refuses to act on the appointment within five legislative days after its submission, the appointment shall be void, and the person whose name was thus submitted shall not thereafter be reappointed.”

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Bethune v. Nettles, 738 So. 2d 850, 1999 Ala. LEXIS 169, 1999 WL 378592 (Ala. 1999).

738 So. 2d 850 (Bethune v. Nettles) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Ala. Bd. of Pardons and Paroles v. Brooks
802 So. 2d 242 (Court of Civil Appeals of Alabama, 2001)