DOCUMENT 41

ELECTRONICALLY FILED
11/13/2017 4:24 PM
38-CV-2017-900393.00
CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA
CARLA H. WOODALL, CLERK
IN THE CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA

JONATHAN GRECU, Individually and as ) CASE NO. 38-CV-2017-900393

Mayor of the City of Ashford, Alabama, )
)
Plaintiff, )
)
v. )
)
GARY GIBSON, Individually and as a )
Member of Ashford City Council, )
CAROLE BARFIELD, Individually and as )
a Member of Ashford City Council, )
DENISE HERNDON, Individually and as )
a Member of Ashford City Council, and )
CITY OF ASHFORD, )
)
Defendants. )

PLAINTIFFS RESPONSE TO MOTION FOR SUMMARY JUDGMENT

COMES NOW Plaintiff, Jonathan Grecu, Individually and as Mayor of the City of

Ashford, Alabama, by counsel, and for his Response to Defendants Motion for Summary

Judgment, shows this Honorable Court as follows.

FACTS

This action arises from a dispute over the Ashford City Councils authority to appoint

certain officers of the City. Plaintiff is the current Mayor of Ashford, Alabama. The Defendants

are Council Members and the City of Ashford. Plaintiff contends that Council Members did not

have authority to appoint certain officers in question and requests this Honorable Court to allow

this matter to continue through discovery.

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STANDARD

The Ala. R. Civ. P. 56 summary judgment review standards are familiar to this Court, but

bear repeating. The Alabama Supreme Court places a heavy burden on a party who moves for

summary judgment. Berkel & Co. Contractors v. Providence Hospital, 454 So. 496, 501 (Ala.

1984). Summary judgment is proper only where there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Defendants bear the burden to show

that there is no genuine issue of material fact and further that they are entitled to judgment as a

matter of law. Capitol Alliance Ins. V. Thorough-Clean, Inc., et al., 639 So.2d 1349, 1350 (Ala.

1994). To prevail on summary judgment, Defendants have the burden of proving that no

genuine issue of material fact exists and that Defendants are entitled to judgment as a matter of

law.

The record must be viewed in the light most favorable to Plaintiff thereby resolving all

reasonable doubts against Defendants. Wilson v. Brown, 496 So.2d 756 (Ala. 1986). The

burden of establishing a genuine issue of material fact does not shift to the opposing party until

the movant has met its burden of proof. In Willingham v. United Ins. Co. of America, 642 So.2d

428 (Ala. 1994), the Supreme Court said:

On a motion for summary judgment, the burden is initially on the movant to make
a prima facie showing that there is no genuine issue of material fact (i.e., that
there is no dispute as to any material fact) and that he is entitled to judgment as a
matter of law. Rule 56, Ala. R. Civ. P.

Combs v. King, 764 F.2d 818, 827 (11th Cir. 1985); McClendon v. Mountain Top Indoor Flea

Market, Inc., 601 So.2d 957, 958 (Ala. 1992); Elgin v. Alfa Corp., 598 So.2d 807, 810 (Ala.

1991); Gillion v. Alabama Forestry Assn, 597 So.2d 1315, 1319 (Ala. 1992); Maharry v. City of

Gadsden, 587 So.2d 966, 968 (Ala. 1991); Moore v. Liberty Natl Life Ins. Co., 591 So.2d 833,

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3834 (Ala. 1991); Campbell v. Southern Roof Deck Applicators, Inc., 406 So.2d 910, 913 (Ala.

1981); Butler v. Michigan Mut. Ins. Co., 402 So.2d 949, 951 (Ala. 1981) (emphasis added).

The burden does not shift to the party to establish a genuine issue of material
fact until the moving party has made a prima facie showing that there is no such
issue of material fact.

McClendon supra at 958; see Elgin supra at 810-11; Gillion supra at 1319; Maharry supra at

968 (emphasis added).

Our courts have stated that evidence is substantial if it is of such weight and quality that

fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of

the fact sought to be proved. West v. Founders Life Assurance Co. of Florida, 547 So.2d 870,

871 (Ala. 1989) (emphasis added). Furthermore, our courts have held that an inference is a

reasonable deduction of fact, unknown or unproved, from a fact that is known or proved.

Khirieh v. State Farm Mutual Automobile Insurance Company, 594 So.2d 1220 24 (Ala. 1992)

(emphasis added).

A summary judgment motion is only due to be granted if the combined evidentiary

showings before the court present no genuine issue of material fact to be decided (Ala. R. Civ. P.

56 (c)). Furthermore, it is clear that at the summary judgment stage, the non-movant is not

required to prove his case to withstand the entry of summary judgment against him, but is

required only to present substantial evidence creating a question of fact in support of his

position. Howell v. Honda Motor Company, Ltd., 716 So.2d 713, 716 (Ala. Civ. App. 1998)

(emphasis added).

Defendants have not met their burden of proving that no issue of material fact exists in

this case or that they are entitled to judgment as a matter of law. Furthermore, Plaintiff has

presented substantial evidence to support the claims made against Defendants.

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ISSUE

The ultimate issue in this case is whether, in light of 11-43-81, Ala. Code 1975, the City

Council could lawfully enact a series of ordinances naming the City Council rather than the

Mayor, the appointing authority for the City of Ashford.

The issue presents a pure question of law.

ARGUMENT

In the initial Complaint for Declaratory and Injunctive Relief, the Ashford

Mayor/Plaintiff asks the Court to issue an Order declaring Ordinance 2017-004 null and void and

held for naught as in violation of Code of Alabama 11-43-81 which reads, in part:

The mayor shall be the chief executive officer, and shall have general supervision
and control of all other officers and the affairs of the city or town, except as
otherwise provided in this title. He shall have the power to appoint all officers
whose appointment is not otherwise provide for by law.

Admittedly, according to 11-45-1, Ala Code 1975, the Ashford City Council is

authorized to adopt ordinances, but only to the extent that those ordinances are not inconsistent

with existing state law. See 11-43-43, Ala. Code 1975:

Municipal corporations may from time to time adopt ordinances and resolutions
not inconsistent with the laws of the state to carry into effect or discharge the
powers and duties conferred by the applicable provisions of this title and any
other applicable provisions of law and to provide for the safety, preserve the
health, promote the prosperity, and improve the morals, order, comfort, and
convenience of the inhabitants of the municipality, and may enforce obedience to
such ordinances.

Mayor/Plaintiff first addressed the procedural issues regarding the passage of the

Ordinance at the June 19, 2017, meeting. Neither a voice yay or nay vote was taken, nor was

said ordinance properly posted as required by 11-45-8, Code of Alabama 1975.

According to Cooper v. Valley Head, 101 So.874 (Ala. 1924), not following proper

procedure means the ordinance is invalid and cannot be enforced.

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More importantly, however, the ordinance in question (2017-004) deals with the right of

the Ashford City Council to appoint the Police Chief, Fire Chief, Senior Citizens Director,

Recreational Director, and the Utility Superintendent.

We concur with the Defendants position that the Ashford Council has the right to

identify and appoint City Clerk, Tax Assessor, Police and Fire Chief, as outlined in 11-43-5.

But, Attorney General Opinion 2012-039 stated, There are limitations to the councils power to

designate certain positions as officers.

We hold that the Senior Citizens Director, Recreation Director, and Utilities Director are

not officers as defined. State v. Stone, 240 Ala. 677, defines an officer as a person that

exercises some level of authority, presumably over employees, and performs some discretionary

policy making functions.

We believe the remaining positions are not policy making positions.

The Alabama League of Municipalities Handbook, in outlining the duties of the Mayor

and Council, states:

The council establishes policies, passes ordinances, sets tax levels, determines
services and has authority over all other legislative aspects of municipal
government.

Policymaking is the obligation of the Council and the Mayor. Mayor/Plaintiff contends

policy-making power is not to be delegated to the Recreation Director, Senior Center Director, or

Utilities Director. This is merely a ruse by the Council to usurp the powers of the duly elected

Mayor.

In summary, quoting Scott v. Coachman:

The source of a city councils authority is not found in the ordinances enacted by
the city council. Rather, the source of a city councils authority is the authority
that the Alabama Legislature granted it by statute. The legislature has granted
city councils appointing authority with regard to certain officers of a town. See,

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e.g., 11-43-4 (city council appoints city clerk in cities having less than 6,000
inhabitants and in towns); and 11-43-5, Ala. Code 1975 (The council may
provide for a tax assessor, tax collector, chief of police, and chief of the fire
department and shall specifically prescribe their duties.). The legislature has
also granted the mayor general appointing authority, subject only to those
positions as to which the legislature designated appointing authority elsewhere.
Conversely, the city councils authority to adopt ordinances and resolutions in a
legislative fashion is limited to ordinances and resolutions that are not
inconsistent with existing state law. See 11-45-1, Ala. Code 1975.

Thus, the Council did not have the authority to override state law to take the

general appointing authority from the mayor and assign that power to itself.

CONCLUSION

Based upon the facts, the evidence clearly shows that the filing of a summary judgment

motion is premature and should be denied at this time. For the foregoing reasons, Plaintiff

requests this Honorable Court enter an Order denying Defendants Motion for Summary

Judgment.

RESPECTFULLY SUBMITTED, this 13th day of November, 2017.

STEPHEN G. McGOWAN, LLC

Stephen G. McGowan /s/

STEPHEN G. McGOWAN (MCG071)
207 West Troy Street
Dothan, AL 36303
(334) 699-6688
(334) 699-6707 (fax)
smcgowan@stephengmcgowan.com
Attorney for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been served upon the
following via counsel of record via (Alafile) electronic mail, this 13th day of November, 2017.

James H. Pike, Esquire

SHEALY CRUM & PIKE, P.C.
P.O. Box 6346
Dothan, AL 36302-6346

Stephen G. McGowan /s/

STEPHEN G. McGOWAN