A Jefferson County circuit judge dismissed Darral Bethel’s suit challenging Mayor Kenneth Gulley’s residency on Sept. 16, six days before the mayoral runoff, ruling that Bethel’s complaint did not allege facts that could show Gulley had moved his legal residence out of Bessemer.
Judge David Hobdy of the court’s Bessemer Division granted Gulley’s motion to dismiss after a hearing that morning. The order, entered at 3:13 p.m., dismisses the complaint as it applies to Gulley for failure to state a claim and denies Bethel’s requests for declaratory, injunctive and emergency relief.
Bethel, who finished third in the Aug. 25 mayor’s race and represented himself, filed the suit Aug. 26 against Gulley, fourth-place finisher Brenita Lewis and City Clerk Wanda D. Taylor. He asked the court to review whether Gulley met the state requirement that a candidate for mayor live in the city for the 365 days before the qualifying deadline, and on Sept. 8 he asked the judge to rule before the runoff or to hold the mayoral portion of it until he could.
Under Alabama law, the order says, residency for political qualification means domicile, and a change of domicile requires both abandoning the old one without intending to return and establishing a new one with the intention of staying.
Bethel’s complaint did not allege facts showing either, the judge wrote, and allegations about property, mail, physical presence or activities outside the city, standing alone, do not plead a change in domicile.
The order says Bethel acknowledged the deficiency, and that the court makes no finding on where Gulley actually lives.
Gulley’s lawyers had argued in the Sept. 14 motion that state law gives courts no jurisdiction over election matters except where a statute specifically allows it, that Bethel could not get around the election-contest statutes by labeling his suit one for declaratory relief, and that the contest statute applies only after a candidate has been declared elected.
Bethel answered Sept. 15 that his suit was a prospective challenge to a candidate’s qualifications, not an election contest, and cited a 1981 Alabama Supreme Court decision, Osborn v. O’Barr, in which a third-place candidate’s residency challenge after a first-round municipal election kept the leading candidate out of the runoff.
Gulley replied the same evening that even as a prospective challenge, the complaint had to plead facts meeting the domicile standard, and did not.
In a sworn filing Sept. 18, Bethel asked the court to order a new election for mayor excluding the candidates he challenged, saying the defendants were not present at the hearing and offered no proof of residency.
The court file listed that filing as pending Tuesday, with a hearing setting of Oct. 26 still on the case. Lewis and Taylor remain named as defendants.
