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Our Community, Our Dollars v. Bullock

Supreme Court of Arkansas

October 31, 2014


Page 553



Mitchell, Williams, Selig, Gates & Woodyardd, P.L.L.C., by: John Keeling Baker and Brian A. Pipkin, for appellant.

Friday, Eldredge & Clark, LLP, by: Elizabeth Robben Murray, Ellen Owens Smith, and Amanda Fray, for appellees.

COURTNEY HUDSON GOODSON, Associate Justice. HANNAH, C.J., and CORBIN and DANIELSON, JJ., dissent.


Page 554


Appellant Our Community, Our Dollars (Our Community) appeals the decision of the Saline County Circuit Court finding that the local-option petition certified by the Saline County Clerk did not achieve the number of signatures required for the proposal to be placed on the ballot in the upcoming general election on November 4, 2014. For reversal, Our Community first contends that the circuit court did not acquire jurisdiction to review the county clerk's certification because the complaint filed by appellees David Bullock, Tiffany Francis, and Bryan Keaton, failed to state a cause of action and because appellees did not plead with particularity their claim of fraud. In connection with this argument, it also argues that the complaint was deficient because appellees failed to attach the local-option petition, or any relevant parts thereof, to the complaint as required by Rule 10(d) of the Arkansas Rules of Civil Procedure. As its second point on appeal, Our Community asserts that the circuit court erred by not considering in its review a number of signatures that the county clerk failed to count prior to certifying the local-option petition. Our Community also argues that the circuit court erred in concluding that Arkansas Code Annotated section 14-14-915(d) (Repl. 2013) applies to the circuit court's review of the county clerk's certification. Alternatively, Our Community contends that, if this statute is applicable, it is unconstitutional.

Appellees have also filed a cross-appeal. In it, they assert that the local-option petition is invalid because it does not contain an enacting clause and that the circuit court erred in finding substantial compliance with the enacting-clause requirement. Finally, they argue that the circuit court committed error by counting signatures that were solicited between the time Our Community filed the petition with the county clerk on July 7, 2014, and the date that the clerk issued the initial notice on July 18, 2014, informing Our Community that the petition was deficient.

Our jurisdiction over this matter falls under Arkansas Supreme Court Rule 1-2(a)(8), as an appeal required by law to be heard by this court. See Ark. Code Ann. § 3-8-205(e)(1)(B) (Supp. 2013). We find merit in the second point on direct appeal; thus, we reverse and remand on that issue. We affirm on cross-appeal.

Our review of the record discloses that Our Community is a ballot-question committee that is the sponsor of the local-option petition in question consisting of a proposal to allow voters in Saline County to decide whether to permit the manufacture and sale of alcoholic beverages in the county. In order for such a proposal to be placed on the ballot, Arkansas Code Annotated section 3-8-205(a) requires a local-option petition to be supported by the signatures of thirty-eight percent of the registered voters in the county. The parties agree that 25,580 signatures is the threshold number in this instance. Our Community filed the local-option petition with the county clerk on July 7, 2014. On July 18, 2014, the clerk notified Our Community

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that the proposal did not meet the signature requirements of section 3-8-205(a). Pursuant to section 14-14-915(c), the clerk granted Our Community an additional ten days to augment the petition with additional signatures or to contest the clerk's exclusion of signatures that were submitted with the petition. On July 28, 2014, Our Community filed additional petition parts and signatures with the county clerk, who on July 31, 2014, certified that the proposal attained thirty-eight percent of the registered voters' signatures.

Thereafter, on August 8, 2014, appellees Bullock, Francis, and Keaton, who are registered voters in Saline County, filed suit against the county clerk challenging his certification that the petition gained the support of thirty-eight percent of registered voters. In response, the county clerk promptly filed a motion to dismiss, arguing that the complaint filed by appellees did not state a valid cause of action and that the local-option petition was not attached to the complaint as required by Arkansas Rule of Civil Procedure 10(d).

On August 14, 2014, Our Community, as the sponsor of the proposal, moved to intervene in the action, and the circuit court entered an order that same day granting the motion. Our Community also filed an answer to the complaint that included a counterclaim and a cross-claim against the county clerk, seeking a declaration that a number of relevant statutory provisions are unconstitutional. [1] Also on August 14, 2014, Our Community filed a motion to dismiss appellees' complaint based on the identical grounds urged by the county clerk.[2]

Later in the day on August 14, 2014, appellees filed an amended complaint. Still later that same afternoon, appellees filed a second amended complaint. Subsequently, on August 18, 2014, appellees responded to Our Community's motion to dismiss, denying that their complaint was deficient and asserting that, in any event, they had properly amended their complaint. Also on August 18, 2014, the circuit court conducted a hearing and entered an order denying Our Community's motion to dismiss the complaint.

The circuit court held additional hearings on August 21, and 22, and September 5, 2014. At the hearings, the testimony established that the county clerk's staff worked to verify the petitions and to determine whether the petitions had been signed by 25,580 registered voters. In that effort, the clerk hired additional personnel at the county's expense to assist in the verification process. Ultimately, the county clerk verified 25,653 signatures, which was 73 signatures in excess of the required number. However, the testimony also revealed that the clerk stopped counting signatures at that point and that he failed to screen all of the signatures that were submitted with the petition. Specifically, the county clerk did not review a total of 960 signatures. At the behest of the circuit court, the clerk examined the remaining signatures and determined that 720 of the 960 uncounted signatures were registered voters in the county. However, the circuit court ruled, based on section 14-14-915(e), that it was not proper for the court to consider the remaining 720 signatures in its review of the certification because the county clerk did not have

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" jurisdiction" to count or verify signatures after the clerk had issued the certification.

Based on the testimony and evidence presented at the hearings, the circuit court entered an order on September 10, 2014, rescinding the county clerk's certification of the local-option petition. In its review, the court invalidated a total of 156 signatures, which left the petition 83 signatures short of the required number. In its order, the circuit court also addressed several matters raised by the parties. The court rejected appellees' claims that the petition was invalid because it did not include an enacting clause and that the county clerk should not have counted the signatures collected between July 8 and July 17, 2014. The court also ruled against Our Community's challenge to the constitutionality of the contested statutes. Based on its finding that the petition failed to attain the requisite number of signatures, the circuit court issued an injunction for the removal of the proposal from the ballot; however, the court stayed that directive, pending this appeal, which timely followed the entry of the circuit court's order. Pursuant to section 3-8-205(e)(1)(B), we have expedited the appeal on our docket.

As part of its first issue, Our Community contends that the original complaint filed by appellees failed to state a cause of action for a signature challenge to the county clerk's certification and that it also failed to allege sufficient facts to support a claim of fraud. Our Community maintains that the initial complaint filed by appellees was deficient because it failed to plead facts identifying any specific signature alleged to be invalid; because the complaint failed to set forth particular facts showing the total number of challenged signatures; because it did not identify the specific basis for challenging any one signature; and because the complaint did not allege how invalidating any particular signatures would render the certification erroneous. Further, Our Community contends that the amended complaints filed by appellees could not cure the deficiencies found in the original complaint because the amendments were filed after the statutory deadline had expired for challenging the county clerk's certification. In making this argument, Our Community relies exclusively on law that is pertinent to causes of actions involving election contests. See, e.g., Willis v. Crumbly, 371 Ark. 517, 268 S.W.3d 288 (2007); Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003); McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000). In response, appellees maintain that Our Community's assertions are based on the flawed premise that election-contest law applies to a challenge of a county clerk's certification of a local-option petition. In this regard, they insist that the public-policy concerns at issue in election contests are not implicated in challenges to a certification of a local-option petition. See King v. Whitfield, 339 Ark. 176, 182, 5 S.W.3d 21, 24 (1999) (Glaze, J., concurring) (explaining that " election contest procedures are uniquely designed to dispose of all questions or issues quickly so stability and finality can be reached, thus, permitting government to continue as it should" ). Appellees also assert that, even if election-contest law applies, they alleged sufficient facts in their original complaint to state a cause of action and that, in any event, they amended their complaint in a timely fashion and that the amendments remedied any deficiencies lacking in the initial complaint.

Also under this point, Our Community contends that the original complaint was flawed because appellees neglected to append the petition or any of its contested parts to the complaint as required by Rule 10(d) of the Arkansas Rules of Civil Procedure. In opposing this argument, appellees

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assert that it complied with the rule because it attached the county clerk's certification as an exhibit to the complaint. Further, they argue that their amended complaints included the challenged petition parts, thereby rectifying any defects in the initial complaint.

The instant case marks the first occasion that this court has been asked to apply the law governing election contests and its requirements for stating a cause of action to a case involving a challenge to a county clerk's certification of a local-option petition. The question whether Rule 10(d) applies in such a case is also a matter of first impression. Although these are threshold issues, neither of them compromises the jurisdiction of the circuit court to review the clerk's certification. Cf. Willis v. King, 352 Ark. 55, 98 S.W.3d 427 (2003) (recognizing that the filing deadlines set by statute are mandatory and jurisdictional). As a consequence, we deem it unnecessary to address these issues in light of our decision to reverse and remand on the next point. Any opinion we could offer on these matters would be purely advisory, and it is well settled that this court does not issue advisory opinions. See Goodloe v. Goodloe, 2014 Ark. 300, 439 S.W.3d 5.

In its second issue, Our Community claims error in the circuit court's refusal to consider the testimony of a deputy clerk that the local-option petition contained an additional 720 signatures of registered voters that the county clerk had declined to review. Because the circuit court found that the petition failed by 83 signatures, Our Community contends that, had the circuit court considered the 720 signatures, the number of signatures would exceed that required for certification.

In ruling that it was prohibited from considering these signatures, the circuit court based its decision on an interpretation of section 14-14-915(e). We review issues of statutory interpretation de novo because it is for this court to decide what a statute means. Berryhill v. Synatzske, 2014 Ark. 169, 432 S.W.3d 637. However, this court will accept a circuit court's interpretation of the law unless it is shown that the court's interpretation was in error. Holbrook v. Healthport, Inc., 2014 Ark. 146, 432 S.W.3d 593. The basic rule of statutory construction is to give effect to the intent of the legislature. Valley v. Pulaski Cnty. Circuit Court, 2014 Ark. 112, 431 S.W.3d ...

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