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Jefferson County Election Commission v. Wilkins ex rel. Jefferson County

Supreme Court of Arkansas

May 24, 2018

JEFFERSON COUNTY ELECTION COMMISSION; STU SOFFER, IN HIS OFFICIAL CAPACITY AS JEFFERSON COUNTY ELECTION COMMISSIONER; AND MICHAEL ADAMS, IN HIS OFFICIAL CAPACITY AS JEFFERSON COUNTY ELECTION COMMISSIONER APPELLANTS
v.
HONORABLE HANK WILKINS EX REL. JEFFERSON COUNTY, ARKANSAS APPELLEE

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-17-474] HONORABLE ROBERT H. WYATT, JR., JUDGE

          S. Kyle Hunter, Prosecuting Attorney, Eleventh Judicial District-West, for appellants.

          McDaniel, Richardson & Calhoun, PLLC, by: Scott P. Richardson, for appellee.

          COURTNEY HUDSON GOODSON, Associate Justice

         Appellants Jefferson County Election Commission (CBEC); Stu Soffer, in his official capacity as Jefferson County Election Commissioner; and Michael Adams, in his official capacity as Jefferson County Election Commissioner appeal from the Jefferson County Circuit Court's order granting a petition for writ of mandamus filed by appellee Jefferson County Judge Hank Wilkins ex rel. Jefferson County, Arkansas. For reversal, appellants argue that the circuit court did not have the authority to order them to provide the election coordinator (EC) for Jefferson County with information and access to items necessary to facilitate an election process when the EC has no legal duties to perform with regard to elections. We reverse the circuit court's order.

         On July 14, 2017, appellee filed a petition for writ of mandamus or, alternatively, for writ of certiorari against appellants. Appellee alleged in the petition that appellants had refused to cooperate with the Jefferson County EC, William Fox, whom appellee had hired to assist with elections. According to appellee, appellants' refusal to work with the EC had caused problems during the recent tax election, and appellee was concerned that the CBEC would not comply with deadlines associated with the upcoming school board election in September 2017. Appellee requested that the circuit court issue a writ requiring the CBEC to perform its duties and to allow the EC to perform his duties.

         After considering appellee's petition, as well as supporting affidavits filed by Fox and Lloyd Franklin II, appellee's chief of staff, the circuit court entered an ex parte temporary restraining order the same day. The court stated that Commissioners Soffer and Adams had prevented Fox from "performing the duties of the office of Election Coordinator" and that mandamus was an appropriate remedy. The court temporarily enjoined the CBEC from interfering with the EC's "performance of the obligations of his office" and ordered it to provide Fox with "all necessary keys, logins, passwords, data, information, and any other items necessary to facilitate the election process."

         In appellants' response to the petition, they admitted that appellee had hired Fox as an EC. However, appellants claimed that Fox had interfered with a prior election in Pine Bluff and that after directing Fox to stop, Soffer eventually had to call the sheriff's department. According to appellants, Soffer had the expertise to perform the necessary election-related tasks and that the CBEC had therefore decided not to utilize Fox's services. Appellants indicated that the CBEC is not required to use the services of an EC and asserted that they had complied with all mandatory election deadlines in preparation for the upcoming school-board election.

         A hearing was held on appellee's petition on July 26, 2017. Leslie Bellamy, the director of elections for the Arkansas Secretary of State, testified that she had worked with election commissioners, election coordinators, and county clerks for more than twenty years. She indicated that the interaction between commissioners, coordinators, and clerks varies within each individual county and that not every county has an EC. According to Bellamy, the position of EC is not defined in Arkansas law, while there are many statutory duties required of the CBEC. She stated that in counties where an EC is utilized, that person can assist the CBEC with administrative functions such as drafting the ballots, working on the election portal, and organizing supplies for poll workers, although the ultimate responsibility for these tasks rests with the CBEC. Bellamy indicated that a county judge may hire an EC to assist the CBEC but that the CBEC does not have to work with the EC if it chooses not to do so.

         Daniel Shults, the attorney for the Arkansas State Board of Election Commissioners, also testified at the hearing. He stated that Arkansas law defines and sets forth specific duties for election commissioners and the CBEC, such as formulating the ballot, appointing poll judges and workers, and controlling and supervising the voting machines. Shults agreed with Bellamy that there is no statutory definition of an EC in Arkansas. He also agreed that the county judge has the authority to hire and supervise all county employees, including an EC. According to Shults, all seventy-five counties handle the division of election-related responsibilities differently, and while some counties delegate certain election tasks to the EC, it is the CBEC, along with county clerks, who have the ultimate authority and duty to conduct an election. Shults indicated that an EC is "simply a creature of convenience" and that he knows of no legal requirement that a CBEC use the services of an EC.

         At the conclusion of the hearing, the circuit court instructed the parties to file briefs discussing the duties of the CBEC and the duties of the EC. Both parties filed briefs as directed, and the court entered an order on August 31, 2017, granting appellee's petition for a writ of mandamus. The court found that the EC did not have any statutory duties with regard to elections, that the EC can only perform the duties assigned to him by the CBEC, and that the CBEC can even decline to utilize the services of the EC. Nonetheless, the court concluded that appellee had shown a clear and certain right to the relief sought and that there was no other adequate remedy. The court ordered the CBEC to perform its statutory duties and stated that the CBEC cannot deny the EC access to county property or to information necessary to conduct elections. Appellants filed a timely notice of appeal from the circuit court's order.

         On appeal, appellants contend that the circuit court erred by issuing a writ of mandamus ordering them to provide the EC with information and access to items necessary to facilitate elections. Appellants argue that the EC has no legal duties to perform regarding elections except those duties that are assigned to him by the CBEC.

         The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. City of North Little Rock v. Pfeifer, 2017 Ark. 113, 515 S.W.3d 593. A petitioner requesting the writ must show a clear and certain right to the relief sought and the absence of any other adequate remedy. Id. We have explained that a mandamus action enforces the performance of a legal right after it has been established and that its purpose is not to establish a right. Springdale Bd. of Educ. v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987). Thus, there must be no discretion available to the ordered party regarding whether or not to perform the act. Id.

         Appellants argue that because the EC has no established or legal duty to perform any functions associated with an election unless it is delegated the authority to do so by the CBEC, a ...


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