354 F.3d 823 (8th Cir. 2004), 02-3694, Simes v. Huckabee

Docket Nº:02-3694
Citation:354 F.3d 823
Party Name:Simes v. Huckabee
Case Date:January 13, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 823

354 F.3d 823 (8th Cir. 2004)

Earnest SIMES, Individually and in his official capacity as Justice of the Peace of Phillips County, Arkansas, Plaintiff-Appellant,Geraldine Davis, Individually and in her official capacity as Justice of the Peace of Phillips County, Arkansas; Joseph Dean, Individually and in his official capacity as Justice of the Peace of Phillips County, Arkansas; Clausey Myton, Individually and in his official capacity as Justice of the Peace of Phillips County, Arkansas; Arlanda Jacobs, Individually and in her official capacity as Justice of the Peace of Phillips County, Arkansas, Appellants,

v.

Mike HUCKABEE, Governor of the State of Arkansas; Phillips County, Arkansas; Don Gentry, County Judge of Phillips County and Representative of all Arkansas County Judges as a class of defendants; Randall Williams, Honorable, Special Appointed Judge for the First Judicial District in the State of Arkansas; Helena-West Helena-Phillips County Port Authority; Dick Barclay, Director of Finance & Administration; Jimmie Lou Fisher, State Treasurer; Rebecca Gattas, Treasurer of Phillips County, Arkansas and Representative of all Arkansas County Treasurers as a class of defendants, Appellees.

Nos. 02-3694, 02-3695.

United States Court of Appeals, Eighth Circuit

January 13, 2004

Submitted: Sept. 11, 2003.

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James F. Valley, argued, Helena, AR, for appellant.

Timothy Gauge, argued, Little Rock, AR, for appellee.

Before BYE, HANSEN, and RILEY, Circuit Judges.

BYE, Circuit Judge.

Appellants, five members of the Phillips County, Arkansas, Quorum Court ("QC") appeal the district court's grant of summary judgment for defendants, various Arkansas state and county officials. Appellants' federal civil rights and constitutional claims arose from their four-day incarceration for refusing to vote in favor of an ordinance that would have referred a tax initiative to Phillips County voters. The district court held it lacked jurisdiction, basing its decision on the Rooker-Feldman doctrine. We reverse.

I

As the Arkansas Supreme Court stated in a related proceeding involving the same QC members, "[t]his case arises out of community and political discord attributed to the operation of the Helena-West Helena-Phillips County Port Authority and a project known as Slack Water Harbor." Dean v. Williams, 339 Ark. 439, 6 S.W.3d 89, 91 (1999). Phillips County voters had previously passed a one percent sales tax to aid the industrial development of the harbor. This tax expired around January 2000. Before its expiration, the Arkansas legislature passed Act 1357 of 1999, codified at A RK. CODE ANN. § 26-74-207, mandating when a county QC is presented with a petition from voters seeking a sales tax that fulfills certain requirements, the QC "shall submit the question of the levying of

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the tax to the electors." ARK. CODE. ANN . § 26-74-207(b) (emphasis added).

On August 23, 1999, two members of the Port Authority filed initiative petitions with the Phillips county clerk as required by Act 1357. According to the Act, the QC should have then submitted the question of a sales tax to the electors of the county, setting an election date within 120 days of the filing of the petitions. Id.

On September 14, 1999, the QC was presented with an ordinance which would have referred the sales tax initiative to the voters. However, despite the mandatory language of the Act, six members of the eleven-member QC voted against the ordinance. Five of those six are now the appellants in this case and were defendants in the earlier state contempt proceedings. As appellant QC members emphasize repeatedly in their briefs, the QC split along racial lines, with the African-American members constituting the majority and voting against the initiative. On October 14, 1999, two Port Authority members and a Phillips County taxpayer/elector filed suit in the Phillips County Circuit Court against the eleven members of the QC in their official capacity, seeking a writ of mandamus forcing the majority to vote to call an election. The circuit court held a hearing on November 12, 1999, at which it granted the requested relief and ordered the county legislators to hold a hearing by November 15, 1999, in which they were to enact the proposed ordinance.

Appellant QC members abruptly left at the beginning of the November 12 hearing after the circuit court disqualified their lawyer. The court held the hearing in spite of their protest. The QC members appealed the November 12 order to the Arkansas Supreme Court, and the appeal was eventually consolidated with a later petition for stay and writ of certiorari.

When November 15 passed with no vote on the ordinance, the circuit court set a hearing for November 18, 1999, in which appellant members of the QC were to show cause why they should not be held in contempt for failing to comply with the November 12 order. All five recalcitrant members appeared, but to the consternation of the circuit court judge, there were again issues of representation. QC members were initially accompanied by Alvin Simes, who had a contract to represent the QC as an entity, and John Walker, a lawyer from Little Rock who was contacted the morning of the hearing to represent the members individually. Simes refused to represent them individually, citing a conflict of interest. Walker asked for a continuance in order to confer with his clients, and when the judge refused to grant it, Walker likewise refused to represent the QC members. Appellants, without counsel at that juncture, each took the stand, invoking the Fifth Amendment. As a result of this hearing, the circuit court gave the five legislators a final chance to enact the ordinance, setting a deadline of 1:00 P.M., November 19, 1999, and also ordering if they did not do so they would be incarcerated until they complied. The appellants again refused to vote for the ordinance and were jailed. They remained in jail for four days and three nights. During this time, they filed a petition for writ of prohibition and a motion for a stay with the Arkansas Supreme Court, and also filed a notice of appeal from the November 18 contempt order.

Importantly, in their petition and appeal appellant QC members claimed numerous federal statutory and constitutional violations, including violations of the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution, and the 1964 Civil Rights Act.

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On November 22, 1999, the Arkansas Supreme Court granted a writ of certiorari and stayed the contempt order. Dean v. Williams, 339 Ark. 263, 5 S.W.3d 37 (1999) (per curiam) ("Dean I "). The court directed counsel for all parties to brief the following three issues: 1) whether appellants had a duty to call an election under the Act; 2) whether they could be held in contempt for not doing so; and 3) whether the circuit court had jurisdiction to enter the contempt order. After hearing oral argument, the Arkansas Supreme Court issued a ruling on December 10, 1999, in which it addressed both the petition for writ of prohibition as well as the appeals from the contempt hearings. However, the court ruled on only state law issues, ignoring the federal claims. Dean v. Williams, 339 Ark. 439, 6 S.W.3d 89 (1999) ("Dean II ").

In its opinion, the court noted the issue of lack of counsel and remanded the case for another contempt hearing at which the circuit court was to address the following state law issues: 1) whether QC attorney Simes violated Arkansas Rule of Civil Procedure 64(b) prohibiting a lawyer from withdrawing from a proceeding without permission of the court; and 2) whether Amendment 7 to the Arkansas Constitution which authorizes voter initiatives and provides for their timing applied to this matter. 1 The court then continued its stay order until retrial of the contempt hearing had occurred and denied the QC members' request for writ of prohibition.

On remand, the circuit court held Amendment 7 was inapplicable to local option measures like Act 1357 and thus had no effect on the contempt proceedings. The circuit court did not address the representation issue. It also found the QC members were subject to the contempt powers of the court, that they had acted contemptuously, and had not attempted to purge themselves. However, the court concluded the "appropriate remedy for the separate respondents' contempt is to assess no further punishment." Shieffler v. Dean, No. 99-233 (Ark. Cir. Ct. Phillips County Oct. 5, 2000). QC members did not appeal. Instead, five days before the circuit court issued its order, they filed the present case in the Western District of Arkansas alleging a host of federal statutory and constitutional violations. Appellants assert violations of the 1964 Civil Rights Act and the 1965 Voting Rights Act, and claim Amendment 7 and Arkansas Act 1357 violate the First and Fourteenth Amendments to the U.S. Constitution.

Appellees filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1). The district court converted the 12(b)(1) motion into a motion for summary judgment under Fed.R.Civ.P. 56 and granted summary...

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