Ark. State Bd. of Election Comm'rs ex rel. Republican Party of Ark. v. Pulaski Cnty. Election Comm'n

• Citation: 437 S.W.3d 80,2014 Ark. 236
• Decision Date: 16 May 2014
• Docket Number: No. CV–14–371.,CV–14–371.
• Court: Supreme Court of Arkansas
• Parties: ARKANSAS STATE BOARD OF ELECTION COMMISSIONERS and Doyle Webb, on Behalf of the Republican Party of Arkansas, Appellants v. PULASKI COUNTY ELECTION COMMISSION; Leonard A. Boyle, Sr., Chris Burks, and Alex Reed, In their Official Capacities as the Commissioners of the Pulaski County Election Commission; And Larry Crane, In his Official Capacity as the Pulaski County Circuit/County Clerk, Appellees.

2014 Ark. 236
437 S.W.3d 80

ARKANSAS STATE BOARD OF ELECTION COMMISSIONERS and Doyle Webb, on Behalf of the Republican Party of Arkansas, Appellants
v.
PULASKI COUNTY ELECTION COMMISSION; Leonard A. Boyle, Sr., Chris Burks, and Alex Reed, In their Official Capacities as the Commissioners of the Pulaski County Election Commission; And Larry Crane, In his Official Capacity as the Pulaski County Circuit/County Clerk, Appellees.

No. CV–14–371.

Supreme Court of Arkansas.

May 16, 2014.

[437 S.W.3d 82]

Dustin McDaniel, Att'y Gen., by: David A. Curran, Deputy Att'y Gen., and C. Joseph Cordi, Jr., Sr. Ass't Att'y Gen., for appellant Arkansas State Board of Election Commissioners.

Ritter Law, by: George P. Ritter and Bilenda Harris–Ritter, for appellant Doyle Webb.

Karla M. Burnett, Little Rock and Amanda Mankin–Mitchell, Little Rock, Pulaski County Attorney's Office, for appellees.

PAUL E. DANIELSON, Justice.

Appellants, the Arkansas State Board of Election Commissioners (“ASBEC”) and Doyle Webb, on behalf of the Republican Party of Arkansas, appeal from the Pulaski County Circuit Court's findings of fact and conclusions of law and order of summary judgment in favor of appellees, the Pulaski County Election Commission; Leonard A. Boyle, Sr., Chris Burks, and Alex Reed, in their official capacities as the Commissioners of the Pulaski County Election Commission; and Larry Crane, in his official capacity as the Pulaski County Circuit/County Clerk (collectively, “PCEC”). In its orders, the circuit court declared that Act 595 of 2013, which amended the Arkansas election code to require that voters provide proof of identity when voting, was unconstitutional and that certain emergency rules promulgated by the ASBEC relating specifically to absentee voters were also unconstitutional because the rules were derived from the Act and violated article 3, sections 1 and 2, of the Arkansas Constitution.¹ The ASBEC asserts two points on appeal: (1) that the circuit court erred in declaring Act 595 unconstitutional and (2) that its rules relating to absentee voters did not exceed the scope of its authority. Webb also asserts two points on appeal: (1) that the ASBEC was within its authority when it adopted the rules at issue and (2) that the PCEC lacked standing to bring its declaratory-judgment action. We affirm the circuit court's grant of summary judgment in part because the circuit court was correct that the rules relating to absentee voters promulgated by the ASBEC were unconstitutional; however, we vacate its grant of summary judgment in part because the circuit court erred in declaring Act 595 unconstitutional, as that issue was not pled or developed before the circuit court. We further dissolve the previously entered temporary stay.

On March 12, 2014, the PCEC filed a petition for declaratory judgment in the circuit court and named the ASBEC as defendants. In its petition, the PCEC averred that it was charged with overseeing and administering the counting of absentee ballots and that Crane was the custodian of absentee ballots for the county. The PCEC asserted that, some time after the General Assembly's enactment of Act 595 of 2013, the ASBEC approved emergency changes to its Rules for Voter Identification and its Rules on Poll Watchers,

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Vote Challenges, and Provisional Voting. It contended that these changes were implemented by the ASBEC to establish a method, similar to the statutory procedure for in-person voters, for an absentee voter to be notified and to be given the opportunity to cure any deficiency resulting from the failure to submit the statutorily required identification with his or her absentee ballot. ² The PCEC claimed that the ASBEC's adopted rules conflicted with both the Arkansas Code and the opinions of the Arkansas Attorney General and that the conflict caused uncertainty for the PCEC with regard to the administration of elections, specifically, its processing of absentee ballots. The PCEC further asserted that the ASBEC did “not have the authority to extend the statutory scheme that applies solely to an in person voter to an absentee voter merely by adopting a rule allowing the voter to return the required identification that was not submitted with the ballot.” It urged that the ASBEC's authority was “one of implementation rather than creation” and that the ASBEC had “exceeded its authority by adopting and implementing rules that create procedures to allow the counting of absentee ballots that should not be counted pursuant to statutes.” In its subsequent amended petition, the PCEC alleged that the rules adopted by the ASBEC conflicted with the election statutes, resulting in a violation of the separation-of-powers doctrine.

Webb was granted permissive intervention, and the circuit court entered a scheduling order in which it stated that all the parties had agreed that the matter involved a question of law that was ripe for summary judgment. In accord with the circuit court's scheduling order, each party filed a summary-judgment motion and response. In its motion for summary judgment, the PCEC contended that the rules of the ASBEC were not in accordance with the law. Specifically, the PCEC argued that, by creating a “cure period” for absentee voters who failed to submit with their absentee ballots the identification required by Arkansas Code Annotated § 7–5–201(d)(1)(B) (Supp.2013) (effective Jan. 1, 2014), the ASBEC's emergency rules violated the separation-of-powers doctrine because Act 595 did not provide for a cure period or procedure for absentee voters—only in-person voters. The PCEC urged that the ASBEC had attempted to legislate for the General Assembly by promulgating its emergency rules and that it had acted outside the scope of its authority by infringing on a legislative function; consequently, the PCEC sought a declaration that the rules were invalid because they violated separation of powers. It contended that, had the General Assembly intended for absentee voters to have a period in which to cure any deficiency in the provision of the requisite identification, it could have so provided, but did not. By promulgating rules that created an otherwise unprovided-for cure period for absentee voters, the PCEC claimed, the ASBEC substituted its judgment for that of the legislature and enacted rules that were contrary to law.

The ASBEC, in its motion for summary judgment, asserted that, pursuant to Ark.Code Ann. § 7–4–101(f)(5) (Supp.2013), it was authorized to promulgate the emergency rules because the rules were necessary to assure fair and orderly election procedures. According to the ASBEC, it had merely corrected an unfair situation in which in-person voters had been given by

[437 S.W.3d 84]

statute the opportunity to cure any failure to provide the identification required to vote, but absentee voters had not. The ASBEC maintained that nothing in the election code prohibited it from promulgating such rules and that it was empowered “to fill the gap created by [the] legislature's silence” in order to achieve fairness.

In Webb's cross summary-judgment motion, he too asserted that the ASBEC had acted within its authority when it adopted the emergency rules to “assure even and consistent application” of the voter-identification laws. Webb averred that the rules furthered the intent of the General Assembly that all voters be given an equal opportunity to remedy any issues regarding their identity and that the “only thing” missing from Act 595 “was a procedure that could be used by absentee voters to ‘cure’ their ballots.” He argued that the ASBEC provided that procedure when it promulgated its rules and that the rules were necessary to remedy any disparity between in-person voters and absentee voters and to eliminate any potential constitutional problem arising from that disparity. Finally, Webb contended, the PCEC lacked standing to bring an action for declaratory relief because the rules passed by the ASBEC did not injure, or threaten to injure, the PCEC. The circuit court took the matter under advisement.

In its orders, the circuit court granted summary judgment to the PCEC and denied summary judgment to both the ASBEC and Webb, finding in relevant part:

1. All parties are in agreement that there are no material issues of fact in dispute, and the court agrees with the parties.

2. The plaintiffs' Motion for Summary Judgment should be and is hereby granted. The subject Emergency Rules are derivative of Act 595 of 2013. Act 595 of 2013 is unconstitutional in that it violates Article 3, Section 1 and Article 3, Section 2 of the Arkansas Constitution. The Emergency Rules are also unconstitutional as violative of Article 3, Section 1 and Article 3, Section 2 of the Arkansas Constitution. Accordingly, the Emergency Rules are null and void ab initio.

Incorporated by reference were the circuit court's findings of fact and conclusions of law, which were filed separately the same day. In that order, the circuit court found that Act 595 of 2013 was unconstitutional because it added “additional qualifications for qualified voters not stated in Article 3, Section 1 of the Arkansas Constitution” and that it unconstitutionally impaired the right of suffrage guaranteed in Ark. Const. art. 3, § 2. It further found that the “subject regulations passed by the defendant Arkansas State Board of Election Commissioners being derivative of Act 595 of 2013, are also unconstitutional, as being violative of both Section 1 and Section 2 of Article 3 of the Arkansas Constitution.” The circuit court then declared both Act 595 and the ASBEC's emergency rules void and unenforceable.

Both the ASBEC and Webb filed notices of appeal from the circuit court's orders. After filing the record with this court, the ASBEC filed a petition for emergency stay and expedited consideration with this court, with Webb filing a joinder in that motion. We granted a temporary stay with regard to the circuit court's declaration...