Dean v. Williams

• Decision Date: 10 December 1999
• Docket Number: 99-1364.,No. 99-1353,99-1353
• Citation: 6 S.W.3d 89,339 Ark. 439
• Parties: Joseph DEAN, Earnest Simes, Geraldine Davis, Clausey Myton, and Arlanda Jacobs, v. Honorable Randall L. WILLIAMS, Gene Schieffler, and Arnell Willis, Individually and as Chairman and Vice-Chairman of the Helena-West Helena-Phillips County Port Authority, and Turk Corder, Individually, and the Helena-West Helena-Phillips County Port Authority.
• Court: Arkansas Supreme Court

6 S.W.3d 89

339 Ark. 439

Joseph DEAN, Earnest Simes, Geraldine Davis, Clausey Myton, and Arlanda Jacobs, v. Honorable Randall L. WILLIAMS, Gene Schieffler, and Arnell Willis, Individually and as Chairman and Vice-Chairman of the Helena-West Helena-Phillips County Port Authority, and Turk Corder, Individually, and the Helena-West Helena-Phillips County Port Authority.

Nos. 99-1353, 99-1364.

Supreme Court of Arkansas.

December 10, 1999.

Wilson & Valley, by: J.L. Wilson, J.F. Valley, Andre K. Valley, Don R. Etherly, and E. Dion Wilson, Helena; and Simes Law Firm, by: Alvin L. Simes, Forrest City, for petitioners.

Mark Pryor, Att'y Gen., by: Brian G. Brooks, Ass't Att'y Gen., Little Rock, for respondent Honorable Randall L. Williams, Circuit Court of Phillips County.

Friday, Eldredge & Clark, by: William A. Waddell, Jr., Little Rock, for separate respondents.

GLAZE, Justice.

Initially we had jurisdiction of this case because petitioners requested we issue a writ of prohibition to prevent the circuit court from exercising jurisdiction to hold a show-cause hearing as to whether petitioners should be found in contempt. See Sup.Ct. R. 1-2(a)(3). Our clerk accepted this petition and assigned it a case number of 99-1353. Before that petition and accompanying motion for stay could be addressed, the trial court held its hearing and the petition became moot. Because the petitioners filed a timely notice of appeal from the trial court's contempt order, we assumed jurisdiction to decide that final order. That appeal was assigned number 99-1364. See Ark. R.App. P. 2(b); Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). We also granted the stay and expedited the appeal. We have consolidated the petition for writ of prohibition and the appeal for purposes of decision making.¹

The original petitioners, now appellants, Joseph Dean, Earnest Simes, Geraldine Davis, Clausey Myton, and Arlanda Jacobs, and the six other Phillips County Quorum Court members were sued in their official capacity by a taxpayer and two members of the Helena-West Helena Port Authority to require the eleven-member quorum court to call an election, so the electors of Phillips County could vote for or against a county sales tax. After the circuit court issued a mandate ordering the quorum court to set an election date, five of the members (petitioners/appellants herein) refused to comply. The trial court then gave the petitioners/appellants time to obey its order or be incarcerated. When the petitioners/appellants failed to comply with the court's directive, they were put in jail. However, petitioners previously filed their petition for a writ of prohibition here, asking us to stay the lower court's contempt order and to hold that the circuit court acted outside its jurisdiction. They further asserted that the trial court's orders was unconstitutional.

As has already been mentioned, besides their request for us to issue a writ of prohibition, petitioners subsequently filed a notice of appeal, and generally argue they pursued their request for a writ because they believed an appeal was an inadequate remedy. In sum, petitioners submitted that such inadequacy justified their request for an extraordinary writ. Because the circuit court's contempt order was pending below and on appeal, we granted the petitioners' motion to stay, and we expedited matters so we could consider at least those issues touching on the contempt order. We attempted to define those issues to be (1) whether the petitioners had a duty to call an election on the proposed sales tax, (2) whether they could be held in contempt for refusing to call an election, and (3) whether the circuit court had jurisdiction to enter the orders it issued. Before turning to those issues, we will set out a few additional details as to when and how this litigation got to this stage.

This 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. About ten years ago, the voters of Phillips County approved a one percent sales tax which aided in the industrial development of this area. That tax expires on or shortly after January 1, 2000.

In an apparent anticipation that the Phillips County voters would need to approve a new one percent sales tax to continue the port authority project and other important matters in January 2000, State Representative Arnell Willis sponsored a bill in the General Assembly which authorized the calling of an election to be held on a county sales tax upon the filing of initiative petitions by the legal voters of the county. That bill was passed, then approved on April 12, 1999, and subsequently designated Act 1357 of 1999. On August 23, 1999, Representative Willis and Eugene Schieffler, as members of the port authority, filed initiative petitions with the county clerk as required under Act 1357. Under the Act's terms, the Phillips County Quorum Court is required to submit the question of the levying of the sales tax to the electors of the county, and in doing so, the quorum court must set the election to be held within 120 days from the filing of the petitions. Using the August 23, 1999 date, the election could be held no later than December 21, 1999.

On September 14, 1999, a proposed ordinance—which would have referred the sales tax measure to the Phillips County voters at a special election to be held on October 26, 1999—was presented to the Phillips County Quorum Court, but the quorum court rejected the proposal by a vote of five in favor and six against. The ordinance was again considered at an October 12, 1999 meeting, and the same six-to-five vote rejected the calling and setting of an election by voting to table the ordinance indefinitely. The six members voting against the ordinance and in tabling it were Trudie Miller and the same five petitioners described above as the members who eventually were found in contempt for continuing their decision not to call an election.

On October 14, 1999, Willis, Schieffler, and Turk Corder, a Phillips County taxpayer, elector, and former quorum court member, filed a petition for a writ of mandamus against all the Phillips County Quorum Court members, seeking an order from the circuit court compelling the quorum court members, in their official capacity, to enact the ordinance previously submitted and rejected by them and to order them to provide for an election to be held prior to December 1, 1999. After holding a hearing on the matter on November 12, 1999, the circuit court, among other things, granted the requested mandamus relief, and ordered the quorum court to hold a hearing by November 15, 1999, and enact the proposed ordinance. When the Phillips County Quorum Court failed to have a sufficient number of its members meet to vote on the ordinance, the circuit court set a hearing to be held on November 18, 1999, so the members could show cause why they should not be held in contempt for their refusal to comply with the circuit court's November 12 order.

At the November 18 show-cause hearing, the five members identified as Dean, Simes, Davis, Myton, and Jacobs appeared, but after some controversy over whether they were represented by counsel and entitled to a continuance, they chose to invoke their Fifth Amendment rights, thereby refusing to offer any testimony justifying their continuing refusal to comply with the circuit court's November 12 mandate. Accordingly, the trial court ordered that, if the five members did not enact the proposed ordinance before 1:00 p.m., November 19, 1999, they would be incarcerated until they complied with the court's November 12 order.² The five members went to jail, but prior to or at about the same time the members went to jail, they filed their petition for writ of prohibition, and a motion for stay with our court. They had previously filed a notice of appeal on November 12 from the lower court's November 12 order, and later, a notice of appeal on November 18 from the trial court's November 18 contempt order. By per curiam, we granted a stay on November 22, 1999, directed the transcript of the proceedings below be filed with us, and set a briefing schedule. From a reading of the parties' pleadings and partial record, we identified three legal issues that we believed we could consider and decide. An oral argument was heard on November 30, 1999—the day after the parties filed their respective, simultaneous briefs. The parties and this court at oral argument identified issues in addition to those we asked to be briefed, but upon review of the parties' record and a study of their briefs and arguments, we find ourselves unable to fully decide all three issues contained in our November 22, 1999, per curiam.

The first issue is one we can address since the parties raised and developed the issue before or at the time of the November 12 hearing. That issue, restated, is whether petitioners had a duty to call an election under the provisions of Act 1357. In arguing this question, however, petitioners not only deny having such a duty, but also contend the trial court had no jurisdiction to issue a writ of mandamus against them because the Phillips County Quorum Court is a legislative body. Petitioners urge that mandamus lies only against a public official who has failed to perform a ministerial duty and such a remedy cannot prevail against a legislative body. Citing Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979), they further claim that to permit a court to issue mandamus against a legislative entity like a quorum court would violate the separation of powers prescribed by Ark. Const. art. 4, § 1.

The Wells decision relied on by petitioners is one where a taxpayer sought a writ of mandamus against General Assembly officials ordering them to adjourn or compelling them to certify facts of their disagreement over their adjournment date to the Governor, so he could, under his...