Baker v. Rogers

• Citation: 243 S.W.3d 911,368 Ark. 134
• Decision Date: 30 November 2006
• Docket Number: No. 06-1206.,06-1206.
• Court: Arkansas Supreme Court
• Parties: Cindy M. BAKER, Appellant, v. Robert T. ROGERS; Carroll County Board of Election Commission; Carroll County Board of Election Commissioners; Levi Phillips, Chairman; David Hoover and Joe Goforth, Members of the Carroll County Board of Election Commissioners, Appellees.

243 S.W.3d 911

368 Ark. 134

Cindy M. BAKER, Appellant, v. Robert T. ROGERS; Carroll County Board of Election Commission; Carroll County Board of Election Commissioners; Levi Phillips, Chairman; David Hoover and Joe Goforth, Members of the Carroll County Board of Election Commissioners, Appellees.

No. 06-1206.

Supreme Court of Arkansas.

November 30, 2006.

Jeff Rosenzweig, Little Rock, AR, for appellant.

Putman Law Firm, by: William B. Putman, Fayetteville, AR, for appellees.

JIM HANNAH, Chief Justice.

Cindy M. Baker appeals a September 29, 2006, order dismissing her complaint contesting the certification of Robert T. Rogers as the winner of the May 23, 2006, preferential primary election for the office of prosecuting attorney of the Nineteenth Judicial District. The circuit court erred in dismissing Baker's complaint with prejudice for failure to join the Secretary of State as a necessary party. As discussed in Willis v. Crumbly, 368 Ark. 5, 242 S.W.3d 600 (2006) and Simes v. Crumbly, 368 Ark. 1, 242 S.W.3d 610 (2006), a post-election contest case involving a district office such as prosecuting attorney must be filed in the county in which certification of nomination was made. Id. Further, the Secretary of State is not a necessary party. Id. In this case, that means the case was properly filed in Carroll County, and the Secretary of State was not a necessary party.

This case concerns an election contest, which is a special proceeding exempting application of the rules of civil procedure where a statute provides a different procedure.¹ McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000); Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992); Hanson v. Garland County Election Comm'n, 289 Ark. 367, 712 S.W.2d 288 (1986). Arkansas Code Annotated § 7-5-801(e) (Repl.2000) only modifies civil procedure; it does not supplant it. First, the complaint must be filed "within twenty (20) days of the certification complained of." Ark.Code Ann. § 7-5-801(d) (Repl.2000). Second, the "complaint shall be answered within twenty (20) days." Ark.Code Ann. § 7-5-801(e). In these two ways, specific procedure is provided by the statute, and pursuant to Ark. R. Civ. P. 81, the "procedure so specified shall apply." Otherwise, all other rules of civil procedure apply.

The complaint was filed on June 15, 2006. Rogers was served by mail on June 17, 2006. The summons stated that a responsive pleading had to be filed "within twenty (20) days from the day you were served with this summons." Similarly, Ark.Code Ann. § 7-5-801(e) (Repl.2002) provides that a complaint contesting an election shall be "answered"² within twenty days.³ Twenty days from the date of service⁴ ran on July 7, 2006. Rogers filed his responsive pleading, a motion to dismiss, on July 6, 2006, which was within twenty days of service.

Baker also alleges that the circuit court erred in failing to grant her an order placing evidence of the election into protective custody. She failed to obtain a ruling on this issue. The failure to obtain a ruling precludes appellate review because there is no order of a lower court on the issue for this court to review on appeal. Gwin v. Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004).

Reversed and remanded.

GLAZE, J., concurs in part and dissents in part.

IMBER and DICKEY, JJ., not participating.

TOM GLAZE, Justice, substituted opinion; concurring in part and dissenting in part.

This case is an election matter that requires this court to expedite its decision. Our court has considered several election matters this year, and we have reached a final decision in each case. What makes the instant case especially important are the serious allegations of fraud and the unlawful casting of ballots.

Appellant Cindy Baker and appellee Robert Rogers are candidates for the Democratic nomination for the office of Prosecuting Attorney for the Nineteenth Judicial District (East), which is co-extensive with the boundaries of Carroll County. No Republican, Independent, or other third-party candidate filed for this office. The three members of the. Carroll County Board of Commissioners, Levi Phillips, David Hoover and Joe Goforth, superintended the Preferential Primary Election held on May 23, 2006. On May 26, 2006 the Commissioners certified Rogers the winner by 57 votes.

On June 15, 2006, Baker filed an election contest; in her complaint, comprised of 291 paragraphs plus exhibits, Baker alleged that specific ballots were cast illegally. Baker averred that those unlawful ballots would change the result of the May 23 election, making her the winner. Alternatively, Baker argued that, due to noncompliance with various election laws, the election should be voided.

On July 6, 2006, Rogers and the Carroll County Board of Election Commissioners ("the Commissioners") filed a joint motion asking the circuit court to dismiss the complaint or, alternatively, grant them summary judgment. However, they did not file an answer. Baker then responded, stating she was entitled to a default judgment, because Rogers and the Commissioners failed to file an answer within the twenty days allotted under Ark.Code Ann. § Section 7-5-801(e) (Repl.2000). On August 3, 2006, Rogers responded that § 7-5-801(e) does not require an answer within 20 days from the date on which Baker's complaint was filed. Instead, Rogers contended that any answers required would be from the time he was served with the complaint. Rogers also asserted that § 7-5-801(e) did not require the filing of an answer or preclude a defendant from filing a motion to dismiss.

On August 7, 2006, the trial court heard the parties' motions and, among other things, declared that it had jurisdiction of the parties and cause of action. The trial court ruled first that § 7-5-801(e) was ambiguous because it was unclear whether a defendant in a post-election contest case was required to file his answer 20 days from the filing of the plaintiffs complaint, or from the date on which the defendant was served with the complaint. This latter interpretation corresponds with the twenty-day period provided by the Arkansas Rules of Civil Procedure. In this election case, Baker filed her complaint on June 15, 2006; twenty days from that date would have made Rogers's answer due on July 5, 2006. The Commissioners were not served until June 19, 2006 which, under the Rules of Civil Procedure, would have made July 10, 2006, the deadline for the Commission to file its answer.

Under the facts in this case, however, the deadline for filing an answer is irrelevant, because neither Rogers nor the Commissioners ever filed an answer to the allegations listed in Bakers's complaint. Instead, Rogers and the Commissioners filed a joint motion to dismiss or alternatively for summary judgment. The trial court, finding that the defendants' motions had been timely filed, ultimately granted their dismissal,¹ but denied their summary judgment request. The trial court's application of the "twenty days from service" language in Ark. R. Civ. P. 12 forms the crux of the second point raised in Baker's appeal.

I begin by pointing out that I disagree with the trial court's finding that the language in § 7-5-801(e) contains an ambiguity. For example, in Willis v. King, 352 Ark. 55, 98 S.W.3d 427 (2003), this court stated that the General Assembly "has made it abundantly clear that the concern for timely resolution for election contests is not unique to the filing of the complaint, but that expedited deadlines and considerations of election contests permeates the Election Code." Willis, 352 Ark. at 61, 98 S.W.3d at 430. In making this statement, our court cited § 7-5-801(e) as providing that a response is due within 20 days of the complaint being filed. Id. (emphasis added). It has long been the settled law in our state that an election contest is a special, statutory proceeding under Ark. R. Civ. P. 81, and that the Rules of Civil Procedure do not apply where a statute creates a right, remedy or proceeding that provides a different procedure. See Tate-Smith v. Guppies, 355 Ark. 230, 134 S.W.3d 535 (2003); Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992). Our court has also held that contesting an election is purely statutory, and a strict observance of statutory requirement is essential to the exercise of jurisdiction by the court, as it is desirable that election results have a degree of stability and finality. Tate-Smith, 355 Ark, at 237, 134 S.W.3d at 539 (citing Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973)); see also McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000).

In the case now before us, the suggested ambiguity offered by the trial court can only be said to exist by inserting the words Rogers and the Commission offered in this case, to the effect that "the complaint shall be answered within 20 days after the defendants have been served." Such an addition of language is unnecessary, and would subvert the reasonable interpretation that our court has given to § 7-5-801(e) and other related election statutes that require the defendants to have tiled an answer within twenty days from the filing of the complaint. As was made clear in Willis v. King, supra, this court has specifically stated that the deadlines set out in § 7-5-801 have long been held to be both mandatory and jurisdictional. Willis, 352 Ark. at 59, 98 S.W.3d at 429.²

In this case, Rogers and the Commissioners failed not only to meet the twenty-day deadline for filing their answer after Baker filed her complaint, but also they never filed any answer at all in this litigation. As previously mentioned, Rogers and the Commissioners did file motions for dismissal and for summary judgment, but both of these motions were initially denied by the trial court. Moreover, the defendants' standing to bring these motions was questionable, because they never filed a timely answer. See Beebe v. Fountain Lake Sch. Dist....