Com. to Est. Sherwood Fire Dept. v. Hillman, 02-1165.
| Decision Date | 05 June 2003 |
| Docket Number | No. 02-1165.,02-1165. |
| Citation | 109 S.W.3d 641 |
| Parties | COMMITTEE TO ESTABLISH SHERWOOD FIRE DEPARTMENT v. Virginia HILLMAN, Pulaski County Election Commission; Charles King; Sally Stevens; Ann Smith; Jason Fender; Tommy Sanders. |
| Court | Arkansas Supreme Court |
Nickels Law Firm, by: James E. Nickels, Sherwood, for appellants.
No response.
The Committee to Establish Municipal Sherwood Fire Department ("Committee") appeals a judgment of the Pulaski County Circuit Court, Second Division, which declared a ballot title and initiative petition unconstitutional. The Committee argues that since the circuit court granted the Committee's motion to intervene, the circuit court should have allowed the Committee to participate in the litigation concerning the constitutionality of the ballot title and initiative petition. In addition, the Committee argues that it was denied rights under the First and Fourteenth Amendments of the United States Constitution, and article 2, section 4, and amendment 7, of the Arkansas Constitution, and that the judgment of the circuit court which declared the ballot title and initiated proposal unconstitutional should be vacated.
Appellees Jason Fender and Tommy Sanders filed a motion to dismiss the appeal, arguing that the Committee lacked standing to intervene in the matter. We agree that the Committee lacked standing to intervene in the matter; therefore, we grant the appellees' motion to dismiss. Accordingly, we will not address the Committee's points on appeal. We have jurisdiction of this case pursuant to Ark. Sup. Ct. R. 1-2(a)(4) (2002).
The Committee circulated a petition to place an ordinance "to create a fire department" on the City of Sherwood's November 5, 2002, general election ballot. On September 6, 2002, Virginia Hillman, City Clerk for the City of Sherwood, certified the petition to the Pulaski County Election Commission ("Commission").
The proposed ballot title stated:
BE IT ENACTED BY THE PEOPLE OF THE CITY OF SHERWOOD, ARKANSAS: AN ORDINANCE FOR THE ESTABLISHMENT OF A FIRE DEPARTMENT FOR THE CITY OF SHERWOOD, ARKANSAS.
The text of the proposed ordinance stated:
SECTION 1. That beginning with the City of Sherwood's budget for calendar year 2003, the City Council shall establish a fire department and provide personnel, proper engines and such other equipment as shall be necessary to extinguish fires and preserve the property of the city and of the inhabitants from conflagration.
SECTION 2. The uniformed employees of the Sherwood Fire Department shall be covered by the Sherwood Civil Service Commission except for the Fire Chief.
Fender and Sanders, registered voters of the City of Sherwood, filed a complaint against Virginia Hillman, in her official capacity as City Clerk of the City of Sherwood; the Commission; Charles King, in his official capacity as Chairman of the Commission; Sally Stevens, in her official capacity as Commissioner of the Commission; and Ann Smith, in her official capacity as Commissioner of the Commission. The complaint alleged that both the ballot tile and the proposed text of the ordinance were patently misleading. Fender and Sanders sought an immediate and expedited hearing, a declaration that the popular name and ballot title of the proposed initiative were constitutionally invalid, and an injunction to prevent the inclusion of an amended version of the petition on the November 5 ballot and to prevent the certification of the results of any votes cast under the petition.
On October 23, 2002, the circuit court entered an order consolidating a trial of the action on the merits with the hearing on the application for a temporary injunction. At the hearing, the circuit court heard testimony from Fender; Sanders; Lee Wilkins, Battalion Chief of the North Little Rock Fire Department; and Billy Jack Harmon, Mayor of the City of Sherwood. Counsel for the Commission and counsel for City Clerk Hillman were present at the hearing; however, they did not call witnesses or present any argument.
At the conclusion of the hearing, the circuit court stated:
... I just don't think it gives, the ballot title gives the voters a, a constitutionally firm understanding of what they're voting on when they go ... into that booth.... I think this is unconstitutionally written, I think also the initiative has some problems, and I know that's not, you, I really feel that the initiative, if people understood what this initiative was when they signed it, you know may not have as many people signing it. And so, I think there's a double issue in this case, and I don't think it is a proper statement of, of the impact of ... this proposed ordinance. So, I'm going to rule that is unconstitutional on both those grounds, and let you guys do a record and take it up and let the folks that are smarter than me decide.
On October 24, 2002, the Committee filed a motion to intervene. The Committee stated that it had never been notified that an action had been filed to remove the initiative from the ballot. The Committee stated that it became aware of the action upon reading about the action in the newspaper. The Committee argued that, since it submitted the petition for the proposed initiative, it should have been joined as a necessary party to an action challenging the initiative. Fender and Sanders argued that the Committee had no standing to intervene. In addition, Fender and Sanders argued that the Committee was not incorporated. They also argued that, even assuming the Committee had standing, it failed to satisfy the requirements of intervention as required by Rule 24 of the Arkansas Rules of Civil Procedure. Finally, they argued that, even assuming the Committee had standing, its attempt at intervention was not timely.
On October 30, 2002, the circuit court held a hearing on the Committee's motion to intervene. The circuit court granted the motion to intervene, and the Committee moved to dismiss the case, arguing that it was a necessary party that was not served in the lawsuit. The circuit court denied the Committee's motion to dismiss. The Committee argued that it should have been given the opportunity to present its case and that it should have been allowed to cross-examine the witnesses present at the October 23 hearing.
The circuit court stated that the Committee could make further arguments as to the merits; however, the Committee stated that it was not prepared to litigate on the merits because the circuit judge's clerk had advised the Committee that, on October 30, the only matter before the court would be the Committee's motion to intervene. The circuit court informed the Committee that a hearing on the merits could only be set on a date after the election.
The circuit court then stated that the ballot title was deficient according to the standard set by the supreme court, and that by granting the Committee's motion to intervene, the circuit court was allowing the Committee to appeal to the supreme court.
Judgment was entered on October 30, declaring the ballot title and initiative petition unconstitutional and enjoining Hillman and the Commission from placing the ballot title on the ballot. Alternatively, the circuit court ordered that any votes cast on the proposed initiative not be counted or certified.
On October 31, 2002, the Committee filed a notice of appeal and a motion to stay the judgment pending appeal. On November 1, 2002, the appellees filed a motion to dismiss the appeal, arguing that the Committee had no standing in the case and that the Committee was not incorporated. In addition, the appellees argued that even assuming the Committee did have standing, its appeal is untimely, prejudices the appellees, and does not afford the court the time needed for deliberation. On November 4, 2002, this court denied the Committee's motion to stay. This court passed the motion to dismiss to be submitted with the case.
While the election has already been held in this case, we chose to address the issue of whether the Committee had standing to intervene, even though the issue concerning the constitutionality of the ballot title and initiated proposal is moot. We have previously stated that "[t]his is not uncommon in matters pertaining to elections where there is a public interest involved and where the issue is such that it tends to become moot before it can be fully litigated." State v. Craighead County Board of Election Commissioners, 300 Ark. 405, 407, 779 S.W.2d 169 (1989). We also note that nothing in the record or abstract indicates that the Committee ever moved this court to expedite this appeal, which explains why the appeal is being considered in May 2003 rather than in a more expedited manner. See Willis v. King, ___ Ark. ___, 98 S.W.3d 427 (2003).
Amendment 7 of the Arkansas Constitution provides, in part:
Municipalities and Counties — The initiative and referendum powers of the people are hereby further reserved to the local voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.
... Fifteen per cent of the legal voters of any municipality or county may order the referendum, or invoke the initiative upon any local measures....
(Emphasis added.)
Rule 24 of the Arkansas Rules of Civil Procedure provides, in part:
a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) wh...
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