Fite v. Grulkey

• Decision Date: 28 April 2011
• Docket Number: No. 10-1181,10-1181
• Citation: 2011 Ark. 188
• Parties: THOMAS L. FITE APPELLANT v. MICHAEL W. GRULKEY; FRANKLIN COUNTY ELECTION COMMISSION; CRAWFORD COUNTY ELECTION COMMISSION; CHARLIE DANIELS, ARKANSAS SECRETARY OF STATE APPELLEES
• Court: Arkansas Supreme Court

2011 Ark. 188

THOMAS L. FITE APPELLANT

v. MICHAEL W. GRULKEY; FRANKLINCOUNTY ELECTION COMMISSION;CRAWFORD COUNTY ELECTIONCOMMISSION; CHARLIE DANIELS, ARKANSAS SECRETARY OF STATE APPELLEES

No. 10-1181

SUPREME COURT OF ARKANSAS

Opinion Delivered: April 28, 2011

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

NO. CV-2010-6013

HON. RAYMOND C. KILGORE, JR., JUDGE

DISMISSED.

COURTNEY HUDSON HENRY, Associate Justice

This case concerns a preelection contest brought by appellee Michael Grulkey seeking to disqualify appellant Thomas L. Fite as a candidate for the General Assembly. Fite appeals an order entered by the Pulaski County Circuit Court declaring him ineligible to hold office and directing that his name be removed from the ballot, prohibiting election officials from counting any votes in his favor, and precluding the certification of the election with him as the prevailing candidate. For reversal, Fite contends that the circuit court erred in finding that he received valid service of process. He also asserts that Grulkey's petition for writ of mandamus and declaratory judgment was not timely filed and that, because the petition was untimely, the circuit court lacked jurisdiction to afford appropriate relief. As this appeal pertains to elections and election procedures, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(a)(4). Because the election has been held, the issues raised by Fite are moot, and we dismiss the appeal.

On July 28, 2010, the Republican Party of Arkansas certified Fite as its candidate for state representative in district eighty-three for the upcoming general election on November 2, 2010. District eighty-three includes portions of Crawford and Franklin Counties. On October 20, 2010, Grulkey, a registered voter in the district, petitioned the Pulaski County Circuit Court for a writ of mandamus and declaratory judgment.¹ In the petition, Grulkey alleged that Fite was not eligible to hold office under article 5, section 9 of the Arkansas Constitution, because in 1984 Fite had been convicted of Medicaid bribery in federal court.² The circuit court scheduled a hearing for October 26, 2010. However, prior to the hearing, Fite filed a motion to quash service of process, asserting that he had not been properly served. As a consequence, the circuit court postponed the hearing for one day. When the hearing convened the next day, Fite was not in attendance, but his attorney appeared via Skype teleconferencing.

The circuit court first addressed the issue of service. The question before the court was whether service was valid under the provisions of Rule 4(d)(1) of the Arkansas Rules of CivilProcedure. After hearing conflicting evidence, the circuit court found that the residence of Fite's father was Fite's usual place of abode and that service was perfected on Fite when his father accepted service at the residence. At this juncture in the proceedings, Fite made an appearance in court. Grulkey introduced into evidence a 1984 judgment and disposition order from the United States District Court of the Eastern District of Arkansas reflecting the conviction of "Thomas L. Fite III" for "Medicaid bribery in violation of 42 USC § 1395nn(a)(1)(ii)" and sentence of three years' probation. Further, Fite testified that he was the person who stood convicted of this offense. The parties also stipulated that persons in both Crawford and Franklin Counties voted electronically; that the ballots could not be altered at that point in time; and that, once cast, any votes would be tabulated. Following argument of counsel, the circuit court ruled that Fite's conviction for Medicaid bribery rendered him ineligible to hold office. The court promptly entered an order setting forth its ruling that same date, October 27, 2010. Fite filed a notice of appeal on November 4, 2010.³ Thereafter, on November 23, 2010, Fite filed a motion to expedite review, which we granted on December 9, 2010.

Grulkey filed this action pursuant to Arkansas Code Annotated section 7-5-207(b) (Supp. 2009). This statute provides the means for a voter to raise a preelection attack on a candidate's eligibility to stand for election and for the removal of that ineligible candidate's name from the ballot. Clement v. Daniels, 366 Ark. 352, 235 S.W.3d 521 (2006); State v.Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169 (1989). This court has consistently recognized that the proper procedure to enforce section 7-5-207(b) is an action for writ of mandamus coupled with declaratory relief, which provides prompt consideration of determining a candidate's eligibility. See Tumey v. Daniels, 359 Ark. 256, 196 S.W.3d 479 (2004); Helton v. Jacobs, 346 Ark. 344, 57 S.W.3d 180 (2001); Ivy v. Republican Party of Ark., 318 Ark. 50, 883 S.W.2d 805 (1994); Craighead County Bd. of Election Comm'rs, supra. A voter may avail himself or herself of this right at any time prior to the general election. Tumey, supra; see also Oliver v. Phillips, 375 Ark. 287, 290 S.W.3d 11 (2008). However, in a long line of cases, we have observed that the issue of a candidate's eligibility under section 7-5-207(b) becomes moot once the election takes place. Oliver, supra; Clement, supra; Ball v. Phillips County Election Comm'n, 364 Ark. 574, 222 S.W.3d 205 (2006); Tumey, supra; Benton v. Bradley, 344 Ark. 24, 37 S.W.3d 640 (2001); McCuen v. McGee, 315 Ark. 561, 868 S.W.2d 503 (1994); Craighead County Bd. of Election Comm'rs, supra. We have made exceptions in cases where the public interest is involved and where the issues presented are ones that are likely to recur. Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998) (holding that violation of the two-to-seven-day provision in Ark. R. Civ. P. 78(d) for conducting hearings does not deprive a circuit court of jurisdiction); Craighead County Bd. of Election Comm'rs, supra (holding that proper procedure for challenging the eligibility of a candidate is by writ of mandamus in conjunction with declaratory relief); see also Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000) (addressing issues of necessary and indispensable parties and venuearising from a primary-election-eligibility contest); Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000) (addressing issue of standing arising from an eligibility contest in a primary election).

Of particular significance to the case at hand is our decision in Benton, supra. There, the circuit court denied the appellant's preelection eligibility challenge to a candidate for municipal judge, who subsequently won the election and had been seated in...