Haile v. Johnston, CV–16–18

• Decision Date: 11 February 2016
• Docket Number: No. CV–16–18,CV–16–18
• Parties: Brian Haile, Appellant v. Josh Johnston, Individually and as a Candidate for Sheriff of Cleburne County; Larry Crabtree, Joe Tournear, and Lee Noble, in the Representative Capacities as Members of the Cleburne County Election Commission; Doyle Webb, in His Representative Capacity as Chairman of the Republican Party of Arkansas ; Julie Feil, in Her Representative Capacity as Chairman of the Cleburne County Republican Committee; and Paul Muse in His Official Capacity as Cleburne County Clerk, Appellees.
• Court: Arkansas Supreme Court

482 S.W.3d 323

Brian Haile, Appellant

v.Josh Johnston, Individually and as a Candidate for Sheriff of Cleburne County; Larry Crabtree, Joe Tournear, and Lee Noble, in the Representative Capacities as Members of the Cleburne County Election Commission; Doyle Webb, in His Representative Capacity as Chairman of the Republican Party of Arkansas ; Julie Feil, in Her Representative Capacity as Chairman of the Cleburne County Republican Committee; and Paul Muse in His Official Capacity as Cleburne County Clerk, Appellees.

No. CV–16–18

Supreme Court of Arkansas.

Opinion Delivered February 11, 2016

Concurring Opinion by Special Justice Lambert Delivered February 25, 2016.

Grayson & Grayson, P.A., North Little Rock, by: Keith L. Grayson and Melanie L. Grayson, for appellant.

Greenberg Legal Services, by: Daniel Greenberg, for appellee Josh Johnston.

KAREN R. BAKER

, Associate Justice

This appeal involves a challenge to the eligibility of appellee Josh Johnston to hold public office.¹ Brian Haile, a registered voter in Cleburne County, challenged Johnston's eligibility to run as a candidate for Cleburne County Sheriff alleging that Johnston was constitutionally ineligible to run for or hold public office.

On March 24, 1995, Johnston was charged with felony offense of violation of the Arkansas hot-check law, Ark.Code Ann. § 5–37–302

(Repl.2013). The charges were subsequently reduced to a Class A misdemeanor, and on June 12, 1995, Johnston pleaded guilty, was sentenced, paid restitution, fines and courts costs.

On February 28, 2014, Johnston filed to run as a candidate for Cleburne County Sheriff. Haile filed a petition for declaratory judgment and a writ of mandamus requesting that the Cleburne County Circuit Court find the misdemeanor hot-check violation an infamous crime pursuant to article 5, section 9 of the Arkansas Constitution

and hold Johnston ineligible to run for or hold public office. On May 8, 2014, the circuit court held that Johnston's conviction was an infamous crime and rendered Johnston ineligible to run for or hold public office. Thereafter, Johnston requested and received a new trial at the circuit court level, which ended with the same result. From that order, on May 19, 2014, Johnston filed a petition for emergency stay of the circuit court's order, expedited consideration, and delay of counting and certification of the vote for the office of Cleburne County Sheriff to run for or hold office with this court. On May 20, 2014, we denied Johnston's request. Accordingly, the circuit court's order remained in effect.

In June 2014, Johnston filed a petition to seal his record pursuant to Act 1460 of 2013, Ark.Code Ann. §§ 16–90–1401 et seq.

(2013), in Cleburne County Circuit Court. On June 23, 2014, the circuit court entered an order sealing Johnston's misdemeanor conviction. On November 2, 2015, Johnston filed as a candidate for Cleburne County Sheriff. On November 12, 2015, Haile returned to circuit court and filed a petition for declaratory judgment and writ of mandamus alleging Johnston was ineligible to serve and contended that the circuit court's 2014 order controlled. The parties timely responded including Johnston's response to Haile's petition and motion for summary judgment. On November 24, 2015, the circuit court held a hearing. On that same day, the circuit court entered an order dismissing Haile's petition and granting Johnston's motion for summary judgment. Specifically, the circuit court held that pursuant to Ark.Code Ann. §§ 16–90–1401 et seq.

, Johnston's record was sealed and expunged and he was eligible to run for and hold public office. From that order, Haile timely appeals and presents one issue on appeal: whether the circuit court erred in ruling that Johnston was eligible to run for public office after having been previously determined ineligible as a result of Johnston's being found guilty of committing an infamous crime in violation of article 5, section 9 of the Arkansas Constitution. On January 11, 2016, we granted expedited consideration of this matter.

I. Standard of Review

We review the denial of a declaratory judgment action with a clearly erroneous standard. Poff v. Peedin, 2010 Ark. 136, 366 S.W.3d 347

. Further, we review issues of statutory interpretation de novo. See Ryan & Co. AR, Inc. v. Weiss, 371 Ark. 43, 263 S.W.3d 489 (2007). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court construes the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. Id. Finally, this court will accept a circuit court's interpretation of the law unless it is shown that the court's interpretation was in error. Id.

II. Law & Analysis

Haile asserts that the circuit court erred in holding that Johnston was eligible to run for and hold office. Haile contends that the circuit court erred because res judicata bars any relitigation of the issue. Further, relying on State v. Oldner, 361 Ark. 316, 206 S.W.3d 818 (2005)

, and Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997), Haile contends that this court has held that once an individual is deemed ineligible to hold office pursuant to our constitution, that individual is ineligible in perpetuity. Haile further asserts that, based on these cases, it was error for the circuit court to enter the November 24, 2015 order.

Prior to reaching the merits, we must first address Haile's contention that the present case is barred from review based on the doctrine of res judicata. Haile asserts that the circuit court erred because it was barred by res judicata from reaching the same issue the circuit court decided in 2014. However, this argument is misplaced. "Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action." Middleton v. Lockhart, 344 Ark. 572, 578, 43 S.W.3d 113, 117–18 (2001)

(internal citations omitted). However, the issue presented here, the effect of Johnston's sealed record, was not litigated in the 2014 case. Stated differently, res judicata is not applicable to the case at bar because the issue before us was not a part of the 2014 litigation. Therefore, the doctrine of res judicata does not apply.

Turning to the issue presented, we must review the applicable laws. First, article 5, section 9

: "Felony convictions; eligibility of persons convicted," of the Arkansas Constitution provides as follows.

No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime, shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State.

Second, in 2013, the Arkansas General Assembly passed Act 1460, "An Act to Establish the Comprehensive Criminal Record Sealing Act of 2013" which contains the statutes at issue. See Ark.Code Ann. §§ 16–90–1401 et seq.

The intent of the Act is found in Ark.Code Ann. § 16–90–1402, "Intent":

(a) The General Assembly recognizes that historically the laws of this state involving the procedure a person must follow to have his or her prior criminal history information sealed have been confusing, from the standpoint of both practicality and terminology.

(b) It is the intent of the General Assembly to provide in clear terms in what instances and, if applicable, how a person may attempt to have his or her criminal history information sealed.

Next, Ark.Code Ann. § 16–90–1404(4)(A)

defines "seal" as

to expunge, remove, sequester, and treat as confidential the record or records in question according to the procedures established by this subchapter.

Further in the Act, Ark.Code Ann. § 16–90–1417

, "Effect of sealing," provides in pertinent part:

(a)(1) A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law.

....

(b)(1) Upon the entry of the uniform order, the person's underlying conduct shall be deemed as a matter of law never to have occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist.

(2) This subchapter does not prevent the use of a prior conviction otherwise sealed under this subchapter for the following purposes:

(A) Any criminal proceeding for any purpose not otherwise prohibited by law;

(B) Determination of offender status under the former § 5–64–413;

(C) Habitual offender status, § 5–4–501 et seq.;

(D) Impeachment upon cross-examination as dictated by the Arkansas Rules of Evidence; or

(E) Any disclosure mandated by Rule 17, 18, or 19 of the Arkansas Rules of Criminal Procedure.

Moving to our review of the statute before us, "[t]he first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language." Ortho–McNeil–Janssen Pharm., Inc. v. State, 2014 Ark. 124, at 10, 432 S.W.3d 563, 571

. The basic rule of statutory construction is to give effect to the intent of the legislature. Dep't of Human Servs. & Child Welfare Agency Review Bd. v. Howard, 367 Ark. 55, 62, 238 S.W.3d 1, 6 (2006). Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998)

. Statutes relating to the same subject must be construed together and in harmony, if possible. Berryhill v. Synatzske, 2014 Ark. 169, at 4–5, ...