Jenkins v. Bogard
| Decision Date | 10 December 1998 |
| Docket Number | No. 98-1303,98-1303 |
| Citation | 980 S.W.2d 270,335 Ark. 334 |
| Parties | Don JENKINS and Republican State Committe, Appellants, v. Honorable David BOGARD, et al., Appellees. |
| Court | Arkansas Supreme Court |
John Wesley Hall, Little Rock, for Appellants.
This is an appeal from a writ of mandamus and declaratory judgment issued by appellee Circuit Judge David Bogard. The issues presented concern election procedures. Don Jenkins was certified by the Secretary of State as the Republican candidate for state representative, District 10, in the November 3, 1998 general election. The Democratic Party of Arkansas sued to have Mr. Jenkins's name removed from the ballot or, alternatively, to prohibit the counting of votes cast for Mr. Jenkins. Individual residents of District 10 were later substituted as plaintiffs. It was contended that Mr. Jenkins was ineligible because he had not resided in District 10 for one year as required by Ark. Const. art. 5, § 4. Judge Bogard agreed and issued his order striking Mr. Jenkins's name from the ballot on October 29, 1998.
We stayed Judge Bogard's order and granted an expedited appeal. Jenkins v. Bogard, 334 Ark. 645, 980 S.W.2d 548 (1998). Mr. Jenkins's name thus remained on the ballot, but he lost the election. Kenneth Chitwood and Terry Wells, the substituted plaintiffs, move to dismiss Mr. Jenkins's appeal on the ground that the issues are moot because the election has been held and our decision will have no practical effect.
In McCuen v. McGee, 315 Ark. 561, 868 S.W.2d 503 (1994), a case very similar to this one, we chose not to address the issues presented because of mootness resulting from the fact that the election in question had been held and nothing we might do would change the result. In that case, however, we noted that "appellant has not addressed that question [the public interest] except insofar as his own interest is concerned and we are not persuaded that an exception [to the mootness doctrine] should be made in this case." McCuen, 315 Ark. at 564, 868 S.W.2d at 505. In this case, the contrary is true. Mr. Jenkins and the State Republican Committee have clearly stressed the importance of having the issues presented here decided for the benefit of orderly procedures for challenging the appearances of names on the ballot in future elections, and we agree. We therefore deny the motion to dismiss because the issues presented are ones likely to recur, Quinn v. Webb Wheel Products, 334 Ark. 573, 976 S.W.2d 386 (1998), and particularly because issues concerning election procedure are of public importance and should be resolved so that errors in election procedures, if any are held to have occurred, will not be repeated. See Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995).
The Secretary of State certified Mr. Jenkins's name to the election boards of Crawford and Franklin Counties on September 14, 1998. The mandamus and declaratory judgment petition was filed September 30, 1998, and Judge Bogard scheduled a hearing for October 5, 1998. Mr. Jenkins was not, however, served with process until October 20, 1998, and a new hearing was set for October 28, 1998.
The theme of the appeal by Mr. Jenkins and the State Republican Committee is that Judge Bogard's order was tardy and that, although it was stayed, the order caused Mr. Jenkins to lose votes because of confusion of the voters about whether Mr. Jenkins remained a candidate and whether votes cast for him would be counted. We are asked whether such "last minute" pursuit of the writ and declaratory judgment, and the order that was issued, were appropriate in view of the lateness of the filing of the petition and the failure of Judge Bogard to have a hearing upon it within two to seven days of its filing as required by Ark. R. Civ. P. 78(d).
We decline to address the question whether Judge Bogard abused his discretion in entertaining the petition that was filed just over a month prior to the election. We do so because the argument was not presented to Judge Bogard. We do not address arguments made for the first time on appeal. Dellinger v. First Nat'l Bank of Russellville, 333 Ark. 460, 970 S.W.2d 223 (1998). An exception to that rule is that we will address for the first time on appeal an argument that the trial court lacked jurisdiction of the subject matter with which it has dealt. See Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988); Roy v. International Multifoods Corp., 268 Ark. 958, 597 S.W.2d 129 (1980).
Mr. Jenkins concedes that he did not present the delay-in-filing issue to Judge Bogard, and he makes no argument that the issue is one of subject-matter jurisdiction. He also concedes that he did not object to Judge Bogard's holding the hearing more than seven days after the petition was filed; however, he argues that Judge Bogard lost jurisdiction of the subject matter because of the violation of the requirement found in Rule 78(d) that a hearing be held neither less than two nor more than seven days after the petition for mandamus and declaratory judgment is filed. Despite the mootness of the issue, we choose to decide two issues we consider to be significant, i.e., the issue concerning the effect of a violation of Rule 78(d) and the issue concerning that which is necessary to establish residency.
We hold that the Circuit Court did not lose jurisdiction of the subject matter as a result of the violation of Rule 78(d) and that it was thus necessary for Mr. Jenkins to have objected in order to have preserved that issue for appeal. We also hold that the ruling to the effect that Mr. Jenkins had not satisfied the residency requirement posed by , was correct. We therefore affirm.
and subject-matter jurisdiction
Arkansas Code Ann. § 7-5-207(b) (Supp.1997) provides that "[n]o person's name shall be printed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of the filing as a candidate for office, to hold the public office for which he is a candidate...." The proper means of enforcing that provision is to petition for mandamus and declaratory judgment. State v. Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169 (1989).
The requirement that a hearing be held on a mandamus petition no less than two and no more than seven days after filing appeared in Ark.Code Ann. § 16-115-104 (1987). The requirement was removed in favor of a 45-day limit by Act 582 of 1991. See Ark.Code Ann. § 16-115-104 (Supp.1997). Recognizing that it was important to retain the shorter time period for hearings to be held with respect to petitions filed in election cases, we added subsection (d) to Rule 78 in order to retain the two-to-seven day limit for hearings of mandamus petitions filed in election matters. Subsection (d) of the rule provides as follows:
Mandamus and Prohibition. Upon the filing of petitions for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of the judge or chancellor having jurisdiction to fix and announce a day of court to be held no sooner than two (2) and no longer than seven (7) days thereafter to hear and determine the cause.
No cases have been decided interpreting the language of Rule 78(d), but its language is very similar to that found in the statute prior to the adoption of Act 582. In the Craighead County case and in Standridge v. Priest, 334 Ark. 568, 976 S.W.2d 388 (1998), we emphasized the necessity for promptness in deciding election issues. But in neither of those cases, nor in other cases in which the statute and its mandatory nature were considered, have we suggested that violation of the two-to-seven day provision would deprive the court of jurisdiction. See, e.g., Rastle v. Marion Co. Rural Sch. Dist., 260 Ark. 740, 543 S.W.2d 923 (1976); Arkansas State Police Comm'n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1973).
Mr. Jenkins has cited cases in which the failure to file an election-contest action in time has been held to deprive the court...
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...issue to be moot there must be no controversy, thus rendering any decision in the case a mere advisory opinion. See Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998). In the present matter, Appellants allege that there is indeed a controversy because they presented evidence that the ro......
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...thus rendering any decision a mere advisory opinion. See Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000); Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998). In the case before now, however, there is a clear controversy, namely the status of the annuity as a countable asset, ......
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