Kimbrell v. Thurston
| Decision Date | 03 December 2020 |
| Docket Number | No. CV-20-639,CV-20-639 |
| Citation | 2020 Ark. 392,611 S.W.3d 186 |
| Parties | Andrew KIMBRELL, Appellant v. John THURSTON, in His Official Capacity as Secretary of State for the State of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Rose Law Firm, a Professional Association, by: David S. Mitchell, Little Rock, Andrew Rittenhouse, and Ryan Smith, for appellant.
Leslie Rutledge, Att'y Gen., by: Michael Mosley, Ass't Att'y Gen.; and Brittany Edwards, Ass't Att'y Gen., for appellee.
In 2019, the General Assembly referred three proposed amendments to the Arkansas Constitution to the voters of the State of Arkansas for the general election to be held on November 3, 2020. This appeal involves a challenge by appellant, Andrew Kimbrell, a qualified voter, to the ballot title of two of the proposed referred constitutional amendments, Issue 2—"Arkansas Term Limits Amendment"; and Issue 3—"A Constitutional Amendment to Amend the Process for the Submission, Challenge, and Approval of Proposed Initiated Acts, Constitutional Amendments and Referenda." The popular name and ballot title for Issue 2 stated as follows:
The popular name and ballot title for Issue 3 stated:
On October 9, 2020, Kimbrell filed an action in the Pulaski County Circuit Court for writ of mandamus, declaratory and injunctive relief challenging the sufficiency of Issue 2 and Issue 3, seeking a declaration that Issue 2 and Issue 3 were insufficient, and an injunction precluding appellee, John Thurston, as Secretary of State, from placing Issue 2 and Issue 3 on the ballot, and from counting, canvassing, or certifying any ballots for Issue 2 and Issue 3.1 Further, Kimbrell's action sought review of the standard applied by this court in reviewing ballot titles on amendments referred by the General Assembly, which was established in Becker v. Riviere , 277 Ark. 252, 641 S.W.2d 2 (1982). Specifically, Kimbrell alleged that the manifest-fraud standard set forth in Becker should no longer apply to proposed amendments referred by the General Assembly because the basis supporting the court's position in Becker is no longer applicable. Kimbrell contended that this court's premise that voters were widely informed about the substance of referred amendments through newspaper publications was no longer valid due to the significant decline in newspaper circulation and readership in recent years. According to Kimbrell, only 25.6 percent of registered voters would have received a newspaper that included the 2020 public notices. Kimbrell further alleged that Becker must be overruled because the legislature now refers amendments almost every election cycle. Kimbrell's theory was that because of these changes, the rationale provided in Becker was no longer applicable. In sum, relying on the alleged decline in newspaper circulation, the decline in notoriety surrounding referrals by the General Assembly, and the disinterest in public notices, Kimbrell contended that the courts should now apply either the same standard that applies to voter-initiated amendments or a new standard that is at least more stringent than the manifest-fraud standard.
Based on this, Kimbrell alleged that the ballot titles of Issues 2 and 3 were misleading and insufficient because they failed to inform the voters of the substance of the amendments. Kimbrell requested that the circuit court enter an order declaring these Issues insufficient and invalid and enjoining Thurston from counting, canvassing, and/or certifying any ballots or votes cast for them during the November 3 election.
On October 14, 2020, pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure, Thurston filed a motion to dismiss. On October 15, we handed down Steele v. Thurston , 2020 Ark. 320, 609 S.W.3d 357, in which Steele appealed the circuit court's order denying Steele's request to strike two proposed constitutional amendments, Issue 2 and Issue 3, from the general-election ballot on November 3. We affirmed the circuit court's order and specifically rejected Steele's invitation to overrule our precedent pertaining to the review of constitutional amendments proposed by the legislature: Steele , 2020 Ark. 320, at 8, 609 S.W.3d 357. Based on Steele , on October 15, 2020, Thurston filed an amended motion to dismiss contending that Kimbrell's action was barred by res judicata, collateral estoppel, and laches and should be dismissed; he also asserted that our decision in Steele addressed Kimbrell's claims and bars review. Thurston further claimed that Kimbrell's action should fail on the merits because Issue 2 and Issue 3 comported with our constitutional requirements.
Likewise, on October 15, the circuit court conducted a hearing on the complaint and motion to dismiss. On October 16, Kimbrell responded to Thurston's amended motion to dismiss and asserted that his action was not barred; rather, Kimbrell contended that there had been a change in circumstances warranting a departure from precedent and urged the circuit court to overrule Becker . On October 19, Thurston replied to Kimbrell's response and urged the circuit court to grant his motion to dismiss alleging that our decision in Steele addressed Kimbrell's claims and that Kimbrell's request to overturn decades of precedent was without merit.
On October 26, the circuit court entered an order finding that Steele controlled and granted Thurston's amended motion to dismiss with prejudice; denied Kimbrell's motion for a preliminary injunction; denied Kimbrell's motion for writ of mandamus or declaratory relief; and dismissed the matter with prejudice.
On October 27, Kimbrell filed his notice of appeal in the circuit court, designating the pleadings as the record on appeal and stated that "[he had] not designated any portion of the record requiring transcription services." He further stated that "the Appellant requests that the Court expedite the briefing and consideration of this matter so that it can be decided as soon after the election as possible." (Emphasis added.) We note that absent from the record is a motion to stay the circuit court's October 26 order. We also note that on October 29, the transcript of the pleadings was completed by the circuit court clerk.
Thereafter, on November 2 Thurston objected to Kimbrell's On November 3 the general election occurred.
On November 9, after the election, Kimbrell lodged the record, filed a motion for expedited consideration, and submitted a proposed briefing schedule with briefing to be complete on November 23, 2020. On November 10, we granted expedited briefing and ordered simultaneous briefs due on November 16 at 10:00 a.m. The parties filed timely briefs. From the circuit court's October 26 order, Kimbrell appeals and presents one issue asserting that the circuit court erred in declining to overrule Becker and its progeny. We dismiss the appeal.
Steele , 2020 Ark. 320, at 3, 609 S.W.3d 357. When reviewing a circuit court's order granting a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Wade v. Ferguson , 2009 Ark. 618, at 2, 2009 WL 4723356. Steele , 2020 Ark. 320, at 4, 609 S.W.3d 357. The standard of review for the granting of a motion to dismiss is whether the circuit court abused its discretion. Henson v. Cradduck , 2020 Ark. 24, 593 S.W.3d 10.
At issue here is Kimbrell's challenge to Issue 2 and Issue 3. In granting Thurston's amended motion to dismiss, the circuit court found in pertinent part:
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Thurston v. League of Women Voters of Ark.
...dismiss is whether the circuit court abused its discretion. Henson v. Cradduck , 2020 Ark. 24, 593 S.W.3d 10." Kimbrell v. Thurston , 2020 Ark. 392, at 5–6, 611 S.W.3d 186, 190. Further, "we look only to the allegations in the complaint and not to matters outside the complaint. However, we ......
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