Kyzar v. City of West Memphis

• Court: Arkansas Supreme Court
• Writing for the Court: Jim Gunter
• Citation: Kyzar v. City of West Memphis, 201 S.W.3d 923, 360 Ark. 454 (Ark. 2005)
• Decision Date: 27 January 2005
• Docket Number: No. 04-338.,04-338.
• Parties: Garry KYZAR, Appellant, v. CITY OF WEST MEMPHIS, Billy Johnson, Mayor; The West Memphis Advertising and Promotion Commission, Frank Waggener, Chairman; Frank Martin, James Hold, Clarence Davis, Gheric Bruce, James Pulliaum, Ramona Taylor, Harold Thomas, Lorraine Robinson, Marco McClendon, Rev. Hermann Coleman, and Al Felton in their Official Capacity as Members of the West Memphis City Council, and Phillip Para, Appellees.

201 S.W.3d 923

Garry KYZAR, Appellant, v. CITY OF WEST MEMPHIS, Billy Johnson, Mayor; The West Memphis Advertising and Promotion Commission, Frank Waggener, Chairman; Frank Martin, James Hold, Clarence Davis, Gheric Bruce, James Pulliaum, Ramona

Taylor, Harold Thomas, Lorraine Robinson, Marco McClendon, Rev. Hermann Coleman, and Al Felton in their Official Capacity as Members of the West Memphis City Council, and Phillip Para, Appellees.

No. 04-338.

Supreme Court of Arkansas.

January 27, 2005.

Mike Everett, Marked Tree, and Joe M. Rogers, West Memphis, AR, for appellant.

Erika Ross Gee, North Little Rock, and David Peeples, West Memphis, AR, for appellee.

JIM GUNTER, Justice.

Appellant, Garry Kyzar, appeals from an order from the Crittenden County Circuit Court granting a motion to dismiss filed by appellees, City of West Memphis et al. Appellant's complaint requested a writ of mandamus ordering appellees to call an election on a referendum petition concerning a tax increase. We affirm.

On June 26, 2003, the city council ("Council") of the City of West Memphis ("West Memphis") passed Ordinance 2072 ("ordinance"), which levied a one-percent tax upon the gross receipts or gross proceeds from the sale of prepared foods and beverages and from the rental of all hotel and motel facilities in West Memphis, as authorized by Ark.Code Ann. § 26-75-602 (Repl.1997). This ordinance is known as the "hamburger tax." The collection of this tax increase was to begin on June 26, 2003.

Appellant, among others, signed a petition seeking a referendum election on the ordinance, and on July 24, 2003, the petition was timely filed with the city clerk, appellee Para. The clerk verified that there were the requisite number of signatures on the petition, but the petition was not certified. On July 30, 2003, at a city council meeting, the mayor of West Memphis announced that the petition was certified by the clerk and that there would be a vote on the ordinance. However, the clerk subsequently rejected the petition as legally void because a copy of the referred ordinance was not attached to the petition as allegedly required by Ark.Code Ann. § 7-9-106(b) (Repl.2000). The petition was never certified by the clerk, nor was it set for a referendum election.

On September 15, 2003, appellant filed a complaint in which this referendum issue was consolidated with another action alleging an illegal exaction. In his complaint, appellant requested inter alia that the trial court issue a writ of mandamus ordering the council to call an election on the petition for referendum, or in the alternative, that the clerk certify the petition for referendum. Appellees filed their answer on September 22, 2003.

On September 22, 2003, appellees filed a motion to dismiss the referendum portion of appellant's complaint. In their motion to dismiss, appellees averred that appellant failed to state a claim under Ark. R. Civ. P. 12(b)(6) with regard to the referendum portion of his complaint. Appellees argue that a writ of mandamus was inapplicable because the petition was void for its failure to satisfy the statutory requirements of Ark.Code Ann. § 7-9-106, which requires a petition to be certified. Appellees conclude that until the sufficiency of the petition is established, through the procedure mandated by Amendment 7 to the Arkansas Constitution, appellant has no legal right that may be enforced by mandamus.

A hearing was held before the Crittenden County Circuit Court. Counsel for appellant advised the court that the issue of the hearing was the legal sufficiency of the petition and that he was not asking the court to rule on the illegal-exaction issue. The trial court granted appellees' motion to dismiss, finding that Ark.Code Ann. § 7-9-106(b) imposes a jurisdictional requirement that a referendum petition on a local ordinance must have a complete copy of the ordinance attached to the petition. Because the petition did not strictly comply with Ark.Code Ann. § 7-9-106(b), it was fatally flawed and could not be set for a referendum election. In compliance with Ark. R. Civ. P. 54(b)(1), the trial court certified that the order was a final judgment with regard to the issue of a referendum vote.

In Kyzar v. City of West Memphis, 359 Ark. 366, 197 S.W.3d 502 (2004), we found appellant's addendum to be deficient, pursuant to Ark. Sup.Ct. R. 4-2(a)(8) (2004), and we gave appellant the opportunity to file a substituted addendum. Appellant has done so, and we now consider the merits of his appeal. From the trial court's order granting appellees' motion to dismiss under Ark. R. Civ. P. 12(b)(6), appellant brings his appeal.

When a trial court considers matters outside of the pleadings, the appellate courts will treat a motion to dismiss as one for summary judgment. Ark. R. Civ. P. 12(b); Smothers v. Clouette, 326 Ark. 1017, 934 S.W.2d 923 (1996). Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Calcagno v. Shelter Mutual Insurance Co., 330 Ark. 802, 957 S.W.2d 700 (1997). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Because the order states that the trial court considered "pleadings of the parties, the testimony and arguments from the September 19, 2003, hearing," we will treat the motion as one for summary judgment. Smothers, supra.

This appeal also requires us to determine the application of Ark.Code Ann. § 7-9-106(b). We articulated the rules of statutory construction in Weiss v. American Honda Finance Corp., 360 Ark. 208, 200 S.W.3d 381 (2004), where we stated:

The 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. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Stephens, supra (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Finally, the ultimate rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).

Weiss, supra (citing Faulkner v. Arkansas Children's Hospital, 347 Ark. 941, 952, 69 S.W.3d 393, 400 (2002)). With these standards of review in mind, we turn to appellant's argument on appeal.

For his first point, appellant argues that the trial court erred in ruling that the requirements of Ark.Code Ann. § 7-9-106 apply to petitions for referendum on municipal ordinances. Specifically, appellant contends that Ark.Code Ann. § 7-9-106 does not apply to municipal ordinances, but only to "any act having general application throughout the state" or "any proposed amendment to the Arkansas Constitution." Ark.Code Ann. § 7-9-101(1) and (2) (Repl.2000). In response, appellees argue that Ark.Code Ann. § 7-9-106 does apply to municipal referenda.

We are required to review Ark.Code Ann. § 7-9-106(b), which provides:

(b) To every petition for the referendum shall be attached a full and correct copy of the measure on which the referendum is ordered.

Id.

"Measure" is defined in Ark.Code Ann. § 7-9-101, which provides in pertinent part:

As used in this subchapter, unless the context otherwise requires:

(1) "Act" means any act having general application throughout the state, whether originating in the General Assembly or proposed by the people, and referred acts;

(2) "Amendment" means any proposed amendment to the Arkansas Constitution, whether proposed by the General Assembly or by the people;

* * *

(6) "Measure" means either an amendment or an act[.]

Id.¹

"Measure" is defined by Ark.Code Ann. § 7-9-101(1) and (2), which refer to an act and an amendment, respectively. Because the present case does not involve a proposed amendment to the Arkansas Constitution, subsection (2) does not apply. Thus, we must look to subsection (1), which defines an act, to determine whether it applies to a local ordinance.

In so doing, we note that Amendment 7 authorizes the right of referendum. Amendment 7 amended Art. 5, § 1 of the Arkansas Constitution and is commonly referred to as the Initiative and Referendum Amendment. It provides:

The initiative and referendum powers of the people are hereby further reserved to the legal 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.

Ark. Const. art. 5, § 1 (emphasis added). Amendment 7 must be liberally construed in order to effectuate its purposes and only substantial compliance with the amendment is required. Porter v. McCuen, 310 Ark. 674, 839...