Our Cmty. v. Bullock

• Decision Date: 31 October 2014
• Docket Number: No. CV–14–827.,CV–14–827.
• Court: Arkansas Supreme Court
• Parties: OUR COMMUNITY, OUR DOLLARS, Appellant/Cross–Appellee v. David BULLOCK, Tiffany Francis, and Bryan Keaton, Appellees/Cross–Appellants.

2014 Ark. 457
452 S.W.3d 552

OUR COMMUNITY, OUR DOLLARS, Appellant/Cross–Appellee
v.
David BULLOCK, Tiffany Francis, and Bryan Keaton, Appellees/Cross–Appellants.

No. CV–14–827.

Supreme Court of Arkansas.

Oct. 31, 2014.

452 S.W.3d 554

Mitchell, Williams, Selig, Gates & Woodyardd, P.L.L.C., Little Rock, AR, by: John Keeling Baker and Brian A. Pipkin, for appellant.

Friday, Eldredge & Clark, LLP, Little Rock, AR, by: Elizabeth Robben Murray, Ellen Owens Smith, and Amanda Fray, for appellees.

Opinion

COURTNEY HUDSON GOODSON, Justice.

Appellant Our Community, Our Dollars (Our Community) appeals the decision of the Saline County Circuit Court finding that the local-option petition certified by the Saline County Clerk did not achieve the number of signatures required for the proposal to be placed on the ballot in the upcoming general election on November 4, 2014. For reversal, Our Community first contends that the circuit court did not acquire jurisdiction to review the county clerk's certification because the complaint filed by appellees David Bullock, Tiffany Francis, and Bryan Keaton, failed to state a cause of action and because appellees did not plead with particularity their claim of fraud. In connection with this argument, it also argues that the complaint was deficient because appellees failed to attach the local-option petition, or any relevant parts thereof, to the complaint as required by Rule 10(d) of the Arkansas Rules of Civil Procedure. As its second point on appeal, Our Community asserts that the circuit court erred by not considering in its review a number of signatures that the county clerk failed to count prior to certifying the local-option petition. Our Community also argues that the circuit court erred in concluding that Arkansas Code Annotated section 14–14–915(d) (Repl.2013) applies to the circuit court's review of the county clerk's certification. Alternatively, Our Community contends that, if this statute is applicable, it is unconstitutional.

Appellees have also filed a cross-appeal. In it, they assert that the local-option petition is invalid because it does not contain an enacting clause and that the circuit court erred in finding substantial compliance with the enacting-clause requirement. Finally, they argue that the circuit court committed error by counting signatures that were solicited between the time Our Community filed the petition with the county clerk on July 7, 2014, and the date that the clerk issued the initial notice on July 18, 2014, informing Our Community that the petition was deficient.

Our jurisdiction over this matter falls under Arkansas Supreme Court Rule l–2(a)(8), as an appeal required by law to be heard by this court. See Ark.Code Ann. § 3–8–205(e)(1)(B) (Supp.2013). We find merit in the second point on direct appeal; thus, we reverse and remand on that issue. We affirm on cross-appeal.

Our review of the record discloses that Our Community is a ballot-question committee that is the sponsor of the local-option petition in question consisting of a proposal to allow voters in Saline County to decide whether to permit the manufacture and sale of alcoholic beverages in the county. In order for such a proposal to be placed on the ballot, Arkansas Code Annotated section 3–8–205(a) requires a local-option petition to be supported by the signatures of thirty-eight percent of the registered voters in the county. The parties agree that 25,580 signatures is the threshold number in this instance. Our Community filed the local-option petition with the county clerk on July 7, 2014. On July 18, 2014, the clerk notified Our Community

452 S.W.3d 555

that the proposal did not meet the signature requirements of section 3–8–205(a). Pursuant to section 14–14–915(c), the clerk granted Our Community an additional ten days to augment the petition with additional signatures or to contest the clerk's exclusion of signatures that were submitted with the petition. On July 28, 2014, Our Community filed additional petition parts and signatures with the county clerk, who on July 31, 2014, certified that the proposal attained thirty-eight percent of the registered voters' signatures.

Thereafter, on August 8, 2014, appellees Bullock, Francis, and Keaton, who are registered voters in Saline County, filed suit against the county clerk challenging his certification that the petition gained the support of thirty-eight percent of registered voters. In response, the county clerk promptly filed a motion to dismiss, arguing that the complaint filed by appellees did not state a valid cause of action and that the local-option petition was not attached to the complaint as required by Arkansas Rule of Civil Procedure 10(d).

On August 14, 2014, Our Community, as the sponsor of the proposal, moved to intervene in the action, and the circuit court entered an order that same day granting the motion. Our Community also filed an answer to the complaint that included a counterclaim and a cross-claim against the county clerk, seeking a declaration that a number of relevant statutory provisions are unconstitutional.¹ Also on August 14, 2014, Our Community filed a motion to dismiss appellees' complaint based on the identical grounds urged by the county clerk.²

Later in the day on August 14, 2014, appellees filed an amended complaint. Still later that same afternoon, appellees filed a second amended complaint. Subsequently, on August 18, 2014, appellees responded to Our Community's motion to dismiss, denying that their complaint was deficient and asserting that, in any event, they had properly amended their complaint. Also on August 18, 2014, the circuit court conducted a hearing and entered an order denying Our Community's motion to dismiss the complaint.

The circuit court held additional hearings on August 21, and 22, and September 5, 2014. At the hearings, the testimony established that the county clerk's staff worked to verify the petitions and to determine whether the petitions had been signed by 25,580 registered voters. In that effort, the clerk hired additional personnel at the county's expense to assist in the verification process. Ultimately, the county clerk verified 25,653 signatures, which was 73 signatures in excess of the required number. However, the testimony also revealed that the clerk stopped counting signatures at that point and that he failed to screen all of the signatures that were submitted with the petition. Specifically, the county clerk did not review a total of 960 signatures. At the behest of the circuit court, the clerk examined the remaining signatures and determined that 720 of the 960 uncounted signatures were registered voters in the county. However, the circuit court ruled, based on section 14–14–915(e), that it was not proper for the court to consider the remaining 720 signatures in its review of the certification because the county clerk did not have

452 S.W.3d 556

“jurisdiction” to count or verify signatures after the clerk had issued the certification.

Based on the testimony and evidence presented at the hearings, the circuit court entered an order on September 10, 2014, rescinding the county clerk's certification of the local-option petition. In its review, the court invalidated a total of 156 signatures, which left the petition 83 signatures short of the required number. In its order, the circuit court also addressed several matters raised by the parties. The court rejected appellees' claims that the petition was invalid because it did not include an enacting clause and that the county clerk should not have counted the signatures collected between July 8 and July 17, 2014. The court also ruled against Our Community's challenge to the constitutionality of the contested statutes. Based on its finding that the petition failed to attain the requisite number of signatures, the circuit court issued an injunction for the removal of the proposal from the ballot; however, the court stayed that directive, pending this appeal, which timely followed the entry of the circuit court's order. Pursuant to section 3–8–205(e)(l )(B), we have expedited the appeal on our docket.

As part of its first issue, Our Community contends that the original complaint filed by appellees failed to state a cause of action for a signature challenge to the county clerk's certification and that it also failed to allege sufficient facts to support a claim of fraud. Our Community maintains that the initial complaint filed by appellees was deficient because it failed to plead facts identifying any specific signature alleged to be invalid; because the complaint failed to set forth particular facts showing the total number of challenged signatures; because it did not identify the specific basis for challenging any one signature; and because the complaint did not allege how invalidating any particular signatures would render the certification erroneous. Further, Our Community contends that the amended complaints filed by appellees could not cure the deficiencies found in the original complaint because the amendments were filed after the statutory deadline had expired for challenging the county clerk's certification. In making this argument, Our Community relies exclusively on law that is pertinent to causes of actions involving election contests. See, e.g., Willis v. Crumbly, 371...