Rockefeller v. Purcell

CourtSupreme Court of Arkansas
Citation245 Ark. 522,434 S.W.2d 65
Docket NumberNo. 5--4834,5--4834
PartiesWinthrop ROCKEFELLER et al., Appellants, v. Joe PURCELL et al., Appellees.
Decision Date30 October 1968

Wright, Lindsey & Jennings, by Robert D. Cabe, Little Rock, for appellants.

John D. Thweatt, DeValls Bluff, Jerry J. Screeton, James M. Thweatt and Hubert E. Graves, Hazen, for appellee Farris.

Felver A. Rowell Morrilton, for appellee Bill Clifton.

PER CURIAM.

This case is a sequel to Ellis v. Rockefeller, 245 Ark. 53, 431 S.W.2d 848 (Sept. 3, 1968). We treat the petition herein as one for declaratory judgment. At the trial level, petitioners (appellants) produced evidence tending to show that the State Board of Election Commissioners appointed to the County Boards of Election Commissioners in Prairie, Faulkner, and Conway Counties, men who have lately been active and loyal Democrats on the county level. At the close of petitioners' evidence the respondents moved for, and were granted, a dismissal on the ground that the evidence did not show that the appointees could not be representative of the majority (Republican) party. The motion was granted and petitioners appealed.

If the appointees are presently loyal Democrats on the county level, then their appointment to the County Board of Election Commissioners as the third member would not comport with the expressed spirit of our holding in Ellis v. Rockefeller. There we stated in effect that, although the appointed member need not be a Republican, he should be one that would represent that party in the selection of judges and clerks, a person who would act on behalf of, and work with, the majority (Republican) party in selecting election officials.

Petitioners having made a prima facie case of ineligibility of the appointees, the trial court should have denied respondents' motion to dismiss and proceeded to take proof to ascertain whether the appointees are still loyal members of the Democrat Party on the county level.

Reversed and remanded.

HARRIS, C.J., concurs.

FOGLEMAN and BYRD, JJ., dissent.

BYRD, Justice (dissenting).

I dissent to the majority opinion and for reasons state:

(1) Initiated Act No. 3, 1948, for the purpose of the Act, describes the party receiving the greatest number of votes for governor as the majority party and the party receiving the second highest vote for governor as the minority party.

(2) Section 2 of the Initiated Act as amended provides for a State Board of Election Commissioners to be comprised of the Governor, Lieutenant Governor, Attorney General, Secretary of State, State Auditor, State Treasurer, Commissioner of State Lands, the State Chairman of the majority party and the State Chairman of the minority party. It also provides that the County Chairman of the majority party and the County Chairman of the minority party shall be each an ex officio member of the County Election Board. It then provides that the State Board of Election Commissioners shall appoint a third member of the County Board of Election Commissioners and that this third member, together with the two County Chairmen, shall constitute the entire membership of the County Board of Election Commissioners for each of the several counties in Arkansas.

(3) Section 4 (Ark.Stat.Ann. § 3--609 (Supp. 1967)), as to qualifications of the Commissioners, provides:

'The qualifications of all persons on the State Board of Election Commissioners, County Board of Election Commissioners, precinct judges and clerks shall be the same, to wit:

'They shall be qualified electors of the State, County and precinct in which they reside or in which they keep their political residence. They shall be discreet persons, able to read and write the English language and shall not have been convicted of any infamous crime and no member of a County Board of Election Commissioners shall be a candidate for any office to be filled at any general election while serving on said County Board.'

(4) Section 3 of the Intiated Act of 1948 as amended (Ark.Stat.Ann. § 3--608 (Supp. 1967)), then sets forth the duties of the County Board of Election Commissioners as follows:

'It shall be the duty of the County Board of Election Commissioners, not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in their respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) clerk in each precinct shall be chosen and appointed by two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party. Provided further, that if there are no registered or known members of the minority party in any precinct or precincts within a county the minority party member of the County Board of Election Commissioners is hereby prohibited from naming any person to represent such minority party as a judge or clerk in any such precinct or precincts who is a member of the majority party, and in such event, the County Board of Election Commissioners shall be a majority vote name the judge and the clerk allotted the minority party for any such precinct or precincts. The County Board of Election Commissioners shall immediately upon performing such duties prepare, publish and post in a public place in the Sheriff's office and in the County Clerk's office of each County their respective list of appointees as judges and clerks of elections.

'In the event the majority or minority representatives on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerks for each voting precinct, as authorized hereinbefore then the County Board of Election Commissioners by majority vote may fill such vacancy, provided, that in no event shall all of the judges or both of the clerks at any voting precinct be members of the same political party unless there are no members of the minority party registered in said precinct.'

(5) Section 5 of the Initiated Act (Ark.Stat.Ann. § 3--610 (Repl. 1956)), leaves the selection of the County Chairman to the parties, i.e., the County Chairman may be selected by the township committeemen of the respective parties or appointed by the State Commission outright or through an appeal by a contestant.

(6) At a hurried oral argument, on short notice and with scant briefs, counsel for the appellants stated that he was applying for a writ of mandamus against the State Election Board with respect to the third member of the Election Commission of Prairie, Faulkner and Conway counties. He conceded that the persons selected complied with the qualifications set forth in Section 4 of the Initiated Act, supra, and that no testimony was introduced in the trial court that the persons selected could not work with the Republican Chairman. In asking that we reverse and remand the case to the State Board of Election Commissioners, with directions to name the three persons nominated by the State Chairman of the majority party to serve as the third members of the County Election Boards, counsel conceded that he had no law to support such action, but suggested that this court should invent such law.

In Ellis v. Rockefeller, 245 Ark. 53, 431 S.W.2d 848 (September 3, 1968), we held that the appointment of the third member was within the discretion of the State Election Board and that such member was not required to be a member of the majority party nor a nominee of that party. This, for the obvious reason that if the state arm of the majority party can appoint the County Chairmen and also the third member, there is no practical reason for having a third member.

As I view the action of the majority, they are either ignoring the record before us or in effect modifying Ellis v. Rockefeller without saying so. The third member of the County Board of Election Commissioners is either to be an active member or else there is little reason to take the trouble to have the State Constitutional Officers and the two party Chairmen to meet together for the purpose of appointing him. The statute did not contemplate such a useless gesture.

The Initiated Act clearly places the appointment of the third member with the State Election Board. I cannot envision a group of individuals better qualified than our Constitutional Officers and the Chairmen of the Republican and Democratic parties to select a third member of the County Election Commission for the purposes of insuring fair elections in this state.

The constitution does not give to this court jurisdiction to legislate qualifications for the position of the third member of the Election Commission in addition to those prescribed in the Initiated Act, nor does the Initiated Act permit this court a second guess as to who should serve as such member.

For these reasons, I respectfully dissent.

FOGLEMAN, Justice (dissenting).

Generally, I agree with the views stated by Mr. Justice Byrd in his dissenting opinion, but I feel that there are other compelling reasons why action of the trial court should be affirmed.

The pleadings in this case indicate that the petitioners and appellants are three members of the State Board of Election Commissioners who brought the action in that capacity and as a class on behalf of the Republican party in Arkansas and three persons who claim title to the office of election commissioner in three counties in the state. The petition filed in the lower court was for mandamus against the remaining six members of the State Board of Election Commissioners and the three persons who hold office as election commissioners by appointment of the State Board in the three counties in question. The allegations of the petition clearly state that the individual election commissioners in these counties were named by a majority of the...

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2 cases
  • Rockefeller v. Purcell
    • United States
    • Arkansas Supreme Court
    • October 30, 1968
    ...protect the minority party, not the majority. There is no need to elaborate on the pleadings in this appeal. Actually, Rockefeller v. Purcell, 245 Ark. 522, 434 S.W.2d 65, and this appeal were from two different judgments in the same case. The judgment from which this appeal is taken denied......
  • Rockefeller v. Purcell, 5-4834
    • United States
    • Arkansas Supreme Court
    • December 9, 1968
    ...of election commissioners should be one who is supporting the majority party, whatever his party status. Since the evidence in Ark., 434 S.W.2d 65, clearly indicates that the third party members named are not supporters of the majority party, I agree that this case should be As far as Ark.,......

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