Rubens v. Hodges

• Decision Date: 28 September 1992
• Docket Number: No. 91-206,91-206
• Citation: 837 S.W.2d 465,310 Ark. 451
• Parties: Kent J. RUBENS, et al., Appellants, v. Lillian B. HODGES, Appellee.
• Court: Arkansas Supreme Court

Page 465

837 S.W.2d 465

310 Ark. 451

Kent J. RUBENS, et al., Appellants, v. Lillian B. HODGES, Appellee.

No. 91-206.

Supreme Court of Arkansas.

Sept. 28, 1992.

Kent J. Rubens, West Memphis, for appellants.

Bob R. Brooks, Jr., No. Little Rock, for appellee.

DUDLEY, Justice.

Lillian Hodges and Lillian Morris were candidates for Justice of the Peace, District 3, Crittenden County in the November 6, 1990, general election. Lillian Morris died two weeks before the election, but still received seven votes more than Hodges. The Crittenden County Election Commission certified the decedent as the winning candidate. Lillian Hodges apparently realized that when a deceased or disqualified candidate wins an election, the votes received by the deceased or ineligible candidate are not void, but are effectual to prevent the opposing candidate from being chosen. Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991); see also Annotation, Elections--Dead or Disqualified Candidate, 133 A.L.R. 319 (1941); Ark.Code Ann. § 7-5-315(7) (Supp.1991), (enacted after this suit arose). Consequently, she filed an election contest.

In her complaint, Hodges alleged that the voters of one ward were entitled to vote on the District 3 position, but that the ballots used in that ward did not allow voters to vote in that particular race. (Subsequent arguments revealed that one of the voting machines in the ward broke down and the rest of the votes were cast with the use of absentee ballots that did not contain this race.) She alleged, "Of the 23 people voting in Precinct 4-3 ... at least 9 wanted to vote for Lillian B. Hodges but were unable to do since the race was not on their ballot." In addition, she alleged that the voters in another ward voted with the use of two voting machines and that the District 3 race was not listed on one of the machines. (Subsequent statements to the trial court showed that this ward is divided into two justice of the peace districts, one voting machine contained the race in District 3 and the other machine contained the race in the other district, and the poll workers directed some voters to the wrong machines). She alleged, "Seven voters properly registered in Precinct 5-2 ... were directed to the voting machine not containing Justice of the Peace District 3 race on it. These seven voters wanted to vote for Lillian Hodges." She asked that the total of sixteen votes be counted by the trial court and that she be declared the winner. The contestant attached affidavits of the sixteen people to her complaint.

The complaint named the Crittenden County Board of Election Commissioners as defendants. The election commission answered and said that "representatives for Lillian H. Morris should be required to respond." On January 15, 1990, the Crittenden County Quorum Court, by resolution, declared a vacancy in the position since the election commission had certified the decedent as the winner. On February 13, 1991, the contestant, by amending her complaint, asked that the quorum court resolution declaring a vacancy "be set aside and held for naught."

Contestant Hodges subsequently filed a motion for summary judgment and for a writ of mandamus. On May 24, 1991, the trial court granted summary judgment, and ordered the election commission to certify Lillian B. Hodges as the winner and the Quorum Court to set aside its resolution declaring a vacancy. The election commission appeals from the summary judgment and raises a number of issues. We set out those issues, but do not rule on all of them because issues of material facts remain unresolved. Additionally, the complaint did not state facts sufficient to contest the election and, because this is an election contest, it cannot now be materially amended.

The election commission first argues that the trial court erred in permitting the election contest to be tried without naming a representative of the successful candidate as a party defendant. Clearly, we have said that an election contest is an adversarial proceeding between a successful candidate and an unsuccessful candidate. McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959). However, in this case the prevailing candidate is deceased and cannot personally be made a party. Even so, the governing statute apparently contemplates that the contestant should be able to contest the election. Ark.Code Ann. § 7-5-801 (1987) and see Cain v. Carl-Lee, 171 Ark. 155, 283 S.W. 365 (1926) (where, under a prior but comparable act, we held that an election contest is not abated when the contestee resigns from office). The adverse interest to be represented is neither the civil rights nor the property rights of the deceased, but rather the political rights of the majority of the voters. See Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230 (1913) (for discussion of these rights in a different context). The contestant named only the election commission as the party defendant in the original complaint. In an election contest, as distinguished from an action seeking to void an election, we have said the election commission is not the proper party defendant, Henry v. Stuart, 251 Ark. 415, 473 S.W.2d 165 (1971), although it is a proper nominal defendant. The reason is the commission's function is to promote fair elections, to act in a disinterested manner in disputes between candidates or their representatives, and to take neither side in a contest.

An election contest is a statutory proceeding. Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973). We have said that election contests are special proceedings and are subject to Ark.R.Civ.P. 81, "which exempts from the applicability of the rules 'those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.' " Hanson v. Garland County Election Comm'n, 289 Ark. 367, 712 S.W.2d 288 (1986). There is no statute governing who is the proper party defendant in this particular situation, and while we could determine who the proper party was in order to make the election contest statute have meaning, see Henry v. Stuart, 251 Ark. 415, 473 S.W.2d 165, it is not necessary for us to do so because we reverse for a different reason. While we do not decide the issue, we do invite the General Assembly to determine whether it wishes to enact a statute to govern the procedure for future cases such as this.

The election commission also contends that the trial court erred in the procedure by which it declared Lillian Hodges the winner of the contest. Again, we do not decide the issue, and discuss it only to show that there is a body of law on the subject that was not brought to the attention of either the trial court or this court because the political rights of the majority of the voters were never fully and adequately represented. Lillian Hodges argued that the trial court could count votes for her that were never cast at the election and her argument was based upon an inference, not the holding, in Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980). If this case had been fully contested on an adversarial basis, it might have been developed that we have no statute providing for such a remedy, and in Watson v. Gattis, 188 Ark. 376, 65 S.W.2d 911 (1933), in discussing the language of an earlier, but comparable, constitutional provision, we wrote, "The elector himself would not be permitted to testify that, having failed to vote specifically for any candidate for any particular term, he nevertheless intended that his ballot should express his assent...." Many other jurisdictions have addressed the issue, and the general rule is that while the elector may testify that he was wrongfully prevented from voting, and such testimony may be used to void the entire election, the elector may not testify that he intended to vote for a particular candidate. 29 Elections, C.J.S. § 281 (1965).

In Pawlowski v. Thompson, 64 S.D. 98, 264 N.W. 723 (1936), the plaintiff in a successful election contest introduced evidence that ten wrongfully excluded voters would have voted for him. The court, in reversing the trial court's decision, said:

We think it clear that they should not now be permitted to come in and say that they were not permitted to vote,...