State v. Jernigan

• Decision Date: 17 November 2011
• Docket Number: No. 11–513.,11–513.
• Citation: 2011 Ark. 487,385 S.W.3d 776
• Parties: STATE of Arkansas, Appellant v. Steve JERNIGAN, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 487

385 S.W.3d 776

STATE of Arkansas, Appellant

v.Steve JERNIGAN, Appellee.

No. 11–513.

Supreme Court of Arkansas.

Nov. 17, 2011.

Martin Emmett Lilly, Harrisburg, for appellant.

Arlon L. Woodruff, Lake City, for appellee.

JIM HANNAH, Chief Justice.

The State appeals an order of the circuit court denying its petition for writ of quo warranto to obtain a ruling that appellee Steve Jernigan cannot legally serve as mayor of Lepanto because he does not “reside” within the corporate municipal limits of Lepanto. Because this case involves a petition for quo warranto directed to a municipal official, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(3) (2011). We affirm the circuit court.

In a run-off election held on November 23, 2010, Jernigan was elected mayor of Lepanto. On December 28, 2010, the State, through the office of the prosecuting attorney of the Second Judicial District, Poinsett County, filed a petition for writ of quo warranto, seeking to prevent the usurpation of the office of mayor of Lepanto. The State alleged that Jernigan did not reside within the city of Lepanto as required by Arkansas Code Annotated section 14–42–201(c)(1) (Supp.2009). The circuit court ordered Jernigan to appear at a hearing and show cause why he should be permitted to remain as mayor of Lepanto. Jernigan filed a motion to dismiss and a response to the petition. The circuit court denied the motion to dismiss, and the matter proceeded to a hearing.

The following facts are adduced from the testimony and evidence at the hearing. In 1995, Jernigan bought a home located outside the corporate municipal limits of Lepanto at 13719 Highway 140 North; Jernigan lived there with his wife. Jernigan testified that on July 1, 2010, he rented a residence from Kenny and Glenda Watson at 614 Alexander Street, within the city limits of Lepanto, for one dollar a month. Jernigan stated that he moved a mattress into the residence and that he did not move any other furniture there because the residence was already furnished. Jernigan also stated that he did not have a phone or cable television at the residence on Alexander and that he did not move any clothing or bathing and showering supplies there.

On August 6, 2010, Jernigan filed a Political Practices Pledge, Affidavit of Eligibility, and Petition for Nomination with the Poinsett County Circuit Court. In both the pledge and the affidavit, Jernigan stated that he was a candidate for the office of mayor of Lepanto, and he listed his address as 614 Alexander, Lepanto, Arkansas 72534. Poinsett County Clerk Fonda Condra testified that the address Jernigan listed on his pledge and affidavit indicated that he was a city resident and, therefore, he was eligible to run for mayor. Condra also testified that because Jernigan changed his address on his voter registration to 614 Alexander, she changed his precinct from rural to city, and he could no longer vote outside the city of Lepanto. On cross-examination, Condra testified that her office does not do anything to determine the accuracy of information submitted by candidates and that there was no procedure in her office to verify residency.

Jernigan testified that on September 1, 2010, he rented a residence from Carl and Patty Maddox at 234 Greenwood, within the city limits of Lepanto, for five dollars a week. Jernigan stated that he spent the night at that residence “all the time,” but that he had no idea how many nights a week he normally stayed there because he did not keep a log of it. Ms. Maddox testified that the residence was furnished and that Jernigan paid her for twenty weeks up front. Jernigan stated that he did not bathe or shower at the Greenwood residence and that he kept his clothing in his truck.

According to Jernigan, he intended to make the property on Greenwood his permanentresidence until he moved in to a residence he had recently purchased in Lepanto. Jernigan testified that on January 6, 2011, he closed on an apartment complex in Lepanto located at 151 Broad Street but that he had not moved in yet because the current tenant had not moved out. He further testified that he intended to move furniture in to the Broad Street property.

Jernigan testified that he did not intend to permanently abandon his home located at 13719 Highway 140 North. He also testified that he did not intend to move back to that home after he served as mayor. He stated that the purpose of keeping his home there was because it was the old family home that he purchased from other family members in 1995. Finally, Jernigan testified that he moved to a residence within the city limits of Lepanto so he could run for mayor.

Jernigan's wife, Judy Jernigan, testified that she had lived at 13719 Highway 140 North for sixteen years and that her husband lived there with her occasionally. She said that she was unsure how many nights he stayed there and how many nights he stayed at his apartment in Lepanto. Ms. Jernigan said that she had never been to her husband's apartment and that she had no plans to move in to the apartment. She also said that she had no intention of abandoning her home on Highway 140 North and that she had no intention of divorcing her husband.

Exhibits admitted at the hearing included a rental agreement between Jernigan and the Watsons to begin on July 1, 2010, for an apartment at the rate of one dollar a month; a rental agreement between Jernigan and the Maddoxes to begin on September 1, 2010, for an apartment at the rate of five dollars a week; 2011 personal-property assessments dated January 18, 2011, listing Jernigan's address as 13719 Highway 140 North, Lepanto, Arkansas 72534; a Political Practices Pledge signed by Jernigan on August 6, 2010, listing his address as 614 Alexander, Lepanto, Arkansas 72534; and an Affidavit of Eligibility signed by Jernigan on August 6, 2010, listing his address as 614 Alexander, Lepanto, Arkansas 72534.

At the conclusion of the hearing, the circuit court ruled from the bench and denied the State's petition for writ of quo warranto:

[L]et me say at the outset that the State has made—has given a strong implication, made a strong case that Mr. Jernigan's residence, within the city limits of Lepanto, is a subterfuge and a farce.

However, based on, and just looking at the facts of this case, Mr. Jernigan, according to him established initial residence on July 1, 2010 at 614 Alexander Street in Lepanto. The lease was with Kerry [sic] and Linda [sic] Watson. That's the address he listed in his political practices pledge that he gave to the county clerk, Fonda Condra. And I was looking at the date, I thought that was important, I looked at the date of his political practice pledge and I believe it was August 6, 2010; yes. So at that time Mr. Jernigan listed his residence as 614 Alexander. He says he still gets, has a mailbox there and occasionally gets mail there.

His next residence, within the city limits of Lepanto, according to Mr. Jernigan, was since September 1, 2010, that address is at 234 Greenwood in Lepanto. That address does in fact have, based on what the landlord testified is pretty much furnished.

And then now, as of January 6, 2011, Mr. Jernigan claims he closed on some property, used to be Riverdale Café with some apartments there that he hasn't moved in yet because the current tenant hasn't moved out yet. But he still considers his address at 234 Greenwood to be where he's physically living, although the new address appears to be 151 Broad Street here in Lepanto, Arkansas.

Again, the State has presented some, some strong evidence and implication that this attempt at residence is a subterfuge and a farce and the Court could reasonably infer as much. But the Court holds that in election candidacy qualification purposes that the statute in this case merely says, must reside. There's not much guidance in that. There's no specific case law that the state, nor the Defendant has recited.

The Court finds at this time that the State did not meet its burden of proof. That Mr. Jernigan did not in fact, must reside within the corporate limits of Lepanto, Arkansas. Therefore, the Court denies the petition for writ of quo warranto.

The circuit court then entered a written order denying the State's petition, attaching and incorporating its findings from the hearing. The State appeals.

The State contends that the circuit court clearly erred in denying the petition because Jernigan did not “in truth and in fact ‘reside’ within the city limits” of Lepanto. The State claims that Jernigan's “temporary apartment” within the city limits of Lepanto cannot, as a matter of law, support a finding that Jernigan “resides” in Lepanto, especially when the evidence suggested that Jernigan had no intention of abandoning his home outside the city limits. The State further claims that, because the evidence in this case made clear that Jernigan had no intention of residing in Lepanto, the circuit court clearly erred in finding that he had fulfilled the residency requirements of section 14–42–201(c)(1).

Jernigan responds that he complied with the residency requirements of section 14–42–201(c)(1). He asserts that his uncontroverted testimony showed that he moved to Lepanto before he filed as a mayoral candidate and that he continues to reside in Lepanto. He also asserts that his testimony and his conduct demonstrated that he intended to move his residence to Lepanto.

The standard of review in a bench trial is not whether there is substantial evidence ¹ to support the findings of the circuit court, but whether the circuit court's findings were clearly erroneous or clearly against the preponderance of the evidence. E.g., Searcy Farm Supply, LLC v. Merchants & Planters Bank, 369 Ark. 487, 256 S.W.3d 496 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id....