Tumey v. Daniels

• Decision Date: 26 October 2004
• Docket Number: No. 04-885.,04-885.
• Citation: 196 S.W.3d 479
• Parties: Robbyn TUMEY, Appellant, v. Charlie DANIELS, Secretary of State; State Board of Election Commissioners; Benton County Board of Election Commissioners; and Timothy Chad Hutchinson, Appellees.
• Court: Arkansas Supreme Court

Page 479

196 S.W.3d 479

Robbyn TUMEY, Appellant, v. Charlie DANIELS, Secretary of State; State Board of Election Commissioners; Benton County Board of Election Commissioners; and Timothy Chad Hutchinson, Appellees.

No. 04-885.

Supreme Court of Arkansas.

October 26, 2004.

Appeal from the Circuit Court, Pulaski County, Sixth Division, Timothy Davis Fox, J.

Daily & Woods, PLLC, by: Mark Horoda, Fort Smith, for appellant.

Quattlebaum, Grooms, Tull & Burrow, by: E.B. Chiles, IV, Little Rock, for appellee Timothy Chad Hutchinson.

Mike Beebe, Att'y Gen., by: Colette D. Honorable, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

This appeal involves a challenge to a candidate's eligibility to run for state office. Appellant Robbyn Tumey is the Democratic Party's candidate for the office of House Representative, District 95. Appellee Timothy Chad Hutchinson is the Republican Party's candidate for the same office. In August 2004, Tumey filed suit in the Pulaski County Circuit Court seeking a judgment declaring Hutchinson ineligible to run for that office, because he allegedly did not meet the one-year residency requirement. Tumey also sought a writ of mandamus directing Appellees, Arkansas Secretary of State Charlie Daniels, the State Board of Election Commissioners, and the Benton County Board of Election Commissioners,¹ to remove Hutchinson's name from the ballot for the November 2, 2004 General Election. Hutchinson moved to dismiss Tumey's complaint on the ground that she had not complied with certain provisions of Ark.Code Ann. § 7-5-801 (Repl.2000). The trial court granted Hutchinson's motion, and this appeal followed. For reversal, Tumey argues that her suit is governed by Ark.Code Ann. § 7-5-207(b) (Repl.2000), and that the trial court erred in dismissing her complaint. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(4). We reverse and remand.

Tumey asserts that her complaint is a challenge to Hutchinson's eligibility to have his name placed on the general-election ballot, not a challenge to his certification as the Republican Party's nominee. She asserts that this is clear from the face of her complaint, which alleges that Hutchinson is ineligible because he has not fulfilled the one-year residency requirement of Article 5, § 4, of the Arkansas Constitution. She contends that her suit was filed in accordance with section 7-5-207(b), which provides:

(b) No person's name shall be printed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of filing as a candidate for the office to hold the public office for which he is a candidate, except if a person is not qualified to hold the office at the time of filing because of age alone, the name of the person shall be printed on the ballot as a candidate for the office if the person will qualify to hold the office at the time prescribed by law for taking office.

Tumey asserts that as a taxpayer and resident of Benton County, she may avail herself of this provision at any time prior to the general election.

Hutchinson asserts that Tumey's complaint is a challenge to his certification as the Republican nominee. He thus asserts that her suit is an election contest governed by section 7-5-801, which provides:

(a) A right of action is conferred on any candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election.

(b) The action shall be brought in the circuit court of the county in which the certification of nomination or certificate of vote is made when a county or city or township office, including the office of county delegate or county committeeman, is involved, and, except as provided in this subchapter, within any county in the circuit or district wherein any of the wrongful acts occurred when any circuit or district office is involved, and, except as provided in this subchapter, in the Pulaski County Circuit Court when the office of United States Senator or any state office is involved.

(c) If there are two (2) or more counties in the district where the action is brought and when fraud is alleged in the complaint, answer, or cross-complaint, the circuit court may hear testimony in any county in the district.

(d) The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statements to be true and shall be filed within twenty (20) days of the certification complained of.

(e) The complaint shall be answered within twenty (20) days.

Hutchinson asserts that Tumey failed to comply with subsection (d), because her complaint was not verified by affidavit, nor was it filed within twenty days of the date of the certification of his nomination.

During the proceedings below, Hutchinson relied on this court's holding in Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000), to support his argument that Tumey's suit is an election contest that had to be brought in compliance with section 7-5-801. Valley involved a pre-primary eligibility challenge brought by Arnell Willis, a candidate for State Representative, District 99, in the Democratic primary, against J.F. Valley, another Democratic candidate for the same office. Willis argued that Valley was not eligible for the office because he had not resided in District 99 for a year prior to the election. The trial court agreed with Willis and entered an order finding that Valley did not meet the residency qualifications. On appeal, Valley argued that the trial court lacked jurisdiction over Willis's suit because it was an election contest that should have been brought under section 7-5-801. This court rejected that argument and held that section 7-5-801 was not applicable to pre-primary eligibility challenges:

The statute that Valley cites and relies on, § 7-5-801(d), provides a right of action to contest the certification of the nomination or the certificate of vote after the election. The twenty-day period, however, is not applicable to an action brought before a primary election to determine the eligibility of a candidate. Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000). Specifically, the certification discussed in the statute refers to the certification of a candidate following the primary election as a nominee to the general election, not the certification of the qualifications of a candidate before the primary election. Id.

Id. at 340, 28 S.W.3d at 271.

The trial court in the present case ruled that the last sentence in the foregoing quote supported its conclusion that section 7-5-801 was applicable, because it viewed Tumey's suit as a "post-primary election, pre-general election challenge to the `certification of nomination' of the defendant Hutchinson[.]" The trial court then found that Tumey's complaint did not comply with subsection (d), because it was not verified by her affidavit. The trial court also found that Tumey should have filed her complaint in the Benton County Circuit Court, pursuant to section 7-5-801(b). The trial court made no ruling on the timeliness of her complaint, as it limited its ruling to the face of Tumey's complaint, pursuant to Ark. R. Civ. P. 12(b)(6), and the complaint did not reflect the date of certification. The trial court then dismissed Tumey's complaint and made no ruling on the merits of Hutchinson's eligibility. This appeal followed.

The issue in this case is whether Tumey's complaint is an election contest controlled by section 7-5-801 or an eligibility challenge controlled by section 7-5-207(b). For the reasons outlined below, we conclude that her suit is governed by section 7-5-207(b).

Section 7-5-207(b) provides a means for a voter to raise a pre-election attack on a candidate's eligibility to stand for election and for removal of that ineligible candidate's name from the ballot. See Helton v. Jacobs, 346 Ark. 344, 57 S.W.3d 180 (2001); Tittle v. Woodruff, 322 Ark. 153, 907 S.W.2d 734 (1995); State v. Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169 (1989). "That statute created a right in the people to the proper administration of election laws by prohibiting the inclusion of ineligible candidates on the ballot[.]" Id. at 411, 779 S.W.2d at 172. This court has consistently recognized that the proper procedure to enforce section 7-5-207(b) is an action for mandamus and declaratory relief, which provides prompt consideration of determining a candidate's eligibility and, if determined ineligible, the removal of the candidate's name before the election. See, e.g., Helton, 346 Ark. 344, 57 S.W.3d 180; Valley, 342 Ark. 336, 28 S.W.3d 269; Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000); Tittle, 322 Ark. 153, 907 S.W.2d 734; Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169. A voter may avail himself or herself of this right at any time prior to the general election; however, once the election takes place, the issue of a candidate's eligibility under section 7-5-207(b) becomes moot. See Benton v. Bradley, 344 Ark. 24, 37 S.W.3d 640 (2001); Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998); Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169.

In contrast to the right provided in section 7-5-207(b), section 7-5-801 provides a right of action to "any candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election." This right is a "post-election contest between two competing candidates." Helton, 346 Ark. at 350, 57 S.W.3d at 184 (emphasis added) (quoting Jacobs, 342 Ark. at 250, 27 S.W.3d at 738). A complaint brought by a candidate pursuant to section 7-5-801 must be filed within twenty days of the date of the certification complained of, and this filing deadline is both mandatory and jurisdictional. Willis v. King, 352 Ark. 55, 98 S.W.3d 427 (2003); McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000).

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