Willis v. King

• Decision Date: 20 February 2003
• Docket Number: No. 02-988.,02-988.
• Citation: 98 S.W.3d 427
• Parties: Arnell WILLIS, et al. v. Barbara KING, et al.
• Court: Arkansas Supreme Court

98 S.W.3d 427

Arnell WILLIS, et al. v. Barbara KING, et al.

No. 02-988.

Supreme Court of Arkansas.

February 20, 2003.

John W. Walker, P.A., by: John W. Walker; and Terence Cain, Little Rock, for appellants.

Rieves, Rubens & Mayton, by: Kent J. Rubens, West Memphis; and Roscopf & Roscopf, P.A., by: Charles B. Roscopf, Helena, for appellee Barbara King.

Mark Pryor, Att'y Gen., by: Jeff R. Priebe, Ass't Att'y Gen., Little Rock, for appellee Arkansas State Board of Election Commissioners: Earnest Brown, Robert Louis Carruthers, Ernest E. Edwards, Toni Phillips, and Sharon Priest.

L. Ashley Higgins, P.A., by: L. Ashley Higgins, Helena, for appellee Phillips County Election Commissioners Joann Smith, Maxine Miller, and Joe White, and Phillips County Clerk Linda White.

ROBERT L. BROWN, Justice.

Appellant Arnell Willis opposed Appellee Barbara King in the race for District 13 Representative to the Arkansas House of Representatives. The Phillips County Election Commissioners certified that Ms. King won the Democratic Preferential Primary for that position by a vote of 2,667 to 2,576. According to a complaint filed by Mr. Willis contesting the election, Ms. King's margin of victory was secured by serious violations of the Election Code, including persons voting more than once, forged ballots, and manipulation of absentee ballots in Ms. King's favor. Mr. Willis filed his complaint in timely fashion, but he failed to attach a verification of the facts contained in the complaint within the statutory time limit.

The relevant dates are these: On May 31, 2002, the Phillips County Election Commissioners certified the election returns in the preferential primary, including the results of the King/Willis race. Twenty days later, on June 20, 2002, Mr. Willis filed his complaint contesting the election. Four days after that, on June 24, 2002, Mr. Willis filed an affidavit, verifying the truth of the allegations made in his complaint.

The defendants, now appellees, in the case — Ms. King, the Phillips County Election Commissioners, the Phillips County Circuit Clerk, and the Arkansas State Election Commissioners — uniformly moved to dismiss Mr. Willis's complaint for lack of subject-matter jurisdiction.¹ They asserted that the Election Code required an affidavit verifying the allegations of the complaint be filed within twenty days of the election's certification and that Mr. Willis was four days late with his verification. The circuit court agreed and dismissed the complaint for lack of subjectmatter jurisdiction.

In his appeal from the circuit court's dismissal order, Mr. Willis contends that he substantially complied with the statutory mandate and that this should suffice. We disagree. Because it lies within the province of this court to interpret a statute, we review a circuit court's construction of the law de novo. E.g., Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). A circuit court's interpretation of the law will be accepted on appeal, however, unless it is demonstrated to be erroneous. Id.

This case involves statutory construction of Ark.Code Ann. § 7-5-801 (Rep1.2000), the relevant subsections of which read as follows:

(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.

. . . .

(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.

The cardinal rule of statutory construction is to give effect to the legislative will. E.g., Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm'n, 342 Ark. 591, 29 S.W.3d 730 (2000). When a statute is unambiguous on its face, the court will look to the plain and ordinary meaning of the text, and in such cases, there is no need to resort to the canons of statutory construction. E.g., R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001).

A losing candidate in an election has no common-law right or constitutional right to contest the outcome of an election, since the right is purely statutory. See e.g., Brewer v. Fergus 348 Ark. 577, 79 S.W.3d 831 (2002). The deadlines set out in § 7-5-801 quoted above have long been held to be both mandatory and jurisdictional. See, e.g., McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000) (citing Jenkins r. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998); Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971); Moore v. Childers, 186 Ark. 563, 54 S.W.2d 409 (1932); Gower v. Johnson, 173 Ark. 120, 292 S.W. 382 (1927)). This court strictly construes jurisdictional requirements in election contests. MeCastlain v. Elmore, supra.

Mr. Willis urges this court to hold that a candidate substantially complies with § 7-5-801, when the affidavit is filed within a reasonable time after the twenty-day deadline and when no party is prejudiced by the tardy filing. Mr. Willis asserts in his brief that "[i]t is an open question what degree of compliance satisfies the affidavit requirement of Section 7-5-801(d)" and argues all cases of this court before 1969 (the effective date of the present § 7-5-801) are not apposite.

Next, Mr. Willis argues that the trial court in MeCastlain v. Elmore, supra, upheld the sufficiency of the contestant's timely-filed jurat, which read "Subscribed and sworn to before me this 2nd day of December, 1998," and that this supports his contention that substantial compliance is the appropriate standard of review. He offers that this court, on appeal, upheld that jurat sub silentio and that, because the trial court "refused to exalt form over substance" in that case, we should do the same in the case before us. He further claims that the Election Code is designed to discourage frivolous filings, protect the continuity of the administration of government, and uphold the integrity of elected offices. As a final point, he contends that the purpose of the verification is to prevent frivolous contests, not to defeat meritorious contests on hypertechnical grounds.

We turn then to our analysis of § 7-5-801 and its legislative history. Section 7-5-801 is a codification of Act 465 of 1969, but the statutory mandate for timeliness has a significant history in Arkansas. The precursor to § 7-5-801 first took the form of an initiative act in 1917. See Initiative Act No. 1,1917 Ark. Acts 2287. Initiative Act No. 1 was codified in the Crawford and Moses Digest and read in pertinent part as follows:

A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The action shall be brought in civil court.... The complaint shall be supported by the affidavit of at least ten reputable citizens and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty days if against the certification in more than one county. The complaint shall be answered within ten days.

Crawford & Moses Digest § 3772 (1921).

A statute containing the same language is reported in Pope's Digest of 1937 at § 4738. That statute was amended by Act 386 of 1947. See Act 386, 1947 Ark. Acts 884 (codified at Ark. Stat. Ann. § 3-245 (1947)). The new act provided that an affidavit of the contestant in lieu of ten reputable citizens be filed and that the deadline be changed from ten days to twenty days. See id. In 1969, the deadline provision was reenacted as part of a reorganization of the Election Code. See Act 465 of 1969,1969 Ark. Acts 1195. The substance of the deadline provision was unchanged. See id. art. 10 § 1 (codified at Ark. Stat. Ann. § 3-1001 (Supp.1969)). The statute was later codified in its present form as § 7-5-801. This legislative history is persuasive proof of the fact that the timeliness of election-contest complaints has been an ongoing concern of the General Assembly since at least 1917 and that the verification of the alleged facts has been a mandated component of election-contest complaints.

The General Assembly has also made it abundantly clear that the concern for timely resolution of election contests is not unique to the filing of the complaint but that expedited deadlines and consideration of election contests permeate the Election Code. See Ark.Code Ann. § 7-5-801(e)(Repl.2000) (response due within twenty days of the complaint being filed); Ark.Code Ann. § 7-5-810 (Repl.2000) (seven-day time period for filing an appeal); Ark.Code Ann. § 7-5-802 (Rep1.2000) (requiring the circuit court to "proceed at once" with election cases); Ark.Code Ann. § 7-5-804 (Repl.2000) (stating it is the duty of the Supreme Court to advance election cases). Nothing in the record or abstract indicates that Mr. Willis ever moved this court to expedite this appeal, which explains why this appeal is being considered in February of 2003 rather than in a more expedited manner. While it is the duty of this court to advance appeals of election contests, it is incumbent on the contestants to bring the matter to this court's attention by motion. See Ark. Sup.Ct. R. 6-1(b) ("[T]hat the pleader shall inform the Clerk's office of the need for an emergency or accelerated hearing by the Court."). Cf. Dean v. Williams, 339 Ark. 263, 264, 5 S.W.3d 37, 38 (1999) (per curiam) ("[I]n expediting this case we can promptly decide the ... pressing issues that have been brought to our attention.") (emphasis supplied). That was not done.

In interpreting § 7-5-801, this court has written that the purpose of the statute is to "furnish a summary remedy and to secure a speedy trial." McCastlain, 340 Ark. at 368, 10 S.W.3d at 836 (quoting Gower, 173 Ark. at 122, 292 S.W. at 383). We have further emphasized that the Election Code was designed to resolve election disputes expeditiously and to avoid election-contest "fishing expeditions." McCastl...