Blackburn v. Lonoke Cnty. Bd. of Election Comm'rs

2022 Ark. 176

652 S.W.3d 574

Charles BLACKBURN, Appellant

v.The LONOKE COUNTY BOARD OF ELECTION COMMISSIONERS; Matthew Brown, Mickey "Stubby" Stumbaugh, and Dan Stowers, in Their Official Capacities as Members of the Election Commission; Dawn Porterfield, in Her Official Capacity as Lonoke County Clerk; Doug Irwin; Norman Walker; and John Thurston, in His Official Capacity as Arkansas Secretary of State, Appellees

No. CV-22-520

Supreme Court of Arkansas.

Opinion Delivered: October 6, 2022

Lancaster Law Firm, PLLC, Benton, by: Clinton W. Lancaster, for appellant.

Leslie Rutledge, Att'y Gen., by: Maryna Jackson, Sr. Ass't Att'y Gen., for appellee John Thurston, in his official capacity as Arkansas Secretary of State.

Jason Owens Law Firm, P.A., by: Michael A. Mosley, North Little Rock, for Lonoke County appellees.

JOHN DAN KEMP, Chief Justice

Appellant Charles Blackburn appeals from the Lonoke County Circuit Court's orders granting motions to dismiss filed by the Lonoke County Board of Election Commissioners ("Board"); Matthew Brown, Mickey "Stubby" Stumbaugh, and Dan Stowers, in their official capacities as members of the Board; Dawn Porterfield, in her official capacity as Lonoke County Clerk ("Clerk"); Doug Irwin; Norman Walker (collectively "Lonoke County appellees"); and John Thurston, in his official capacity as Arkansas Secretary of State. Blackburn urges this court to consider this case pursuant to our original jurisdiction. He also argues that the circuit court abused its discretion in granting the motions to dismiss because he adequately pleaded an as-applied challenge to the constitutionality of Arkansas Code Annotated section 7-7-103 (Supp. 2021). Finally, he asserts that even if his amended complaint was deficient, then it should have been dismissed without prejudice. We affirm as modified.

I. Facts

Blackburn sought to run as an independent candidate in the 2022 election for Lonoke County Judge. A person seeking to have his or her name placed on a ballot as an independent candidate for a county office in a general election "shall furnish by 12:00 noon on May 1 of the year in which the general election is to be held petitions signed by not less than three percent (3%) of the qualified electors in the county, township, or district in which the person is seeking office, but in no event shall more than two thousand (2,000) signatures be required for a district, county, or township office." Ark. Code Ann. § 7-7-103(b)(1)(A).¹

Blackburn contacted Kristen Shipp, an employee in the Clerk's office, for assistance in determining the number of signatures he needed to comply with the statutory requirement. Shipp informed Blackburn that he needed 367 signatures to get on the ballot. Blackburn obtained and returned 367 signatures to the Clerk's office by the May 1, 2022 deadline. Shipp subsequently informed Blackburn that a mistake had been made, that he actually needed 618 signatures, and that he was short 251 signatures.

On June 13, 2022, Blackburn filed a lawsuit against the Board, the members of the Board (in their official capacities), and the Clerk, seeking a writ of mandamus, preliminary injunction, and declaratory judgment. Specifically, Blackburn sought an order directing the Board to allow him an additional fourteen days to collect signatures. On July 8, Blackburn filed an amended complaint in which he added as defendants the presumptive Democrat and Republican nominees for Lonoke County Judge and Thurston. He also added facial and as-applied challenges to the constitutionality of section 7-7-103 and sought a declaration that Shipp's actions violated his right to access to the ballot and the right of the voters to cast ballots for independent candidates. Blackburn further requested that the circuit court order that the signatures he previously submitted were sufficient to be placed on the ballot or, in the alternative, that he be given additional time to collect and submit signatures.

The Lonoke County appellees and Thurston filed separate motions to dismiss. Following a hearing, the circuit court dismissed the amended complaint with prejudice.

On August 8, it entered two orders of dismissal. Blackburn timely filed his appeal with this court and sought expedited consideration, which we granted.²

II. Original Jurisdiction

Blackburn first seeks consideration of this case pursuant to this court's original jurisdiction based on his claim that the government's actions related to section 7-7-103 rendered the statute unconstitutional as applied to him. He seeks an order that his name be placed on the ballot as an independent candidate for Lonoke County Judge. Blackburn cites Arkansas Supreme Court Rule 6-5(a) and argues that his case "is not explicitly ruled out as a case that invokes the court's original jurisdiction."

Rule 6-5 addresses original actions and states that

[t]he Supreme Court shall have original jurisdiction in extraordinary actions as required by law, such as suits attacking the validity of statewide petitions filed under Amendment 7 of the Arkansas Constitution, or where the Supreme Court's contempt powers are at issue.

Although the examples given are not exhaustive, Blackburn's claim is clearly not a suit attacking the validity of a statewide petition filed under amendment 7, and it does not involve this court's contempt powers.

We have said that this court's jurisdiction is appellate in nature except where specific law or precedent has established authority for it to proceed in an original action. Jackson v. Tucker , 325 Ark. 318, 319, 927 S.W.2d 336, 336 (1996) ; see also Rockefeller v. Smith , 246 Ark. 819, 824, 440 S.W.2d 580, 582 (1969) (rejecting attempt to proceed simultaneously with an appeal and an original-jurisdiction action and holding that "jurisdiction of this court in these matters is exclusive"). In this case, Blackburn attempts to simultaneously invoke this court's original and appellate jurisdiction despite our settled law prohibiting this. Id. at 824, 440 S.W.2d at 582. Further, he cites no specific law or precedent establishing authority for him to proceed in an original action under the circumstances he sets forth. Thus, we reject his original-jurisdiction argument and address his arguments under our appellate jurisdiction.

III. Arguments on Appeal

A. Dismissal Orders

Blackburn next argues that the circuit court abused its discretion by dismissing his amended complaint. He contends that although section 7-7-103 contains no requirement that the Clerk provide him with information about the number of required signatures, her office undertook that action, and the "effect is that a government official construed Ark. Code Ann. § 7-7-103 and made an official government statement of what was required under the statute related to signatures." Blackburn claims that his reliance on incorrect information prevented him from accessing the ballot and that section 7-7-103 is unconstitutional as applied to him based on the government's actions.

Our standard of review for the granting of a motion to dismiss is whether the circuit court abused its discretion.

Jenkins v. Mercy Hosp. Rogers , 2021 Ark. 211, at 4, 633 S.W.3d 758, 762. In making that determination, we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Ballard Grp., Inc. v. BP Lubricants USA, Inc. , 2014 Ark. 276, at 6, 436 S.W.3d 445, 449. We construe the pleadings liberally and resolve all reasonable inferences in favor of the complaint. Id. , 436 S.W.3d at 449. However, our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Dockery v. Morgan , 2011 Ark. 94, at 5–6, 380 S.W.3d 377, 382. We treat only the facts alleged in the complaint as true but not a plaintiff's theories, speculation, or statutory interpretation. Id. , 380 S.W.3d at 382.

Arkansas Rule of Civil Procedure 12(b)(6) provides that "[e]very defense, in law or in fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may ... be made by motion: ... (6) failure to state facts upon which relief can be granted[.]" According to Arkansas Rule of Civil Procedure 8(a)(1), a pleading that sets forth a claim for relief shall contain a statement in ordinary and concise language of facts showing that the pleader is entitled to relief. Rules 8(a)(1) and 12(b)(6) must be read together in testing the sufficiency of a complaint. Dockery , 2011 Ark. 94, at 6, 380 S.W.3d at 382. We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Id. , 380 S.W.3d at 382. When the complaint states only conclusions without facts, we will affirm the circuit court's decision to dismiss the complaint pursuant to Rule 12(b)(6). Ballard Grp., Inc. , 2014 Ark. 276, at 6, 436 S.W.3d at 449.

Further, in construing our statutes, we have stated that statutes are presumed to be constitutional, and this court resolves all doubts in favor of constitutionality. Smith v. Arkansas Midstream Gas Servs. Corp. , 2010 Ark. 256, at 6, 377 S.W.3d 199, 203. The party challenging a statute's constitutionality has the burden of proving that it is constitutional. Id. , 377 S.W.3d at 203. There are two primary ways to challenge the constitutionality of a statute: (1) an as-applied challenge, in which the court assesses the merits of the challenge by considering the facts of the particular case in front of the court, not hypothetical facts in other situations; and (2) a facial challenge, which seeks to invalidate the statute. Ward v. Hutchinson , 2018 Ark. 313, at 9, 558 S.W.3d 856, 862.

In the present case, the circuit court entered separate orders dismissing the Lonoke County appellees and Thurston. As to the Lonoke County appellees, it found that

the County Clerk was under no duty to provide the number of

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