Keep Our Dollars in Independence Cnty. v. Mitchell

518 S.W.3d 64

KEEP OUR DOLLARS IN INDEPENDENCE COUNTY and Carol Crosby, Appellants/Cross–Appellees

v.Tracey MITCHELL, in her Official Capacity as the Independence County Clerk, Appellee

State of Arkansas, Intervenor/Appellee

Candy Allison Konkler, Intervenor/Appellee/Cross–Appellant

No. CV–16–934

Supreme Court of Arkansas.

Opinion Delivered: April 27, 2017

Rehearing Denied June 1, 2017

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, by: Clayborne S. Stone, and John Keeling Baker, and Murphy, Thompson, Arnold, Skinner & Castleberry, El Dorado, by: Kenneth P. "Casey" Castleberry, for appellants.

Hance Law Firm, Batesville, by: C. Eric Hance ; and Blair & Stroud, Batesville, by: Barrett S. Moore, for appellees Tracey Mitchell and Candy Allison Konkler.

Leslie Rutledge, Att'y Gen., by: Colin R. Jorgensen, Ass't Att'y Gen., for appellee State of Arkansas.

COURTNEY HUDSON GOODSON, Associate Justice

Appellants Keep Our Dollars in Independence County ("KODIC") and Carol Crosby appeal from the Independence County Circuit Court's order affirming the Independence County Clerk's determination that KODIC's local-option petition was insufficient to be placed on the ballot. For reversal, appellants argue (1) that the circuit court had subject-matter jurisdiction of their appeal from the clerk's certification of insufficiency and (2) that the circuit court erred in finding Arkansas Code Annotated section 3–8–811(b)(6) (Supp. 2015) constitutional under Article 5, section 1 of the Arkansas Constitution.

Appellee/cross-appellant Candy Allison Konkler, who intervened in the case, also filed a cross-appeal in which she contends that KODIC's petition was fatally deficient because (1) some of the petition pages contained two notarizations and two canvasser signatures in violation of Arkansas Code Annotated section 3–8–811(b) ; (2) the petition form was not file marked; (3) a new petition format was submitted in the midst of the petition drive in violation of Arkansas Code Annotated section 3–8–806(d)(2) (Supp. 2015); and (4) the petition did not contain an attorney's certification as required by Arkansas Code Annotated section 14–14–915(a)(3) (Repl. 2013). Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(4) (2016). We dismiss both the direct appeal and the cross-appeal as moot.

KODIC, a local-option ballot question committee as defined in Arkansas Code Annotated section 3–8–702(7)(A) (Supp. 2015), sponsored a petition to allow Independence County voters to decide whether to permit the manufacture and sale of alcoholic beverages in the county. This "wet/dry" election was to be held during the general election on November 8, 2016. Pursuant to Arkansas Code Annotated section 3–8–803 (Supp. 2015), in order for a local-option question to appear on a county-wide ballot, the sponsor must file a petition containing the signatures of at least 38 percent of the registered voters of that county. It is undisputed by the parties that the petition in this case was required to have the signatures of at least 7,966 registered Independence County voters.

After the signature-gathering process, KODIC filed its petition with appellee Tracey Mitchell, the Independence County Clerk, on July 22, 2016. On July 30, 2016, Mitchell issued a letter to KODIC in which she indicated that only 7, 252 of the 13,008 signatures submitted had been verified and that the petition was insufficient. The letter explained that "[o]therwise valid signatures listed on petition sheets containing signatures from individuals residing outside of this county were rejected" as being in violation of Arkansas Code Annotated § 3–8–811(b)(6). This section states that a county clerk must not count any signatures on a petition part if the petition part "clearly and unmistakably contains signatures of petitioners from more than one (1) county unless each signature of a petitioner from another county is clearly stricken before the filing of the petition with the county clerk." Ark. Code Ann. § 3–8–811(b)(6).

On August 9, 2016, KODIC filed additional signatures to be added to the local-option petition pursuant to Arkansas Code Annotated section 14–14–915(e), which allows a ten-day cure period. KODIC also submitted proof demonstrating that certain signatures previously rejected by Mitchell were correct and should have been counted. Following her verification of the additional signatures, Mitchell issued a letter to KODIC on August 13, 2016, indicating that the petition fell short of the 38–percent threshold by 377 signatures. Mitchell stated in the letter that 424 otherwise valid signatures had not been counted because those signatures appeared on petition parts also containing the signature of someone outside Independence County in violation of section 3–8–811(b)(6).

KODIC filed a petition to appeal Mitchell's certification of insufficiency with the circuit court on August 15, 2016. KODIC also requested that the circuit court declare section 3–8–811(b)(6) unconstitutional. Carol Crosby, a resident, taxpayer, and registered voter in Independence County whose valid signature was rejected under the statute, joined KODIC in the appeal. The Attorney General intervened to defend the statute's constitutionality, and Konkler, a resident and taxpayer of Independence County who opposed the local-option petition, was also granted intervention.

Following a hearing on August 23, 2016, the circuit court entered an order finding that section 3–8–811(b)(6) was constitutional. Evidence was also presented at the hearing regarding Mitchell's findings of insufficiency, and the parties were instructed to file posttrial briefs on the issue. In her posttrial brief, Konkler argued for the first time that the circuit court did not have subject-matter jurisdiction of the appeal because KODIC had not filed its appeal petition within the ten-day period set forth in Arkansas Code Annotated section 3–8–205(b) (Supp. 2015). Konkler contended that this section applied to the local-option petition in this case rather than Arkansas Code Annotated section 14–14–915 as argued by KODIC.

In its final order entered on September 7, 2016, the circuit court questioned whether it had jurisdiction but went on to address the sufficiency of the petition. Although KODIC demonstrated that three additional signatures should have been counted by Mitchell, the circuit court agreed that 424 signatures had been properly excluded pursuant to section 3–8–811(b)(6) and that the petition did not contain the required number of signatures. The court rejected Konkler's arguments that the petition contained additional defects because certain petition parts bore two separate canvasser affidavits and notarizations and the petition was not file-marked by the clerk. In addition, the court disagreed with Konkler that KODIC had essentially restarted its signature-collection efforts by adding a second notary page to its petition form or that the petition was deficient because it lacked an attorney's certification. The circuit court affirmed Mitchell's certification of insufficiency and denied appellant's appeal petition. Appellants filed a timely notice of appeal from the circuit court's order, and Konkler filed a notice of cross-appeal.

As appellants recognize in their first point on appeal, a preliminary issue that must be resolved is whether the circuit court had subject-matter jurisdiction to hear the appeal of Mitchell's certification of insufficiency. Although the circuit court did not dismiss the appeal petition on this basis, the issue of subject-matter jurisdiction is one that we are required to raise on our own. This is because when the circuit court lacks jurisdiction, this court also lacks jurisdiction on appeal. Tripcony v. Ark. Sch. for the Deaf , 2012 Ark. 188, 403 S.W.3d 559. We have further held that the filing deadlines set by election statutes are mandatory and jurisdictional. Willis v. King , 352 Ark. 55, 98 S.W.3d 427 (2003).

Konkler argues that appellants' appeal of Mitchell's certification of insufficiency was governed by the procedures in Arkansas Code Annotated section 3–8–205, which is set out below:

(a) If the petition is determined to be sufficient under § 3–8–801 et seq., the county clerk shall certify that finding to the county board of election commissioners, and the question shall be placed on the ballot in the county, township, municipality, ward, or precinct at the next biennial general election as provided in § 3–8–101.

(b)(1) If an appeal is taken from the certification of the county clerk, it shall be taken within ten (10) days and shall be considered by the circuit court within ten (10) days, or as soon as practicable, after the appeal is lodged with the court.

(2) The circuit court shall render its decision within thirty (30) days thereafter.

(c) If an appeal is taken, the election shall be had no sooner than sixty-five (65) days after the appeal is determined, if the decision is in favor of the petitioners.

(d)(1)(A) The decision shall be certified immediately to the county board of election commissioners, and the day for the election shall be fixed by the county board of election commissioners for not earlier than sixty-five (65) days nor later than ninety (90) days after the certification of the decision of the circuit court.

(B) Any appeal from the final decision of the circuit court shall be taken within ten (10) days and shall be advanced and immediately determined by the Supreme Court.

(2) In that event, the county board of election commissioners may, in its discretion, delay the election until after the final decision of the Supreme Court.

(3) If the decision is in favor of the petitioners, then the county board of election commissioners shall set the day for the election, which shall be not earlier than sixty-five (65) days nor later than ninety (90) days after the final decision of the Supreme Court.

(e) Except as provided in this section, a petition for local option election shall be

...