Weeks v. Thurston

2020 Ark. 64

594 S.W.3d 23

Adam G. WEEKS, Appellant

v.John THURSTON, in His Official Capacity as Arkansas Secretary of State; Judy Miller; Cara Bryant, Keith Declerk, and Carolyn Towell, in Their Official Capacities as Comissioners of the Randolph County Election Commission; Michael Bradley, Judy Verkler, and Tommy Holland, in Their Official Capacities as Commissioners of the Lawrence County Election Commission; Lou Ann Cushman, Holly McLaran, and Homer Wiles, in Their Official Capacities as Commissioners of the Sharp County Election Commission; and David Dickson, Alice James, and Donna Gould, in Their Official Capacities as Commissioners of the Jackson County Election Commission, Appellees

No. CV-20-20

Supreme Court of Arkansas.

Opinion Delivered: February 13, 2020

Ben Bristow, for appellant.

WH Law, North Little Rock, by: Chris Burks and Judy Miller, for appellee Judy Miller.

ROBIN F. WYNNE, Associate Justice

This is an appeal from the Pulaski County Circuit Court’s order disqualifying appellant, District Judge Adam G. Weeks, from the ballot for the judicial office of the Third Judicial District, Division Three, Circuit Judge in the upcoming March 3, 2020 election. On appeal, Weeks arguesthat the circuit court erred when it removed his name from the ballot because (1) his conviction for a misdemeanor "fictitious tags" violation is not an "infamous crime" as defined in article 5, section 9 of the Arkansas Constitution ; and (2) the violation cannot be considered "infamous," as that would violate several constitutional provisions. This court has jurisdiction pursuant to Arkansas Supreme Court Rule 1-2(a)(4) because this appeal pertains to elections and election procedures. We reverse.

On September 13 and November 8, 2019, Weeks filed with the Secretary of State as a nonpartisan candidate for the office of circuit judge in the Third Judicial District, Division Three.¹ On December 6, 2019, Judy Miller, a registered voter and resident of Randolph County, filed a petition for issuance of a writ of mandamus and for declaratory judgment, naming as defendants appellant Weeks; the Commissioners of the Randolph, Lawrence, Sharp, and Jackson County Election Commissions, in their official capacities; and John Thurston, in his official capacity as Arkansas Secretary of State. Miller alleged that Weeks is ineligible to run for public office due to having convictions for four misdemeanor violations of the hot-check statute, Ark. Code Ann. § 5-37-302 (Supp. 2019), and one violation of the "fictitious tags" statute, Ark. Code Ann. § 27-14-306 (Repl. 2014). She sought an expedited hearing pursuant to Arkansas Rule of Civil Procedure 78(d). The defendants filed their respective answers.

On December 17, 2019, a hearing was held at which Weeks testified, documentary evidence was introduced, and counsel presented their respective arguments to the court. Posttrial briefing was ordered. On January 6, 2020, the circuit court entered an order finding that "the hot check violations do not function to disqualify [Weeks] from the ballot,"² but that the "fictitious tag" misdemeanor did disqualify him from the ballot. The circuit court held that it was unable to consider the facts and circumstances surrounding the conviction—that it was in the 1990s when Weeks was a college student, and Weeks testified that he did not act with the intent to be dishonest but instead simply borrowed a vehicle from his parents, who owned a used car lot. Instead, the court looked to the fact of conviction and the case Fronterhouse v. State , 2015 Ark. App. 211, 463 S.W.3d 312, and determined that Weeks was disqualified from running for judicial office. Weeks timely appealed. This court granted expedited consideration and ordered simultaneous briefing.

We begin our analysis with article 5, section 9 of the Arkansas Constitution, which provides as follows:

§ 9. Persons convicted ineligible

(a) No person convicted of embezzlement of public money, bribery, forgery, or other infamous crime is eligible to the General Assembly or capable of holding any office of trust or profit in this state.

(b) As used in this section, "infamous crime" means:

(1) A felony offense;

(2) Abuse of office as defined under Arkansas law; (3) Tampering as defined under Arkansas law; or

(4) A misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement , including without limitation a misdemeanor offense related to the election process.

(Emphasis added.) In Title 7 of the Arkansas Code, which governs elections, Arkansas Code Annotated section 7-1-101(17) mirrors the language of article 5, section 9, and provides the following:

(17) "Infamous crimes" for the purposes of Arkansas Constitution, Article 5, § 9, includes:

....

(E) A misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement[.]

The question presented on appeal is whether the statute at issue, Arkansas Code Annotated section 27-14-306, constitutes a misdemeanor offense in which the finder of fact was required to find an act of deceit, fraud, or false statement. This court has explained the standard of review for statutory interpretation as follows:

When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Yamaha Motor Corp. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001) ; Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999) ; State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.

State v. Britt , 368 Ark. 273, 275–76, 244 S.W.3d 665, 667 (2006) (citing Crawford v. State , 362 Ark. 301, 303, 208 S.W.3d 146, 148 (2005) ). Further, penal statutes are to be strictly construed, and all doubts are to be resolved in favor of the defendant. Id.

Section 27-14-306 provides:

Improper use of evidences of registration.

(a) No person shall lend to another any certificate of title, registration certificate, registration plate, special plate, or permit issued to him or her if the person desiring to borrow it would not be entitled to the use thereof, nor shall any person knowingly permit their use by one not entitled thereto, nor shall any person display upon a vehicle any registration certificate, registration plate, or permit not issued for the vehicle or not otherwise lawfully thereon under this chapter.

(b) Any violation of this section is a misdemeanor.

Thus, there are three ways to violate the statute: (1) lending to another any certificate of title, registration certificate, registration plate, special plate, or permit issued to him or her if the person desiring to borrow it would not be entitled to its use; (2) knowingly permitting their use by one not entitled thereto; and (3) displaying upon a vehicle any registration certificate, registration plate, or permit not issued for the vehicle or not otherwise lawfully thereon under this chapter. Weeks argues that none of the provisions of section 27-14-306(a) include a scenario where the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement. He offers various scenarios, including his own, in which one could be guilty of violation section 27-14-306 without the presence of the deceit, fraud, or false statement that is required for a misdemeanor to constitute an "infamous crime."³

There is limited guidance in case law regarding section 27-14-306. The circuit court cited our court of appeals’s decision in Fronterhouse v. State , 2015 Ark. App. 211, 463 S.W.3d 312. In that case, the court of appeals considered section 27-14-306 in the context of impeachment evidence under Arkansas Rule of Evidence 609(a). The Fronterhouse court rejected the State’s position that the proponent of a conviction must demonstrate the underlying facts giving rise to the conviction in order to establish that it involves dishonesty or false statement. The court concluded, without analysis, that a conviction under section 27-14-306 involved dishonesty or false statements "by the very definition[ ] of the offense[ ]." As explained below, we conclude that a violation of section 27-14-306 does not necessarily involve dishonesty or false statement, and we overrule Fronterhouse on that specific point.

This court considered the statute at issue in Judicial Discipline & Disability Comm'n v. Thompson , 341 Ark. 253, 16 S.W.3d 212 (2000). In that judicial-discipline proceeding, we considered whether Judge Morris Thompson’s violation of section 27-14-306, by admittedly placing the license tag belonging to his 1981 Toyota on his Ford pickup truck, was a violation of Judicial Canons 1 and 2A. Thompson argued that he made no attempt to deceive anyone concerning his judicial status, but we stated that the purpose for attaching the fictitious license tag was to mislead law enforcement officers into believing the truck was properly registered. We concluded that...