Keep Our Dollars in Independence Cty. v. Mitchell , 518 S.W.3d 64 ( 2017 )

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SUPREME COURT OF ARKANSAS
No. CV-16-934
Opinion Delivered: April 27, 2017
KEEP OUR DOLLARS IN
INDEPENDENCE COUNTY AND APPEAL FROM THE
CAROL CROSBY INDEPENDENCE
APPELLANTS/CROSS-APPELLEES COUNTY CIRCUIT COURT
[NO. CV-2016-182]
V.
HONORABLE TIMOTHY
TRACEY MITCHELL, IN HER OFFICIAL WEAVER, JUDGE
CAPACITY AS THE INDEPENDENCE
COUNTY CLERK
APPELLEE APPEAL AND CROSS-APPEAL
DISMISSED.
STATE OF ARKANSAS
INTERVENOR/APPELLEE
CANDY ALLISON KONKLER
INTERVENOR/APPELLEE/CROSS-
APPELLANT
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
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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.
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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
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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
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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
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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 governed by § 7-9-101 et seq. and the Disclosure Act for Initiative Proceedings,
§ 3-8-701 et seq.
Pursuant to subsection (b)(1), Konkler contends that appellants were required to file their
appeal with the circuit court within ten days of Mitchell’s determination that the local-
option petition did not contain the required number of signatures, which occurred on July
30, 2016. Because appellants did not file their appeal petition until August 15, 2016,
Konkler claims that the circuit court did not have jurisdiction to hear the appeal.
Appellants argue, however, that the ten-day appeal period contained in section 3-8-
205(b)(1) applies only to the county clerk’s certification that a petition is sufficient. They
contend that there is no provision in that statute setting forth the time to appeal from a
clerk’s finding of insufficiency and that these types of appeals are instead governed by
Arkansas Code Annotated section 14-14-915, which discusses the requirements and
procedures applicable to petitions for county initiatives and referendums. The pertinent
provisions of section 14-14-915 are set forth below:
(e) Insufficiency of Petition and Recertification. If the county clerk finds the
petition insufficient, within ten (10) days after the filing thereof the clerk shall notify
the petitioners or their designated agent or attorney of record, in writing, setting
forth in detail every reason for the findings of insufficiency. Upon notification of
insufficiency of the petition, the petitioners shall be afforded ten (10) calendar days,
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exclusive of the day notice of insufficiency is receipted, in which to solicit and add
additional signatures, or to submit proof tending to show that signatures rejected by
the county clerk are correct and should be counted. Upon resubmission of a petition
which was previously declared insufficient, within five (5) calendar days the county
clerk shall recertify its sufficiency or insufficiency in the same manner as prescribed
in this section and, thereupon, the clerk’s jurisdiction as to the sufficiency of the
petition shall cease.
(f) Appeal of Sufficiency or Insufficiency Findings. Any taxpayer aggrieved by
the action of the clerk in certifying the sufficiency or insufficiency of any initiative
or referendum petition, may within fifteen (15) calendar days, but not thereafter,
may file a petition in circuit court for a review of the findings.
Appellants argue that KODIC complied with the dictates of subsection (e) by utilizing the
ten-day cure period in which to submit additional signatures and that they then timely
appealed the clerk’s August 9, 2016 recertification of insufficiency within fifteen days as
required under subsection (f).
The primary rule of statutory interpretation is to give effect to the intent of the
legislature. Our Cmty., Our Dollars v. Bullock, 2014 Ark. 457, 452 S.W.3d 552. “We
construe the statute just as it reads, giving the words their ordinary and usually accepted
meaning in common language.” Id. at 8, 452 S.W.3d at 557. We also reconcile statutory
provisions in order to make them consistent, harmonious, and sensible and to give effect to
every part. Mays v. Cole, 374 Ark. 532, 289 S.W.3d 1 (2008). Furthermore, we will not
read into a statute a provision that was not included by the legislature. Bullock, supra; Scoggins
v. Medlock, 2011 Ark. 194, 381 S.W.3d 781.
It is apparent from the plain language of section 3-8-205 that its provisions apply
only when the county clerk has certified that the local-option petition is sufficient and has
indicated that it will be placed on the ballot. See Ark. Code Ann. § 3-8-205(a) (“If the
petition is determined to be sufficient . . . the county clerk shall certify that finding . . . .”)
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(emphasis added). There is no language in the statute referring to the procedures applicable
to a county clerk’s determination of insufficiency. In fact, the title of the statute is
“Determination of sufficiency of petition—Calling of election.” Thus, appellants are correct
that the ten-day appeal deadline in section 3-8-205(b)(1) did not apply to the clerk’s
certification of insufficiency in this case.
The parties do not point to any other statutory provisions in Chapter 8, which
specifically addresses local-option petitions, that would apply to appellants’ appeal to the
circuit court. However, as appellants assert, we have previously held that certain provisions
in section 14-14-915 are applicable to local-option cases. See, e.g., Bullock, supra (applying
section 14-14-915(d) and (e) to a local-option petition); Save Energy Reap Taxes v. Shaw,
374 Ark. 428, 288 S.W.3d 601 (2008) (discussing section 14-14-915(d)). In Bullock, we
stated that, while pre-filing requirements for local-option petitions are not governed by
amendment 7 to the Arkansas Constitution, after such petitions are filed with the clerk,
subsequent proceedings are conducted in the manner provided for county initiative
measures under amendment 7 and its enabling acts, such as section 14-14-915. Id. at 18,
452 S.W.3d at 562 (citing Dean v. Williams, 339 Ark. 439, 6 S.W.3d 89 (1999)).
Konkler contends that section 14-14-915 no longer applies to local-option petitions
following Act 1432 of 2013, which repealed Arkansas Code Annotated section 3-8-204 and
its express reference to amendment 7 and its enabling acts. However, Bullock was decided
after the 2013 amendment, and we nonetheless continued to apply the provisions in section
14-14-915 to the local-option petition in that case. Furthermore, as noted above, there are
no specific statutory provisions providing for an appeal of a finding of insufficiency within
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the current statutory scheme for local-option petitions or the statutes referenced therein.
Accordingly, appellants timely appealed Mitchell’s certification of insufficiency to the circuit
court in accordance with the provisions in section 14-14-915(f); therefore, we have
jurisdiction of this appeal.
In appellants’ second point on appeal, they argue that the circuit court erred in
finding Arkansas Code Annotated section 3-8-811(b)(6) constitutional under article 5,
section 1 of our state constitution. They contend that, pursuant to this statute, Mitchell
excluded from her count 424 signatures that were otherwise valid on the basis that these
signatures were listed on petition sheets that also contained signatures from individuals
residing outside of Independence County. Appellants assert that this court has previously
found a nearly identical statutory requirement relating to statewide initiatives and referenda
to be unconstitutional in McDaniel v. Spencer, 2015 Ark. 94, 457 S.W.3d 641.
In her brief on cross-appeal, Konkler argues that this court should decline to address
the constitutionality of the statute because, even if the 424 signatures excluded pursuant to
this statute were counted, KODIC’s petition would still be insufficient if the signatures she
challenges in her cross-appeal are struck. Thus, she contends that the issue of
constitutionality is moot.
We agree that the issues raised on direct appeal and on cross-appeal are moot.
KODIC was seeking to have the local-option question at issue in this case placed on the
ballot in the November 8, 2016 general election, which has already occurred. We have
consistently held that we will not review issues that are moot because to do so would be to
render an advisory opinion. See, e.g., Lott v. Langley, 2013 Ark. 247; Watts v. Searcy Cty.
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Bd. of Elections, 364 Ark. 452, 220 S.W.3d 642 (2005). A case generally becomes
moot when any judgment rendered would have no practical legal effect on a then existing
legal controversy. Lott, supra. We have recognized two exceptions to the mootness doctrine
for (1) issues that are capable of repetition, yet evade review, and (2) issues that raise
considerations of substantial public interest which, if addressed, would prevent future
litigation. Id.
We do not find that either of these exceptions apply under the circumstances in this
case. The parties failed to seek expedited consideration of this appeal, and the only relief
requested in appellants’ brief is to have the local-option petition deemed sufficient and for
it to be placed on the ballot. However, the petition involved here pertained only to the
November 8, 2016 general election. In addition, while appellants have also raised the issue
of the constitutionality of section 3-8-811(b)(6), in order to reach this question, we would
first have to determine whether article 5, section 1 of the constitution even applies to this
local-option petition and whether the arguments raised in Konkler’s cross-appeal render the
issue of constitutionality moot. We have long held that we will not pass on constitutional
questions if the litigation can be determined without doing so. Shipp v. Franklin, 370 Ark.
262, 258 S.W.3d 744 (2007); Quinn v. Webb Wheel Prods., 334 Ark. 573, 976 S.W.2d 386
(1998). Because the election has already occurred, and neither party stands to gain relief
based on the outcome of this appeal, we decline to address the merits of appellants’ moot
constitutional argument, as well as the issues raised in Konkler’s cross-appeal regarding the
sufficiency of the local-option petition. See Quinn, supra. Accordingly, we dismiss both the
appeal and the cross-appeal.
Appeal and cross-appeal dismissed.
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Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Clayborne S. Stone and John
Keeling Baker; and Murphy, Thompson, Arnold, Skinner & Castleberry, by: Kenneth P. “Casey”
Castleberry, for appellants.
Hance Law Firm, by: C. Eric Hance; and Blair & Stroud, 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.
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