Willis v. Crumbly , 368 Ark. 5 ( 2006 )

Robert L. Brown, Justice.

Appellant, Representative Arnell Willis, appeals from an order of the St. Francis County Circuit Court, which dismissed his complaint for failure to join necessary and indispensable parties. On appeal, Willis raises two points: (1) the circuit court erred in finding that the office of state senator is a “state office” and further erred in finding that Arkansas Code Annotated § 7-5-801 (Repl. 2000), was inapplicable to this post-election contest; (2) the circuit court erred in ruling that Willis’s complaint lacked necessary and indispensable parties and was, therefore, nonjusticiable.

The facts are these. Willis, appellee Jack Crumbly, and Alvin Simes were candidates for the Arkansas State Senate District 16 in the Democratic Primary election held on May 23, 2006. That senate district includes parts of Phillips, Lee, St. Francis, and Crittenden Counties. Willis and Crumbly finished ahead of Simes, but neither received a majority vote. After a runoff election, which was held on June 13, 2006, Crumbly received a majority of the votes and was declared the winner.

On July 7, 2006, Willis filed a petition in the St. Francis County Circuit Court to decertify the runoff election results, to oust Jack Crumbly, to void the runoff election, and to hold a special runoff election. In-his petition, Willis alleged, among other things, that voter fraud had occurred, which resulted in Crumbly’s improperly and illegally winning the runoff election. Also on July 7, 2006, Willis filed a first amendment to his cross-complaint and third-party complaint in a lawsuit that had been filed by Alvin Simes in the Pulaski County Circuit Court, contesting the primary election and alleging voter fraud in Phillips County.¹ Simes had named Crumbly, Willis, the Phillips County Election Commission and its members, the Phillips County Clerk, and the Arkansas State Board ofElection Commissioners and its members as defendants in the Pulaski County action.

Willis stated in his first amendment that it served as an election contest in lieu of a separate complaint. In both his first amendment filed in Pulaski County and his complaint filed in St. Francis County, Willis named the St. Francis County Election Commission and its members and Jack Crumbly as defendants. Motions to dismiss were filed by defendants Crumbly and the St. Francis County Election Commission in both courts on the basis that necessary and indispensable parties had not been joined.

On August 22, 2006, the Pulaski County Circuit Court entered an order in which it found that both Simes and Willis had failed to join the Secretary of State and the Democratic Party of Arkansas State Committee (the “State Democratic Committee”) in their pleadings as parties. The court found both to be necessary and indispensable parties, and the court dismissed Willis’s first amendment to cross-complaint and third-party complaint, citing Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000) (per curiam), as authority.

Following a hearing on the dismissal motions, the St. Francis County Circuit Court entered an order on October 4, 2006, in which it found that the office of state senator is a “state office.” The court further relied on Willis, supra, to determine that the case was nonjusticiable due to Willis’s failure to join the Secretary of State and the State Democratic Committee as parties in his lawsuit. Because of this, the court dismissed Willis’s complaint. Willis now appeals the dismissal by the St. Francis County Circuit Court. Following a motion by Willis to expedite the appeal, this court granted that motion and set a briefing schedule.²

Willis contends in this appeal that the St. Francis County Circuit Court erred in finding that the office of state senator is a state office rather than a district office. He claims that the applicable statute in this case is Arkansas Code Annotated § 7-5-801 (b) (Repl. 2000), which provides that an election contest between a winning candidate and a losing candidate for a district office must be brought in the circuit court of the county in which the certificate of vote was made. He points out that that statute also mandates that an election contest for a state office must be brought in Pulaski County. See Ark. Code Ann. § 7-5-801(b). Willis further claims that because the office of state senator is a district office and not a state office, it was proper to bring the action in St. Francis County.

For his second point, Willis claims that the circuit court erred in ruling that his complaint lacked necessary and indispensable parties. He acknowledges that the circuit court based its decision not on the election-contest statute, § 7-5-801, but rather on Arkansas Code Annotated § 7-7-401 (Supp. 2005). He maintains, nevertheless, that this court should hold that the circuit court wrongly interpreted § 7-5-801 because by finding that Willis had to j oin additional parties, the court required Willis to do more than was called for by the statute. He further asserts that by applying the previous Willis case to the case at bar, the circuit court required more than what the election-contest statute plainly requires.

Willis adds that Arkansas Code Annotated § 7-5-804 (Repl. 2000) mandates that officeholders, such as the Secretary of State, obey the lawful orders of the courts of this state. Willis poses the rhetorical question of why would § 7-5-804(b) require that a court’s order “be obeyed by officeholders, political committees and their officers, and all election officials,” if the Secretary of State and the political parties also had to be joined as parties. Moreover, he asks why § 7-5-804(c) would provide the court with mandamus authority to the Secretary of State and political parties to enforce the court’s ruling, if the Secretary of State and the political parties were required to be defendants in the lawsuit. According to Willis, when reading the election statutes as a whole, it is clear that there is no requirement for these parties to be defendants in this election-contest action. Willis concludes by requesting that this court reverse the order of the St. Francis County Circuit Court.

Crumbly simply disagrees in his response and urges that the Secretary of State and the State Democratic Committee were necessary and indispensable parties in this case and that the St. Francis County Circuit Court properly dismissed the case. Crumbly further asserts that this court has previously addressed this precise issue in Willis, supra, which he deems an election-contest case. Crumbly contends that Willis, supra, stands for the proposition that a candidate for state representative who contests an election must join the Secretary of State and the relevant state political party to the lawsuit for the lower court to have jurisdiction to decide the case.

Crumbly also maintains that election contests brought post-election in Arkansas, which involve state officers, must include the Secretary of State simply because the Secretary of State is a critical party for obtaining post-election relief. Crumbly explains that the Secretary of State is the state official who not only certifies the results of elections, but he or she is also the official under state law who can, when ordered by a circuit court, “annul the certifications made and make certifications in accordance with the judgment of the circuit court.” Ark. Code Ann. § 7-7-401 (b) (Supp. 2005). Because the Secretary of State ultimately and officially certifies the vote totals for the office of state senator, Crumbly concludes that the Secretary of State is a necessary and indispensable party to this lawsuit.

Finally, Crumbly argues that the office of Arkansas State Senator is a “state office” for the purposes of Arkansas election law. According to Crumbly, this court has specifically stated that the office of State Representative is considered to be a “state office” in Daniels v. Weaver, 367 Ark. 327, 240 S.W.3d 95 (2006). Crumbly also relies on Willis, supra, where he says that this court treated a failed candidate for the Arkansas House of Representatives as seeking a “state office.”

I. District Office

We turn then to the first issue raised by Willis in this case. He asserts that the St. Francis County Circuit Court erred in finding that the office of state senator is a state office for purposes of § 7-5-801. We agree.

The Arkansas Constitution provides that “[t]he Senate shall consist of members to be chosen every four years by the qualified electors of the several districts.” Ark. Const, art. 5, § 3. The Arkansas Constitution further provides that no person shall be a state senator who has not been a resident for one year “of the county or district whence he may be chosen.” Ark. Const, art. 5, § 4. Based no doubt on these constitutional provisions, the publication entitled Running for Public Office published by the State Board of Election Commissioners in conjunction with the Office of the Secretary of State and the Arkansas Ethics Commission distinguishes state offices where candidates are elected by the entire state and district offices where candidates are elected by only a portion of the state. In addition, the Election Code distinguishes between “state” candidates and “district” candidates for certification purposes. See Ark. Code Ann. § 7-7-401 (a) (Supp. 2005). We conclude that the St. Francis County Circuit Court erred in ruling that the office of state senator is a state office.³

II. Indispensable Parties

Willis next asserts that the circuit court erred in finding that the Secretary of State and the State Democratic Party are necessary and indispensable parties to this lawsuit. We agree with Willis that he was not required to name either party as a party-defendant in order to withstand a motion to dismiss.

We begin by noting that the right to contest an election is purely statutory. See, e.g., Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003). This court has previously recognized a distinction between two types of election cases provided for by statute: pre-election eligibility challenges and post-election election contests. The pre-election challenges typically involve a question of a candidate’s eligibility, such as residency in the district for the office sought, which must be raised prior to an election, but which .involves a candidate’s eligibility to be included on the ballot. See, e.g., Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000). Post-election contests typically involve issues like voter fraud, which are raised after the election due to something that occurred during the election itself. See, e.g., Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000).

a. Pre-Election Eligibility Challenge.

In State v. Craighead County Board of Election Commissioners, 300 Ark. 405, 779 S.W.2d 169 (1989), this court explained the procedure for challenging a candidate’s eligibility to be on the ballot. That cause of action, we said, derives from Arkansas Code Annotated § 7-5-207 (b). In Craighead County Board of Election Commissioners, the challenge was to a candidate’s residency, and we held that before the election “an action for mandamus and declaratory relief is the proper method of enforcing the right set out in Ark. Code Ann. § 7-5-207(b), which prohibits the inclusion of an ineligible candidate on an election ballot.” 300 Ark. at 412, 779 S.W.2d at 173; see also Tumey v. Daniels, 359 Ark. 256, 260, 196 S.W.3d 479, 482 (2004) (stating that “[sjection 7-5-107 (b) provides a means for a voter to raise a pre-election attack on a candidate’s eligibility to stand for election and for removal of that ineligible candidate’s name from the ballot”).

b. Post-Election Election Contest.

Additionally, an election contest brought post-election is specifically recognized in the Election Code as pertaining to matters like voter fraud. See Ark. Code Ann. § 7-5-801 (a) (Repl. 2000) (stating that “[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”); see also Valley v. Bogard, supra (stating that § 7-5-801 sets out the procedure that pertains to election contests “after the election,” though that was not what was involved in the Valley case); Tumey, 359 Ark. at 260, 196 S.W.3d at 482 (noting that “[a]n election contest under section 7-5-801 may be instituted by a competing candidate after either a primary or general election”).

It is clear that where a candidate files a pre-election eligibility case, the offices of Secretary of State and the state political party are necessary and indispensable parties and must be joined pursuant to Rule 19 of the Arkansas Rules of Civil Procedure. That is because complete relief cannot be afforded to the parties in a pre-election eligibility case without the inclusion of those parties. The Secretary of State’s and the state political party’s involvement in the certification-of-nominations process is explained by the relevant statute:

(a) The county board of election commissioners shall certify the nomination of all county, township, and municipal offices to the county committee of the political party, state committee of the political party, and county clerk. It shall further certify the vote of all candidates for United States, state, and district office to the state committee and the Secretary of State.

(b) The Secretary of State shall receive the returns from the county board of election commissioners and canvass and certify the result thereof as provided by law. The boards or their officers shall, when ordered by a circuit court as provided by law, annul the certifications made and make certifications in accordance with the judgment of the circuit court.

Ark. Code Ann. § 7-7-401 (a)-(b) (Supp. 2005)⁴

After the nominations are certified by the Secretary of State and the election is held, candidates may bring lawsuits to contest the election based on voter fraud, among other grounds, pursuant to § 7-5-801. That statute provides, in pertinent part:

(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.

(b) The action shall be brought in the circuit court of the county in which the certification of nomination or certificate of vote is made when a county or city or township office, including the office of county delegate or county committeeman, is involved, and, except as provided in this subchapter, within any county in the circuit or district wherein any of the wrongful acts occurred when any circuit or district office is involved, and, except as provided in this subchapter, in the Pulaski County Circuit Court when the Office of United States Senator or any state office is involved.

Ark. Code Ann. § 7-5-801 (a)-(b) (Repl. 2000).

Thus, the proper venue for a post-election, election contest depends, in part, on the type of office that the candidate bringing the action is seeking. For example, if the plaintiff in an election-contest case is a candidate for a district office, then he or she would bring the lawsuit “in any county in the circuit or district wherein any of the wrongful acts occurred.” Ark. Code Ann. § 7-5-801 (b) (Repl. 2000). A plaintiff in an election-contest case who is, however, a candidate for a state office is required to bring the lawsuit in the Pulaski County Circuit Court. See id. Section 7-5-801 (b) does not require that the plaintiff in an election-contest case include the Secretary of State or state political parties as parties to the action. See, e.g., Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003); Womack v. Foster, supra. Rather, § 7-5-804(c) of the Election Code empowers the circuit court to issue a writ of mandamus in an election-contest case “to the officers of political parties and election officials, or both, or the Secretary of State” in order to “enforce the proper certification and proper ballot in accordance with the judgment of the court.” Ark. Code Ann. § 7-5-804(c) (Repl. 2000). Thus, this mandamus authority eliminates the need to join the Secretary of State or state political parties as parties to a post-election contest. Accordingly, an election contest need not be filed in Pulaski County Circuit Court unless the disputed election is one for a state office.

We hold that this action is an election contest based on alleged irregularities that occurred during the election itself in St. Francis County. It is not a pre-election eligibility case. It is clear to this court that Willis challenged the election based on voter fraud, among other things. As explained above, it is not required that Willis join the Secretary of State or the State Democratic Party as parties defendant. See Ark. Code Ann. § 7-5-801. Further, the venue for this case is proper in St. Francis County, as that is the county within the circuit or district where the alleged wrongful acts occurred. See id. We reverse the St. Francis County Circuit Court’s order that the Secretary of State and the State Democratic Committee are necessary and indispensable parties and remand this case to that court for further proceedings.

Reversed and remanded.

Glaze and Dickey, JJ., concur.

1 Simes has appealed that order of the Pulaski County Circuit Court to this court, which is case number 06-1121.

2 We note that the issue of res judicata, based on the prior Pulaski County Circuit Court order against Willis dealing with the issues raised by Willis in the St. Francis County Circuit Court has not been raised by the appellees in this matter. Res judicata is a defense and not a matter of subject-matter jurisdiction. See, e.g., Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001). Thus, we will not raise the issue on our own or discuss it.

3 Crumbly’s rebanee on obiter dicta in Weaver, supra, is not persuasive. There, we noted that venue would have been appropriate only in Pulaski County when a “state office” is involved. We did not hold that the office of state representative is a state office. We did cite Arkansas Code Annotated § 16-60-103(3) (Repl. 2005), for the proposition that actions against state officers regarding their official acts must be brought in Pulaski County.

4 The issue in Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000) (per curiam), which was relied on by the St. Francis County Circuit Court, was whether Valley was eligible to run for the House of Representatives when he had not satisfied the residency requirements. The Pulaski County Circuit Court determined he was ineligible before the primary election, and we affirmed. See Valley v. Bogard, supra. Valley then petitioned for a declaratory judgment and mandamus in Phillips County after the primary election. We grantedWillis’s petition for a writ of prohibition because the Secretary of State had not been joined as a party and was indispensable. The proper venue, we said, was Pulaski County. Willis was an eligibility case and not an election-contest case based on voter fraud.