Summary
upholding limited time of appeal from county court to circuit court under prior law
Summary of this case from Citizens for a Safer Carroll County v. EpleyOpinion
M. Watson Villines, Conway, for appellants.
Ike Allen Laws, Russellville, Felver Rowell, Mark Cambiano, Morrilton, for appellees.
[294 Ark. 172-A] DUDLEY, Justice.
The petitioners ask for rehearing. Since there is neither an error of fact nor of law in the original opinion, we deny the petition.
The dissenting opinions contend that the majority opinion misconstrues the case of Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972). The original majority opinion states:
The appellees argue that the interpretation we adopt is inconsistent with our holding in Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972). Our holding in that case is that jurisdiction to try local option election contests is in circuit court. All else is dicta.
The statement is correct. The first paragraph of the opinion in Henderson sets out the question that was before the Court: "The question we must resolve is whether the county court had [294 Ark. 172-B] jurisdiction."
The Henderson opinion summarizes its holding very concisely:
It is therefore our conclusion that Act 108 of 1935 provides that the contest of any local option election should follow the statutes providing for the contest of any election for county officers; and that Act 465 of 1969 provides that the contest for a county office shall be brought in the circuit court.
According to Black's Law Dictionary, "dicta" are statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand, and they lack the force of an adjudication. Thus, the original opinion in this case correctly interprets Henderson.
The sentence from Henderson, quoted above, which summarizes the holding states that Act 108 of 1935, the local option act, provides for resolution of the jurisdictional question by referring to the statutes governing the contest for election of county officers, which is Act 465 of 1969, or the election code of 1969. Thus, the court in Henderson only applied the 1969 act by incorporation through the local option act.
The paragraph of the local option statute which governed Henderson and also governs the case at bar is as follows:
1. Hearing and determination. The contest shall be heard and determined by the same board which, by law, is authorized and empowered to hear and determine a contest of an election for county officers; and the same provisions of the statutes shall apply to the contest of any election held under this law as are provided for the contest of any election for county officers, except as hereinafter provided.
The first clause of the statute quoted immediately above provides that the contest of a local option election shall be heard by the same court as is authorized to hear the contest of an election for county officers. The last clause of the statute provides that the same provisions of the statutes shall apply to local option [294 Ark. 172-C] election contests as are provided for the contest of any election for county officers. However, the last clause also provides, "except as hereinafter provided." None of the exceptions which follow in the next section of the statute were material in Henderson; but one of them, the requirement that a contest be filed within 10 days, is the crucial point of the case at bar. The exception, quoted in full in the original opinion, governs the case at bar, and mandates holding that a local option election contest must be filed within 10 days.
The petitioners alternatively ask us to modify the mandate in this case from reversed and dismissed to reversed and remanded in order that they might present arguments that the local option election act is unconstitutional. We decline to do so.
The appellants' (respondents in this motion) first point of appeal was: "The trial court erred in not dismissing the complaint of the appellees due to the late filing thereof pursuant to Ark.Stat.Ann. § 48-820. The trial court lacks jurisdiction." Their entire argument on the point was devoted to the proposition that the case should have been dismissed. In response to the point the appellee, petitioner here, argued that Ark.Stat.Ann. § 48-820, the local option act, was not applicable and therefore the trial court correctly refused to dismiss the case. In their brief the appellees never once argued that there remained a constitutional issue to be decided by the trial court. The argument is raised for the first time on rehearing. We do not consider a contention advanced for the first time on rehearing. In Bost v. Masters, 235 Ark. 393, 361 S.W.2d 272 (1962) (citations omitted), in a similar denial of rehearing, we wrote:
In other words, appellee never made the contention, now advanced, in her original brief. We have said on numerous occasions that we do not consider matters, in civil actions, which are not argued in the brief, and any point not argued is deemed waived.
Denied.
PURTLE, J., concurs.
HICKMAN, HAYS and GLAZE, JJ., dissent.
PURTLE, Justice, concurring.
The dissent by Justice [294 Ark. 172-D] Glaze is a little rough even by my standards. However, I do understand the intensity of his sentiment in the matter because he was the chief architect of the election code of 1969. The 1969 election code was an idea whose time had come and the reform legislation replaced a myriad of archaic and overlapping election laws. Justice Glaze believes that this legislation governs all election contests. I too thought the legislature intended to establish a uniform twenty day election contest law. However, in 1985 this court voted 6-0 (I did not participate) in Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), that local option election contests must be filed within ten days from certification of the election results.
The Wurst opinion, which was written by Justice George Rose Smith, dealt exclusively with the procedure to contest a local option election, which is the issue in the present case. The opinion stated:
The attempt to intervene is far too late. Wurst could have intervened the day after the election had he been diligent. It is in the public interest that election results become final without delay. We hold that, by analogy, Wurst's time for intervening in the case expired with the lapse of the time allowed for filing a contest of a local option election, which is ten days after the certification of the vote. Ark.Stat.Ann. § 48-820 (Repl.1977).
The opinion is clear and unambiguous. It is binding precedent and we have a choice of following it or overruling it. We do not have the option of ignoring it completely as has been done on the petition for rehearing.
I have no bias in favor of or against either side in this dispute. The Wurst decision is over two years old and has heretofore received little, if any, criticism from the legislature or the legal community. In accordance with stare decisis, I feel compelled to follow our latest decision on this issue, Wurst. Perhaps the General Assembly will now clarify the issue in a manner which will leave no room for disagreement in future local option election contests.
HICKMAN, Justice, dissenting.
Traditionally, we only grant a rehearing if we have made a mistake of law or fact, [294 Ark. 172-E] but it is not against the law for a judge or a court to change its mind, especially when it is perceived a mistake in judgment has been made. We did both in this case--we made a mistake of law and one in judgment. Unfortunately, the court refuses to acknowledge that.
Our whole debate in this case centered on whether the election code of 1969 applied to local option elections. The issue was critical because the petition to contest the election in this case was not filed within 10 days of the election. Under the old local option law, Act 108 of 1935, the contest petition was filed too late; but, if the election code of 1969 governed, it was timely. This whole lawsuit and the resolution of it focused on this one issue. Did the 1969 law apply to local option elections?
A majority of the court members decided the 1969 election code did not govern local option elections. Justice Dudley wrote the majority opinion and based the court's decision on several premises. First, the 1969 election code did not specifically repeal the local option provision and repeal by implication is not favored. Another basis was our decision in Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), where we made reference to the ten day provision in the local option act as though it were alive and not repealed.
Justice Glaze wrote a powerful dissent, but he was unable to convince a majority of us that he was right. While I did not join the majority opinion, I agreed with the decision reached, relying on the decision in Wurst. Upon reflection, I see that Justice Glaze was right. But perhaps more important, since our decision, Justice Glaze has pointed out a glaring oversight on our part. The answer to our question was literally right under our noses and we all missed it. In fact, a controlling case, Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972), was cited in the majority opinion but dismissed as not controlling because the pertinent language was mere dicta. That is incorrect. In Henderson, a unanimous decision, we held the election code of 1969 did apply to local option elections. That's the issue in this case. How could we make such a mistake? That's the kind of blunder judges have bad dreams about--citing a case for one proposition while it holds exactly the opposite. The majority opinion is simply wrong in its treatment of Henderson and there is no room to quibble about it. [294 Ark. 172-F] Wurst, decided 13 years after Henderson, did not mention Henderson, probably for the simple reason that the Wurst language was indeed dicta and not a holding. It was an inexcusable mistake on our part. How or why we made it is immaterial at this point. What we do about it is all that matters.
I assumed that we, the court, would readily acknowledge the error and correct it. But that is not to be. The decision and opinion will stand. Consequently, I have to write this dissent.
The issue in Henderson was whether a provision, which is a part of the local option act, was governed and indeed changed by the new election law. The local option law said contests would be filed in county court. The 1969 election code said contests would be filed in circuit court. We held in Henderson that the new election law applied, even though no mention was made in the 1969 law that it was intended to govern local option elections. We said in Henderson that had the legislature intended to exclude local option elections, it would expressly have done so.
In the majority opinion in this case, we hold exactly the opposite: if the legislature had intended the new act to govern local option elections, it would have specifically repealed those provisions. How could two decisions be more clearly in conflict? Henderson holds without question exactly contrary to what our decision is in this case, and we refuse to acknowledge it. While this is an embarrassment, we ought to unhesitatingly correct our mistake, acknowledge Henderson, overrule Wurst, and send this case back for a trial.
It matters not what I think Henderson stands for or what the majority thinks it says. It speaks for itself. If there was the slightest chance I thought my judgment was wrong, I would be silent, because this kind of mistake and, more especially the refusal by the court to correct it, reflects upon the integrity of the court.
HAYS, J., joins in the dissent.
HAYS, Justice, dissenting.
While I agree with the dissenting opinions I feel the need to add my own views to the several being expressed. I read the opinion of Justice Lyle Brown in Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972) as precedent for this case. In Henderson this court held that the [294 Ark. 172-G] circuit court had jurisdiction to try wet-dry elections. Why? Because under the provisions of Act 456 of 1969 a contest of local option elections was removed from county court and placed in circuit court. There were no dissents to that holding and it binds us now, or should.
Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985) is not precedent for this case. In Wurst we held that an attempt in April 1984 to intervene in a local option election contest held in November, 1980 was "far too late." We simply drew an analogy to the time allowed for contesting local option elections, which we mistakenly said was ten days, rather than twenty days. That was plainly dictum, the holding of the case being that a belated intervention years after the election was 1) too late and 2) without merit. That decision in no sense governs the case at hand. I respectfully dissent from the denial of rehearing.
GLAZE, Justice, dissenting.
The majority members' decision in this case will assuredly become known as one of this high court's all-time worst. How is a decision relegated to such an abysmal distinction? Because only a few decisions are so bad that they obtain such infamous distinction, I feel compelled to provide the reader with the criteria that qualify opinions for this lowly status. In order to qualify, an opinion must meet all of the following three tests.
I. THE DECISION MUST FAIL TO FOLLOW PRECEDENT WITHOUT SAYING SO, ERRADICATE THE EXISTING LAW (AS IT IS GENERALLY KNOWN) AND REPLACE THAT LAW WITH A WORSE RULE OF LAW IN ITS STEAD.
Since my earlier dissent details how the majority opinion totally "missed" the law that controls this case, I merely summarize those points which serve to meet the first test set out above. In one fell swoop, the majority members' opinion (1) ignored precedential authority without an acknowledgement of having done so, (2) caused irreparable damage to Arkansas's Election Code which was intended to furnish the mechanics to hold and conduct elections in this state, (3) readopted a 1935 election procedure which makes it virtually impossible for voters to contest voter fraud allegations in local option elections, (4) buried allegations of wholesale fraud in a recent county-wide [294 Ark. 172-H] local option election, and (5) placed in issue the constitutionality of any called election held for the purpose of allowing citizens to vote on questions involving issues such as bonds, millages, initiatives or referendums, just to name a few.
II. THE DECISION MUST WANT IN FUNDAMENTAL LEGAL SCHOLARSHIP, WHICH ACTUALLY CAUSES AN ERRONEOUS RESULT TO BE REACHED BY THE COURT.
This criterion is undoubtedly the most embarrassing, especially for appellate judges whose stock and trade is to write clear and concise opinions to resolve peoples' legal disputes. Even so, the majority's opinion surely qualifies.
The essence of this case is whether the 1969 Election Code applies to local option election contests. In 1972, this court held the Code does cover such contests. Henderson v. Anderson, 251 Ark. 724, 475 S.W.2d 508 (1972). The issue in Henderson was simple: Must local option election contests be filed in the county court under the 1935 local option law or in the circuit court, as provided by the 1969 Code? I quote the court's answer:
It is therefore our conclusion that Act 108 of 1935 provides that the contest of any local option election should follow the statutes providing for the contest of any election for county offices; and that Act 465 of 1969 [Election Code] provides that the contest for a county office shall be brought before the circuit court. (Bracketed insertion mine.)
Id. at 726, 475 S.W.2d at 509.
The majority members, in their opinion, simply ignore the Henderson court's holding that applied the 1969 Election Code to local option elections. They did so saying, of all things, that everything in the Henderson opinion was dicta, except that part which stated that local option contests must be filed in circuit court. I can only say that such an explanation reveals a want of basic scholarship of the law--as I know it, at least. Obviously, the Henderson court's holding required its threshold decision that local option election contests are controlled by the 1969 Election Code. Frankly, if I were asked to give the family law students I instruct an example of an opinion which employed dicta, I [294 Ark. 172-I] certainly would not embarrass myself by citing the Henderson case, as the majority members have done in this case.
In their opinion denying rehearing, the majority members make one last ditch effort to rationalize their failure to follow Henderson and, in doing so, add still another glaring error to those I have already set out in my earlier dissent. Today, the majority says, "... [T]he court in Henderson 'only' applied the 1969 Act by incorporation through the local option act." This statement simply is not true. In fact, the court applied the 1969 Election Code because of a repealer provision set forth in Ark.Stat.Ann. § 3-1004(c) (Repl.1976), which I discuss in point III below. The Henderson court made specific note of § 3-1004 having been cited and argued to support the contention that the county court had no jurisdiction of the election contest. The court then stated unequivocally that it agreed with that contention. Id. at 725-726, 475 S.W.2d at 509.
III. THE DECISION MUST REQUIRE ACTION BY THE ARKANSAS GENERAL ASSEMBLY TO ENACT REMEDIAL LEGISLATION TO CORRECT THE ERROR OF LAW CONTAINED IN THE COURT'S OPINION.
This court, at times, is requested to unravel problems that have resulted from poorly drafted legislation. That is not the situation at hand. In fact, the Henderson decision made it clear that the 1969 Election Act's title reflected that it covered local option elections and that one of the Act's provisions, Ark.Stat.Ann. § 3-1004 (Repl.1976), specifically provided that other election contest laws--than those contained in the Act--were of no further force or effect.
In conclusion, because of the decision reached by this court's majority, controversy and confusion will ensue. In the majority members' view, the 1969 Election Code does not apply except to elections involving candidates, not issues. The state, counties and municipalities are left with no laws or election apparatus by which they can conduct issue-oriented elections. The Governor and the Arkansas General Assembly must now correct this absurdity, which is a direct result of the majority's decision in this case.
Because of the appellant's petition for rehearing, the majority[294 Ark. 172-J] members have been given a chance to avoid the infamy their opinion so clearly invites. The petition should be granted, and the court should remand this case for the appellees to show a prima facie case that the election results should be changed.
Justice Purtle has added his concurrence and refers to Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985) as being controlling here. As I pointed out in my earlier dissent, the Wurst case did not deal with the issue now before us, of whether the 1969 twenty-day contest provision superseded the prior 1935 ten-day provision. See Garrett v. Andrews, 294 Ark. 160, 168, 741 S.W.2d 257 (1987) (Glaze, J., dissenting). The only value the Wurst decision has in this case is to serve as a red herring; that decision surely offers no precedent or justifiable comfort for any member of this court to reach the holding the majority reached in this cause.
HAYS, J., joins in this dissent.