Pritchett v. Spicer , 2017 Ark. LEXIS 72 ( 2017 )

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SUPREME COURT OF ARKANSAS
No. CV-16-607
GEORGE PRITCHETT Opinion Delivered March 9, 2017
APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT
[NO. 26CV-16-302]
LANCE SPICER, CITY CLERK OF HONORABLE MARCIA R.
THE CITY OF HOT SPRINGS, HEARNSBERGER, JUDGE
ARKANSAS
APPELLEE AFFIRMED.
KAREN R. BAKER, Associate Justice
This case stems from a referendum petition regarding land annexation in Garland
County, Arkansas. On January 19, 2016, the Board of Directors of the City of Hot Springs
passed Ordinance No. 6121 entitled, “An Ordinance Annexing Certain Lands that Are
Completely Surrounded by the Incorporated Limits of the City of Hot Springs Enclave Area
B (Tracts A & B); and for Other Purposes.” On January 24, 2016, the City of Hot Springs
published the ordinance in the Hot Springs Sentinal Record. On February 23, 2016, Mr.
Rex Louis Houston, Jr., a petition sponsor, delivered a referendum petition in opposition
to Ordinance No. 6121 to appellee, Lance Spicer, city clerk of Hot Springs. On that same
day, Spicer rejected the petition as untimely and notified Houston.
On March 22, 2016, appellant, George Pritchett, filed a petition for writ of mandamus
in the Garland County Circuit Court requesting a writ commanding Spicer to accept and
certify the petition and/or that the City of Hot Springs and its officials certify the petition.
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On May 2, 2016, the circuit court conducted a hearing on the petition for writ of
mandamus. On May 16, 2016, by letter order, the circuit court denied Pritchett’s petition
and determined that Hot Springs Ordinance No. 4533 governs the time for filing the petition
and that Pritchett’s petition was untimely. On May 23, 2016, Pritchett filed a motion for
reconsideration. On June 2, 2016, the circuit court entered an order and judgment denying
Pritchett’s petition for writ of mandamus. Pritchett timely filed a notice of appeal and
subsequently amended his notice of appeal to appeal the deemed denial of his motion for
reconsideration.
From the circuit court’s order denying his petition for writ of mandamus, Pritchett
appeals and presents four issues: (1) the circuit court erred when it held that Ordinance No.
4533 governs the time for filing a referendum petition; (2) the circuit court erred when it
held that Act 1093 is void to the extent it established contrary deadlines for filing referendum
petitions for local measures; (3) Ordinance No. 4533 is subject to strict scrutiny and is
unconstitutional; and (4) the circuit court erred in holding that the deadline for filing a
referendum petition is thirty days after the passage of an ordinance.
Standard of Review
The purpose of a writ of mandamus in a civil or a criminal case is to enforce an
established right or to enforce the performance of a duty. Smith v. Fox, 358 Ark. 388, 193
S.W.3d 238 (2004). When requesting a writ of mandamus, a petitioner must show a clear and
certain right to the relief sought and the absence of any other adequate remedy. Manila Sch.
Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004). The standard of review on a
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denial of a writ of mandamus is whether the circuit court abused its discretion. Dobbins v.
Democratic Party of Ark., 374 Ark. 496, 499, 288 S.W.3d 639, 641 (2008). A circuit court
abuses its discretion when it makes a decision that is arbitrary or capricious.
Ortho-McNeil-Janssen Pharm., Inc. v. State, 2014 Ark. 124, 18, 432 S.W.3d 563, 575 (internal
citations omitted).
Additionally, this appeal requires us to interpret the Arkansas Constitution. We
review questions of constitutional construction de novo. See Wilson v. Weiss, 370 Ark. 205,
258 S.W.3d 351 (2007). When interpreting the constitution, our task is to read the laws as
they are written and interpret them in accordance with established principles of constitutional
construction. Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002). Language of a
constitutional provision that is plain and unambiguous must be given its obvious and
common meaning. Proctor v. Daniels, 2010 Ark. 206, 392 S.W.3d 360. Neither rules of
construction nor rules of interpretation may be used to defeat the clear and certain meaning
of a constitutional provision. Id. Further, the Arkansas Constitution must be considered as
a whole, and every provision must be read in light of other provisions relating to the same
subject matter. Forrester v. Daniels, 2010 Ark. 397, 373 S.W.3d 871. Also, amendment 7 to
the Arkansas Constitution must be liberally construed in order to effectuate its purposes.
Porter v. McCuen, 310 Ark. 674, 839 S.W.2d 521 (1992). Finally, we note when interpreting
statutes, our review is de novo, as it is for this court to decide what a statutory provision
means. Ark. Hotels and Entm’t, Inc. v. Martin, 2012 Ark. 335, 423 S.W.3d 49. In considering
the meaning of a statute, we consider it just as it reads, giving the words their ordinary and
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usually accepted meaning. Miller v. Enders, 2013 Ark. 23, at 5–6, 425 S.W.3d 723, 726–27
(internal citations omitted). With these standards in mind, we turn to the merits of Pritchett’s
appeal.
Points on Appeal
A. Ordinance No. 4533
Pritchett first contends that the circuit court erred when it found that Ordinance No.
4533 governs the time for filing a referendum petition on Ordinance No. 6121. In
reviewing the applicable constitutional provisions, amendment 7 provides in pertinent part:
§ 1. General Assembly--Initiative and Referendum
The legislative power of the people of this State shall be vested in a General
Assembly, which shall consist of the Senate and House of Representatives, but
the people reserve to themselves the power to propose legislative measures,
laws and amendments to the Constitution, and to enact or reject the same at
the polls independent of the General Assembly; and also reserve the power, at
their own option to approve or reject at the polls any entire act or any item of
an appropriation bill.
....
Local for Municipalities and Counties. The initiative and referendum
powers of the people are hereby further reserved to the legal voters of each
municipality and county as to all local, special and municipal legislation of
every character in and for their respective municipalities and counties, but no
local legislation shall be enacted contrary to the Constitution or any general
law of the State, and any general law shall have the effect of repealing any local
legislation which is in conflict therewith. Municipalities may provide for the
exercise of the initiative and referendum as to their local legislation. General laws shall
be enacted providing for the exercise of the initiative and referendum as to
counties. . . . In municipalities and counties the time for filing an initiative
petition shall not be fixed at less than sixty days nor more than ninety days
before the election at which it is to be voted upon; for a referendum petition at
not less than thirty days nor more than ninety days after the passage of such measure by
a municipal council; nor less than ninety days when filed against a local or special
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measure passed by the General Assembly.
....
Self-Executing. This section shall be self-executing, and all its provisions shall be
treated as mandatory, but laws may be enacted to facilitate its operation. No
legislation shall be enacted to restrict, hamper or impair the exercise of the rights
herein reserved to the people.
(Emphases added.)
The plain language of amendment 7 demonstrates that municipalities may pass local
legislation regarding referendum petitions. Further, the plain language of amendment 7
provides that no legislation shall be enacted to restrict, hamper, or impair the exercise of the
rights reserved to the people.
Pursuant to amendment 7, we now turn to the local legislation in Hot Springs that
has been enacted to facilitate amendment 7 and referendum petitions. Ordinance No. 4533,
codified at Code of Ordinances of Hot Springs, Arkansas § 1-2-1.2, titled “An Ordinance
Fixing the Period Within Which Initiative and Referendum Petitions May Be Filed; And
Prescribing Other Matters Related Thereto” provides in pertinent part:
Section 2. Filing Times. . . . The time for filing a referendum petition shall be
within thirty (30) days after the passage of any ordinance or resolution. All such
petitions shall be filed during normal business hours in the office of the city clerk
within the time frames enumerated herein.
In denying Pritchett’s petition for writ of mandamus, the circuit court held that:
Amendment 7 of the Arkansas Constitution empowers municipalities to provide for
the exercise of the initiative and referendum as to their local legislation. It provides
municipalities may set the filing date of the referendum petitions at not less than thirty
(30) days or more than ninety (90) days after the passage of such measure by a
municipal council.
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Pursuant to the authority of Amendment 7 of the Arkansas Constitution, the
City of Hot Springs passed Ordinance No. 4533 codified at Hot Springs Code § 1-2-
1.2 providing referendum petitions must be filed within (30) days of the passage of
such measure by the Board of Directors.
Here, based on the plain language of amendment 7 and Hot Springs Code § 1-2-1.2,
(Ordinance No. 4533, March 4, 1996), it is clear that the filing deadline is 30 days after the
passage of the ordinance. Accordingly, the deadline was February 19, 2016, 30 days after
Ordinance No. 6121 was passed on January 19, 2016. Pritchett filed his referendum petition
on February 23, 2016, after the deadline had passed. Therefore, we affirm the circuit court’s
denial of Pritchett’s petition for writ of mandamus on this point.
B. Act 1093 of 2015
For his second point on appeal, Pritchett contends that the circuit court erred because
his referendum petition was timely filed pursuant to Act 1093 of 2015, Ark. Code Ann. §§
14-47-124 and 14-55-304 (Supp. 2015), which grant sponsors of referendum petitions sixty
(60) days to gather signatures, “while Hot Springs City Code 1-2-1.2 only gives you thirty
days to file.” Pritchett asserts that these laws are in conflict—“the City has no authority to
enact legislation, then it must follow that the Legislature can dictate the powers granted.”
Pritchett further asserts that the conflict may be resolved by amendment 7 which states that
laws in conflict must be repealed.
Arkansas Code Annotated § 14-47-124, “Initiative and referendum laws,” provides
in pertinent part as follows:
(a) The initiative and referendum laws of this state are applicable to cities reorganized
under this chapter.
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....
(c) Except for a municipal referendum petition concerning a municipal bond, a
sponsor shall be given sixty (60) days to circulate a municipal referendum petition.
Next, Ark. Code Ann. § 14-55-304, “Municipal referendum petition,” provides, “Except for
a municipal referendum petition concerning a municipal bond, a sponsor shall be given sixty
(60) days to circulate a municipal referendum petition.”
At issue is the circuit court’s ruling where it held that
[t]he Arkansas Supreme Court has specifically held in Cobb v. Burress. 213 Ark. 177
(1948) that any legislative attempt to impair the municipality’s right to choose the
filing date of a referendum petition within the confines of Amendment 7 is void. To
the extent [Pritchett] argues that Act 1092 of 2015 is void, codified at A.C.A. § 14-47-
124(c) controls the filing deadline of a referendum petition, the Arkansas Supreme
court has ruled in Cobb, such legislation is void. The Arkansas Supreme court made
clear in the Cobb case, the Arkansas Legislature cannot limit the right of municipalities
to fix the time for filing such referendum petitions.
Pritchett asserts that the circuit court erred, contending that Ark. Code Ann. §§ 14-47-
124 and 14-55-304 are in conflict with Ordinance No. 4533, and sixty days is the prescribed
deadline for filing a referendum petition. We disagree. First, both statutes dictate a deadline
within which to circulate a referendum petition, not file a referendum petition with the city
clerk. Second, neither statute identifies when the time commences. Third, in Cobb v. Burress,
213 Ark. 177, 182, 209 S.W.2d 694, 697 (1948), Burress, a taxpayer, filed a referendum
petition 54 days after the city of Jonesboro had passed a local ordinance. At the time it was
filed, the City of Jonesboro had not enacted an ordinance proscribing the time for filing the
referendum petition. Based on a state statute that provided the time for filing was thirty days
after the ordinance was passed, the city clerk refused to accept and certify the referendum
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petition. Burress filed a petition for writ of mandamus in the circuit court asserting that the
clerk must accept and certify his referendum petition. The circuit court issued the writ and
the city clerk appealed. We affirmed and explained,
Until the City of Jonesboro fixes some time by municipal ordinance, then the
constitutional language of ‘not less than thirty days nor more than ninety days’
is the applicable period. The Legislature cannot limit the right of the
municipalities in this regard. Kitchens v. Paragould, 191 Ark. 940, 88 S.W.2d
843, while not in point on the question here involved, nevertheless, shows a
judicial recognition that the Legislature cannot impede municipalities in their
exercise of constitutionally granted powers.
Accordingly, to the extent that a municipality enacts measures that comport with
amendment 7, then those measures control. Here, the City has set the deadline at thirty (30)
days, which comports with amendment 7. However, without offering a basis, Pritchett urges
us to overrule Cobb. We decline the invitation. Pritchett further contends that Cobb is an
anomaly. However, we disagree. As we explained in Cobb, amendment 7 to the Arkansas
Constitution clearly provides that “in municipalities and counties the time for filing a
referendum petition [shall not be fixed at] less than thirty days nor more than ninety days after
the passage of such measure by a municipal council; nor less than ninety days when filed
against a local or special measure passed by the General Assembly.” Finally, we must note that
although Pritchett alleges the statutes control, his argument is misplaced. Based on our
discussion above, the statutes address the circulation of referendum petitions, not the filing of
referendum petitions. In any event, consistent with our long-standing precedent,
constitutional provisions prevail over statutes. Ark. Power & Light Co. v. Curlin, 187 Ark. 562,
61 S.W.2d 73, 74 (1933)(“if . . . the statute conflicts with the constitutional mandate, the
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Constitution must prevail”); see also Arkansas Game & Fish Comm’n v. Edgmon, 218 Ark. 207,
n.1, 235 S.W.2d 554 n.1 (1951). Therefore, based on our standard of review and our
discussion above, we do not find merit in Pritchett’s argument, and we affirm the circuit
court.
C. Hot Springs City Code and Ordinance No. 4533 Are
Unconstitutional and Subject to Strict Scrutiny
For his third point on appeal, Pritchett contends that the Hot Springs Code is
unconstitutional and Ordinance No. 4533 is unconstitutional, impinges on a fundamental
right, is subject to strict scrutiny review, and fails the strict-scrutiny test because the ordinance
is not narrowly tailored. However, based on the record before us, Pritchett failed to present
this argument to the circuit court and obtain a ruling for our review. “The failure to obtain
a ruling on an issue, even a constitutional one, precludes our review on appeal. See Gwin v.
Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004) (explaining that failure to obtain a ruling
precludes review of an issue because, under appellate jurisdiction, this court is limited to
reviewing a ruling or order of a lower court). When a circuit court does not provide a ruling
on an issue, it is an appellant’s responsibility to obtain a ruling to preserve the issue for
appeal.” Meador v. Total Compliance Consultants, Inc., 2013 Ark. 22, 4–5, 425 S.W.3d 718, 721
(internal citations omitted). Because Pritchett did not present or obtain a ruling on this
argument that he now argues on appeal, we are precluded from addressing the merits of his
challenge.
D. Publication of the Ordinance Controls the Date for Filing
For his final point on appeal, Pritchett asserts that the circuit court erred when it
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determined that the deadline for filing a referendum petition on Ordinance No. 6121 was
thirty days after the passage of the measure. Pritchett contends that the time for filing is
triggered from the date the ordinance is published, not passed, and that Arkansas statutes are
unclear.
With regard to the time for filing a referendum petition, Ordinance No. 4533 states
“Section 2. Filing Times. . . . The time for filing a Referendum Petition shall be within
thirty (30) days after the passage of any ordinance or resolution.” Similarly, Amendment 7
provides that the “filing . . . for a referendum petition at not less than thirty days nor more
than ninety days after the passage of such measure by a municipal council.”
In its June 2, 2016 order, the circuit court denied Pritchett’s claim and held that the
filing deadline commenced on the date of passage of the ordinance:
There is no need for this Court to consider Plaintiff’s inquiry as to whether the
date of publication or the date of the ordinance was passed begins the thirty
(30) day clock to file a referendum petition as to the Hot Springs Ordinance
No. 4533, codified at Hot Springs Code § 1-2-1.2 states in Section 2: “The
time for filing a Referendum Petition shall be within thirty (30) days after the passage
of any ordinance or resolution.” Ordinance No. 6121 clearly states it was
(PASSED: January 19, 2016). Mandamus is not an appropriate remedy to
change existing law. (emphasis added).
Pritchett contends that the circuit court erred in its determination that the date of
passage commences the time to run and urges us to reverse the circuit court. Relying on
three cases, Railey v. City of Magnolia, 197 Ark. 1047, 126 S.W.2d 273 (1939), Phillips v. City
of Eureka Springs, 312 Ark. 57, 847 S.W.2d 21 (1993) and City of Eureka Springs v. Brightman,
243 Ark. 836, 422 S.W.2d 681 (1968), Pritchett contends that the date of publication
commences the thirty day time period to file a referendum petition. However, these cases
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do not support Pritchett’s position.
First, in Railey, Railey sought to enjoin city officials from proceeding under a local
ordinance which authorized an election regarding the construction of a municipal hospital.
Pritchett contends that Railey is on point. However, Railey addresses the effective date of
an ordinance, which is not at issue in this case.
Second, in Phillips, Phillips sought declaratory relief from the circuit court asserting
that municipal ordinances were invalid because the City of Eureka Springs had not complied
with the proper publication of municipal ordinances. Pritchett contends that Phillips
supports his position that the date of publication controls the date of filing his referendum
petition and that his referendum petition was timely filed. However, Phillips does not address
the filing of a referendum petition. Instead, Phillips addresses proper publication procedures
and does not support Pritchett’s position.
Third, Brightman, is likewise not on point. We explained in Brightman that the “only
issue on appeal is one of law, i.e. whether or not Resolution 94 as passed by the City
Commissioners of Eureka Springs, Arkansas, was a Resolution, or, in fact, an Ordinance.”
Brightman did not address referendum petitions or filing deadlines in that case, and does not
support Pritchett’s argument.
Finally, the plain language of both Ordinance No. 4533 and amendment 7 clearly state
that the date of passage of the ordinance is the date from which the time runs rather than the
date of publication. Accordingly, here, the deadline was February 19, 2016, 30 days after the
ordinance was passed on January 19, 2016. Therefore, based on our standard of review and
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the discussion above, we affirm the circuit court on this point.
Affirmed.
Benjamin D. Hooten, for appellant.
Brian Albright, Hot Springs City Attorney; and Friday, Eldredge & Clark, LLP, by:
Elizabeth Robben Murray and Tory H. Lewis, for appellees.
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