Charles Blackburn v. the Lonoke County Board of Election Commissioners Matthew Brown, Mickey "stubby" Stumbaugh, and Dan Stowers, in Their Official Capacities as Members of the Election Commission Dawn Porterfield, in Her Official Capacity as Lonoke County Clerk Doug Irwin Norman Walker And John Thurston, in His Official Capacity as Arkansas Secretary of State , 2022 Ark. 176 ( 2022 )

Cite as 2022 Ark. 176SUPREME COURT OF ARKANSAS
No. CV-22-520
Opinion Delivered: October 6, 2022
CHARLES BLACKBURN
APPELLANT
APPEAL FROM THE LONOKE
V. COUNTY CIRCUIT COURT [NO.
43CV-22-348]
THE LONOKE COUNTY BOARD OF
ELECTION COMMISSIONERS;
MATTHEW BROWN, MICKEY HONORABLE BENTLEY E. STORY,
“STUBBY” STUMBAUGH, AND DAN SPECIAL JUDGE
STOWERS, IN THEIR OFFICIAL
CAPACITIES AS MEMBERS OF THE
ELECTION COMMISSION; DAWN
PORTERFIELD, IN HER OFFICIAL
CAPACITY AS LONOKE COUNTY
CLERK; DOUG IRWIN; NORMAN
WALKER; AND JOHN THURSTON,
IN HIS OFFICIAL CAPACITY AS
ARKANSAS SECRETARY OF STATE AFFIRMED AS MODIFIED.
APPELLEES
JOHN DAN KEMP, Chief Justice
Appellant Charles Blackburn appeals from the Lonoke County Circuit Court’s orders
granting motions to dismiss filed by the Lonoke County Board of Election Commissioners
(“Board”); Matthew Brown, Mickey “Stubby” Stumbaugh, and Dan Stowers, in their
official capacities as members of the Board; Dawn Porterfield, in her official capacity as
Lonoke County Clerk (“Clerk”); Doug Irwin; Norman Walker (collectively “Lonoke
County appellees”); and John Thurston, in his official capacity as Arkansas Secretary of State.
Blackburn urges this court to consider this case pursuant to our original jurisdiction. He also
argues that the circuit court abused its discretion in granting the motions to dismiss because
he adequately pleaded an as-applied challenge to the constitutionality of Arkansas Code
Annotated section 7-7-103 (Supp. 2021). Finally, he asserts that even if his amended
complaint was deficient, then it should have been dismissed without prejudice. We affirm
as modified.
I. Facts
Blackburn sought to run as an independent candidate in the 2022 election for Lonoke
County Judge. A person seeking to have his or her name placed on a ballot as an independent
candidate for a county office in a general election “shall furnish by 12:00 noon on May 1 of
the year in which the general election is to be held petitions signed by not less than three
percent (3%) of the qualified electors in the county, township, or district in which the person
is seeking office, but in no event shall more than two thousand (2,000) signatures be required
for a district, county, or township office.” Ark. Code Ann. § 7-7-103(b)(1)(A).1
Blackburn contacted Kristen Shipp, an employee in the Clerk’s office, for assistance
in determining the number of signatures he needed to comply with the statutory
requirement. Shipp informed Blackburn that he needed 367 signatures to get on the ballot.
Blackburn obtained and returned 367 signatures to the Clerk’s office by the May 1, 2022
deadline. Shipp subsequently informed Blackburn that a mistake had been made, that he
actually needed 618 signatures, and that he was short 251 signatures.
1
“In determining the number of qualified electors in any county, township, or district
or in the state, the total number of votes cast therein for all candidates in the preceding
general election for the office of Governor shall be conclusive of the number of qualified
electors therein for the purposes of this section.” Ark. Code Ann. § 7-7-103(b)(4).
2
On June 13, 2022, Blackburn filed a lawsuit against the Board, the members of the
Board (in their official capacities), and the Clerk, seeking a writ of mandamus, preliminary
injunction, and declaratory judgment. Specifically, Blackburn sought an order directing the
Board to allow him an additional fourteen days to collect signatures. On July 8, Blackburn
filed an amended complaint in which he added as defendants the presumptive Democrat
and Republican nominees for Lonoke County Judge and Thurston. He also added facial
and as-applied challenges to the constitutionality of section 7-7-103 and sought a declaration
that Shipp’s actions violated his right to access to the ballot and the right of the voters to
cast ballots for independent candidates. Blackburn further requested that the circuit court
order that the signatures he previously submitted were sufficient to be placed on the ballot
or, in the alternative, that he be given additional time to collect and submit signatures.
The Lonoke County appellees and Thurston filed separate motions to dismiss.
Following a hearing, the circuit court dismissed the amended complaint with prejudice. On
August 8, it entered two orders of dismissal. Blackburn timely filed his appeal with this court
and sought expedited consideration, which we granted.2
II. Original Jurisdiction
Blackburn first seeks consideration of this case pursuant to this court’s original
jurisdiction based on his claim that the government’s actions related to section 7-7-103
2
Thurston argues that the appeal should be dismissed as moot because “[o]n August
25, 2022, the candidates for the ballot for the Lonoke County Judge’s election were certified
and [Blackburn’s] name was not placed on the ballot.” A case is moot when any judgment
rendered would not have any practical legal effect upon a then-existing legal
controversy. Ark. Dep’t of Hum. Servs. v. Ledgerwood, 2019 Ark. 100, at 2, 571 S.W.3d 1, 2.
On the record currently before us, it is not apparent that this case is moot.
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rendered the statute unconstitutional as applied to him. He seeks an order that his name be
placed on the ballot as an independent candidate for Lonoke County Judge. Blackburn cites
Arkansas Supreme Court Rule 6-5(a) and argues that his case “is not explicitly ruled out as
a case that invokes the court’s original jurisdiction.”
Rule 6-5 addresses original actions and states that
[t]he Supreme Court shall have original jurisdiction in extraordinary actions as
required by law, such as suits attacking the validity of statewide petitions filed under
Amendment 7 of the Arkansas Constitution, or where the Supreme Court’s
contempt powers are at issue.
Although the examples given are not exhaustive, Blackburn’s claim is clearly not a suit
attacking the validity of a statewide petition filed under amendment 7, and it does not
involve this court’s contempt powers.
We have said that this court’s jurisdiction is appellate in nature except where specific
law or precedent has established authority for it to proceed in an original action. Jackson v.
Tucker, 325 Ark. 318, 319, 927 S.W.2d 336, 336 (1996); see also Rockefeller v. Smith, 246
Ark. 819, 824, 440 S.W.2d 580, 582 (1969) (rejecting attempt to proceed simultaneously
with an appeal and an original-jurisdiction action and holding that “jurisdiction of this court
in these matters is exclusive”). In this case, Blackburn attempts to simultaneously invoke this
court’s original and appellate jurisdiction despite our settled law prohibiting this. Id. at 824,
440 S.W.2d at 582. Further, he cites no specific law or precedent establishing authority for
him to proceed in an original action under the circumstances he sets forth. Thus, we reject
his original-jurisdiction argument and address his arguments under our appellate jurisdiction.
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II. Arguments on Appeal
A. Dismissal Orders
Blackburn next argues that the circuit court abused its discretion by dismissing his
amended complaint. He contends that although section 7-7-103 contains no requirement
that the Clerk provide him with information about the number of required signatures, her
office undertook that action, and the “effect is that a government official construed Ark.
Code Ann. § 7-7-103 and made an official government statement of what was required
under the statute related to signatures.” Blackburn claims that his reliance on incorrect
information prevented him from accessing the ballot and that section 7-7-103 is
unconstitutional as applied to him based on the government’s actions.
Our standard of review for the granting of a motion to dismiss is whether the circuit
court abused its discretion. Jenkins v. Mercy Hosp. Rogers, 2021 Ark. 211, at 4, 633 S.W.3d
758, 762. In making that determination, we treat the facts alleged in the complaint as true
and view them in the light most favorable to the party who filed the complaint. Ballard Grp.,
Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276, at 6, 436 S.W.3d 445, 449. We construe the
pleadings liberally and resolve all reasonable inferences in favor of the complaint. Id., 436
S.W.3d at 449. However, our rules require fact pleading, and a complaint must state facts,
not mere conclusions, in order to entitle the pleader to relief. Dockery v. Morgan, 2011 Ark.
94, at 5–6, 380 S.W.3d 377, 382. We treat only the facts alleged in the complaint as true
but not a plaintiff’s theories, speculation, or statutory interpretation. Id., 380 S.W.3d at 382.
Arkansas Rule of Civil Procedure 12(b)(6) provides that “[e]very defense, in law or
in fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading
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thereto if one is required, except that the following defenses may . . . be made by motion:
. . . (6) failure to state facts upon which relief can be granted[.]” According to Arkansas Rule
of Civil Procedure 8(a)(1), a pleading that sets forth a claim for relief shall contain a statement
in ordinary and concise language of facts showing that the pleader is entitled to relief. Rules
8(a)(1) and 12(b)(6) must be read together in testing the sufficiency of a complaint. Dockery,
2011 Ark. 94, at 6, 380 S.W.3d at 382. We look to the underlying facts supporting an
alleged cause of action to determine whether the matter has been sufficiently pled. Id., 380
S.W.3d at 382. When the complaint states only conclusions without facts, we will affirm
the circuit court’s decision to dismiss the complaint pursuant to Rule 12(b)(6). Ballard Grp.,
Inc., 2014 Ark. 276, at 6, 436 S.W.3d at 449.
Further, in construing our statutes, we have stated that statutes are presumed to be
constitutional, and this court resolves all doubts in favor of constitutionality. Smith v.
Arkansas Midstream Gas Servs. Corp., 2010 Ark. 256, at 6, 377 S.W.3d 199, 203. The party
challenging a statute’s constitutionality has the burden of proving that it is constitutional.
Id., 377 S.W.3d at 203. There are two primary ways to challenge the constitutionality of a
statute: (1) an as-applied challenge, in which the court assesses the merits of the challenge
by considering the facts of the particular case in front of the court, not hypothetical facts in
other situations; and (2) a facial challenge, which seeks to invalidate the statute. Ward v.
Hutchinson, 2018 Ark. 313, at 9, 558 S.W.3d 856, 862.
In the present case, the circuit court entered separate orders dismissing the Lonoke
County appellees and Thurston. As to the Lonoke County appellees, it found that
the County Clerk was under no duty to provide the number of signatures Mr.
Blackburn needed. The Court further finds that the statute does not contain a private
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right of action to sue for ballot access. The Court finds additionally that it was
incumbent on Mr. Blackburn to ascertain the number of signatures he needed to
successfully obtain ballot access. That is, the duty here was on Mr. Blackburn, not
the County Clerk or her employees. The law does not permit Mr. Blackburn to
obtain relief under the circumstances of this case. Furthermore, the Court finds there
is no provision in Arkansas law that would permit the Court to order the relief sought
by Mr. Blackburn. As to Mr. Blackburn’s constitutional challenges to the statute, the
Court finds that the statute is constitutional on its face, as held by the United States
District Court in the Whitfield case and that, as-applied, there is no severe burden
placed on Mr. Blackburn’s ability to obtain ballot access. While it is unfortunate that
the Clerk’s employee erred in the number of signatures that she advised Mr.
Blackburn that he needed to obtain ballot access, it was Mr. Blackburn’s duty alone
to ascertain that number from data provided by the Arkansas Secretary of State’s
Office free-of-charge. Finally, there is no allegation that County Judge Doug Irwin
or the Democrat Nominee Norman Walker took any actions in this case and even if
they are sued in their individual capacities, they are entitled to dismissal.
In granting Thurston’s motion to dismiss, the circuit court found that
[t]he Amended Complaint does not state any allegations of wrongdoing on behalf of
Separate Defendant Thurston. No prejudice to Plaintiff Blackburn resulted from
Defendant Thurston’s actions or inaction. The Arkansas Secretary of State provided
voters information for citizens of Arkansas, including Plaintiff Blackburn.
In the case at bar, Blackburn has failed to advance any factual allegations against
Thurston, the Board, the Board members, or the nominees for Lonoke County Judge.3
Blackburn has further failed to allege how mistaken information from Shipp, a person who
had no duty under section 7-7-103, rendered that statute unconstitutional as applied to him.
3
Thurston argues that the claims against him are barred by sovereign immunity. We
extend sovereign immunity to state employees sued in their official capacities. Banks v. Jones,
2019 Ark. 204, at 3, 575 S.W.3d 111, 114. However, we “view our sovereign immunity
cases as allowing actions that are illegal, are unconstitutional or are ultra vires to be enjoined.”
Martin v. Haas, 2018 Ark. 283, at 7, 556 S.W.3d 509, 514. The dismissal of Blackburn’s
lawsuit against Thurston was based on the failure to assert any claim. The order contained
no findings that Blackburn failed to surmount Thurston’s sovereign immunity by not
alleging an illegal, unconstitutional, or ultra vires act. Rather, Blackburn failed to assert any
claim against Thurston, and the amended complaint failed under Rule 12(b)(6).
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As the circuit court correctly found, the duty to obtain the correct number of signatures
remained Blackburn’s alone.
In Whitfield v. Thurston, 468 F. Supp. 3d 1064 (E.D. Ark. 2020), a case relied on by
the circuit court, the Eastern District of Arkansas rejected an as-applied challenge to the
constitutionality of section 7-7-103. In analyzing the statute’s constitutionality, the court
first considered “the character and magnitude of the asserted injury to the rights protected
by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.” Id. at 1078
(citing Moore v. Martin, 854 F.3d 1021, 1025 (8th Cir. 2017)).
For independent candidates, this burdensomeness question considers whether
a reasonably diligent independent candidate could be expected to satisfy the signature
requirements.
Additionally, when a state promulgates a regulation which imposes a severe
burden on individuals’ constitutional rights, that regulation will only be upheld if it
is narrowly drawn to advance a state interest of compelling importance. In those
instances, the State of Arkansas bears the burden of showing that the challenged
statutes are narrowly drawn to serve the State’s compelling interest. Lesser burdens,
however, trigger less exacting review, and a State’s important regulatory interests will
usually be enough to justify reasonable, nondiscriminatory restrictions.
Id. at 1079 (internal quotations omitted). The plaintiffs in Whitfield argued that the statutory
signature requirement, the limited time for collecting signatures, and the “unique effect of
the coronavirus on petitioning” made ballot access for independent candidates severely
burdensome. Id. at 1083–84. The court determined that the pandemic and the State’s
response to it hindered the plaintiffs’ efforts to successfully collect all qualifying signatures in
the ninety-day window, but it declined to characterize that burden as substantial. Id. at 1093.
Here, Blackburn has failed to allege that his ballot access was severely burdened. In
fact, he has identified no specific constitutional provision—state or federal—that was
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violated. Instead, he asserts that the circumstances here are analogous to entrapment in a
criminal case. Blackburn failed to advance his entrapment argument below, and we do not
consider it for the first time on appeal. See Cox v. Miller, 363 Ark. 54, 63, 210 S.W.3d 842,
847 (2005). Liberally construing the amended complaint, we conclude that Blackburn has
failed to plead facts showing that he is entitled to relief. Accordingly, we hold that the circuit
court did not abuse its discretion by dismissing the amended complaint, and we affirm the
dismissal orders.
B. Dismissal with Prejudice
Finally, Blackburn argues that even if dismissal was appropriate, it should have been
without prejudice. It is well established that when a complaint is dismissed under Rule
12(b)(6) for failure to state facts upon which relief can be granted, the dismissal should be
without prejudice so that the plaintiff may elect whether to plead further or appeal. Malone
v. Trans-States Lines, Inc., 325 Ark. 383, 386, 926 S.W.2d 659, 661 (1996). Here, Blackburn
was not able to elect whether to plead further or appeal because his amended complaint was
dismissed with prejudice. Id., 926 S.W.2d at 661. Thus, although we affirm the dismissal
orders, we modify them to reflect that the dismissals are without prejudice.
Affirmed as modified.
BAKER, J., concurs.
WOMACK, J., concurs in part and dissents in part.
Mandate to issue immediately.
SHAWN A. WOMACK, Justice, concurring in part and dissenting in part. I
agree the circuit court abused its discretion when it dismissed Blackburn’s claims against the
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county defendants with prejudice. However, because our constitution bars Blackburn’s
claims against the Secretary of State, the circuit court properly dismissed the claims against
the Secretary with prejudice. Ark. Const. art. 5, § 20. The detail and depth of the allegations
against the Secretary of State are irrelevant in this case; he is entitled to the protections of
article 5, section 20 by virtue of his position as a state actor. Thurston v. League of Women
Voters of Ark., 2022 Ark. 32, at 17, 396 S.W.3d 319, 327 (Womack, J., dissenting).
Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for appellant.
Leslie Rutledge, Att’y Gen., by: Maryna Jackson, Sr. Ass’t Att’y Gen., for appellee John
Thurston, in his official capacity as Arkansas Secretary of State.
Jason Owens Law Firm, P.A., by: Michael A. Mosley, for Lonoke County appellees.
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