Gray v. Thomas-Barnes , 2015 Ark. LEXIS 685 ( 2015 )

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SUPREME COURT OF ARKANSAS
No. CV-15-285
FLOYD E. GRAY Opinion Delivered November 19, 2015
APPELLANT
APPEAL FROM THE CHICOT
V. COUNTY CIRCUIT COURT
[NO. CV2014-93-4]
MARY F. THOMAS-BARNES, HONORABLE B. KENNETH
CLINTON “HAMP” HAMPTON, JOHNSON, JUDGE
CHICOT COUNTY ELECTION
COMMISSION, AND LUCAN
HARGRAVES, SR.
APPELLEES APPEAL DISMISSED.
KAREN R. BAKER, Associate Justice
This appeal arises from an order of the Chicot County Circuit Court dismissing a
complaint for injunctive relief and declaratory judgment filed by appellant, Floyd E. Gray.
Gray sought to challenge the eligibility of appellee Mary F. Thomas-Barnes as a candidate in
the mayoral election in Dermott, Arkansas. On appeal, Gray asserts that the circuit court
erred in dismissing his complaint for lack of jurisdiction. Because this appeal pertains to
elections and election procedures, we have jurisdiction pursuant to Arkansas Supreme Court
Rule 1-2(a)(4) (2015). We dismiss the appeal because the issue raised by Gray is moot.
Gray and the appellees, Thomas-Barnes, Clinton “Hamp” Hampton, and Lucan
Hargraves, Sr., were independent candidates for the position of mayor of Dermott in the
November 4, 2014 general election. On November 7, 2014, appellee Chicot County
Election Commission (“Election Commission”) certified the results of the November 4, 2014
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mayoral election as follows: Hargraves, Sr. 149 votes; Gray 219 votes; Thomas-Barnes 240
votes; and Hampton 241 votes. Because no candidate received a majority of the votes cast,
a run-off election between Thomas-Barnes and Hampton was held on November 25, 2014.
On November 24, 2014, one day prior to the November 25, 2014 run-off election,
Gray filed his complaint for injunctive relief and declaratory judgment. Gray’s complaint
sought to challenge the eligibility of Thomas-Barnes pursuant to Arkansas Code Annotated
section 7-5-801 (Supp. 2013). Gray alleged that Thomas-Barnes was a convicted felon and
therefore sought to invalidate the eligibility of Thomas-Barnes as a candidate for mayor.
Specifically, Gray’s complaint requested that the circuit court declare Thomas-Barnes
unqualified to seek election, declare Gray the runner-up, place Gray on the ballot for the run-
off mayoral election, and direct the Election Commission to refrain from tabulating run-off
votes. On the same day, the circuit court entered an order granting an emergency ex parte
injunction, allowing the run-off election to proceed, but prohibiting the tabulation or
certification of the election results pending further orders of the court.
On December 12, 2014, Hampton filed his answer. On December 15, 2014, Thomas-
Barnes and the Election Commission filed separate answers. In addition to its answer, the
Election Commission filed a motion to dismiss pursuant to Rule 12(b)(6) of the Arkansas
Rules of Civil Procedure. As a basis for dismissal, the Election Commission argued that Gray
filed his complaint expressly as a postelection contest pursuant to Arkansas Code Annotated
section 7-5-801 rather than a preelection challenge pursuant to Arkansas Code Annotated
section 7-5-207(b). Because Gray filed a postelection contest, the Election Commission
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contended that his claims were limited to those related to the conduct of the election only.
Thus, because Gray challenged only Thomas-Barnes’s eligibility, the circuit court lacked
subject-matter jurisdiction and should dismiss Gray’s complaint. Further, the Election
Commission argued that Gray lacked standing to challenge the run-off election because he
was not a candidate in any election at the time he filed his complaint as required by Arkansas
Code Annotated section 7-5-801. On December 29, 2014, Gray responded to the motion
to dismiss and asserted that, as a candidate, he had standing to bring the action as a preelection
challenge.
In a December 23, 2014 letter filed December 29, 2014, the circuit announced its
findings. The circuit court explained that it “signed an ill considered Emergency Ex Parte
Injunction preventing the Defendant, Commission, from tabulating the votes and certifying
the results.” The circuit court dissolved the emergency ex parte injunction. Further, the
circuit court found that Gray’s “pleading appears to be an attempt to bring a pre-election
challenge by post-election means.” The circuit court dismissed Gray’s complaint based on
lack of jurisdiction and authorized the Election Commission to tabulate and certify the results
of the November 25, 2014 run-off election. These findings were memorialized by the circuit
court in a January 9, 2015 written order.
On January 13, 2015, Gray filed a motion for new trial; the motion was deemed
denied after thirty days when the circuit court took no action. On March 13, 2015, Gray
filed his notice of appeal. Hampton is currently serving as mayor of Dermott, as a result of
having been duly elected in the November 25, 2014 run-off election. We take judicial notice
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of election results, as reported by the Arkansas Secretary of State. Jefferson Cnty. Election
Comm’n v. Hollingsworth, 2014 Ark. 431, 445 S.W.3d 504; Etherly v. Newsome, 2013 Ark. 391.
Point on Appeal
On appeal, Gray argues that because he filed his complaint the day before the
November 25, 2014 run-off election, this action should be classified as a preelection challenge
rather than a postelection challenge. Gray contends that a run-off election is the functional
equivalent of a two-candidate general election.
In response, Thomas-Barnes and Hampton argue that, despite being filed as a
postelection contest rather than a preelection challenge, Gray attacked only Thomas-Barnes’s
eligibility. Both Thomas-Barnes and Hampton argue that Hampton is currently serving as
mayor of Dermott, as a result of having been duly elected in the November 25, 2014 run-off
election. Thomas-Barnes argues that she is no longer a “candidate” in any “election” as
contemplated by Gray’s original complaint, and Gray is no longer a candidate with standing
to challenge any election. Thus, the injunctive relief sought by Gray cannot be granted
under any circumstances and is therefore moot.
Mootness
As noted above, the record demonstrates that the election was held. “[I]n a long line
of cases, we have observed that the issue of a candidate’s eligibility under section 7-5-207(b)
becomes moot once the election takes place.” Fite v. Grulkey, 2011 Ark. 188, at 4 (citing
Oliver v. Phillips, 375 Ark. 287, 290 S.W.3d 11 (2008); Clement v. Daniels, 366 Ark. 352, 235
S.W.3d 521 (2006); Ball v. Phillips Cnty. Election Comm’n, 364 Ark. 574, 222 S.W.3d 205
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(2006); Tumey v. Daniels, 359 Ark. 256, 196 S.W.3d 479 (2004); Benton v. Bradley, 344 Ark.
24, 37 S.W.3d 640 (2001); McCuen v. McGee, 315 Ark. 561, 868 S.W.2d 503 (1994); State
v. Craighead Cnty. Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989)).
Thus, as a threshold matter, this court must determine whether the instant appeal is
moot. As a general rule, we will not review issues that are moot because to do so would be
to render an advisory opinion, which this court will not do. McCuen, 315 Ark. 561, 868
S.W.2d 503. Generally, a case becomes moot when any judgment rendered would have no
practical legal effect upon a then existing legal controversy. Kinchen v. Wilkins, 367 Ark. 71,
238 S.W.3d 94 (2006). We have, however, recognized two exceptions to the mootness
doctrine. Id. The first exception involves issues that are capable of repetition, yet evade
review, and the second exception concerns issues that raise considerations of substantial public
interest which, if addressed, would prevent future litigation. Id.
Gray fails to address the mootness doctrine and whether the exceptions to the mootness
doctrine apply to his case. This court will not address issues on appeal that are not
appropriately developed, and we will not research or develop an argument for an appellant.
Spears v. Spears, 339 Ark. 162, 3 S.W.3d 691 (1999); Martin v. Pierce, 370 Ark. 53, 257 S.W.3d
82 (2007). Thus, we dismiss Gray’s appeal as moot.
The concurrence states that “this lawsuit was over the moment it was filed.”
However, despite this statement, the concurring justices inexplicably offer an advisory opinion
regarding the matter before us. Specifically, the concurrence states that “Gray filed his
preelection challenge after the November 4, 2014 election, and the circuit court properly ruled
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that it lacked subject-matter jurisdiction to hear the matter.” This statement is simply
erroneous because the concurrence would hold that the circuit court lacked jurisdiction, and
likewise this court, by considering the merits on appeal. In other words, the concurrence has
summarily determined that a preelection challenge must be filed before a general election
without a determination of whether a run-off election is the functional equivalent of a two-
candidate general election. The irony of the concurrence’s position is that in order to reach
that issue, this court would have to have jurisdiction to reach the merits. However, as quoted
above, the concurrence would hold that we do not have jurisdiction. Thus, the concurrence
improperly reaches the merits on appeal. Further, any determination on this issue of first
impression would render an advisory opinion, which this court has repeatedly said it will not
do. McCuen, supra.
Appeal dismissed.
BRILL, C.J., and DANIELSON, J., concur.
HOWARD W. BRILL, Chief Justice, concurring. This lawsuit was over the
moment it was filed. The election for mayor of Dermott took place on November 4, 2014.
Gray finished third. The run-off election was scheduled for November 25, 2014, and he was
excluded from the run-off election. On November 24, 2014, Gray filed this lawsuit alleging
that one of the top two candidates was a felon and should be excluded from the ballot.
I concur in the decision to dismiss Gray’s appeal, but I write separately because I base
my conclusion on a different analysis. On appeal, Gray argues that the circuit court erred in
dismissing his complaint for lack of subject-matter jurisdiction. Specifically, Gray
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characterizes his postelection contest as a preelection challenge to Thomas-Barnes’s eligibility
for Dermott mayor. I agree with the circuit court’s ruling that it lacked subject-matter
jurisdiction and would dismiss the appeal on that basis.
Subject-matter jurisdiction is considered to be a court’s authority to hear and decide
a particular type of case. Hunter v. Runyan, 2011 Ark. 43, 382 S.W.3d 643. A court lacks
subject-matter jurisdiction if it cannot hear a matter under any circumstances and is wholly
incompetent to grant the relief sought. See, e.g., J.W. Reynolds Lumber Co. v. Smackover State
Bank, 310 Ark. 342, 352–53, 836 S.W.2d 853, 858 (1992). The question whether a circuit
court has subject-matter jurisdiction is based on the pleadings. Tripcony v. Ark. Sch. for the
Deaf, 2012 Ark. 188, 403 S.W.3d 559. This court has stated that when the circuit court was
without subject-matter jurisdiction, this court likewise would be without jurisdiction to hear
the appeal. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179.
The key issue is whether the circuit court had subject-matter jurisdiction of Gray’s
election case. Election proceedings are governed by statute. Kelly v. Martin, 2014 Ark. 217,
433 S.W.3d 896 (citing Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007)). This court
has previously recognized a distinction between two types of election cases provided for by
statute: preelection-eligibility challenges and postelection election contests. Willis v. Crumbly,
368 Ark. 5, 242 S.W.3d 600. Our statute on preelection-eligibility challenges provides in part
that “[n]o person’s name shall be placed upon the ballot as a candidate for any public office
in this state at any election unless the person is qualified and eligible at the time of filing, or
as otherwise may be provided by law, as a candidate for the office to hold the public office
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for which he or she is a candidate.” Ark. Code Ann. § 7-5-207(b) (Supp. 2015). A voter
may exercise the right to raise a preelection challenge at any time prior to the general election.
Bailey v. Martin, 2014 Ark. 213, 433 S.W.3d 904. The issue of a candidate’s eligibility under
section 7-5-207(b) becomes moot once the election takes place. Id. In postelection contests,
a party may not utilize the process established in section 7-5-207(b). Bailey, 2014 Ark. 213,
433 S.W.3d 904. A postelection contest is a right of action “conferred on any candidate to
contest the certification of nomination or the certificate of vote as made by the appropriate
officials in any election.” Ark. Code Ann. § 7-5-801(a) (Supp. 2015).
In the present case, Gray failed to bring a preelection-eligibility challenge pursuant to
section 7-5-207(b) because he did not file his action before the general election on November
4, 2014. Gray did not attempt to have Thomas-Barnes’s name removed from the ballot until
the day before the scheduled run-off election on November 25, 2014. Because Gray filed a
preelection challenge postelection, the circuit court was without subject-matter jurisdiction
to consider his case at all. In fact, the circuit court stated in its January 9, 2015 order that
“when presented with [Gray’s] complaint on November 24, 2014, [it] signed an ill-considered
Emergency Ex Parte Injunction preventing the [Election] Commission from tabulating the
votes and certifying the results.” The circuit court then ruled that “it [did] not have
jurisdiction to take such action [ordering Gray as a candidate in the run-off election] or to
order a new election.” Thus, based on this court’s precedent, I conclude that the circuit court
properly ruled that it lacked subject-matter jurisdiction to consider Gray’s preelection-
eligibility challenge and to order Gray as a mayoral candidate in the run-off election. See, e.g.,
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Zolliecoffer, 371 Ark. 263, 265 S.W.3d 114 (dismissing on the basis that the circuit court lacked
subject-matter jurisdiction to consider a preelection challenge filed postelection).
Although I concur in the majority decision to dismiss the appeal, I do not believe that
mootness is the proper basis for dismissal. Mootness is a threshold issue that is addressed
before the merits are reached. See, e.g., Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744
(2007). But the issue of subject-matter jurisdiction necessarily precedes any question of
mootness. Without a proper determination of subject-matter jurisdiction, a court can do
nothing. This court has stated that an issue becomes moot when any judgment rendered
would have no practical effect upon an existing legal controversy. See, e.g., Bd. of Directors v.
Pritchett, 2015 Ark. 17, 454 S.W.3d 223. Without an existing legal controversy, mootness
need not be considered. Here, the mootness doctrine does not apply because Gray was
without an existing legal controversy when he filed his preelection-eligibility challenge after
November 4, 2014.
In dismissing the appeal as moot, the majority relies on our decision in Fite v. Grulkey,
2011 Ark. 188, in which this court stated that “the issue of a candidate’s eligibility under
section 7-5-207(b) becomes moot once the election takes place.” Id. at 4 (noting that
Grulkey filed his preelection challenge in October 2010 before the November 2010 election
and dismissing the appeal as moot because Fite did not file a notice of appeal of the circuit
court’s decision until after the election was over and waited fifteen days to request expedited
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review). The majority also cites a long line of cases for this proposition.1 However, in the
cases cited by the majority, the preelection-eligibility challenges were properly filed before the
election; the circuit courts had subject-matter jurisdiction to consider the preelection
challenges; and those challenges, either at the circuit-court or appellate level, were deemed
untimely or moot. Gray filed his preelection challenge after the November 4, 2014 election,
and the circuit court properly ruled that it lacked subject-matter jurisdiction to hear the
matter. Therefore, the majority’s decision to dismiss the appeal as moot is erroneous.
In my view, the circuit court was correct in its ruling. It had no jurisdiction to hear
a preelection challenge filed after the first election. It was wholly incompetent to grant the
1
See Oliver v. Phillips, 375 Ark. 287, 290 S.W.3d 11 (2008) (affirming the circuit court’s
finding that Oliver’s preelection challenge, which was filed one day before the election but
was not expedited and ruled on before the election, was moot); Clement v. Daniels, 366 Ark.
352, 235 S.W.3d 521 (2006) (noting that Clement challenged a candidate’s residency in May
2006 before early voting and citing a candidate’s eligibility pursuant to section 7-5-207(b), but
mootness was not at issue); Ball v. Phillips Cnty. Election Comm’n, 364 Ark. 574, 222 S.W.3d
205 (2006) (dismissing as moot an appeal of the circuit court’s denial of Ball’s petition
challenging the eligibility of a school-board candidate that was filed eight days before the
election); Tumey v. Daniels, 359 Ark. 256, 196 S.W.3d 479 (2004) (noting that Tumey filed
his preelection challenge in August 2004 before the November 2004 election, citing section
7-5-207(b) as the basis for a preelection eligibility-challenge, and contrasting it with a
postelection contest by a competing candidate after a primary or general election); Benton v.
Bradley, 344 Ark. 24, 37 S.W.3d 640 (2001) (dismissing Benton’s appeal as moot because the
appeal was not expedited and presented to this court for decision prior to the November 2000
election); McCuen v. McGee, 315 Ark. 561, 868 S.W.2d 503 (1994) (affirming the circuit
court’s ruling that a candidate was ineligible to seek election and holding that, because
appellant made no attempt to obtain a stay from the circuit court or this court and the
successful candidate had taken his seat, the issue was wholly moot); State v. Craighead Cnty.
Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989) (declaring that an action for
mandamus and declaratory relief was the proper way to challenge a candidate’s eligibility prior
to the November 8, 1988 election, holding that the controversy was moot, and declining to
rule on the candidates’ eligibility).
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relief requested. For the foregoing reasons, I would dismiss the appeal for the circuit court’s
lack of subject-matter jurisdiction.
DANIELSON, J., joins.
Gibson Law Office, by: Charles Sidney Gibson, for appellant.
Clinton “Hamp” Hampton, pro se appellee.
Kearney Law Office, by: Jack R. Kearney, for appellee Mary F. Thomas-Barnes.
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