STEPHANIE POTTER BARRETT, APPELLANT/CROSS-APPELLEE v. JOHN THURSTON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF ARKANSAS; CHARLES WELCH, CLAUDIA SPEIGHTS, AND KAREN WIEMAN, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE CLARK COUNTY ELECTION COMMISSION; RALPH EDDS, GENE HALEY, AND ELMER BEARD, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE GARLAND COUNTY ELECTION COMMISSION; LORI WEST, DEBBIE MARSH, AND CYNTHIA NEWSOM, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE HEMPSTEAD COUNTY ELECTION COMMISSION; JAMES HOUPT, JERRY CRAYCRAFT, AND WALTER GRANT, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE HOT SPRING COUNTY ELECTION COMMISSION; ROBERT WILLIAMS, GLEN SEMMLER, AND ANGELA ALLEN, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE HOWARD COUNTY ELECTION COMMISSION; BILLY BOB POUNDS, DON LAMON, AND LESLIE CARTER, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE LITTLE RIVER COUNTY ELECTION COMMISSION; LEE LANE, GARY EVELD, AND RUSSELL PARISH IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE LOGAN COUNTY ELECTION COMMISSION; SANDY BUCHANON, CHARLOTTE FULLER, AND BRANDON COGBURN, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE MILLER COUNTY ELECTION COMMISSION; ROBERT WALTHER, ALMA BLACK, AND MARK WHISENTHUNT, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE MONTGOMERY COUNTY ELECTION COMMISSION; JOHN BENJAMIN, TERRY HUTSON, AND JAMES O‘NEAL, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE PIKE COUNTY ELECTION COMMISSION; LANDON COPELIN, BERNARD MIZE, AND J. DAVID RAY, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE POLK COUNTY ELECTION COMMISSION; STEPHEN HOLLAND, TOMMY VANOVER, AND RONNIE POWELL, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE SCOTT COUNTY ELECTION COMMISSION; DAVID DAMRON, SAM TERRY, AND LEE WEBB, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE SEBASTIAN COUNTY ELECTION COMMISSION; GAINES SOUTHWORTH, GARY WALKER, AND BARBARA HOLT, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE SEVIER COUNTY ELECTION COMMISSION; AND GREG BLAND, HOWARD ORSBURN, AND MONTIE SIMS, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE YELL COUNTY ELECTION COMMISSION, APPELLEES; EMILY L. LENGEFELD, APPELLEE/CROSS-APPELLANT
No. CV-19-904
SUPREME COURT OF ARKANSAS
January 23, 2020
2020 Ark. 36
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. 60CV-19-8051], HONORABLE TIMOTHY DAVIS FOX, JUDGE. AFFIRMED ON DIRECT APPEAL AND ON CROSS-APPEAL.
Opinion Delivered: January 23, 2020
Appellant Stephanie Potter Barrett appeals from the Pulaski County Circuit Court‘s order finding that Appellee Emily White Lengefeld is a certified candidate for the position of Arkansas Court of Appeals District 4, Position 2. Lengefeld also filed a cross-appeal in which she contends (1) Barrett lacked standing to establish subject-matter jurisdiction; (2) Barrett‘s petition failed to comply with the requirements of
I. Background
Emily White Lengefeld was appointed district judge of the 33rd District on March 19, 2018. She is currently a candidate for the Court of Appeals District 4, Position 2. Lengefeld filed as a candidate without paying a filing fee in accordance with
Stephanie Potter Barrett, also a candidate for Position 2, filed a petition in the Pulaski County Circuit Court that requested a writ of mandamus and declaratory judgement declaring Lengefeld‘s petition for candidacy and political-practices pledge invalid and removal of Lengefeld from the ballot for the election for the office of Arkansas Court of Appeals District 4, Position 2, to be held on March 3, 2020. In her petition, Barrett alleges that Lengefeld is not a resident of District 4, that she
On November 18, 2019, the trial court held an expedited hearing on the merits of the petition and Lengefeld‘s response. In its final order entered on November 27, 2019, the circuit court concluded Lengefeld is a citizen, registered voter, and resident of District 4, finding that Barrett failed to meet her burden of proof with respect to the issue of residency. The court found “Emily White” is an appropriate name to be listed on the ballot and denied Barrett‘s request to require White Lengefeld to use the surname “Lengefeld.” Consequently, Barrett‘s request to remove Lengefeld from the ballot for failure to use the surname “Lengefeld” was also denied. As an appointed judge and candidate for the Court of Appeals, the court held that, pursuant to sections
II. Standing
On cross-appeal, Lengefeld argues the circuit court erred in finding Barrett had standing to establish subject matter jurisdiction. The question of standing is a threshold issue and should be addressed first. See Bomar v. Moser, 369 Ark. 123, 128, 251 S.W.3d 234, 239 (2007). The circuit court found that Barrett was a certified candidate for the position of Arkansas Court of Appeals District 4, Position 2 and that she is a citizen, resident, and qualified elector in Miller County, Arkansas. Lengefeld asserts Barrett failed to present evidence that she is a registered voter in one of the counties that comprise District 4, and therefore, the circuit court should have dismissed the case.
Barrett‘s petition contained the following statement:
5. Petitioner Stephanie Potter Barrett is (sic) candidate and a registered voter residing in the Arkansas Court of Appeals District 4, in Texarkana, Miller County, Arkansas. Petitioner has the right for the above-mentioned declaratory judgment and subsequent writ issued that mandates all Respondents follow
Amendment 80 § 16 of the Arkansas Constitution ,Arkansas Code Annotated § 7-10-103 , and§ 7-7-305 .
The Arkansas Secretary of State John Thurston, in his official capacity, filed an answer to Barrett‘s petition in which he admitted Barrett is a candidate and registered voter:
5. The Secretary admits that Petitioner Stephanie Potter Barrett is a candidate and a registered Voter, as alleged in paragraph 5. Paragraph 5 otherwise contains factual allegations which are denied for lack of sufficient information.
In Lengefeld‘s response to Barrett‘s petition, she failed to raise the issue of standing. It was not until the conclusion
III. Direct Appeal
Barrett‘s central point on appeal is that the circuit court erred in determining Lengefeld is a qualified elector of District 4, thereby qualifying her as a candidate for Position 2. As the moving party, Barrett had the burden of proving by a preponderance of the evidence that Lengefeld failed to reside within District 4 when she filed her candidacy. See Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000). The standard of review in a bench trial is whether the circuit court‘s findings are clearly erroneous. Searcy Farm Supply, LLC v. Merchs. & Planters Bank, 369 Ark. 487, 496-97, 256 S.W.3d 496, 503 (2007). A finding is clearly erroneous when, although there is evidence to support it, a reviewing court is left with a firm conviction that a mistake has been committed. Id.
All Justices and Judges shall be qualified electors within the geographical area from which they are chosen, and Circuit and District Judges shall reside within that geographical area at the time of election and during their period of service. A geographical area may include any county contiguous to the county to be served when there are no qualified candidates available in the county to be served.
(Emphasis added.) Therefore, to qualify as a judicial candidate for the Court of Appeals District 4, Position 2, Lengefeld had to be a qualified elector from a county within District 4 when she filed as a candidate for the office.
The circuit court found Lengefeld, at all relevant times, to be a citizen, registered voter, and resident of Hot Spring County, Arkansas. Barrett contends the circuit court mistakenly relied on residency without regard to domicile. Under
In reaching its conclusion that Lengefeld is a resident of Hot Spring County for the upcoming election, the circuit court relied on this court‘s decision in State v. Jernigan, 2011 Ark. 487, at 10, 385 S.W.3d 776, 782. In Jernigan, we stated that in determining the residency of voters and public officials, this court considers (1) whether a person was physically present in a particular location, or (2) whether a person intended to establish a domicile in a particular location. Id. In other words, if a candidate is unable to establish residency by showing physical presence in the requisite location, this court has allowed a candidate
In the present case, Lengefeld has established that she is physically present in Hot Spring County. Lengefeld purchased a home in Hot Spring County in 2019 and testified that she resides at this property with her family. She has also registered to vote and assessed her personal property in Hot Spring County for 2019. As evidence that Lengefeld is not a resident of District 4, Barrett calls attention to the fact that Lengefeld‘s children continue to attend school in Grant County, that she still spends several nights a week in Grant County, and that she still owns her Grant County home. Nevertheless, the circuit court concluded that Barrett failed to meet her burden with the proffered evidence. This court gives due deference to the superior position of the circuit court to determine the credibility of the witnesses and the weight to be accorded their testimony. Lee v. Daniel, 350 Ark. 466, 470, 91 S.W.3d 464, 466-67 (2002). Further, it is within the province of the trier of fact to resolve conflicting testimony. Id. Lengefeld‘s actions and testimony indicate that she is physically present in Hot Spring County--lingering connections to Grant County do not undermine this point. Because Barrett fails to demonstrate by a preponderance of the evidence that Lengefeld is not a resident and legal voter of Hot Spring County, the circuit court‘s conclusion that Lengefeld is a qualified elector of District 4 pursuant to
Barrett next argues Lengefeld falsified her political practices pledge in bad faith and the circuit court erred in amending this falsified pledge. Lengefeld filed as a candidate by petition rather than pay the filing fee. In accordance with
(B)(ii) A candidate may use as the prefix the title of a nonpartisan judicial office in an election for a nonpartisan judicial office only if:
(a) The candidate is currently serving in a judicial position to which the candidate has been elected in the last election for the office; or
(b) The candidate:
(1) Is a candidate for the office of circuit judge or district judge;
(2) Is currently serving in the position of circuit judge or district judge as an appointee; and
(3) Has been serving in that position for at least twelve (12) months.
(Emphasis added.)
On September 17, 2019, Lengefeld signed her political practices pledge and printed her name as it was to appear on the ballot as “Judge Emily White.” Included on the pledge is the language of
pledge with inaccurate information is tantamount to not filing at all and should result in the removal of Lengefeld from the ballot.
Pursuant to the language of
As for the matter of which surname Lengefeld was required to use on her pledge, the statute only requires that a candidate use his or her “surname.”
Finally, Barrett argues the circuit court erred in failing to award court costs. Barrett, however, made no such request at the circuit court level and now raises a request for costs for the first time on appeal. This court will not consider matters raised for
IV. Cross-Appeal
On cross-appeal, Lengefeld argues Barrett‘s petition failed to adhere to the verification requirements of
Lengefeld next challenges the constitutionality of sections
For Lengefeld‘s final point on cross-appeal, she argues the circuit court lacked jurisdiction to hear Barrett‘s petition because her complaint should have been filed with the State Board of Election Commissioners. The basis for Lengefeld‘s contention is
This court has previously addressed the issue of administrative exhaustion in ballot title cases in State v. Craighead Cty. Bd. of Election Comm‘rs, 300 Ark. 405, 412, 779 S.W.2d 169, 173 (1989). There, we stated that an action for mandamus and declaratory relief is the proper mechanism for enforcing the rights set forth in
V. Conclusion
We hold that the circuit court correctly determined that Emily Lengefeld is a certified candidate for the position of Arkansas Court of Appeals District 4, Position 2. Accordingly, we affirm both the direct appeal and the cross-appeal. The mandate shall issue immediately.
WOOD and WYNNE, JJ., concur.
RHONDA K. WOOD, Justice, concurring. Fundamental principles of constitutional interpretation require us to “read laws as they are written” and to give “words . . . their obvious and natural meaning.” Brewer v. Fergus, 348 Ark. 577, 580-81, 79 S.W.3d 831, 832 (2002). We should interpret constitutional provisions so that each word carries meaning. Forrester v. Daniels, 2010 Ark. 397, at 7, 373 S.W.3d 871, 875. Applying this textualist approach to interpreting our Constitution precludes me from joining the majority‘s opinion. Though I would still affirm the circuit court‘s order, I must concur due to my disagreement with the majority‘s analysis.
As Amendment 80 requires that judges be “qualified electors” without defining the term, construing the constitution as a whole, our next step is to determine if other provisions give guidance. See Forrester, 2010 Ark. 397, at 7, 373 S.W.3d at 875 (interpreting Amendment 80 by stating that the constitution “must be considered as a whole, and every provision must be read in light of other provisions relating to the same subject matter“).
Read together, Amendment 80 requires that a judicial candidate be a qualified elector; Article 3, section 1 requires that the qualified elector be a lawfully registered voter; and the General Assembly has established that voting residence shall be a voter‘s domicile. Textually, one is a qualified elector only in the precinct in which he or she is domiciled. See, e.g., Clement v. Daniels, 366 Ark. 352, 355, 235 S.W.3d 521, 524 (2006) (“Thus, for the purpose of a voter or a public official, a person does not have two domiciles with a right to choose between them; his domicile is either at one place or the other.“). The majority, however, extracts the qualified-elector requirement from Amendment 80 and gives residence redundant application.
The majority relies on State v. Jernigan for support. But the Jernigan court addressed only a residency requirement for municipal officers, not the qualified-elector requirement for judicial candidates. The statute there provided that a candidate for mayor “must reside within the corporate
Jernigan would be relevant if we were addressing Amendment 80‘s residency requirement for Circuit and District judges. But the present case requires us to interpret the qualified-elector requirement, which applies to all judicial candidates. By citing exclusively to Jernigan, the majority makes residency the primary consideration under both. This interpretation violates the surplusage canon of interpretation: “[E]very word and every provision is to be given effect. . . . None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 174 (2012); accord Forrester, supra. By conflating the residency requirement with the qualified-elector requirement, the majority duplicates the former and gives the latter no consequence.
The amendment‘s drafters were aware of the difference between residency and domicile. Cf. Quinney v. Pittman, 320 Ark. 177, 184, 895 S.W.2d 538, 542 (1995) (noting that the legislature “was aware of the difference between the words ‘residency’ and ‘domicile‘“). Had they intended residency to control the entire inquiry, they would not have included the qualified-elector requirement. If the intent were as the majority suggests, then Amendment 80 should read as follows: (i) all Justices and Judges shall be qualified electors within residents of the geographical area from which they are chosen and (ii) Circuit and District judges shall reside within that geographical area at the time of the election and during their period of service. Our rules of interpretation require us to inquire and to give meaning when the drafters use different terminology. We must give a distinct meaning to the term “qualified electors” that is consistent with Amendment 80‘s text and well-settled interpretive principles.
Even though I part ways with the majority‘s analysis, I would still affirm the circuit court‘s order. The circuit court concluded that appellant failed to meet her burden of proof with regard to the issue of residency. The court made no ruling regarding the issue of domicile. Because appellant failed to obtain a ruling on this issue, we are precluded from reviewing it on appeal. TEMCO Constr., LLC v. Gann, 2013 Ark. 202, at 9, 427 S.W.3d 651, 657; see also Fisher v. Valco Farms, 328 Ark. 741, 748, 945 S.W.2d 369, 373 (1997) (“It was appellant‘s burden to obtain a ruling, and the absence of a ruling constitutes a waiver of this issue on appeal.“).
WYNNE, J., joins.
David J. Potter; and Potter Law Firm, LLP, by: Jacob S. Potter, for appellant.
Waymack Standerfer Law, by: Jennifer A. Waymack; and Jeff Priebe Law Firm, by: Jeff Priebe, for appellee Emily L. Lengefeld.