Baker v. Rogers

Cindy M. BAKER v. Robert T. ROGERS; Carroll County Board of Election Commission; Carroll County Board of Election Commissioners; Levi Phillips, Chairman; David Hoover and Joe Goforth, Members of the Carroll County Board of Election Commissioners

243 S.W.3d 911, 368 Ark. 134, 2006 Ark. LEXIS 600 • 2006-11-30

Citation243 S.W.3d 911, 368 Ark. 134, 2006 Ark. LEXIS 600

Date Filed2006-11-30

Docket06-1206

JudgeJim Hannah

Cited4 times

StatusPublished

Attorneys

Jeff Rosenzweig, for appellant., Putman Law Firm, by: William B. Putman, for appellees.

Full Opinion (html_with_citations)

im Hannah, Chief Justice.

Cindy M. Baker appeals a September 29, 2006, order dismissing her complaint contesting the certification of Robert T. Rogers as the winner of the May 23, 2006, preferential primary election for the office of prosecuting attorney of the Nineteenth Judicial District. The circuit court erred in dismissing Baker’s complaint with prejudice for failure to join the Secretary of State as a necessary party. As discussed in Willis v. Crumbly, 368 Ark. 5, 242 S.W.3d 600 (2006) and Simes v. Crumbly, 368 Ark. 1, 242 S.W.3d 610 (2006), a post-election contest case involving a district office such as prosecuting attorney must be filed in the county in which certification of nomination was made. Id. Further, the Secretary of State is not a necessary party. Id. In this case, that means the case was properly filed in Carroll County, and the Secretary of State was not a necessary party.

This case concerns an election contest, which is a special proceeding exempting application of the rules of civil procedure where a statute provides a different procedure.1 McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000); Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992); Hanson v. Garland County Election Comm’n, 289 Ark. 367, 712 S.W.2d 288 (1986). Arkansas Code Annotated § 7-5-801 (e) (Repl. 2000) only modifies civil procedure; it does not supplant it. First, the complaint must be filed “within twenty (20) days of the certification complained of.” Ark. Code Ann. § 7-5-801(d) (Repl. 2000). Second, the “complaint shall be answered within twenty (20) days.” Ark. Code Ann. § 7-5-801 (e). In these two ways, specific procedure is provided by the statute, and pursuant to Ark. R. Civ. P. 81, the “procedure so specified shall apply.” Otherwise, all other rules of civil procedure apply.

The complaint was filed on June 15, 2006. Rogers was served by mail on June 17, 2006. The summons stated that a responsive pleading had to be filed “within twenty (20) days from the day you were served with this summons.” Similarly, Ark. Code Ann. § 7-5-801 (e) (Repl. 2000) provides that a complaint contesting an election shall be “answered”2 within twenty days.3 Twenty days from the date of service4 ran on July 7, 2006. Rogers filed his responsive pleading, a motion to dismiss, on July 6, 2006, which was within twenty days of service.

Baker also alleges that the circuit court erred in failing to grant her an order placing evidence of the election into protective custody. She failed to obtain a ruling on this issue. The failure to obtain a ruling precludes appellate review because there is no order of a lower court on the issue for this court to review on appeal. Gwin v. Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004).

Reversed and remanded.

Glaze, J., concurs in part and dissents in part. Imber and Dickey, JJ., not participating.

We note that in Tate-Smith v. Cupples, 355 Ark. 230, 237, 134 S.W.3d 535, 538 (2003), we stated that, “[b]ecause election contests are special proceedings, the rules of civil procedure do not apply” However, this statement is incomplete. The rules of civil procedure do not apply where a statute provides a different procedure. McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000); Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992).

Use of the verb “answered” in Ark. Code Ann. § 7-5-801(e) (Repl. 2000) does not dictate that only a pleading entitled “answer” may be filed in response to the complaint. The verb “answered” means simply that a defendant must act and respond within twenty days. Here, Rogers filed a motion to dismiss within twenty days of service of the complaint. A motion to dismiss is a responsive pleading. However, even if the statute had used the noun “answer,” the outcome would be no different. Black’s Law Dictionary defines answer as “a defendant’s first pleading that addresses the merits of the case, usually by denying the plaintiffs allegations.” Black’s Law Dictionary 1173 (7th ed. 1999). Thus, a motion to dismiss was permissible.

We take this opportunity to clarify any confusion that might arise from a parenthetical statement in Willis v. King, 352 Ark. 55, 61, 98 S.W.3d 427, 430 (2003), that appears in a discussion of Willis’s failure to move to expedite the appeal:

The General Assembly has also made it abundandy clear that the concern for timely resolution of election contests is not unique to the filing of the complaint but that expedited deadlines and consideration of election contests permeate the Election Code. See Ark. Code Ann. § 7-5-801 (e) (Repl. 2000) (response due within twenty days of the complaint being filed)-, Ark. Code Ann. § 7-5-810 (Repl. 2000) (seven-day time period for filing an appeal); Ark. Code Ann. § 7-5-802 (Repl. 2000) (requiring the circuit court to “proceed at once” with election cases); Ark. Code Ann. § 7-5-804 (Repl. 2000) (stating it is the duty of the Supreme Court to advance election cases).

(Emphasis added.) The phrase “response due within twenty days of the complaint being filed” in Willis was not necessary to the decision. Where discussion or comment in an opinion is not necessary to the decision reached therein, the discussion or comment is obiter dictum. Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003).

To hold that the answer must be filed within twenty days of the date the complaint is filed would impermissibly void the rights of the defendant to due process. To so hold would allow a plaintiff to hold the complaint and serve it on the twentieth day and still comply with the statute. This we will not do. “ [T]his court is duty bound to reject any interpretation of a statute that results in absurdity or injustice ....” Weiss v. Cent. Flying Serv., Inc., 326 Ark. 685, 690, 934 S.W.2d 211, 214 (1996).