King v. Davis

Barbara KING, Robert Griffin, Marvin Jarrett,
and the Phillips County Election Commission
v. Geraldine R. DAVIS and Arlanda Jacobs

96-60                                              ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 29, 1996


1.   Elections -- pleading merely alleging contestant received more
     legal votes without alleging facts which would disclose that
     election result was different from that shown by the returns
     does not state cause of action. -- A pleading that merely
     alleges the conclusion that the contestant received more legal
     votes than the contestee without alleging facts that would
     disclose that the result of the election was actually
     different from that shown by the returns does not state a
     cause of action. 

2.   Elections -- action brought to declare election void is still
     an election contest. -- The mere fact that one bringing suit
     only seeks to have the election declared void and does not
     seek the office for himself, or even for the candidate he
     espouses, does not keep the proceeding from being categorized
     as an election contest. 

3.   Certiorari -- when certiorari will lie -- certiorari's purpose
     to find errors on face of record. -- Certiorari lies to
     correct proceedings erroneous on the face of the record when
     there is no other adequate remedy; it is available in the
     exercise of superintending control over a tribunal that is
     proceeding illegally where no other mode of review has been
     provided; it will not take the place of an appeal unless the
     right of appeal has been lost by no fault of the aggrieved
     party; certiorari may only be resorted to in cases where an
     excess of jurisdiction is apparent on the face of the record; 
     a writ of certiorari is a remedy to quash irregular
     proceedings, but only for errors apparent on the face of the
     record; it is not to be used to look beyond the record to
     ascertain the actual merits of a controversy or to control
     discretion or to review findings of facts.  

4.   Elections -- when circuit court may set aside election --
     general rule. -- For a circuit court to set aside an election,
     the wrong should appear to have been clear and flagrant; and
     in its nature, diffusive in its influences; calculated to
     effect more than can be traced; and sufficiently potent to
     render the results really uncertain; if it be such, it defeats
     a free election, and every honest voter and intimidated or
     deceived voter is aggrieved thereby; if it be not so general
     and serious, the court cannot safely proceed beyond the
     exclusion of particular illegal votes, or the supply of
     particular legal votes rejected.

5.   Elections -- trial court's findings sufficient -- trial court
     did not act in excess of its jurisdiction by holding election
     void. -- Where the Commissioners all but conceded that the
     trial court did not act in excess of his jurisdiction by
     voiding the election and numerous irregularities and
     illegalities were alleged in the conduct of the election, the
     appellate court found that the trial court did not act without
     jurisdiction or in excess of its jurisdiction by holding the
     election void.

6.   Elections -- trial court has no authority to direct election
     commission to call new election -- only General Assembly may
     create such a remedy. -- There is no statutory or other
     authority for a trial court to direct an election commission
     to call a new election after an invalid previous election; for
     the court to direct an election commission to do so would
     confer a power that does not exist and establish a remedy that
     only the General Assembly may create. 

7.   Elections -- error clear on face of record -- certiorari
     granted. -- Where the error of ordering petitioner election
     commission to hold a new election was clear on the face of the
     record, issuance of certiorari was warranted; justices of the
     peace are elected every two years, and as it was well into the
     second year of the term of office for which the election was
     to be held, by the time an appeal could be decided, the 1996
     election would be due; certiorari was proper in this
     circumstance; the writ was granted to the extent of setting
     aside the order commanding the election commission to hold a
     new election to fill the justice of the peace positions at
     issue.
     
     Petition for Writ of Certiorari granted in part and denied in
part.
     David Solomon, for petitioners.
     Wilson & Assoc.s, by:  J.L.Wilson, for respondents.

     David Newbern, Justice.April 29, 1996   *ADVREP4*

                                   96-60
BARBARA KING, ROBERT GRIFFIN,      Opinion Delivered:
MARVIN JARRETT, and THE 
PHILLIPS COUNTY ELECTION           
COMMISSION                         Petition for Writ of
                                   Certiorari

          Petitioners

v.

GERALDINE R. DAVIS and
ARLANDA JACOBS
                                   Certiorari Granted in Part
          Respondents              and Denied in Part             




                     David Newbern, Justice.

     Geraldine R. Davis and Arlanda Jacobs were unsuccessful

candidates for separate justice of the peace positions in the
general election held November 8, 1994.  They sued the successful
candidates and the members of the Phillips County Election
Commission alleging numerous irregularities and illegalities in the
conduct of the election and asked that they be declared the winners
or that the election results be declared void.  The Phillips County
Circuit Court concluded that the irregularities and illegal conduct
by public officials in the election process rendered the election
void and ordered that a new election be held March 12, 1996.  By
order of January 29, 1996, we stayed the March 12 election.  
     On February 16, 1996, Barbara King, Robert Griffen, and Marvin
Jarrett, the members of the Election Commission, petitioned for
certiorari seeking "to hold void the requirement that [the
Commissioners] ... hold a special election ... or in the
alternative stay the calling of an election until an appeal can be
heard ...."  The Commissioners conclude the brief accompanying
their petition as follows:  "The writ of Certiorari should be
granted as the Circuit Judge clearly exceeded his authority to void
an election and require another to be held." 
     Two issues are thus presented.  To the extent we are asked to
set aside the Trial Court's judgment voiding the elections we
decline to issue the writ.  We grant the writ as to that part of
the judgment requiring the Commissioners to hold a new election.
     
                        1. Void elections
     The Commissioners focus on the characterization by the
complainants in the Trial Court of each of their separate causes of
action as "an election contest."  They argue our decision in Binns
v. Heck, 322 Ark. 277, 908 S.W.2d 328 (1995), redefined the proof
necessary to succeed in an election contest.  Binns v. Heck was a
contest brought by a losing alderman candidate who alleged that if
illegal votes cast in favor of the declared winner were purged he
would have won.  We held, as we had held many times in the past,
that "a pleading which merely alleges the conclusion that the
contestant received more legal votes than the contestee without
alleging facts which would disclose that the result of the election
was actually different from that shown by the returns does not
state a cause of action," citing Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980), and Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967).
     In Phillips v. Earngey, 321 Ark. 476, 901 S.W.2d 782 (1995),
and in Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992), we
distinguished between election contests and actions brought to
declare an election void.  We did so, however, only for the purpose
of discussing whether an election commission might be a proper
party.  We did nothing in those cases to disturb the conclusion we
reached in Files v. Hill, supra, that "the mere fact that one
bringing suit only seeks to have the election declared void and
does not seek the office for himself, or even for the candidate he
espouses, does not keep the proceeding from being categorized as an
election contest."  See also Spires v. Election Comm'n of Union
County,  302 Ark. 407, 790 S.W.2d 167 (1990).
     There thus are two types of election contests.  When it is of
the type where the contestant seeks to oust and replace the
certified winner, the proof must be as we stated in Binns v. Heck,
supra, but a contest of the election in general, seeking to have it
declared void altogether is different.  Both types were pleaded
here.  The holding of the Trial Court in this case makes it of the
latter sort, and we must decide whether certiorari should issue to
set aside the holding which voided the elections.      
     Certiorari lies to correct proceedings erroneous on the face
of the record when there is no other adequate remedy, and it is
available in the exercise of superintending control over a tribunal
which is proceeding illegally where no other mode of review has
been provided.  Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293
(1993);  Sexton v. Supreme Court, 297 Ark. 154-A, 761 S.W.2d 602
(1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974).  It will not take the place of an appeal unless
the right of appeal has been lost by no fault of the aggrieved
party.  Hendricks v. Parker, 237 Ark. 656, 375 S.W.2d 811 (1964);
Hyder v. Newcomb, 234 Ark. 486, 352 S.W.2d 826 (1962).   Certiorari
may only be resorted to in cases when an excess of jurisdiction is
apparent on the face of the record.  See Lupo v. Lineberger, supra. 
A writ of certiorari is a remedy to quash irregular proceedings
"but only for errors apparent on the face of the record; not to
look beyond the record to ascertain the actual merits of a
controversy or to control discretion or to review findings of
facts."  Id.
     The Commissioners argue:

          There is no basis to void an election in a contest case
     as set out in Binns, supra.  But even so the test to void an
     election of Patton v. Coates, 41 Ark. 111 (1883), Jones v.
     Glidewell, 53 Ark. 161 (1890), Baker v. Hendrick, 225 Ark.
     778, and Files v. Hill, 268 Ark. 106 594 S.W.2d 836 (1980),
     [is] far from being met in the findings of the Circuit Judge.

By citing the line of cases beginning with the landmark Patton v.
Coates, the Commissioners all but concede the Trial Court did not
act in excess of his jurisdiction by voiding the election.  We have
no doubt a circuit court may set aside an election in accordance
with the rule stated in the  Patton case:

     The wrong should appear to have been clear and flagrant; and
     in its nature, diffusive in its influences; calculated to
     effect more than can be traced; and sufficiently potent to
     render the results really uncertain. If it be such, it defeats
     a free election, and every honest voter and intimidated or
     deceived voter is aggrieved thereby . . . If it be not so
     general and serious, the court cannot safely proceed beyond
     the exclusion of particular illegal votes, or the supply of
     particular legal votes rejected.

Whether the Trial Court's findings were sufficient to do it in this
case is, of course, an issue we may determine on appeal if an
appeal is proper and if it is pursued in this matter.  The Trial
Court did not act without jurisdiction or in excess of its
jurisdiction by holding the election void.

                         2. New election
     As we held recently in Binns v. Heck, supra, and in Phillips
v. Earngey, supra, there is no statutory or other authority for a
trial court to direct an election commission to call a new election
after an invalid previous election.  We held in both cases that,
for the court to direct an election commission to do so would
confer a power that does not exist and establish a remedy only the
General Assembly may create. 
     Cases in which we have held certiorari appropriate when an
error appears on the face of the record include Bates v. McNeil,
318 Ark. 764, 888 S.W.2d 642 (1994) (order of body attachment or
arrest without opportunity to be heard); Casement v. State, 318
Ark. 225, 884 S.W.2d 593 (1994) (denial of appeal bond in
accordance with statute superseded by rule); and Midwest Buslines,
Inc. v. Munson, 274 Ark. 108-A, 622 S.W.2d 187 (1981) (issuance of
a temporary restraining order without ordering expeditious hearing
as required by rule).
     In view of our decisions in Binns v. Heck, supra, and Phillips
v. Earngey, supra, the error in this case of ordering the Phillips
County Election Commission to hold a new election was clear on the
face of the record, and issuance of certiorari is thus warranted
unless, of course, an appeal would suffice.  Justices of the peace
are elected every two years.  Ark. Const. art. 7,  38.  The
election ordered was to supplant one held in 1994.  We are now well
into the second year of the term of office for which the election
was to be held.  By the time an appeal could be decided, the 1996
election would be upon us.  Certiorari is proper in this
circumstance.  We grant the writ to the extent of setting aside the
order commanding the Phillips County Election Commission to hold a
new election to fill the justice of the peace positions at issue.
     Writ of certiorari granted in part and denied in part.
     Dudley, Glaze, and Corbin, JJ, not participating.
     Special Justices Eric W. Bishop, Ronald L. Boyer, and
Constance G. Clark join the opinion.