Dwayne Dobbins v. Democratic Party of Arkansas et al.
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SUPREME COURT OF ARKANSAS
No.
08-1225
Opinion Delivered October 27, 2008
DWAYNE DOBBINS,
APPELLANT,
VS.
DEMOCRATIC PARTY OF ARKANSAS;
DAVID PRYOR, CHAIRMAN OF
DEMOCRATIC PARTY; MARIAH
HATTA, EXECUTIVE DIRECTOR OF
DEMOCRATIC PARTY; CHARLIE
DANIELS, SECRETARY OF STATE;
PU LASKI CO U N TY ELEC TIO N
C O M M ISSIO N ; KEN T W A LK ER ,
P U L A S K I C O U N T Y E L E C T IO N
COMMISSION CHAIRMAN; MARTHA
M CC ASKILL, PU LASKI CO UNTY
ELECTION COMMISSIONER; AND
OZELL SNIDER, PULASKI COUNTY
ELECTION COMMISSIONER,
APPELLEES,
APPEAL FR O M THE PU LASKI
COUNTY CIRCUIT COURT,
NO. CV 2008-11040,
HON. CHRISTOPHER CHARLES
PIAZZA, JUDGE,
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
1.
MANDAMUS — PETITION FOR WRIT OF MANDAMUS IS AN ORIGINAL ACTION — APPELLANT
COULD NOT FILE PETITION ANEW IN SUPREME COURT UPON DISMISSAL IN CIRCUIT COURT . —
A petition for a writ of mandamus is an original action and jurisdiction to issue a writ of
mandamus to a city or officer lies within the circuit court; here, appellant correctly filed his
petition for a writ of mandamus in the circuit court; however, upon dismissal of his petition
in circuit court, he could not file the same petition anew in the supreme court; even if the
supreme court had jurisdiction to issue the writ, such a writ would not be available because
the writ issues where there is no other adequate remedy; here, appellant had the right to
appeal the decision of the circuit court.
2.
ELECTIONS —
WRIT OF MANDAMUS
—
IN LIGHT OF THE NEED FOR JUDICIAL ECONOMY ,
SUPREME COURT TREATED IMPROPERLY PRESENTED MANDAMUS ACTION AS AN APPEAL FROM
THE CIRCUIT COURT ’S ORDER DENYING APPELLANT ’S REQUEST FOR THE WRIT .
— Although
this case may well have been improperly presented as a writ of mandamus directed to the
supreme court, time was of the essence in light of an upcoming election; being mindful of
this fact and the need for judicial economy, and because appellant did timely file a notice of
appeal, the supreme court treated the case as an appeal from the circuit court’s order denying
appellant’s request for a writ.
3.
ELECTIONS — PRIVATE POSTELECTION RIGHT TO CHALLENGE — APPELLANT HAD TWENTY
DAYS AFTER HE WAS DENIED CERTIFICATION TO CONTEST THE CERTIFICATION . — Under Ark.
Code Ann. § 7-5-801, a candidate seeking to contest the certification of nomination or
certificate of vote as made by appropriate officials in an election must file a verified
complaint within twenty days of the certification complained of; here, appellant clearly
objected to the certification; although, technically, his objection was that the Democratic
Party of Arkansas failed to certify him as a general-election candidate, the supreme court has
previously applied this statute to a failure to certify; therefore, appellant had twenty days after
he was denied certification to contest the certification; here, the decision not to certify
appellant was made by the DPA on July 19, 2008, appellant was notified by letter dated July
21, 2008, and appellant did not file his motion with the circuit court until October 10, 2008.
4.
ELECTIONS —
PRIVATE POSTELECTION RIGHT TO CHALLENGE
—
BECAUSE APPELLANT ’S
CHALLENGE WAS UNTIMELY , CIRCUIT COURT DID NOT ABUSE ITS DISCRETION BY DENYING
APPELLANT ’S MOTION .
— Where appellant did not timely challenge the DPA’s failure to
certify him for placement on the general-election ballot within the twenty days required by
Ark. Code Ann. § 7-5-801, the circuit court did not abuse its discretion by denying
appellant’s motion, and the decision of the circuit court was affirmed.
Morris and Associates, P.A., by: Jimmy C. Morris, Jr., for appellant.
Cahoon & Smith, by: T. Benton Smith, Jr., for appellants Democratic Party of Arkansas,
David Pryor, and Mariah Hatta.
Dustin McDaniel, Att’y Gen., by: Patrick E. Hollingsworth, Ass’t Att’y Gen., for appellee
Charlie Daniels.
Karla M. Burnett, Pulaski County Att’y, Amanda M. Mitchell, Ass’t Pulaski County Att’y,
and Chastity D. Scifres, Pulaski County Staff Att’y, Pulaski County Attorney’s Office, for appellee
Pulaski County Election Commission.
Appellant Dwayne Dobbins appeals the order of the Pulaski County Circuit Court
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denying his motion for a writ of mandamus, injunction, and declaratory relief for being
untimely pursuant to Arkansas Code Annotated section 7-5-801 (Repl. 2007). We find no
error and, therefore, affirm.
The material facts of the case are these. Dobbins filed documents with appellee
Democratic Party of Arkansas (DPA) seeking to be its nominee for State Representative,
District 39. On appeal, he states that he ran unopposed in the primary election; however, on
or about July 19, 2008, the DPA declined to certify Dobbins as its nominee for the November
4, 2008 general election. On July 21, 2008, the then-DPA Chairman Bill Gwatney advised
Dobbins by letter that he was not certified as the DPA’s nominee and returned Dobbins’s
filing fee.1
Dobbins took no further action until twenty-five days prior to the general election,
when on October 10, 2008, Dobbins filed a motion for a writ of mandamus, injunction, and
declaratory relief, seeking that appellees be directed to certify him and to place him on the
ballot for the position of State Representative, District 39. The circuit court held a hearing
on October 17, 2008, after which the circuit court dismissed Dobbins’s claims, finding that
he had failed to timely challenge the nomination within the time provided by Ark. Code
Ann. § 7-5-801. Dobbins then filed a notice of appeal from the circuit court’s order that
same day.
1
The record reveals that Dobbins cashed the DPA’s check refunding his filing fee.
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The circuit court’s written order was filed on October 21, 2008.2 The same day,
Dobbins moved this court for a writ of mandamus, injunction, and declaratory relief, and
further moved to expedite the hearing of his petition. Dobbins prayed for this court to direct
the respondents to his petition (here, the appellees) to place him on the ballot for the position
of State Representative, District 39. This court granted his motion to expedite and ordered
simultaneous briefing by the parties on Dobbins’s petition.
Before proceeding to the merits of this case, we must determine whether the case
before us is being presented as a writ of mandamus or an appeal. While Dobbins did file a
timely notice of appeal with the circuit court and timely lodged the record with our clerk, the
motion he then presented and requested this court to expedite was for a writ of mandamus,
injunction, and declaratory relief that was almost identical to the writ he filed with the circuit
court below. The case was listed on this court’s docket as a petition, not an appeal, and the
only relief sought in his motion was for this court to directly issue a writ of mandamus
instructing the adverse parties to replace his name on the ballot.
This court has previously observed that a petition for a writ of mandamus is an original
action and that jurisdiction to issue a writ of mandamus to a city or officer lies within the
circuit court. See Spatz v. City of Conway, 362 Ark. 588, 210 S.W.3d 69 (2005). Dobbins
correctly filed his petition for a writ of mandamus in the circuit court; however, upon
dismissal of his petition in circuit court, he may not file the same petition anew in this court.
2
Although the notice of appeal was filed prior to the filing of the circuit court’s order, it
shall be treated as filed on the day after the order was entered. See Ark. R. App. P. - Civil 4(a)
(2008).
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See id. Even if this court had jurisdiction to issue the writ, such a writ would not be available
because the writ only issues where there is no other adequate remedy. See id. (citing Saunders
v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995)). Here, Dobbins had the right to appeal the
decision of the circuit court.
Although this case may well have been improperly presented as a writ of mandamus
directed to this court, we are aware of the unique circumstances involved. The merits of this
case involve an upcoming election and, therefore, time is of the essence. As we are mindful
of that fact and of the need for judicial economy, and because Dobbins did timely file a notice
of appeal, we will treat this case as an appeal from the circuit court’s order denying Dobbins’s
request for the writ.
The standard of review on a denial of a writ of mandamus is whether the circuit court
abused its discretion. See Republican Party of Garland County v. Johnson, 358 Ark. 443, 193
S.W.3d 248 (2004). Dobbins argues that the circuit court erred by applying Ark. Code Ann.
§ 7-5-801 and finding that his writ was untimely because it was not filed within twenty days
of the date the DPA declined to certify him as its nominee. We find no error and affirm.
The private postelection right to challenge an election is provided by Ark. Code Ann.
§ 7-5-801. Section 7-5-801 states:
(a) A right of action is conferred on any candidate to contest the certification
of nomination or the certificate of vote as made by the appropriate officials in
any election.
(b) The action shall be brought in the circuit court of the county in which
the certification of nomination or certificate of vote is made when a county or
city or township office, including the office of county delegate or county
committeeman, is involved, and except as provided in this subchapter, within
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any county in the circuit or district wherein any of the wrongful acts occurred
when any circuit or district office is involved, and except as provided in this
subchapter, in the Pulaski County Circuit Court when the office of United
States Senator or any state office is involved.
(c) If there are two (2) or more counties in the district where the action is
brought and when fraud is alleged in the complaint, answer, or cross-complaint,
the circuit court may hear testimony in any county in the district.
(d) The complaint shall be verified by the affidavit of the contestant to the
effect that he or she believes the statements to be true and shall be filed within
twenty (20) days of the certification complained of.
(e) The complaint shall be answered within twenty (20) days.
Here, Dobbins clearly objected to the certification.
Although, technically, his
objection was that the DPA failed to certify him as a general-election candidate, this court has
previously applied this statute to a failure to certify. See Daniels v. Weaver, 367 Ark. 327, 240
S.W.3d 95 (2006). Therefore, Dobbins had twenty days after he was denied certification to
contest the certification. As previously noted, the decision not to certify Dobbins was made
by the DPA on July 19, 2008, the DPA notified Dobbins by letter dated July 21, 2008, and
Dobbins did not file his motion with the circuit court until October 10, 2008.
Dobbins contends that the facts of this case are distinguishable from those presented
in Weaver, supra, because he asserts that unlike Weaver, he had been placed on the ballot and
then “illegally removed” from the ballot by the DPA. However, the record is clear that while
he ran unopposed in the primary election, the DPA chose not to certify him to be placed on
the general-election ballot. His name was never placed on the ballot for the general election
and, therefore, he was not “illegally removed” from the ballot. His remedy was to contest
the DPA’s failure to certify him for placement on the ballot.
We hold that Dobbins did not timely challenge the DPA’s failure to certify him for
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placement on the general-election ballot within the twenty days required by Ark. Code Ann.
§ 7-5-801. Therefore, the circuit court did not abuse its discretion by denying Dobbins’s
motion, and we, accordingly, affirm. The mandate herein will issue on October 30, 2008,
unless a petition for rehearing is filed. Any petition for rehearing must be filed by October
28, 2008, and any response by October 29, 2008.
Affirmed.
W ILLS, J., not participating.
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08-1225
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