Citizens to Establish a Reform Party v. Priest

CITIZENS to ESTABLISH a REFORM PARTY in
Arkansas, et al. v. Sharon PRIEST, in Her
Official Capacity as Secretary of State for
the State of Arkansas

96-639                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 8, 1996


1.   Statutes -- construction of -- basic rule. -- The basic rule
     of statutory construction, to which all other interpretive
     guides must yield, is to give effect to the intent of the
     General Assembly; as a guide in ascertaining legislative
     intent, the supreme court often examines the history of the
     statutes involved, as well as the contemporaneous conditions
     at the time of their enactment, the consequences of
     interpretation, and all other matters of common knowledge
     within the court's jurisdiction.

2.   Statutes -- words inadvertently left in statute may be
     disregarded -- repeal of one act may render provisions of
     another act meaningless. -- Where the language of both
     statutes which excepted presidential primaries from their
     application was superfluous in that it was held over from a
     time when it was necessary to distinguish between presidential
     and nonpresidential primaries, the exception contained in Ark.
     Code Ann.  7-1-101(1)(B (Supp. 1995)) and  7-7-203(g)(Supp.
     1995) was no longer necessary; words that the legislature has
     inadvertently left in a statute and that are unnecessary or
     serve no useful purpose may be disregarded; further, repeal of
     one act may render provisions of another act meaningless. 

3.   Statutes -- language in statute included by mistake --
     codification error cannot be allowed to circumvent legislative
     intent. -- In the case of Ark. Code Ann.  7-7-203(g), the
     presidential-primary exception was included in the Code by
     mistake where the legislature eliminated the exception in Act
     248 of 1987; although the supreme court is reluctant to
     interpret a statute in a manner contrary to its express
     language, a drafting error or codification error cannot be
     allowed to circumvent legislative intent.  

4.   Statutes -- interpretation of law which leads to absurd result
     will not be adopted -- legislature did not intend to except
     presidential primaries from application of the new party
     petition deadlines. -- The legislature could not have intended
     that new parties wishing to run a candidate for president be
     completely exempt from any petition deadline; the court will
     not adopt an interpretation of the law that leads to an absurd
     result; therefore, it was held that the legislature did not
     intend to except presidential primaries from the application
     of the new party petition deadlines in these statutes and  7-
     7-203(g) in particular.

5.   Statutes -- conflicting deadlines existed in statutes -- 
     "last passed" rule inapplicable -- intent of Legislature must
     be given effect. -- Normally, when two statutes are in
     conflict with each other, the latter act controls; however,
     the rule must yield when its application would undermine
     legislative intent; where Acts passed at the same session
     contain conflicting clauses, the whole record of legislation
     will be examined to ascertain the legislative intent, which,
     if ascertained, will be given effect, regardless of priority
     of enactment.

6.   Statutes -- amendments to law -- those portions of a law that
     are retained and not amended are not considered new
     enactments. -- When an act amends the law, portions of the law
     that are not amended but simply retained are not thought of as
     new enactments; resorting to the "last passed" rule under such
     circumstances would elevate mechanical application over
     thoughtful analysis.

7.   Statutes -- construction of statutes to divine intent of
     legislature -- January deadline served legislative intent. -- 
     In divining the intent of the legislature, the court may 
     construe the statutes in question by looking to all laws on
     the subject, viewing them as a single system and giving effect
     to the general purpose of the system; here, when the state's
     system of election laws was viewed as a whole, it was clear
     that the January deadline contained in  7-7-203(g) was most
     likely to serve the intention of the legislature.  

8.   Statutes -- May deadline unworkable -- interpretation of
     statute which leads to unworkable consequences will be
     rejected. -- The May deadline contained in  7-1-101(1)(B) was
     virtually unworkable under Arkansas's scheme of election laws
     because a potential political party submitting its petition on
     May 7 could not, from a practical standpoint, have
     participated in the primary process; a January deadline would
     have allowed a proper review of petition signatures, while a
     May deadline would not; additionally, various statutory
     deadlines which peaceably coexist with a January 2 deadline
     would be rendered meaningless if the May 7 deadline prevailed;
     an interpretation of a statute that leads to absurd or
     unworkable consequences will be rejected.  

8.   Statutes -- deadline contained in Ark. Code Ann. 7-7-203(g)
     best reflected legislature's intent -- appellants failed to
     timely qualify as a new political party. -- Where it was
     proper, and in fact necessary, for the court to consider the
     practical effect of choosing one statute over another, and the
     last purposeful, unadulterated enactment of a new petition
     deadline, which was not the product of a mere restatement of
     existing law, established a January deadline with no
     exceptions of any kind, the supreme court was convinced that
     the deadline contained in  7-7-203(g) best reflected the
     intention of the legislature; because that deadline for
     purposes of 1996 would have been January 2, and because the
     appellants did not file a meritorious petition by that date,
     they failed to qualify as a new political party.


     Appeal from Pulaski Circuit Court; David Bogard, Judge;
affirmed.
     Cuddy & Lanham, by:  Samuel Lanham, Jr., of Counsel, and
Williams & Anderson, by:  G. Alan Perkins, for appellants.
     Winston Bryant, Att'y Gen., by:  Angela S. Jegley, Asst. Att'y
Gen., for appellee.

     Bradley D. Jesson, Chief Justice.July 8, 1996
*ADVREP*SC3*




CITIZENS TO ESTABLISH A REFORM
PARTY IN ARKANSAS, ET AL.,
                    APPELLANTS,

V.

SHARON PRIEST, IN HER OFFICIAL
CAPACITY AS SECRETARY OF STATE
FOR THE STATE OF ARKANSAS,
                    APPELLEE,




96-639


APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. 96-5104,
HON. DAVID BOGARD, JUDGE,




AFFIRMED.



                BRADLEY D. JESSON, CHIEF JUSTICE


     
     This case concerns the appellants' efforts to establish the
Reform Party as a new political party in the State of Arkansas. 
Their objective is to field a slate of candidates for national,
state, and county offices in the 1996 general election.  Arkansas
law provides two means of forming a new political party.  The
convention process permits a political group to hold a convention
for the purpose of choosing presidential and vice-presidential
candidates.  See Ark. Code Ann.  7-8-302 (Repl. 1993).  If the
candidates poll at least three percent of the vote in the general
election, the candidates' group is established as a political
party.  See Ark. Code Ann.  7-1-101(1)(A) (Supp. 1995).  The
petition process, which was used by these appellants, permits a
political group to submit a petition to the Secretary of State
declaring its intention of organizing a political party.  The
petition must contain the signatures of qualified electors equal in
number to at least three percent of the total vote cast for the
office of Governor or nominees for presidential electors at the
last preceding election.  See Ark. Code Ann.  7-1-101(1)(A) (Supp.
1995);  Ark. Code Ann.  7-7-203(g) (Supp. 1995).  
     The central issue in this case concerns the deadline by which
such a petition must be filed.  There are two Arkansas statutes
which address the deadline and they are in utter conflict.  Ark.
Code Ann.  7-1-101(1)(B) (Supp. 1995) sets out the deadline as
follows:   

     Except in preferential presidential primary elections,
     the petition shall be filed with the Secretary of State
     not later than 12:00 noon of the first Tuesday in May
     before the preferential primary election in which the
     political party filing the petition desires to
     participate.

    
     Ark. Code Ann.  7-7-203(g) sets out a different deadline: 

     The petitions shall be filed with the Secretary of State
     no later than 12:00 noon on the first Tuesday in the
     fourth month before the preferential primary
     election....However, this subsection does not apply to
     preferential presidential primary elections.


     Two problems are readily apparent.  First, under  7-1-
101(1)(B), the effective filing deadline in 1996 was May 7.  Under
 7-7-203(g), the effective filing deadline for 1996 was January 2. 
Second, each statute exempts preferential presidential primaries
from its application.  The trial judge resolved these matters by
holding that the January 2 deadline in  7-7-203(g) was controlling
and that the legislature did not intend to exempt presidential
primaries from  7-7-203(g).  We agree and affirm.
     The facts of this case are undisputed.  In November of 1995,
Deborah Kraus, a political consultant for the Reform Party,
approached a representative of the Secretary of State's office to
discuss procedures for formation of a new political party.  She was
told that her group would have to submit a petition containing
21,505 signatures, which was three percent of the total votes cast
for Governor in the 1994 election.  She was further told that the
deadline for filing the petition with the Secretary of State was
January 2, 1996.  On that date, the appellants presented a petition
containing 28,546 signatures.  Forty-five days later, the Secretary
rejected the petition after concluding that only 17,262 of the
signatures were valid. 
     Upon rejection of their petition, the appellants reviewed the
law and discovered the conflict which exists between  7-1-
101(1)(B) and  7-7-203(g).  They then took the position that the
deadline for filing their petition was not January 2, 1996, as
established by  7-7-203(g), but May 7, 1996, as established by 
7-1-101(1)(B).  On May 6, 1996, they tendered to the Secretary of
State a petition containing 7,000 new signatures and purported
proof that 1,952 signatures from the original petition had been
wrongfully rejected.  The Secretary refused to accept the tender
and reasserted the January 2, 1996 deadline.  The appellants
immediately filed suit in Pulaski County Circuit Court, seeking the
following relief:  1) a writ of mandamus directing the Secretary to
accept the May 6 petition and declare the Reform Party a new
political party in Arkansas;  2) a declaration that the May 7
deadline set out  7-101-1(1)(B) was the operative deadline;  3) a
declaration that neither  7-1-101(1)(B) nor  7-7-203(g) provided
a deadline for a new party to participate in a presidential
preferential primary election; and, 4) a declaration that the
Secretary's refusal to accept the May 6 petition violated the
Arkansas Civil Rights Act of 1993.
     A hearing was held on May 9, 1996, just three days after the
lawsuit was filed.  On May 14, 1996, one week before the State's
preferential primary election, the trial judge issued a letter
opinion in which he held that the controlling deadline was January
2, 1996, pursuant to  7-7-203(g).  The judge further held that the
legislature did not intend to exempt new parties wishing to
participate in presidential preferential primaries from the January
2 deadline.  Finally, the judge held that no violation of the
Arkansas Civil Rights Act had occurred.  The letter ruling was
memorialized in an order entered May 17, 1996 and it is that order
from which the appellants bring their appeal.    
     The basic rule of statutory construction, to which all other
interpretive guides must yield, is to give effect to the intent of
the General Assembly.  Pugh v. St. Paul Fire & Marine Ins. Co., 317
Ark. 304, 877 S.W.2d 577 (1994).  As a guide in ascertaining
legislative intent, we often examine the history of the statutes
involved, as well as the contemporaneous conditions at the time of
their enactment, the consequences of interpretation, and all other
matters of common knowledge within the court's jurisdiction.  City
of Little Rock v. AT&T Comm., 318 Ark. 616, 888 S.W.2d 290 (1994); 
Mears v. Arkansas State Hospital, 265 Ark. 844, 581 S.W.2d 339
(1979).  A brief review of legislative history in this case shows
the genesis of the conflict between  7-1-101(1)(B) and  7-7-
203(g).

                        1971 Legislation
     The first conflict between the statutes appeared after the
passage of Acts 261, 347 and 829 of 1971.  Act 261 established a
deadline which fell during the month of May under  7-1-101(1)(B).
Acts 347 and 829 established a deadline which fell during the month
of March under  7-7-203(g).
  
                        1977 Legislation
     In 1977, a federal court ruled that the conflict between  7-
1-101(1)(B) and  7-7-203(g) rendered the new party petition
deadline vague and unenforceable.  American Party of Arkansas v.
Jernigan, 424 F. Supp. 943 (E.D. Ark. 1977).  Special note was made
of the confusion engendered by piecemeal amendment of the State's
election laws.  In response to the federal court ruling, the
legislature passed Act 888 of 1977.  The Act established an
identical deadline for both  7-1-101(1)(B) and 7-7-203(g):  the
first Tuesday in May before the preferential primary.  For the
moment, the conflict was resolved.

                        1987 Legislation
     Ten years later, a new set of significant election laws was
enacted.  Act 123 of 1987 created a separate and distinct
presidential preferential primary to be held the second Tuesday in
March (the preferential primary for state and county offices was
scheduled two weeks before the second Tuesday in June).  Section 1
of the Act contained the requirements for forming a new political
party with the purpose of participating in the presidential
primary.  The petition deadline was the second Tuesday in November
in the year preceding the presidential primary.  The legislature
did not change the "first Tuesday in May" deadlines contained in 
7-1-101(1)(B) and  7-7-203(g).  However, language was inserted
into those statutes to show that they were inapplicable to
preferential presidential primary elections.  Section 7-1-101(1)(B)
now began with the phrase "except in preferential presidential
primary elections..." and  7-7-203(g) now ended with the phrase
"this section does not apply to preferential presidential primary
candidates."
     In the same legislative session, the General Assembly passed
Act 248 of 1987 and it is here that we see the origin of the
present conflict.  Without explanation,  7-7-203(g) was amended to
read, in pertinent part, as follows:

     The petitions shall be filed with the Secretary of State
     no later than twelve o'clock (12:00) noon on the first
     Tuesday in the fourth calendar month before the
     preferential primary election.


     Act 248 not only changed the statute's May deadline to a
January deadline, it removed all language excepting presidential
primaries from the statute's application.  Thus, at the end of
1987, election laws pertaining to new party petition deadlines were
in hopeless conflict.  One law imposed a November deadline for
parties wishing to run a candidate in the presidential primary; 
another law imposed a May deadline but excepted presidential
primaries;  and a third law imposed a January deadline with no
exceptions.

                        1989 Legislation
     Two years later, some of this confusion was alleviated.  Act
700 of 1989 repealed those parts of Act 123 of 1987 pertaining to
presidential primaries.  Thus, the separate and distinct
presidential primary, along with the November deadline, ceased to
exist.  Sections 7-1-101(1)(B) and 7-7-203(g) continued in full
force and effect.  However, even though it was no longer necessary,
each statute continued to reflect that its provisions were
inapplicable to presidential primaries.  In the case of  7-1-
101(1)(B), it is clear that the legislature simply failed to
address the further necessity of the presidential primary
exception.  In the case of  7-7-203(g), the presence of the
presidential primary exception was more puzzling.  Act 248 of 1987
completely removed all such language from the statute.  Yet the
following phrase, somewhat modified from its original form,
appeared in the Arkansas Code version of the statute:

     this subsection does not apply to preferential
     presidential primary elections.  (Emphasis added to show
     modification of language).

See Ark. Code Ann.  7-7-203(g) (Supp. 1987).  See also the 1989,
1993, and 1995 Supplements and the 1993 Replacement volume.

                        1995 Legislation
     We arrive now at the contemporary legislation that was spawned
by this history.  Three Acts pertaining to election laws were
passed by the legislature in 1995.  The first, Act 901, was passed
for the purpose of establishing state-supported primary elections. 
Although Act 901 did not purport to amend  7-7-203(g), it set out
the January deadline and, inexplicably, added the type of language
which had been deleted by Act 248 of 1987:  "this subsection does
not apply to preferential presidential primary elections."  This
language is identical to that contained in the Arkansas Code
beginning in 1987.  
     Acts 946 and 943 were passed for the purpose of complying with
the National Voter Registration Act of 1993.  See 42 U.S.C. 
1973gg to gg-10 (Supp. 1996).  Neither Act purported to amend  7-
1-101(1)(B), yet they each reiterated the May deadline and the
statute's presidential primary exception.  These Acts were approved
two days after Act 901 was approved.

     With this history in mind, we turn to our analysis of the
issues.  We address first the language of both statutes, which
excepts presidential primaries from their application.  The
exception is superfluous in both cases.  It is held over from a
time when it was necessary to distinguish between presidential and
nonpresidential primaries.  Once Act 700 of 1989 did away with
separate presidential primaries and their corresponding November
deadline, the exception contained in  7-1-101(1)(B) and  7-7-
203(g) was no longer necessary.  Words that the legislature has
inadvertently left in a statute and that are unnecessary or serve
no useful purpose may be disregarded.  City of Fort Smith v. Tate,
311 Ark. 405, 844 S.W.2d 356 (1993);  2A N.J. Singer Sutherland
Statutory Construction,  47.37 (5th ed. 1994).  Further, repeal of
one act may render provisions of another act meaningless.  Witt v.
Arkansas Game & Fish Comm'n, 195 Ark. 21, 110 S.W.2d 704 (1937).  
     We also note that, in the case of  7-7-203(g), the
presidential primary exception appears to have been included by
mistake.  As previously stated, the legislature eliminated the
exception in Act 248 of 1987.  Nevertheless, it was erroneously
included in the Code beginning with the 1987 Supplement.  In
drafting Acts 946 and 963 of 1995, the legislature obviously looked
to the Code provisions.  The language used in those Acts does not
reflect the original language contained in Act 123 of 1987.  It
mirrors the modified version of the exception which erroneously
appeared in the Arkansas Code.  We are reluctant to interpret a
statute in a manner contrary to its express language, but we cannot
allow a drafting error or codification error to circumvent
legislative intent.  Rosario v. State, 319 Ark. 764, 894 S.W.2d 888
(1995);  Cox v. City of Caddo Valley, 305 Ark. 155, 806 S.W.2d 6
(1991).  
     Finally, the legislature could not have intended that new
parties wishing to run a candidate for president be completely
exempt from any petition deadline.  The appellants admitted to the
trial court that some type of deadline was necessary, as a
practical matter.  We will not adopt an interpretation of the law
which leads to an absurd result.  Henson v. Fleet Mtg. Co., 319
Ark. 491, 892 S.W.2d 250 (1995).  We therefore hold that the
legislature did not intend to except presidential primaries from
the application of the new party petition deadlines in these
statutes,  7-7-203(g) in particular.
     We now turn to the question of which deadline must prevail. 
The statutes are in hopeless conflict, so one must control and one
must yield.  The appellants urge us to adopt the approach we have
often taken when two statutes are in conflict with each other,
i.e., the latter act controls.  See Gibson v. City of Trumann, 311
Ark. 561, 845 S.W.2d 515 (1993);  Roberts v. Tice, 198 Ark. 397,
129 S.W.2d 258 (1939).  They point to the fact that Acts 946 and
963 of 1995, which set out the May deadline, were passed two days
later than Act 901 of 1995, which sets out the January deadline. 
We decline to make a rigid application of the "last passed" rule in
this case.  In Horn v. White, 225 Ark. 540, 284 S.W.2d 122 (1955),
we observed that the rule must yield when its application would
undermine legislative intent.  We stated the following:

     Where Acts passed at the same session contain conflicting
     clauses, the whole record of legislation will be examined
     to ascertain the Legislative intent, and such intent, if
     ascertained, will be given effect, regardless of priority
     of enactment.


     It is also noteworthy that, since 1987, the only enactments of
the deadlines in either statute were in the nature of nonamendatory
re-enactments.  Act 241 of 1991 and Acts 946 and 963 of 1995 merely
retained the May deadline originally established in Act 123 of
1987.  Act 901 of 1995 merely retained the January deadline from
Act 248 of 1987.  When an act amends the law, portions of the law
that are not amended but simply retained are not thought of as new
enactments.  Peterson Produce Co. v. Cheney, 237 Ark. 600, 374 S.W.2d 809 (1964).  Resorting to the "last passed" rule under such
circumstances would elevate mechanical application over thoughtful
analysis.
     In divining the intent of the legislature, we may construe the
statutes in question by looking to all laws on the subject, viewing
them as a single system and giving effect to the general purpose of
the system.  Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995);  Pace v. State Use Saline County, 189 Ark. 1104, 76 S.W.2d 294 (1934).  When we view our State's system of election
laws as a whole, it is clear that the January deadline contained in
 7-7-203(g) would most likely serve the intention of the
legislature.  
     The May deadline contained in  7-1-101(1)(B) is virtually
unworkable under Arkansas's scheme of election laws.  Political
party nominees in special or general elections must be selected
first at a primary election.  Lewis v. West, 318 Ark. 334, 885 S.W.2d 663 (1994).  In 1996, the preferential primary election fell
just two weeks after the May 7 deadline established by  7-1-
101(1)(B).  A potential political party submitting its petition on
May 7 could not, from a practical standpoint, have participated in
the primary process.   Jacque Alexander, Director of Elections for
the Secretary of State, testified below that her office had needed
thirty days to review the 28,546 signatures submitted in the
original petition.  The January deadline would allow a proper
review of petition signatures;  a May deadline would not. 
Additionally, various statutory deadlines which peaceably coexist
with a January 2 deadline would be rendered meaningless if the May
7 deadline prevailed.  See Ark. Code Ann.  7-7-203(c) (Supp. 1995)
(party pledges and filing fees in March and April);  Ark. Code Ann.
 7-7-203(d) (Supp. 1995) (certification of candidates in March); 
Ark. Code Ann.  7-7-305(b) (Supp. 1995) (drawing for ballot
positions in April);  Ark. Code Ann.  7-5-418(a) (Supp. 1995)
(early voting beginning on May 6).  Interpretation of a statute
which leads to absurd or unworkable consequences will be rejected. 
Henson v. Fleet Mtg. Co., supra;  Horn v. White, supra.
     The appellants argue that the trial judge invaded the province
of the legislature by considering the wisdom or expediency of the
statutes involved.  It is true that courts must take care when
interpreting statutes to avoid overstepping the bounds of the
judiciary function.  However, that was not done in this case.  The
trial court was faced with the task of choosing between two
conflicting statutes.  It was proper, and in fact necessary, for
the court to consider the practical effect of choosing one statute
over another.
     Finally, we observe that the last purposeful, unadulterated
enactment of a new petition deadline, which was not the product of
a mere restatement of existing law, occurred in Act 248 of 1987. 
That act established a January deadline with no exceptions of any
kind.
     In light of the foregoing, we are convinced that the deadline
contained in  7-7-203(g) best reflects the intention of the
legislature.  Since that deadline for purposes of 1996 would have
been January 2, and since the appellants did not file a meritorious
petition by that date, they failed to qualify as a new political
party.
     The appellants conceded in oral argument that the viability of
their claim under the Arkansas Civil Rights Act of 1993, Ark. Code
Ann.  16-123-101 to 108 (Supp. 1995) was dependent upon our
ruling with regard to the statutory deadline.  In light of our
holding, it is not necessary to address the appellants' civil
rights claims.
     In closing, we note that the relief sought by the appellants
in this case is unusual.  They do not wish to hold a primary. 
Rather they ask that we allow them to hold a convention for the
purpose of selecting candidates for the general election in
November, much the way a vacancy in office is filled.  See Ark.
Code Ann.  7-7-104(a)(1) (Repl. 1993).  Since we are holding
against the appellants on the deadline question, we do not reach
the issue of whether such a remedy is available, in light of Lewis
v. West, supra.
     Affirmed.
     Dudley, J., not participating.