Fite v. Grulkey
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Appellee Michael Grulkey sought to have Appellant Thomas Fite disqualified to run as an electoral candidate to the General Assembly. In July, 2010, the Arkansas Republican Party certified Fite as its candidate for the eighty-third district for the November 2, 2010 election. Grulkey, a registered voter in that district, petitioned the circuit court for a writ of mandamus or declaratory judgment, alleging that Fite was ineligible to hold office because of a prior conviction in 1984 for Medicaid bribery. The court ruled that Fite’s conviction rendered him ineligible to run for office, and entered the order on October 27, 2010. Appellant appealed the order on November 4, 2010 - two days after the election - and filed a motion to the Supreme Court to expedite review on November 23, 2010. Seeing no need to proceed, the Court dismissed the case citing that any review of a candidate’s eligibility becomes moot once an election has taken place.
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Cite as 2011 Ark. 188
SUPREME COURT OF ARKANSAS
No.
10-1181
THOMAS L. FITE
Opinion Delivered
April 28, 2011
APPELLANT
VS.
MICHAEL W. GRULKEY; FRANKLIN
COUNTY ELECTION COMMISSION;
CRAWFORD COUNTY ELECTION
COMMISSION; CHARLIE DANIELS,
ARKANSAS SECRETARY OF STATE
APPELLEES
APPEAL FROM TH E PU LASKI
COUNTY CIRCUIT COURT,
NO. CV-2010-6013
HON. RAYMOND C. KILGORE, JR.,
JUDGE
DISMISSED.
COURTNEY HUDSON HENRY, Associate Justice
This case concerns a preelection contest brought by appellee Michael Grulkey seeking
to disqualify appellant Thomas L. Fite as a candidate for the General Assembly. Fite appeals
an order entered by the Pulaski County Circuit Court declaring him ineligible to hold office
and directing that his name be removed from the ballot, prohibiting election officials from
counting any votes in his favor, and precluding the certification of the election with him as
the prevailing candidate. For reversal, Fite contends that the circuit court erred in finding that
he received valid service of process. He also asserts that Grulkey’s petition for writ of
mandamus and declaratory judgment was not timely filed and that, because the petition was
untimely, the circuit court lacked jurisdiction to afford appropriate relief. As this appeal
pertains to elections and election procedures, this court has jurisdiction pursuant to Ark. Sup.
Cite as 2011 Ark. 188
Ct. R. 1-2(a)(4). Because the election has been held, the issues raised by Fite are moot, and
we dismiss the appeal.
On July 28, 2010, the Republican Party of Arkansas certified Fite as its candidate for
state representative in district eighty-three for the upcoming general election on November
2, 2010. District eighty-three includes portions of Crawford and Franklin Counties. On
October 20, 2010, Grulkey, a registered voter in the district, petitioned the Pulaski County
Circuit Court for a writ of mandamus and declaratory judgment.1 In the petition, Grulkey
alleged that Fite was not eligible to hold office under article 5, section 9 of the Arkansas
Constitution, because in 1984 Fite had been convicted of Medicaid bribery in federal court.2
The circuit court scheduled a hearing for October 26, 2010. However, prior to the hearing,
Fite filed a motion to quash service of process, asserting that he had not been properly served.
As a consequence, the circuit court postponed the hearing for one day. When the hearing
convened the next day, Fite was not in attendance, but his attorney appeared via Skype
teleconferencing.
The circuit court first addressed the issue of service. The question before the court was
whether service was valid under the provisions of Rule 4(d)(1) of the Arkansas Rules of Civil
1
In the petition, Grulkey also named as defendants the Crawford County Election
Commission, the Franklin County Election Commission, the Crawford County Circuit
Clerk, the Franklin County Circuit Clerk, and the Secretary of State. The inclusion of the
Secretary of State as a defendant was proper and fixed venue of the action in Pulaski County.
Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000).
2
Article 5, section 9 of the Arkansas Constitution provides that “[n]o person hereafter
convicted of embezzlement of public money, bribery, forgery or other infamous crime, shall
be eligible to the General Assembly or capable of holding office of trust or profit in this State.”
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Procedure. After hearing conflicting evidence, the circuit court found that the residence of
Fite’s father was Fite’s usual place of abode and that service was perfected on Fite when his
father accepted service at the residence. At this juncture in the proceedings, Fite made an
appearance in court. Grulkey introduced into evidence a 1984 judgment and disposition order
from the United States District Court of the Eastern District of Arkansas reflecting the
conviction of “Thomas L. Fite III” for “Medicaid bribery in violation of 42 USC §
1395nn(a)(1)(ii)” and sentence of three years’ probation. Further, Fite testified that he was the
person who stood convicted of this offense. The parties also stipulated that persons in both
Crawford and Franklin Counties voted electronically; that the ballots could not be altered at
that point in time; and that, once cast, any votes would be tabulated. Following argument of
counsel, the circuit court ruled that Fite’s conviction for Medicaid bribery rendered him
ineligible to hold office. The court promptly entered an order setting forth its ruling that same
date, October 27, 2010. Fite filed a notice of appeal on November 4, 2010.3 Thereafter, on
November 23, 2010, Fite filed a motion to expedite review, which we granted on December
9, 2010.
Grulkey filed this action pursuant to Arkansas Code Annotated section 7-5-207(b)
(Supp. 2009). This statute provides the means for a voter to raise a preelection attack on a
candidate’s eligibility to stand for election and for the removal of that ineligible candidate’s
name from the ballot. Clement v. Daniels, 366 Ark. 352, 235 S.W.3d 521 (2006); State v.
3
On October 29, 2010, Fite filed a petition for writ of prohibition with this court.
We denied the petition without prejudice on November 1, 2010.
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Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). This court
has consistently recognized that the proper procedure to enforce section 7-5-207(b) is an
action for writ of mandamus coupled with declaratory relief, which provides prompt
consideration of determining a candidate’s eligibility. See Tumey v. Daniels, 359 Ark. 256, 196
S.W.3d 479 (2004); Helton v. Jacobs, 346 Ark. 344, 57 S.W.3d 180 (2001); Ivy v. Republican
Party of Ark., 318 Ark. 50, 883 S.W.2d 805 (1994); Craighead County Bd. of Election Comm’rs,
supra. A voter may avail himself or herself of this right at any time prior to the general
election. Tumey, supra; see also Oliver v. Phillips, 375 Ark. 287, 290 S.W.3d 11 (2008).
However, in a long line of cases, we have observed that the issue of a candidate’s eligibility
under section 7-5-207(b) becomes moot once the election takes place. Oliver, supra; Clement,
supra; Ball v. Phillips County Election Comm’n, 364 Ark. 574, 222 S.W.3d 205 (2006); Tumey,
supra; Benton v. Bradley, 344 Ark. 24, 37 S.W.3d 640 (2001); McCuen v. McGee, 315 Ark. 561,
868 S.W.2d 503 (1994); Craighead County Bd. of Election Comm’rs, supra. We have made
exceptions in cases where the public interest is involved and where the issues presented are
ones that are likely to recur. Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998) (holding
that violation of the two- to-seven-day provision in Ark. R. Civ. P. 78(d) for conducting
hearings does not deprive a circuit court of jurisdiction); Craighead County Bd. of Election
Comm’rs, supra (holding that proper procedure for challenging the eligibility of a candidate is
by writ of mandamus in conjunction with declaratory relief); see also Valley v. Bogard, 342 Ark.
336, 28 S.W.3d 269 (2000) (addressing issues of necessary and indispensable parties and venue
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arising from a primary-election-eligibility contest); Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d
734 (2000) (addressing issue of standing arising from an eligibility contest in a primary
election).
Of particular significance to the case at hand is our decision in Benton, supra. There,
the circuit court denied the appellant’s preelection eligibility challenge to a candidate for
municipal judge, who subsequently won the election and had been seated in office at the time
of our review. Under those circumstances, we dismissed the appeal as untimely and moot.
In the opinion, we contrasted the appeal with the one in Benton v. Gunter, 342 Ark. 543, 29
S.W.3d 719 (2000), that involved another eligibility contest filed before the election.
Although the same circuit court had resolved the issues in Gunter and Benton on the same date,
the appeal in Gunter was expedited and decided by this court before the election.
Our courts have in place adequate procedures for accelerating consideration of these
matters.
Beginning with the circuit court, Rule 78(d) of the Arkansas Rules of Civil
Procedure requires petitions for writs of mandamus in election contests to be heard no sooner
than two and no longer than seven days after filing. An aggrieved party may then pursue an
expedited appeal pursuant to Rule 6-1(b) of the Rules of the Arkansas Supreme Court and
Court of Appeals. A case becomes moot when any judgment rendered would have no
practical legal effect upon a then existing legal controversy. Shipp v. Franklin, 370 Ark. 262,
258 S.W.3d 744 (2007). In this instance, Fite did not file a notice of appeal until after the
election was over, and thereafter he waited fifteen days to request expedited review. The lapse
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of time has rendered moot the issues presented on appeal. We perceive no need to issue an
opinion that would be purely advisory, as the interests raised are not likely to recur and do not
implicate the public interest.
Dismissed.
6
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