concurring.
I concur. Because I am of the opinion the chancellor had no jurisdiction to decide this case below, I would reverse with directions to dismiss this cause. Accordingly, I would not reach the merits of the appellees’ cross-appeal.
On July 17, 1995, less than four months ago, this court considered for the first time a subject matter jurisdiction question like the one before us now, and by a 4-3 vote, decided chancery court had jurisdiction to enjoin an election official — the Secretary of State — from canvassing election returns and counting votes from the November 8,1994 General Election on proposed Amendment 2, which was referred to the vote of the people pursuant to Ark. Const. art. 19, § 22. The four-member majority’s decision was wrong and should now be overturned. The dissenting opinions, citing this court’s landmark case of Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), pointed out that chancery court has no authority to decide election or political rights cases. In relevant part, the Catlett decision stated the following:
Nor can it [chancery court] be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules in pursuance of which, an election shall be held. Those matters involve in themselves no property right but pertain solely to the political administration of government.
The Catlett court also stated courts of equity have no authority or jurisdiction to interpose for the protection of rights which are purely political, and where no civil or property right is involved.
Here, the relief sought and obtained by the plaintiffs in this case was (1) for Acts 1 and 2 of 1995 to be declared invalid and (2) for the December 12, 1995 special election to be enjoined. Although Catlett holds chancery courts have no authority to decide political rights issues or to restrain the holding of elections, that is the very relief granted by the chancellor in this case. In allowing and arguing the invalidity of Act 1, plaintiffs claim the Act unlawfully and unconstitutionally encroaches upon the people’s bill of rights and the “political power inherent in the people” as set out in Ark. Const. art. 2, §§ 1 and 29.
This court’s controlling opinion herein suggests that a lower court’s jurisdiction is decided by however this court might characterize a given case. And plaintiffs argue that, under Liles v. Liles, 289 Ark. 159, 711 S.W.2d 442 (1986), if chancery court has jurisdiction for one purpose, it may decide all other issues. Plaintiffs specifically contend that, because chancery court has authority to decide illegal exaction and ballot title issues, the chancellor could further decide the political and election issues in the case as well. The plaintiff’s contention is faulty.
First, even under the Liles decision, chancery court cannot obtain jurisdiction of a case where a court of equity is “wholly incompetent” to consider the matter. In Catlett, this court unequivocally held chancery court had no authority to decide political rights issues or requests to enjoin an election. In sum, the chancellor was wholly incompetent to grant the relief it did in this case.
Second, this court stated in Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809 (1995), both circuit and chancery courts may exercise subject matter jurisdiction in illegal exaction cases, but a chancery court has no such jurisdiction when the underlying matter is conferred on the circuit court. Here, the clear underlying matter concerns the validity of Act 1 and plaintiffs’ contention that Act unlawfully encroaches upon the people’s inherent political power — a right cognizable only in circuit court.
Third, circuit and chancery courts both can decide ballot title issues and are subject to the same underlying matter test discussed in the foregoing illegal exaction analysis. However, plaintiffs cite Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433 (1960), and argue that decision requires that ballot title issues must be filed and decided in chancery court. That is not the holding in Berry. In Berry, this court merely held that it had only appellate, not original, jurisdiction in disputes arising under Ark. Const, art. 19, § 22. In dictum, the Berry decision mentioned, without citation of authority, that the parties there should have filed their case in chancery court, not the supreme court. To the contrary, no statutory or constitutional provision assigns chancery court authority to decide ballot title issues arising under art. 19, § 22. At most, chancery court can only share subject matter jurisdiction in such a case and then only when the underlying matter is not one solely cognizable in circuit court, as is the situation in the present case.
In decisional conference, most of the justices on this court expressly acknowledged the confusing precedent bearing on the subject matter jurisdiction issue in this case. Because of the confusion that continues to arise in these political rights, election, illegal exaction, and ballot title cases, there is a great reluctance to dismiss anyone’s case, giving subject matter jurisdiction as the reason. I sympathize with that view, but the fact remains, this court is the only one that can give clarity to its precedents, and it has a duty to do so. A bright line should be established so that the parties, attorneys and judges can know where the above-type cases must be filed in order to obtain a final decision without concern the decision will not later be set aside on jurisdictional grounds. As matters now stand, this court may or may not sustain jurisdiction if it chooses to “characterize” a lawsuit in a certain way.
To confuse matters further, this court has recently adopted another test previously unknown in its prior precedents, namely, unless chancery court has no tenable nexus whatever to the claim in question, this court will consider the matter of whether the claim should have been heard there to be one of propriety rather than one of subject matter jurisdiction. See Liles, 289 Ark. at 175 and 176; UHS of Ark., Inc. v. Charter Hosp. of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988). Apparently, if a case is characterized as one of propriety, this court will not raise the issue itself and will not permit a party to raise it on appeal. Id. The test ignores all case law, as I know it, that subject matter jurisdiction can be raised at any time, and in fact it is this court’s duty to do so. Arkansas State Employees Ins. Advisory Comm’n v. Estate of Manning, 316 Ark. 143, 870 S.W.2d 748 (1994). Unfortunately, I have no idea what this “propriety” test means and the opinions in Lile and UHS cite no authority supporting or explaining it. My point in mentioning this new test used in determining where or if jurisdiction exists in chancery court is not to be critical, but instead to emphasize how confusing this subject matter jurisdiction determination has gotten.
If the plaintiffs here had filed their action in circuit court, no subject matter jurisdiction issue would exist since a circuit court could have decided and granted all the relief sought by the plaintiffs. In sum, this court has an opportunity to establish in which court these constitutional matters should be filed in the future, but it refuses to offer any clarification or guidance. Future litigation in these constitutional matters (political rights, election, illegal exaction and ballot title cases) remains jurisdiction-ally in doubt.
For the above reasons, I would reverse and dismiss this cause.