King v. Whitfield

TOM Glaze, Justice,

concurring. I concur, and write to stice, Arkansas law that controls election contests like the case before us. First, it must be emphasized that an election contest is a statutory or special proceeding under Ark. R. Civ. P. 81. Rule 81 provides that the rules of civil procedure do not apply where a statute specifically creates a right, remedy, or proceeding that provides a different procedure. See Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992). This court has also held that the procedure for contesting an election is purely statutory, and a strict observance of statutory requirements is essential to the exercise of jurisdiction by the court, as it is desirable that election results have a degree of stability and finality. Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973). The Reed court further explained that the purpose of election contests is to aid the democratic processes upon which our system of government is based by providing a ready remedy whereby compliance with election laws may be assured to facilitate, not hinder by technical requirements, the quick initiation and disposition of such contests. (Emphasis added.) Id. at 634.

As can be discerned from our case law above, election contest procedures are uniquely designed to dispose of all questions or issues quickly so stability and finality can be reached, thus, permitting government to continue as it should. Accordingly, once election results are certified, a contestant must file his or her complaint questioning those results within twenty days of the certification. See Ark. Stat. Ann. § 7-5-806(d) (Repl. 1993). In construing § 7-5-806(d) (and its predecessor provision), this court has required that an election complaint must state a prima facie case and plead sufficient facts to give the other party reasonable information as to the grounds of the contest. McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959); see also 26 Am.Jur.2d, Elections § 432 (1996). The McClendon court also noted that Arkansas law requires the contestant to name every alleged illegal voter against whom he proposes to offer proof when individual ballots are challenged as illegal. Id. footnote 3 at 524; see also 26 Am.Jur.2d Elections § 434 (1996) and 29 C.J.S. Elections § 268 (2) (g) (1965).

In the instant case, appellant contestant Durwood King specifically stated that he was individually challenging 88 absentee ballots. Nonetheless, King failed to plead the names of those alleged illegal voters against whom he intended to offer proof. King relies on the case of Gunter v. Fletcher, 217 Ark. 800, 233 S.W.2d 242 (1950), which he contends reheves him of any burden to specify the names of alleged illegal voters in his complaint. Such contention is misplaced and is dispelled by the numerous election cases dealing with this very subject matter. In fact, one needs only read McClendon, where this court fully discussed the Gunter decision and pointed out that the contestant in Gunter had specified in his complaint the name of each person alleged to have cast an illegal ballot. The McClendon court held that because the contestant, McClendon, failed to allege he had received a majority of the legal votes cast or to name the persons -whose votes he claimed were illegal, his complaint failed to state a cause of action. In sum, the court concluded contestant McClendon had failed to set out a prima facie case and the essential allegations necessary to state a cause of action in an election contest. McClendon, 230 Ark. at 525, 323 S.W.2d at 545; to this same effect, see Files v Hill, 268 Ark. 106, 594 S.W.2d 836 (1980) (complaint without any identification of either the vote or the voters does not contain sufficient factual allegations to state a cause of action); Simonetti v. Brick, 266 Ark. 551, 587 S.W.2d 16 (1979) (complaint which does not charge that any specific illegal vote was cast fails to state a cause of action and such a requirement places no [undue] burden on contestants to require them to state the names of the alleged illegal voters); Cowger & Stewart v. Mathis, 255 Ark. 511, 501 S.W.2d 212 (1973) (petition for contest of an election does not state a cause of action when it does not charge that any specified vote was illegally cast, or does not contain sufficient information which would identify any such illegal voter, and contains only generalities or conclusions of law to the effect that illegal votes were cast); Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967); Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965) (in order to state a cause of action, an election contestant must show that the outcome of the election would be changed if certain identified irregular votes cast for his opponent were disregarded).

As already mentioned, King failed to identify by name the 88 alleged illegal absentee voters in his complaint, and as a result, his complaint failed to state a cause of action. As pointed out by the majority opinion, King also was obliged by Arkansas precedent to state in his complaint the number of votes received by each candidate, so that it would appear, after deducting the alleged illegal votes from the number accredited to appellee Sam Whitfield, King would have more votes than Whitfield. See Mason v. Peterson, 238 Ark 1069, 386 S.W.2d 286 (1965); McClendon, 230 Ark. 521, 525, 323 S.W.2d 542, 545. Here, King’s complaint did not mention either his total amount of votes or Whitfield’s vote total, but instead only generally alleged that, if the illegal votes were not counted, King would have a majority of the valid votes cast. Such a general allegation fails to meet the requirements set out in our established case law and is an additional reason for dismissing King’s complaint for failing to state a cause of action.1

Finally, it was suggested in oral argument that, even if King’s complaint was deficient, such defect was cured because the circuit court allowed King to present his case on the merits at trial. This argument fails for two reasons. First, Whitfield objected to King’s complaint and requested it be dismissed for failing to state a cause of action. The trial judge agreed with Whitfield’s dismissal motion, but the judge still permitted King to introduce evidence on the merits of the case.2 At the same time, the judge preserved Whitfield’s objection to allowing any evidence since the judge had dismissed King’s complaint. The judge obviously took this approach so that his dismissal ruling and decision on the merits both could be reviewed in one appeal. In short, Whitfield never waived the trial court’s dismissal ruling made in his behalf, but instead the trial judge was trying to practice judicial economy in an election case that needed to be facilitated and expedited. There is a second reason why King’s complaint could not be cured so he could have his case decided on the merits. This is not an Ark. R. Civ. P.12(b)(6) dismissal matter where the insufficiencies in the complaint are covered by our rules of civil procedure and, under such rules, can later be corrected. Once again, Arkansas law specifically covers this subject and does not allow an election contest complaint that was deficient when filed to be later amended and corrected to allege a cause of action after the twenty-day period for filing the complaint has elapsed. In Wheeler, 239 Ark. 455, 390 S.W.2d 129, the court affirmed the trial court decision not to allow the contestant to amend his complaint after the expiration of the twenty days allowed for filing of the contest. The court explained as follows:

As we have seen, this complaint did not state a cause of action. To allow it to be amended in such a way as to state a cause of action would, in effect, permit the plaintiff to assert, for the first time, his cause of action after the expiration of the twenty days. Such an amendment is not permissible. (Emphasis added.)

See also Cowger, 255 Ark. 871, 501 S.W.2d 212; Jones, 242 Ark. 907, 416 S.W.2d 306.

Although Arkansas law controlling election contests, in my view, soundly supports the trial court’s decision, dismissing Kang’s complaint in this case, I think the General Assembly should review its statutory procedures in this area of the law. Finality and stability in our elections are essential ingredients of a democratic process, but so are. honesty, integrity, and legal exactness. Generally, the period is short between the time when officials are elected and certified and when they take their oath of office. Accordingly, our contest procedures are designed and written to put complaints of election irregularities to rest. Nevertheless, our election laws can be written to establish, encourage, and facilitate both finality and honesty in Arkansas elections.

Under existing law, Arkansas’s abbreviated twenty-day period to file an election contest makes it is almost impossible to investigate and acquire sufficient proof to identify individual voters who allegedly cast illegal ballots. It is only in the rare race where a candidate or nominee loses by the narrowest of votes that one could accomplish such a feat and then still have the time to allege a prima facie cause of action. Cf. 26 AM.JUR.2d Elections § 434; 29 C.J.S. Elections § 268 (2) (g). Hopefully, the General Assembly will address this important subject in its next session. As the law stands now, I agree with the majority court that the trial court correctly dismissed King’s complaint.

The trial court dismissed King’s complaint for failing to state a cause of action, but also did so on the basis that King did not allege the correct date of certification of the election results. King’s complaint alleged the election results were certified on November 3, 1998, and he filed his complaint on November 30, 1998 — seven days outside the required twenty-day statutory period. It was later determined that the certification date was actually November 17, 1998, which, if alleged correctly,' would have shown King’s complaint to be timely.

In sum, King sought to prove that the absentee ballots that he challenged were cast in violation of Ark. Code Ann. § 7-5-411 (Supp. 1999), and because those ballots were illegal and cast in Whitfield’s favor, they should be deducted from Whitfield’s total, resulting in King having the most votes.