dissenting. Several aspects of the majority opinion are troubling to me.
The opinion initially concludes that Arlanda Jacobs made no showing of surprise by Doris Diane Tyler’s counterclaim and the hearing held two hours after the counterclaim was filed. I disagree. A hearing had previously been set for 3:00 p.m. on May 16, 2000, on Tyler’s residency, which was the sole issue raised by Jacobs in his mandamus petition. The issue of the insufficient funds check was not raised by Tyler until her counterclaim which was filed at 11:50 a.m. on the day of the hearing. Jacobs was not served with the counterclaim until after lunch on that same date, and the hearing began at 3:00 p.m. Jacobs objected to the hurried nature of the proceeding and argued that since Tyler’s counterclaim was also a mandamus action which raised a new issue, he was entitled to two day’s notice before a hearing. See Ark. R. Civ. P. 78. The trial court, however, disallowed any continuance. As a result, Jacobs was unable to subpoena sufficient records from his own bank, First National Bank of Phillips County, or obtain Bank witnesses to testify about the status of his account, or otherwise prepare adequately for the hearing. No more than two hours’ notice on a new issue of such significance easily meets the criteria for surprise and prejudice in my judgment.
Jacobs’s counsel specifically objected to the hearing on the counterclaim on the basis that he was entitled to two day’s notice. That is what Ark. R. Civ. P. 78(d) requires, as Justice Smith points out in his dissent. The majority’s response is to cite the case of Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998). That case, however, only stands for the proposition that the two-to-seven day provision in Rule 78(d) does not deprive the trial court of subject-matter jurisdiction. It specifically leaves open the question of the rule’s enforcement when there has been a timely objection based on a Rule 78(d) violation, as was the case here. The answer of the majority is that the trial court treated the objection as a motion for a continuance and went on. That is not enough. Rule 78(d) provides that in election matters, it shall be the “mandatory duty” of the judge to fix a hearing date “no sooner than two (2) days.”
Why were Bank records and Bank witnesses important? From what we know, Jacobs paid his fee of $170 by check to the Phillips County Democratic Party on April 3, 2000. His bank records reflect these balances in his account on these dates:
April 3 $5,851
April 5 $5,679
April 6 $679
The Democratic Party deposited his check on April 7, 2000, into its own Bank, Helena National Bank, four days after receiving it. Helena National Bank returned the check to the Party for insufficient funds a week later on April 14, 2000. Jacobs was not notified. The Party simply redeposited the check on advice of counsel on April 14, 2000, and it cleared. Jacobs’s check was, therefore, good when given to the Party on April 3 and good for at least three days thereafter. We do not know if sufficient funds existed in Jacobs’s account on April 7, when the Party’s Bank presented the check to Jacobs’s Bank for payment. We do not know the balance in Jacobs’s account on April 14. No evidence has been presented on this matter. But we do know that when the check was returned on April 14, the Party simply ran it back through, and it cleared. The reason that we do not know what funds Jacobs had in his account on April 14 is the lack of time afforded him to prepare. These gaps in our knowledge are all a direct result of the expedited hearing foisted on the parties by the trial court, and they support Jacobs’s complaint of surprise.
The second troubling feature of the opinion is that the majority has expanded Fletcher v. Ray, 220 Ark. 844, 250 S.W.2d 734 (1952), to cover this situation. That case is distinguishable from the instant case in several important respects:
• In Ray, the candidate was notified of the insufficient funds in his account to cover the check given, and he went down to the Party and paid the fee in cash. Here, the Party simply redeposited the check without notifying Jacobs, and the check cleared. The Party apparently thought nothing more about it. This all occurred on April 14 which was more than a month before Tyler raised the issue in her counterclaim on May 16.
• In Ray, the check was not paid in due course because the candidate was notified and personally paid the fee in cash. Here, the check was paid in the ordinary course of business after the Party redeposited it without notifying Jacobs. Clearly, the Party did not view this matter as a blot on Jacobs’s eligibility.
• In Ray, Bank witnesses presented the history of the candidate’s checking account and testified that no mistake could have been made in returning the check for insufficient funds. Here, the hearing on Tyler’s counterclaim was held so quickly that information on Jacobs’s account could not be gathered from the Bank in time.
For Ray to be precedent, it should be on all fours factually with this case, and it is not. I further note that Act 465 of 1969 and Act 169 of 1977, now codified as Ark. Code Ann. § 7-7-301 (Repl. 2000), establish the procedure for party pledges and party filing fees, and they were enacted after the Ray decision. As the case notes under this statute state, the Ray case was decided “under prior law.”
Next, there is the issue of Tyler’s standing. Clearly, she does not reside in Justice of the Peace District 7 in Phillips County, as the trial court found. Yet, the majority grants her standing to contest Jacobs’s eligibility to run for election in that district. The majority does so not based on the fact that she was a citizen of the affected district but apparently because she was a citizen of Phillips County. Does this mean that any citizen of Arkansas can go outside of his or her district and attack the eligibility of candidates for the state senate or state house of representatives not to mention candidates for the circuit court and congress anywhere in the state? It would appear so based on the broad holding of the majority. Yet I question whether a non-resident’s interest in candidate eligibility is sufficient to give rise to standing.
The authority cited by the majority does not support its position. In Tittle v. Woodruff, 322 Ark. 153, 907 S.W.2d 734 (1995), which is cited by the majority, Tittle filed as a Republican for a JP District and asserted that he had no standing to contest the certification of the Democratic Party’s nominee. We held that Tittle, as a citizen, did have standing to raise the eligibility of his Democratic counterpart. The important point, though, was that Tittle was a citizen of the affected JP District. In the case before us, Tyler is not. And in State v. Craighead Co. Bd. of Elect. Comm’ns, 300 Ark. 405, 779 S.W.2d 169 (1989), the issue of the standing of a citizen of Craighead County to contest the eligibility of candidates in two JP Districts and for municipal judge was never raised or considered by this court. Again, this principle of universal standing vested in a citizen to contest candidate eligibility regardless of the citizen’s residence appears to have been expanded to embrace the facts of this case. I disagree that Tyler had standing to raise the mandamus issue.
Removal of someone from the ballot is a matter of the gravest significance, because it deprives the voters of a choice. The facts of this case do not warrant removal in my judgment, because Jacobs’s bank ultimately paid the filing fee to the Democratic Party’s account without Jacobs’s knowledge or intervention. These facts differ markedly from those in Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994), where this court declined to allow a political party to remove a candidate from the ballot for good cause after nomination, thus creating a vacancy in nomination, without first petitioning circuit court to do so. Here, collection of the fee by the Democratic Party before nomination was purely ministerial, and the Party voiced no objection on the payment issue until Tyler raised it more than a month later. Indeed, the Party found Jacobs eligible to be nominated with respect to payment of fees and signing the party pledge pursuant to Ark. Code Ann. § 7-7-301 (Repl. 2000).
Again, what precipitated the problems in this case was the expedited manner in which the counterclaim was tried in violation of Rule 78. Jacobs made the following assertion in his brief on appeal:
Moreover, Jacobs was blind-sided and upon such short notice, was unable to get bank officials to trial to aid in his defense. He did not have time to go home to get the original check from his records to show proof of payment and dates of such payment and was unable to put forth the defense of a quality and character that he could have had appropriate notice and opportunity to object been granted.
The majority contends that Jacobs did not argue that returning his check might have been error. But the fact that he had been “blindsided” by the counterclaim was urged throughout the hearing, and the fact that bank officials were- not present to authenticate the check and Jacobs’s account was a point alluded to by both sides at the hearing. I would reverse the decision of the trial court based on the violation of Rule 78(d). For that reason, I respectfully dissent.