dissenting. As the majority opinion points out, the trial court declined to consider removing Campbell from office “until rendering of a final judgment by the Eighth Circuit Court of Appeals or other courts of proper jurisdiction.” Among the ways we can treat this appeal are the following: First, we can dismiss the appeal for mootness. Second, we can affirm the trial court’s holding that the “conviction” formed the basis for ouster from office upon final judgment by an appellate court. Third, we can ignore the mootness of the issue and go far beyond the holding of the trial court stating a new rule of law not supported by our cases or even argued in the parties’ briefs.
The majority has made the third choice. It is wrong in doing so for two reasons. This is not the sort of moot case which requires resolution in the public interest and because otherwise the issue might never be decided. The court has no business going beyond the issues presented by the trial court’s judgment and the briefs of the parties.
1. Mootness
Ordinarily we do not decide cases that are moot. Logan v. State, 299 Ark. 550, 776 S.W.2d 327 (1989). Campbell contends we should decide this case even if it is moot because of the public interest in the outcome, as we did in Cummings v. Washington County Election Comm., 291 Ark. 354, 724, S.W.2d 489 (1987). We chose to decide that case on its merits, despite its mootness, because it involved the qualifications of a candidate. The judicial process cannot run its course to finality when the issue is the qualifications of a candidate, and the election in question is immediately in prospect. We found it to be the type of case we should decide because otherwise the issue might never be decided, as every case in which it might arise would tend to be moot before a decision could be reached. This is not such a case. The conviction of a public official of an offense for which he or she might be removed from office may come late or early in the term of office being served. There is nothing about the situation which would tend to make it moot in every instance.
In Anderson v. State, 266 Ark. 192, 583 S.W.2d 14 (1979), we chose to review a moot issue, pointing out that we made the choice because the matter was sufficiently important to warrant a decision on the merits. In that case, a county judge had been removed from office by a circuit court with no notice whatever. He was, in effect, invited by the court, and given six days, to prove he should not have been removed. We stated no reason for holding the matter was one “of sufficient importance” to rule on the merits despite mootness. Presumably it was done because of the egregious nature of the violation of the rights of the official who had been removed.
While the issue of when a conviction becomes final for purposes of deciding a collateral matter, such as removal from office, is an important one, this case does not present circumstances which should move us to decide it in the absence of an actual controversy.
2. Eclipsing the trial court
All judges suffer frustration with the delays which can occur in the criminal justice system. We should not, however, allow that frustration to overcome our usual judicious caution in deciding only that which is presented to us for decision.
The trial court followed our decision in May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975). In that case, we considered the collateral effect of conviction of a public official. An alderman had been replaced as a city council member after having been convicted of an offense. The alderman who had been ousted, and whose conviction had subsequently been reversed, brought suit, claiming the person who had replaced him was usurping his office. The trial court sustained a demurrer to his complaint. We reversed that part of the trial court’s decision and held a cause of action had been stated. In doing so, we were required to decide whether the provision of Ark. Const. art. 5, § 9, that “No person hereafter convicted of . . . [an] infamous crime shall be . . . capable of holding any office or trust or profit in this State” required the plaintiffs ouster from public office. Justice Fogleman wrote for the court:
We have, on previous occasions, decided what constituted conviction of a felony insofar as enforcement of collateral effects [is] concerned. We have consistently held that, before such effects are enforced, the judgment must not only not be subject to reversal, but it must also have been carried into effect by actual imposition of sentence. See Owen v. State, 86 Ark. 317, 111 S.W. 466; Huddleston v. Craighead County, 128 Ark. 287, 194 S.W. 17; State Medical Board v. Rogers, 190 Ark. 266, 79 S.W.2d 83; Tucker v. State, 248 Ark. 979, 455 S.W.2d 888; Sutherland v. Arkansas Department of Insurance, 250 Ark. 903, 467 S.W.2d 724. There is no reason why the word “convicted” should be taken to mean something different, even if Art. 5 § 9 be taken to be self-executing, so that an incumbent must be ousted from office upon being found guilty of an infamous crime, without awaiting the final disposition of the case. A judicial definition of the word “convicted” different from any we have previously given it should not be the basis of the highly penal effect of removal of an incumbent when the legislature has not provided either for removal or suspension before the conviction has become final. Other jurisdictions have held that the word “convicted”, in the same or a similar constitutional provision, is to be given the strict legal meaning we have accorded it in the cases above cited and not its popular meaning, so that a conviction must be based upon a final judgment not subject to review. Summerour v. Cartrett, [220 Ga. 31, 136 S.E.2d 724 (1964)] supra[;] Common-wealth v. Reading, 336 Pa. 165, 6 A.2d 776 (1939); People v. Fabian, 192 N.Y. 443, 85 N.E. 672, 18 LRA (ns) 684 (1908). Cases based upon constitutional provisions or statutes which expressly declare that an office becomes vacant when the holder is convicted of a felony or infamous crime, such as State v. Sullivan, 66 Ariz. 348, 188 P.2d 592; McKannay v. Horton, 151 Cal. 711, 91 P. 598; State v. Jurgensen, 135 Neb. 136, 280 N.W. 886; re Obergfell, 239 N.Y. 48, 145 N.E. 323; State v. Vogel, 65 N.D. 137, 256 N.W. 404; State v. Levi, 109 W.Va. 277, 153 S.E. 587; People v. Enlow, 135 Col. 249, 310 P.2d 539; Bell v. Treasurer of Cambridge, 310 Mass. 484, 38 N.E.2d 660; Atty. Gen. v. Montgomery, 275 Mich. 504, 267 N.W. 550 are neither controlling nor persuasive. We would have an entirely different situation if our constitutional provision so read or if we had such a statute.
The court’s opinion attempts to get around May v. Edwards by remarking that Justice Fogleman noted there was no statute implementing the constitutional provision. The opinion neglects to mention, however, that there still is no such statute. That is no distinction whatever. The court also mentions that there were “extenuating circumstances” in May v. Edwards. No matter how the circumstances may have differed, there is no doubt the opinion laid out this court’s interpretation of “conviction” as used in the constitutional provision based on facts which placed that question at issue. The court is now overruling May v. Edwards without saying it and doing so in a case where it is not only unnecessary but improper. If the court is determined to affirm the judgment in this admittedly moot case, the most it should say is that Campbell stood convicted under the law of this state because his conviction was not subject to further review and the possibility of reversal.
Would today’s court have held the ousted alderman in May v. Anderson had been “convicted” and thus could not state a claim against an alleged usurper despite the reversal of his conviction? Will we someday have to hold, as the result of the decision the court makes today, that an elected official must give up his or her office despite our decision that a “conviction” must be reversed because of insufficiency of evidence to support it? Surely that cannot be the law. While the court’s opinion recognizes “the potential for harm to which [its] interpretation gives sufferance,” it does not say how we will deal with that harm. Will we just let it go for the sake of rigidity, or will we “distinguish” Campbell v. State by saying there were “extenuating circumstances” which required us to hold that a public official was subject to ouster despite the fact that his conviction was still subject to reversal? Not only are there no circumstances in this case which require such a decision, it was not even the decision of the trial court which we purport to affirm.
I respectfully dissent.
Purtle and Glaze, JJ., join this dissent.