Cite as 2021 Ark. 46 SUPREME COURT OF ARKANSAS No. CV-21-23
Opinion Delivered: March 4, 2021 BOBBY LEE JONES APPELLANT APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT V. [NO. 54CV-20-213]
STATE OF ARKANSAS HONORABLE CHRISTOPHER APPELLEE MORLEDGE, JUDGE
REVERSED AND REMANDED.
ROBIN F. WYNNE, Associate Justice
Bobby Lee Jones appeals from the Phillips County Circuit Court’s order declaring
him ineligible to hold the office of Justice of the Peace. For reversal, Jones argues that (1) he
was entitled to a hearing on whether the trial court should take judicial notice of an order
in a prior case; (2) the prosecutor lacked standing; (3) res judicata does not apply to the order
in the prior case; (4) the defective summons was grounds for dismissal; (5) as a matter of law,
he has no criminal conviction that disqualifies him from holding public office; and (6)
Arkansas law clearly recognizes the right of an individual to seek elective office after having
convictions sealed or expunged. We reverse and remand for a hearing on the propriety of
taking judicial notice.
This is not the first time that Bobby Lee Jones’s eligibility to hold public office has
come before this court. See Ball v. Phillips Cty. Election Comm’n, 364 Ark. 574, 222 S.W.3d
205 (2006); Jones v. Phillips Cty. Election Comm’n, 358 Ark. 339, 190 S.W.3d 273 (2004). We did not reach the merits of Jones’s eligibility in either of these cases. Then and now, Jones’s
eligibility was contested due to past felony convictions. In 1990, Jones was convicted of
residential burglary and theft of property (Phillips County Case No. CR-1989-251). A
certificate expunging these convictions was entered in 2001. In 1996, Jones was convicted of
theft of property (Phillips County Case No. CR-1995-184). An order to seal this conviction
was entered in 2000. In 2006, Jones ran for Justice of the Peace for Phillips County, District
One. His opponent filed a preelection contest arguing that Jones was ineligible to hold public
office due to his felony convictions (Phillips County Case No. CV-2006-150-3). On May 22,
2016, the court entered an order and letter opinion (“2006 order”) declaring that the 2000
order to seal was defective and void. The 2006 order concluded that Jones remained a
convicted felon and was therefore ineligible to hold public office.
In 2020, Jones again ran for Justice of the Peace for Phillips County, District One.
He ran unopposed and was elected to the office in the March 3, 2020 primary. Ark. Code
Ann. § 7-7-313 (Repl. 2018). On November 3, 2020, the State filed suit seeking a declaratory
judgment that Jones is ineligible to hold the office because of his prior felony convictions.
In its petition, the State sought declaratory relief, summary judgment, and an expedited
hearing if one was necessary. Jones answered the petition on November 18 and demanded
in-person hearings on December 29. On December 30, the trial court entered an order
declaring Jones ineligible to hold the office and granting summary judgment for the State.
The trial court took judicial notice of the 2006 order voiding the 2000 order sealing Jones’s
convictions and determined that res judicata applied. The trial court concluded that Jones
2 is a convicted felon and therefore ineligible to hold public office under article 5, section 9
of the Arkansas Constitution. On January 4, 2021, Jones filed an objection to judicial notice,
demand for strict proof, and demand for a hearing before taking judicial notice. On January
11, Jones filed an amended answer and a motion for reconsideration. The trial court denied
the motion for reconsideration on January 15. Jones timely appealed.
A trial court may grant summary judgment only when it is apparent that no genuine
issues of material fact exist requiring litigation and that the moving party is entitled to
judgment as a matter of law. Quarles v. Courtyard Gardens Health & Rehab., LLC, 2016 Ark.
112, at 7–8, 488 S.W.3d 513, 519. Once the moving party has established a prima facie
entitlement to summary judgment, the opposing party must meet proof with proof and
demonstrate the existence of a material issue of fact. Id. at 8, 488 S.W.3d at 519. In reviewing
a grant of summary judgment, this court determines if summary judgment was appropriate
based on whether the evidentiary items presented by the moving party in support of the
motion left a material question of fact unanswered. Id. We view the evidence in the light
most favorable to the party against whom the motion was filed, resolving all doubts and
inferences against the moving party. Id. A trial court is given broad discretion in evidentiary
rulings, and this court will not reverse a trial court’s ruling on the admissibility of evidence
absent an abuse of that discretion. W.E. Pender & Sons, Inc. v. Lee, 2010 Ark. 52, at 9, 370
S.W.3d 163, 169.
First, Jones argues that the trial court erred by taking judicial notice of the 2006 order
without providing a hearing. Arkansas Rule of Evidence 201(e) provides that “[a] party is 3 entitled upon timely request to an opportunity to be heard as to the propriety of taking
judicial notice and the tenor of the matter noticed. In the absence of prior notification, the
request may be made after judicial notice has been taken.” Jones contends that he was
entitled to a hearing on the issue and to cross-examine the evidence. He also argues that the
trial court erred in taking judicial notice of the 2006 order because the facts are subject to
reasonable dispute. Jones maintains that his convictions remain sealed. For support, he relies
on an affidavit from the Phillips County Deputy Clerk stating that the criminal files are
under seal and have been for at least the past nine years. He also points to this court’s
precedent that “[c]ourts may not take judicial notice of prior or pending litigation in other
cases, even if those cases are between the same parties.” Brissett v. Sykes, 313 Ark. 515, 519,
855 S.W.2d 330, 333 (1993).
The State contends that Jones failed to preserve his Rule 201 arguments because he
did not obtain a specific ruling from the trial court on the issue. We disagree. It is an
appellant’s responsibility to obtain a ruling to preserve an issue for appeal, and the failure to
obtain a ruling precludes our review on appeal. TEMCO Constr., LLC v. Gann, 2013 Ark.
202, at 9, 427 S.W.3d 651, 657. The trial court’s ruling in its January 15 order that “[t]he
Objection to taking Judicial Notice is denied” makes it sufficiently clear that the trial court
denied Jones’s objection to taking judicial notice. This issue is preserved.
The State also argues that Jones did not timely request a hearing because he did not
object to the judicial notice or request a hearing until after the trial court took such notice.
Rule 201 provides that a hearing request may be made after judicial notice has been taken
4 in the absence of prior notification. The State’s petition, while it asked the trial court to take
judicial notice of Jones’s convictions, did not specifically ask the trial court to take judicial
notice of the 2006 order. The first notice that the trial court would take judicial notice of
the 2006 order was the order entered December 30, 2020. Jones filed his objection and
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Cite as 2021 Ark. 46 SUPREME COURT OF ARKANSAS No. CV-21-23
Opinion Delivered: March 4, 2021 BOBBY LEE JONES APPELLANT APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT V. [NO. 54CV-20-213]
STATE OF ARKANSAS HONORABLE CHRISTOPHER APPELLEE MORLEDGE, JUDGE
REVERSED AND REMANDED.
ROBIN F. WYNNE, Associate Justice
Bobby Lee Jones appeals from the Phillips County Circuit Court’s order declaring
him ineligible to hold the office of Justice of the Peace. For reversal, Jones argues that (1) he
was entitled to a hearing on whether the trial court should take judicial notice of an order
in a prior case; (2) the prosecutor lacked standing; (3) res judicata does not apply to the order
in the prior case; (4) the defective summons was grounds for dismissal; (5) as a matter of law,
he has no criminal conviction that disqualifies him from holding public office; and (6)
Arkansas law clearly recognizes the right of an individual to seek elective office after having
convictions sealed or expunged. We reverse and remand for a hearing on the propriety of
taking judicial notice.
This is not the first time that Bobby Lee Jones’s eligibility to hold public office has
come before this court. See Ball v. Phillips Cty. Election Comm’n, 364 Ark. 574, 222 S.W.3d
205 (2006); Jones v. Phillips Cty. Election Comm’n, 358 Ark. 339, 190 S.W.3d 273 (2004). We did not reach the merits of Jones’s eligibility in either of these cases. Then and now, Jones’s
eligibility was contested due to past felony convictions. In 1990, Jones was convicted of
residential burglary and theft of property (Phillips County Case No. CR-1989-251). A
certificate expunging these convictions was entered in 2001. In 1996, Jones was convicted of
theft of property (Phillips County Case No. CR-1995-184). An order to seal this conviction
was entered in 2000. In 2006, Jones ran for Justice of the Peace for Phillips County, District
One. His opponent filed a preelection contest arguing that Jones was ineligible to hold public
office due to his felony convictions (Phillips County Case No. CV-2006-150-3). On May 22,
2016, the court entered an order and letter opinion (“2006 order”) declaring that the 2000
order to seal was defective and void. The 2006 order concluded that Jones remained a
convicted felon and was therefore ineligible to hold public office.
In 2020, Jones again ran for Justice of the Peace for Phillips County, District One.
He ran unopposed and was elected to the office in the March 3, 2020 primary. Ark. Code
Ann. § 7-7-313 (Repl. 2018). On November 3, 2020, the State filed suit seeking a declaratory
judgment that Jones is ineligible to hold the office because of his prior felony convictions.
In its petition, the State sought declaratory relief, summary judgment, and an expedited
hearing if one was necessary. Jones answered the petition on November 18 and demanded
in-person hearings on December 29. On December 30, the trial court entered an order
declaring Jones ineligible to hold the office and granting summary judgment for the State.
The trial court took judicial notice of the 2006 order voiding the 2000 order sealing Jones’s
convictions and determined that res judicata applied. The trial court concluded that Jones
2 is a convicted felon and therefore ineligible to hold public office under article 5, section 9
of the Arkansas Constitution. On January 4, 2021, Jones filed an objection to judicial notice,
demand for strict proof, and demand for a hearing before taking judicial notice. On January
11, Jones filed an amended answer and a motion for reconsideration. The trial court denied
the motion for reconsideration on January 15. Jones timely appealed.
A trial court may grant summary judgment only when it is apparent that no genuine
issues of material fact exist requiring litigation and that the moving party is entitled to
judgment as a matter of law. Quarles v. Courtyard Gardens Health & Rehab., LLC, 2016 Ark.
112, at 7–8, 488 S.W.3d 513, 519. Once the moving party has established a prima facie
entitlement to summary judgment, the opposing party must meet proof with proof and
demonstrate the existence of a material issue of fact. Id. at 8, 488 S.W.3d at 519. In reviewing
a grant of summary judgment, this court determines if summary judgment was appropriate
based on whether the evidentiary items presented by the moving party in support of the
motion left a material question of fact unanswered. Id. We view the evidence in the light
most favorable to the party against whom the motion was filed, resolving all doubts and
inferences against the moving party. Id. A trial court is given broad discretion in evidentiary
rulings, and this court will not reverse a trial court’s ruling on the admissibility of evidence
absent an abuse of that discretion. W.E. Pender & Sons, Inc. v. Lee, 2010 Ark. 52, at 9, 370
S.W.3d 163, 169.
First, Jones argues that the trial court erred by taking judicial notice of the 2006 order
without providing a hearing. Arkansas Rule of Evidence 201(e) provides that “[a] party is 3 entitled upon timely request to an opportunity to be heard as to the propriety of taking
judicial notice and the tenor of the matter noticed. In the absence of prior notification, the
request may be made after judicial notice has been taken.” Jones contends that he was
entitled to a hearing on the issue and to cross-examine the evidence. He also argues that the
trial court erred in taking judicial notice of the 2006 order because the facts are subject to
reasonable dispute. Jones maintains that his convictions remain sealed. For support, he relies
on an affidavit from the Phillips County Deputy Clerk stating that the criminal files are
under seal and have been for at least the past nine years. He also points to this court’s
precedent that “[c]ourts may not take judicial notice of prior or pending litigation in other
cases, even if those cases are between the same parties.” Brissett v. Sykes, 313 Ark. 515, 519,
855 S.W.2d 330, 333 (1993).
The State contends that Jones failed to preserve his Rule 201 arguments because he
did not obtain a specific ruling from the trial court on the issue. We disagree. It is an
appellant’s responsibility to obtain a ruling to preserve an issue for appeal, and the failure to
obtain a ruling precludes our review on appeal. TEMCO Constr., LLC v. Gann, 2013 Ark.
202, at 9, 427 S.W.3d 651, 657. The trial court’s ruling in its January 15 order that “[t]he
Objection to taking Judicial Notice is denied” makes it sufficiently clear that the trial court
denied Jones’s objection to taking judicial notice. This issue is preserved.
The State also argues that Jones did not timely request a hearing because he did not
object to the judicial notice or request a hearing until after the trial court took such notice.
Rule 201 provides that a hearing request may be made after judicial notice has been taken
4 in the absence of prior notification. The State’s petition, while it asked the trial court to take
judicial notice of Jones’s convictions, did not specifically ask the trial court to take judicial
notice of the 2006 order. The first notice that the trial court would take judicial notice of
the 2006 order was the order entered December 30, 2020. Jones filed his objection and
hearing request on January 4, 2021, five days later. We conclude that Jones’s objection and
hearing request were timely.
Next, the State contends that Jones was not entitled to a hearing under Rule 201
because the trial court did not take judicial notice of the 2006 order. Rather, the State argues
that the trial court applied a binding declaratory judgment against Jones, and judicial notice
is “convenient shorthand” for the trial court’s action. According to the State, there was no
fact that required adjudication before the trial court could apply the 2006 order. Moreover,
the State contends that Jones does not allege that the copy of the order attached to the
complaint is inaccurate or incomplete or does not apply to him.
We are not persuaded by this argument. The trial court clearly called its action judicial
notice, stating that it “takes judicial notice” of the 2006 order in its December 30 order and
denying Jones’s “Objection to taking Judicial Notice” in its January 15 order. The fact that
Jones does not allege that the copy of the order attached to the complaint is inaccurate or
incomplete is irrelevant to the question of whether the trial court took judicial notice of the
order.
We hold that the trial court erred by not providing Jones with a hearing on the
propriety of taking judicial notice of the 2006 order. Under Rule 201(e), Jones was entitled
5 upon timely request to an opportunity to be heard as to the propriety of taking judicial notice
and the tenor of the matter noticed. Because Jones did not receive prior notification, he
properly requested a hearing after the trial court took judicial notice. We cannot say that
taking judicial notice of the 2006 order without a hearing was harmless error. That order is
the crux of this case. The trial court granted summary judgment for the State on the basis of
an uncertified copy of a court order in a prior case attached as an exhibit to an unverified
petition without affording Jones an opportunity to be heard on whether taking judicial
notice of that order was appropriate. Jones was not afforded an opportunity to “meet proof
with proof.” Quarles, 2016 Ark. 112, at 8, 488 S.W.3d at 519. We reverse and remand for a
hearing on the propriety of taking judicial notice.
Because we reverse and remand for a hearing, we do not reach the merits of the
propriety of taking judicial notice of the 2006 order. Nor do we address Jones’s remaining
points for reversal.
WEBB, J., concurs without opinion.
J.F. Valley, Esq., P.A., by: J.F. Valley; and Allen Law Firm, by: Phillip Allen, for appellant.
Leslie Rutledge, Att’y Gen., by: Kesia Morrison, Ass’t Att’y Gen., for appellee.