Kristina Gulley v. State of Arkansas Ex Rel. Larry Jegley, Sixth Judicial District Prosecuting Attorney And Pulaski County, Arkansas, Ex Rel. Barry Hyde, Pulaski County Judge

2023 Ark. 70

• Court: Supreme Court of Arkansas
• Decided: April 27, 2023
• Status: Published

Opinion

Cite as 2023 Ark. 70 SUPREME COURT OF ARKANSAS No. CV-22-685

Opinion Delivered: April 27, 2023

KRISTINA GULLEY APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT [NO. 60CV-22-4150] STATE OF ARKANSAS EX REL. LARRY JEGLEY, SIXTH JUDICIAL HONORABLE MORGAN E. WELCH, DISTRICT PROSECUTING JUDGE ATTORNEY; AND PULASKI COUNTY, ARKANSAS, EX REL. BARRY HYDE, PULASKI COUNTY AFFIRMED. JUDGE APPELLEES

COURTNEY RAE HUDSON, Associate Justice

Appellant, Kristina Gulley, appeals the Pulaski County Circuit Court’s July 22, 2022

interlocutory order granting a preliminary injunction enjoining her from exercising any

powers as a justice of the peace or participating in the Pulaski County Quorum Court or its

committees as a justice of the peace. For reversal, Gulley argues that (1) the issue of her

removal from office could and should have been addressed in an earlier, related case, and

(2) the circuit court abused its discretion by granting the injunction when the evidence to

warrant such relief was insufficient. We affirm.

Gulley was elected justice of the peace for District 10 in Pulaski County in 2020 and

assumed office in January 2021. She filed for reelection in 2022. On May 2, 2022, Henry

and Detrice Robinson filed a petition for writ of mandamus and for declaratory judgment alleging that Gulley had been convicted of hot-check charges in 1997 and 2003, and that

she was therefore ineligible to be a candidate for reelection. The Robinsons named Gulley

and the Pulaski County Board of Election Commissioners as respondents. On May 10, 2022,

the circuit court entered an order finding that Gulley had been convicted of two

misdemeanor violations of Arkansas Code Annotated section 5-37-302 that were

disqualifying “infamous crimes” as set forth in Ark. Const. article 5 section 9. The circuit

court granted the petition and found Gulley ineligible to hold the office of justice of the

peace and ineligible to file for or to seek reelection to that office. It further ordered the

Pulaski County Board of Election Commissioners to not certify Gulley as a candidate, to

annul any such certification, and to not count any votes cast for Gulley. See Robinson v.

Gulley, No. 60CV-22-2813 (Gulley I).

Gulley did not appeal that order. However, the petitioners filed a motion to

reconsider the court’s order for the limited purpose of considering Gulley’s removal from

office. Pulaski County moved to intervene and argued that the circuit court should clarify

Gulley’s status. On June 2, 2022, the circuit court granted Pulaski County’s motion to

intervene and denied the petitioners’ request to reconsider and declare a vacancy.

On June 28, appellees State of Arkansas, through Pulaski County Prosecuting

Attorney Larry Jegley, and Pulaski County, through Pulaski County Judge Barry Hyde, filed

a petition “for protection against usurpation of office, or in the alternative for writ of quo

warranto, for the recovery of fees and emoluments of office, and for declaratory judgment.”

Appellees brought their petition pursuant to Arkansas Code Annotated section 16-118-105

(Repl. 2016), which provides in relevant part that

2 (b)(1) Whenever a person usurps an office or franchise to which he or she is not entitled by law, an action may be instituted against him or her, either by the state or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise.

(2) A person who continues to exercise an office after having committed an act, or omitted to do an act, of which the commission or omission, by law, created a forfeiture of his or her office, shall be subject to be proceeded against for a usurpation thereof.

(3)(A) It shall be the duty of the prosecuting attorney to institute the actions mentioned in this section against all persons who usurp county offices or franchises where there is no other person entitled thereto or the person entitled fails to institute the action for three (3) months after the usurpation.

Appellees sought Gulley’s removal from office, the return of salary and benefits paid to her

during the time that she served as justice of the peace, and a declaration that Pulaski County

properly withheld compensation after it became aware of her ineligibility. Also on June 28,

appellees filed a motion for a temporary restraining order seeking to prohibit Gulley from

exercising any powers of office pending resolution of the underlying suit.

The circuit court held a hearing on the motion on July 20. At the hearing, Justin

Blagg testified that he served as parliamentarian for the Pulaski County Quorum Court and

in his opinion, if an ineligible person participated as a justice of the peace, it could open

anything the quorum court did to challenge. He said it could also create a procedural

“nightmare” and stall economic projects, adoption of policies, creation of positions or

passage of a budget. David Dallas, an investigator for the Pulaski County Prosecuting

Attorney’s office, testified that he reviewed an Arkansas State Police criminal history report

that Gulley provided as an exhibit. That report showed that no criminal history was found

for Gulley. Dallas said that such reports should “go back” three years for felonies, but he

was not sure about the time frame for misdemeanors. He also said that case records are not

3 always reported. Dallas acknowledged that, of the hundreds of background checks he has

seen in his role as an investigator, fewer than five had failed to list a conviction that was later

found to exist. He testified that the only way to tell for sure would be to examine the county

clerk’s records and that he did not do so. Gulley testified and admitted having written bad

checks approximately twenty years ago and that she had gone to court to make payment

arrangements. She said that the records she had sealed after the hearing in Gulley I related

to her hot-check charges in case No. CW97-C-10914 and case No. CW03-C-2635. The

State introduced certified copies of the Conway District Court’s docket sheets reflecting

those convictions.

Gulley argued at the hearing that the relief sought was res judicata because Pulaski

County had been a party in Gulley I and could have raised its arguments for removal there

but chose not to. She also contended that the docket sheet evidence was insufficient to

establish a conviction within the meaning of article 5, section 9 of the Arkansas Constitution

when she presented competing evidence that there had been no conviction. The circuit

court declined to apply res judicata and concluded that appellants demonstrated a likelihood

of success on the merits because Gulley had either pled to or was found guilty of two

misdemeanor violations of Arkansas’s hot-check law. It also determined that they showed

irreparable harm because of the issues that her continued participation in quorum court

activities could cause. The motion for a temporary restraining order was converted to a

4 motion for a preliminary injunction, which the circuit court granted on July 22. 1 Gulley

filed a timely appeal.

This interlocutory appeal concerns only the circuit court’s order granting a

preliminary injunction. Rule 65 of the Arkansas Rules of Civil Procedure governs the

issuance of preliminary injunctions. In determining whether to issue a preliminary

injunction pursuant to Rule 65, the circuit court must consider two issues: (1) whether

irreparable harm will result in the absence of an injunction or restraining order and (2)

whether the moving party has demonstrated a likelihood of success on the merits. City of

Jacksonville v. Smith, 2018 Ark. 87, 540 S.W.3d 661. This court reviews the grant of a

preliminary injunction under an abuse-of-discretion standard. Id. An abuse of discretion

occurs when the circuit court exercises its discretion thoughtlessly and without due

consideration. Harris v. Crawford Cnty. Bd. of Election Comm’rs, 2022 Ark. 160, 651 S.W.3d

703. Additionally, an abuse of discretion may be manifested by an erroneous interpretation

of law. Id. When an appeal reaches an appellate court via an order granting a preliminary

injunction, the appellate court will not delve into the merits of the case further than is

necessary to determine whether the circuit court exceeded its discretion in granting the

injunction. Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800 (2006).

1 Although Gulley’s initial term has expired, the circuit court indicated at the hearing that Gulley’s opponent was disqualified and stated that “now we have nobody.” Pursuant to article 19, section 5 of the Arkansas Constitution, a justice of the peace may continue in office after the expiration of the justice’s term until a successor is qualified. Faulkner v. Woodard, 203 Ark. 254, 156 S.W.2d 243 (1941). On September 13, 2022, the circuit court entered an order staying further proceedings pending resolution of this appeal. The circuit court has yet to make a final decision on the merits as to whether Gulley must be removed from office.

5 With these standards in mind, we turn to Gulley’s points on appeal. She first contends

that the circuit court abused its discretion by granting the injunction because the issue of

her eligibility to continue holding office could and should have been addressed in Gulley I.

Gulley insists that appellees cannot succeed on the merits of their underlying case because

this case is based on the same events as in Gulley I, and the doctrine of res judicata therefore

precludes consideration of her removal.

The purpose of res judicata is to put an end to litigation by preventing a party who

has already had a fair trial on the matter from litigating it again. Hardy v. Hardy, 2011 Ark.

82, 380 S.W.3d 354. Where a case is based on the same events as the subject matter of a

previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues

and seeks additional remedies. Beebe v. Fountain Lake Sch. Dist., 365 Ark. 536, 231 S.W.3d

628 (2006). Res judicata bars not only the relitigation of claims that were actually litigated

in the first suit but also those that could have been litigated. McWhorter v. McWhorter, 2009

Ark. 458, 344 S.W.3d 64.

There are two facets to res judicata: issue preclusion and claim preclusion. DeSoto

Gathering Co., LLC v. Hill, 2018 Ark. 103, 541 S.W.3d 415. Gulley asserts that appellees’

motion is barred by the claim-preclusion aspect of res judicata. This facet of res judicata bars

relitigation of a subsequent suit when five factors are present: (1) the first suit resulted in a

final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first

suit was fully contested in good faith; (4) both suits involve the same claim or cause of

action; and (5) both suits involve the same parties or their privies. DeSoto Gathering, 2018

Ark. 10, 541 S.W.3d 415. Privity exists when two parties are so identified with one another

6 that they represent the same legal right. Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, 381

S.W.3d 793.

In this case, not all of the factors necessary for res judicata’s application are satisfied.

First, the State of Arkansas was not a party in Gulley I. Additionally, no party in Gulley I was

so identified with the State that it could be said to represent the State’s rights and be the

State’s privy. The action allowed under section 16-118-105 is a petition for writ of quo

warranto and, in this instance, had to be initiated by the State. Pederson v. Stracener, 354 Ark.

716, 128 S.W.3d 818 (2003). Thus, it was impossible for Pulaski County or the Robinsons

to act as a privy for the State in Gulley I or to bring this action on its behalf. Second, the

issues in the two cases are different. Gulley I involved a pre-election challenge to Gulley’s

eligibility to be a candidate for justice of the peace. In contrast, the issue in this case is

Gulley’s removal from office and the return of salary and benefits. The State’s absence in

Gulley I not only demonstrates that the parties were different there but also highlights the

fact that the issues in the two cases are different. Because Gulley I involved different parties

and issues, res judicata does not apply.

Gulley next argues that the circuit court abused its discretion by granting a

preliminary injunction because the evidence of her convictions was insufficient in the face

of the evidence that she presented. Gulley contends that the circuit court should not have

relied on certified docket sheets reflecting her convictions when she provided a background

check from the Arkansas State Police that did not show any convictions. Gulley also points

to Dallas’s testimony that very few criminal background checks fail to list all convictions.

7 Gulley’s challenge here is to the circuit court’s factual determination that she had

hot-check convictions. Although we review a circuit court’s decision to grant a preliminary

injunction on an abuse-of-discretion standard, factual findings that lead to a circuit court’s

conclusion of irreparable harm and likelihood of success on the merits will not be set aside

unless clearly erroneous. Thurston v. Safe Surgery of Ark., 2021 Ark. 55, 619 S.W.3d 1. A

finding is clearly erroneous when the reviewing court, on the entire evidence, is left with a

definite and firm conviction that a mistake has been made. Chekuri v. Nekkalapudi, 2020

Ark. 74, 593 S.W.3d 467.

Evidence supporting Gulley’s convictions included certified docket sheets from the

Conway District Court reflecting her two convictions. Additionally, at the July 20 hearing,

Gulley testified that she had written bad checks in the past. She conceded that she went to

court to make payment arrangements and that these events occurred during the time period

shown on the docket sheets. Gulley also said that she had her criminal record sealed after a

hearing in Gulley I. In light of the evidence presented, we cannot say that the circuit court’s

conclusion that Gulley had hot-check convictions is clearly erroneous.

Based on its finding that Gulley had been convicted of hot-check violations, the

circuit court concluded that appellees demonstrated a likelihood of success because Gulley’s

convictions were considered “infamous crimes.”2 Citing testimony from the quorum court’s

parliamentarian that Gulley’s continued participation could impact quorum court

proceedings and outcomes and open them to contest, the circuit court found that appellants

2 Gulley does not challenge the circuit court’s conclusion that her convictions qualified as infamous crimes pursuant to article 5 section 9.

8 successfully demonstrated that they would suffer irreparable harm. Therefore, the circuit

court did not act thoughtlessly and without due consideration, and its order was not an

abuse of discretion. Harris, 2022 Ark. 160, 651 S.W.3d 703.

In sum, res judicata does not bar appellees’ petition to remove Gulley from office.

Additionally, we cannot say that the circuit court clearly erred in finding that Gulley had

been convicted of disqualifying offenses or abused its discretion in determining that appellees

demonstrated a likelihood of success on the merits and that irreparable harm will result in

the absence of an injunction. Accordingly, we affirm.

Affirmed.

WYNNE, WOMACK, and WEBB, JJ., dissent.

ROBIN F. WYNNE, Justice, dissenting.The preliminary injunction at issue on

appeal enjoined Gulley from exercising any powers as a justice of the peace or participating

as a justice of the peace in the Pulaski County Quorum Court or its committees. It is not

clear, however, whether Gulley continues in office beyond the expiration of her term at the

end of 2022. Because the preliminary injunction might very well be moot at this point, I

would order supplemental briefing on that issue.

I respectfully dissent.

WOMACK, J., joins.

BARBARA W. WEBB, Justice, dissenting. I dissent. Generally, appellate courts

of this state will not review issues that are moot. Allison v. Lee Cnty. Election Comm’n, 359

Ark. 388, 198 S.W.3d 113 (2004). A case becomes moot when any judgment rendered

would have no practical legal effect upon a then existing legal controversy. Id. While this

9 court is obligated to raise the issue of mootness on its own motion, see Watts v. Searcy Cnty.

Bd. of Elections, 364 Ark. 452, 220 S.W.3d 642 (2005), out of an abundance of caution, I

voted to order supplemental briefing on this issue. I cannot agree that the holdover

provisions in article 19, section 5 of the Arkansas Constitution conclude the question.

As the majority notes, prior to the entry of the preliminary injunction on July 22,

2022, another order entered on May 10, 2022, found Gulley ineligible to hold the office

of justice of the peace and ineligible to file for or seek reelection to that office. Robinson v.

Gulley, No. 60CV-22-2813 (Gulley I). In Wood v. Miller, 154 Ark. 318, 321, 242 S.W.

573, 574, (1922), this court stated: “Where the legal incumbent of an office is authorized

by law to hold over after expiration of his term until his successor is elected and qualified,

the period of his holding over is as much a part of the term as the regular period fixed by

law.” (Emphasis added.) While that finding is not sufficient to remove Gulley from office–

–that must be addressed by a properly pursued action in quo warranto––nonetheless

Gulley’s right to holdover in office is, at best, far from being a legal certainty.

Moreover, contained in the record, as cited by the majority, is recognition by the

circuit court that both Gulley and the other potential nominee were ineligible to run for

the office. The discovery that there were no qualified candidates in the 2022 election

created a vacancy. This vacancy should be addressed forthwith. In my view, the only

irreparable harm in this case is a judicially mandated lack of representation of the people in

Pulaski County Justice of the Peace District 10.

10 Matthew D. Campbell, for appellant.

Adam Fogleman, Valetta Smith, Frank LaPort-Jenner, and Dominique Lane, Pulaski

County Attorney’s Office, for appellee Pulaski County ex rel. Barry Hyde, Pulaski County

Judge.

Tim Griffin, Att’y Gen., by: Maryna Jackson, Sr. Ass’t Att’y Gen.; and Matthew M.

Ford, Ass’t Att’y Gen., for appellee State of Arkansas ex rel. Larry Jegley, Sixth Judicial

District Prosecuting Attorney.