McCuen v. Harris

902 S.W.2d 793, 321 Ark. 458, 1995 Ark. LEXIS 482

• Court: Supreme Court of Arkansas
• Decided: July 17, 1995
• Docket: 94-1196
• Status: Published

Opinions

Robert L. Brown, Justice.

This is an appeal from a preliminary injunction granted by the Pulaski County Chancery Court. The injunction prevents then Secretary of State, W.J. “Bill” McCuen, from canvassing and counting votes on Proposed Amendment 2, which proposed to levy a one-eighth of one percent tax on all taxable sales of property. We refused to expedite consideration of this appeal by per curiam order on November 4, 1994. See McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994) (Harris I). The appellants are comprised of McCuen and campaigners and intervenors, including Mary Klaser and the Natural State Committee, State Senator Nick Wilson, State Senator Vic Snyder, and State Representative Mark Pryor. They raise numerous issues on appeal which center on the propriety of a preliminary injunction so close to the election. We affirm the chancery court.

On October 19, 1994, Harris filed his petition to enjoin McCuen, as Secretary of State, from (1) taking any action to place Proposed Constitutional Amendment 2 on the Ballot for the November 8, 1994 General Election, and (2) from counting votes cast for the proposed amendment. The Harris petition followed two days after this court’s decision in Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994), where we held that McCuen as Secretary of State had failed to comply with the publishing requirement of Article 19, § 22 of the Arkansas Constitution in connection with Proposed Amendment 3 relating to lotteries and bingo. The reason stated for the injunction in the Harris petition was the same failure of the Secretary of State to follow the publishing requirements of Article 19, § 22. On October 26, 1994, Harris filed a motion for a preliminary injunction and requested that votes not be counted pending a decision on the merits.

On November 2, 1994, the Harris petition was heard by the chancery court. On November 3, 1994, the court entered an order reciting findings of fact which we paraphrase below:

(1) Harris is a taxpayer and registered voter in Arkansas.

(2) On May 6, 1994, the Secretary of State published a public notice of Amendment 2 which contained only the popular name and ballot title of the amendment. A similar publication was made in September 1994 and two more publications were made in October 1994. The entire text of the amendment was sent for publication in all 75 counties on October 30, 1994.

(3) Private contributions to support the campaign for Amendment 2 totaled $181,085.36. Of that amount, $109,557.95 was contributed since August 8, 1994. A total of $125,000 was spent by the Natural State Committee.

(4) A total of 11,153 volunteer hours was contributed in support of Amendment 2, with the majority of those hours contributed in September and October 1994.

(5) Much of this time and money would not have been donated had the Harris petition been filed earlier.

(6) If Amendment 2 passed, the State of Arkansas could anticipate collecting approximately $36.28 million in fiscal year 1995-96 and $37.56 million in fiscal year 1996-97. That money would be irretrievably lost and would have gone to various state agencies and commissions for the preservation of natural resources, wildlife, and historical articles and buildings. There was credible testimony that the State will be irreparably harmed by loss of these revenues.

(7) Harris is 70 years old, lives on a fixed income of $2,000 per month and would pay some amount less then $563 in sales taxes under Amendment 2 during the remainder of his life. Intervenor Natural State Committee offered to post a bond in the amount of $563 to protect Harris.

The chancery court then reached conclusions which we paraphrase:

(1) Regarding the manner of publication, there is no distinction between this case and Walmsley v. McCuen, supra.

(2) The considerations pertaining to whether to grant a preliminary injunction are different from the Walmsley case in that the State has shown that irrevocable harm will occur if the injunction is improvidently granted, and intervenors Klaser and the Natural State Committee have shown that they were prejudiced in terms of time and money contributed due to the delay in filing the Harris petition.

(3) Unlike commercial litigation, the court did not believe that laches applies when the plaintiff seeks to enforce a constitutional obligation of the Secretary of State to publish a proposed amendment as required by Article 19, § 22.

(4) Harris will not be irreparably harmed by the amount of taxes paid if Amendment 2 passed but has established irreparable harm in that election procedures are mandatory before an election and directory after an election and inasmuch as no monetary value can be placed on his right to enforce the publication requirement under Article 19, § 22.

(5) A bond exceeding $70 million would be impossible for Harris to post and would not be appropriate in the context of his seeking to enforce the provisions of the Arkansas Constitution.

(6) Based on the Walmsley case and the court’s opinion that laches does not apply, Harris has an extremely high likelihood of success on the merits.

(7) The harm to Harris from not granting the injunction exceeds the harm to the State and intervenors from granting it.

(8) The argument of the legislators, as intervenors, that the injunction grants the Secretary of State a veto power over the General Assembly’s right to refer proposed constitutional amendments is overruled.

(9) The argument of McCuen and the intervenors that the preliminary injunction should not issue because its effect will be irreversible is overruled.

The court preliminarily enjoined the Secretary of State from canvassing returns and counting the votes on Amendment 2 and refrained from requiring Harris to post a bond.

I. Subject Matter Jurisdiction

Though neither party has raised the issue of subject matter jurisdiction, we can investigate such jurisdiction on our own. Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988). We hold that jurisdiction exists in chancery court in this case.

Article 19, § 22 of the Arkansas Constitution provides the process for proposed amendments to the constitution adopted by the General Assembly. There are certain requirements for these amendments under Article 19, § 22: (1) they must be adopted at a regular session of the General Assembly, (2) a majority of the members of each house must agree, (3) the amendments and the yeas and nays must be entered on the journals of each house, and (4) the amendments must be published by the Secretary of State for six months.

In Walmsley v. McCuen, supra, the appellant appealed from Pulaski County Chancery Court and sought the same relief as that requested in the Harris petition based on the Secretary of State’s failure to publish the proposed amendment for six months, as required by Article 19, § 22 of the Arkansas Constitution. The chancery court in Walmsley had found compliance with the publishing requirement of Article 19, § 22. We reversed the chancery court and held that the Secretary of State had not complied with the publishing requirement. No question of subject matter jurisdiction was raised by this court or any party.

This court has considered multiple cases over the years where the issue involved was whether full compliance with Article 19, § 22 had been attained, all of which were appeals from chancery court. Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982); Wells v. Riviere, 269 Ark. 156, 599 S.W.2d 375 (1980); Jernigan v. Niblock, 260 Ark. 406, 540 S.W.2d 593 (1976); Bryant v. Rinke, 252 Ark. 1043, 482 S.W.2d 116 (1972). In none of these cases was subject matter jurisdiction ever challenged. In Becker v. Riviere, the issue was the purpose of a ballot title for Article 19, § 22 amendments. This court refused to enjoin certification of the ballot title. In Wells v. Riviere, the suit was to prevent the Secretary of State from placing three Article 19, § 22 amendments on the ballot because they had not been adopted in a regular session of the General Assembly. This court agreed that the amendments should not be placed on the ballot. In Jernigan v. Niblock, the suit was to prevent the Secretary of State from certifying an Article 19, § 22 amendment to election officials because the yeas and nays had not been appropriately recorded. We affirmed the chancellor’s injunction and made it permanent. And in Bryant v. Rinke, the issue also was the failure of the yeas and nays to be appropriately recorded for an Article 19, § 22 amendment. Again, we agreed that the Secretary of State should be enjoined from publishing those amendments. In two other cases, this court entertained appeals from chancery court for alleged irregularities in Article 19, § 22 constitutional amendments, even though the election had already been held. See Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); McAdams v. Henley, 169 Ark. 97, 273 S.W. 355 (1925).

The dissent cites little authority to support its conclusion that only circuit court jurisdiction was appropriate. It cites one case where we held that mandamus was the proper method for removing an ineligible candidate from the ballot under Ark. Code Ann. § 7-5-207 (Repl. 1991). See State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). That case and statute have nothing to do with Art. 19, § 22 amendments. The dissent then adduces several cases to support its notion that chancery court has no jurisdiction when the issue is what procedures are to be followed in conducting a political election. None of these cases deals with a constitutional amendment proposed under Art. 19, § 22. Indeed, as already indicated, a line of authority extending back several decades supports equitable jurisdiction for cases of this ilk where failure to comply with Art. 19 § 22 is the issue. In short, the dissent provides no authority to support its theory of circuit court jurisdiction, where an Art. 19, § 22 deficiency is involved.

Indeed, Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), was a dispute involving political parties over statutory procedures to be followed in political elections. Enforcement of political rights under the election laws was not deemed to be a matter for chancery court. Here, however, the issue is the failure of the Secretary of State to comply with the dictates of Art. 19, § 22 of the Arkansas Constitution in publishing the amendment and an injunction to prohibit placement of that amendment on the ballot. Again, such matters have exclusively been brought in chancery court.

Our chancellors and prospective parties like Harris could only conclude in light of Walmsley v. McCuen, its progeny, and the history of challenges under Art. 19, § 22, that jurisdiction lay in chancery court.

II. Mootness

Similarly, before we address the appellants’ issues, we consider Harris’s contention that this case is moot due to the fact that the November 8, 1994 General Election has already been held. The appellants urge that the issues raised in this appeal are ones of great importance to the general public and should be decided even if moot. See Netherton v. Davis, 234 Ark. 936, 355 S.W.2d 609 (1962). We agree that because this case involves issues surrounding an election on a constitutional amendment referred by the General Assembly, we should decide the issues. There is also the fact that appellants ask for a dissolution of the preliminary injunction against counting the ballots. The effect of such a dissolution is unknown, but that request for relief renders the case viable.

III. Preliminary Injunction

We turn then to the appellants’ principal argument which is that Harris impermissibly delayed the filing of his petition until three weeks before the General Election and is guilty of laches.

An order granting or denying a preliminary injunction is within the chancery court’s discretion. Smith v. American Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989); American Trucking Ass’n v. Gray, 280 Ark. 258, 675 S.W.2d 207 (1983). This court will not reverse the granting of a preliminary injunction unless there has been an abuse of the chancellor’s discretion. Smith v. American Trucking Ass’n, supra; Scrivner v. Portis Mercantile Co., 220 Ark. 814, 250 S.W.2d 119 (1952); Riggs v. Hill, 201 Ark. 206, 144 S.W.2d 26 (1940).

We believe that the chancery court’s analysis of the laches issue was correct. While we do not dispute the appellants’ suggestion that the Walmsley case was the catalyst for the Harris petition, we cannot conclude that the doctrine applies in a matter where a plaintiff seeks to enforce his constitutional right to be fully informed on a proposed constitutional amendment. As the chancery court appropriately noted, the Walmsley case decides the issue that the Secretary of State failed to comply with the publishing mandates set out in Article 19, § 22.

The appellants cite us to two cases in support of their laches theory — Ellis v. Hall, 221 Ark. 25, 251 S.W.2d 809 (1952) (plurality opinion) and Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990). Neither case decides the laches question. The Ellis case concerned a petition on a referred Act under Amendment 7 to the Arkansas Constitution. A Commissioner’s report on the sufficiency of the required signatures showed the number to be approximately 1,400 short of the required number. In a plurality decision, three members of this court refused to strike the matter from the ballot on the basis of a prima facie report and further concluded that the remaining time before the General Election was insufficient for a completion of proof. In the instant case, however, proof of failure to publish in accord with Article 19, § 22 and this court’s decision in Walmsley v. McCuen, supra, was beyond dispute. Accordingly, the asserted constitutional deficiency was not a prima facie matter.

In Becker v. McCuen, supra, the petition contesting the proposed constitutional amendment (the “Interest Rate Amendment”) by the legislature contended that the popular name and ballot title, as published and certified, were misleading and deceptive. We declined to strike the matter from the ballot because the petitions had not sought to have the Secretary of State correct his order previously and had waited until the eleventh hour to do so. Although there was a mistake in the publication and certification of the ballot title by the Secretary of State, we held that there was substantial compliance. We went on to state that if the Secretary of State’s action caused prejudice to either side, it would be proper to strike the matter from the ballot. The facts in Becker are vastly different from those in the instant case. Here, the Secretary of State failed to comply with the six-month publication of the entire amendment as required by Article 19, § 22, and the chancery court found that Harris had been irreparably harmed by this failure.

The appellants also contest the chancery court’s finding that Harris would be irreparably harmed without the injunction and that he had no adequate remedy at law. They hinge their arguments on the minimal monetary expense at issue — $563 — that Harris would incur from the proposed tax. That is not the issue, however. The right to be fully and adequately informed of constitutional amendments referred by the General Assembly is inherent in the six-month publication requirement of Article 19, § 22. The constitutional mandate was violated in this case. No monetary value can be placed on the resulting prejudice. For this reason, the chancery court was correct in finding that the harm that would accrue to Harris by not granting the injunction outweighed the harm that would accrue to the appellants by granting it. Moreover, we observe no error in the chancery court’s refusal to require a $70 million bond of Harris. To have done so would have effectively foreclosed his right to a preliminary injunction and protection of his constitutional rights.

There is, lastly, the point raised that the chancery court’s ruling gives the Secretary of State veto power over proposed amendments under Article 19, § 22. That argument presupposes an intentional act by the Secretary of State to thwart the will of the General Assembly in adopting proposed amendments. There is no evidence that that occurred in the case before us. Indeed, the Secretary of State was undoubtedly attempting, in the publication of Amendment 2, to comply with certain statutes passed by the General Assembly, as was the case in Walmsley v. McCuen, supra. We, therefore, resist the temptation to decide hypothetically the effect that willful interference by the Secretary of State would have on the balance of power among the three discrete branches of government. We simply do not see this decision today as precedent for sanctioning a “veto power” by the Secretary of State over legislative amendments, as the intervenors suggest.

In sum, this is not a case where a dollar amount can be placed on the right of Harris to be fully apprised of a proposed constitutional amendment. Though, admittedly, the work and money of many volunteers and contributors who supported Amendment 2 came to naught, amending the constitution is a precise science which entails complete information flowing to the electorate.

There was no abuse of discretion by the chancery court in granting the preliminary injunction.

Affirmed.

Special Justice Winslow Drummond joins in this opinion. Holt, C.J., Dudley and Glaze, JJ., dissent. Roaf, J., not participating.