Cite as 2020 Ark. 331 SUPREME COURT OF ARKANSAS No. CV-20-527
Opinion Delivered: October 15, 2020
STAY STRONG, STATUS QUO, A LOCAL OPTION BALLOT APPEAL FROM THE VAN BUREN QUESTION COMMITTEE, AND COUNTY CIRCUIT COURT BEVANS FAMILY LIMITED PARTNERSHIP HONORABLE SUSAN WEAVER, APPELLANTS JUDGE
V. AFFIRMED.
PAM BRADFORD IN HER OFFICIAL CAPACITY AS COUNTY CLERK OF VAN BUREN COUNTY, ARKANSAS APPELLEE
LET VAN BUREN COUNTY VOTE, A LOCAL OPTION BALLOT QUESTION COMMITTEE INTERVENOR/APPELLEE
RHONDA K. WOOD, Associate Justice
Stay Strong, Status Quo, a local-option ballot-question committee, and Bevans
Family Limited Partnership (together, Stay Strong) oppose Van Buren County Clerk Pam
Bradford’s certification of a local-option petition entitled “Let Van Buren County Vote –
Wet/Dry Issue.” Stay Strong appealed the certification to the circuit court, which denied
relief. Stay Strong now seeks review of the denial. Intervenor/appellee Local Option Ballot
Question Committee Let Van Buren County Vote (Sponsor) sponsored the petition. Stay
Strong seeks either a remand because the circuit court dismissed the certification appeal
without holding a hearing or a reversal because the circuit court erroneously concluded that the petition form was facially valid and that one petition canvasser was not a paid canvasser.
Stay Strong also argues that the petition must be removed from the general-election ballot
because the circuit court did not decide, and this court will not have decided, its appeal of
Bradford’s certification more than sixty-five days before the general election. We affirm.
I. Background
On August 4, 2020, Bradford, acting in her capacity as county clerk, certified the
instant local-option petition. On August 14, 2020, Stay Strong filed a statutory appeal from
Bradford’s certification under Arkansas Code Annotated section 3-8-205(b) in circuit court.
Stay Strong sought reversal of Bradford’s certification because the petition form obtained
additional information from the petition’s signers and because one canvasser allegedly
received compensation without fulfilling the paid-canvasser requirements.
On August 28, 2020, Bradford responded to the petition wherein she moved to
dismiss the appeal. On August 31, 2020, Stay Strong filed a reply. On the evening of August
31, 2020, the circuit court entered an order denying Stay Strong relief. Stay Strong appealed
to this court, and we expedited the appeal.
II. Standard of Review
In reviewing a circuit court’s decision on a motion to dismiss, we treat the facts
alleged in the complaint as true and view them in the light most favorable to the plaintiff.
Dollarway Patrons for Better Schs. v. Morehead, 2010 Ark. 133, 361 S.W.3d 274. The pleadings
are liberally construed, and we resolve all reasonable inferences in favor of the complaint.
Id. We look only to the allegations in the complaint and not to matters outside the
complaint, like arguments of counsel and exhibits. Oldner v. Villines, 328 Ark. 296, 943
2 S.W.2d 574 (1997). We review issues of statutory interpretation de novo. Daniel v. Ark.
Dep’t of Hum. Servs., 2017 Ark. 206, 520 S.W.3d 258.
III. Dismissal Without a Hearing
Stay Strong first asserts that the circuit court erred by dismissing the statutory appeal
sua sponte, without first taking evidence or holding a hearing. We disagree. Contrary to Stay
Strong’s assertion, Bradford had moved to dismiss before the court entered its order.
Specifically, on August 28, 2020, Bradford responded to Stay Strong’s appeal and, in her
response, pleaded for a dismissal, in part, because the form of the petition and the signatures
collected by Mr. Byard complied with Arkansas law. Stay Strong then filed a reply. Thus,
the circuit court did not dismiss the appeal sua sponte or without argument from the parties.
Furthermore, the circuit court was not required to hear evidence or hold a hearing
on Bradford’s motion to dismiss. On a motion to dismiss, a circuit court’s review is limited
to the pleadings, without consideration of outside evidence or factual arguments. See Oldner,
328 Ark. at 300–01, 943 S.W.2d at 577. And the court’s decision to hold a hearing on a
motion to dismiss is discretionary, particularly when a written response is filed. See Ark. R.
Civ. P. 12; Hargis v. Hargis, 2019 Ark. 321, 587 S.W.3d 208; Loveless v. Agee, 2010 Ark. 53,
at 3 (citing Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993) (“[A] trial
court should either allow a written response to the motion or hold a hearing at which a
response is heard.”)). Because Stay Strong’s arguments against Bradford’s motion were
advanced in writing, the circuit court did not abuse its discretion in deciding the motion to
dismiss without a hearing. Therefore, we reject Stay Strong’s contention that we should
remand.
3 IV. Validity of Petition Form
Next, Stay Strong argues that the petition form was invalid because it violated
Arkansas Code Annotated sections 3-8-805 and 806, which provide the information
required for petition parts. Under section 805, the person signing the petition must be a
registered voter and must “sign his or her own name and print his or her own name, address,
birthdate, and the date of signing on a petition in his or her own handwriting.” Ark. Code
Ann. § 3-8-805(a) (Repl. 2017). Section 806 states that the petition part “shall be on
substantially the following form . . .” Ark. Code Ann. § 3-8-806(a). The petition form
provided in section 806 asks the signer to provide his “printed name, date of birth, residence,
city or town of residence, and date of signing this petition.” Id.
In its appeal to the circuit court, Stay Strong alleged that the petition parts were
invalid because they asked petition signers for more information than sections 805 and 806
required, including a signer’s telephone number and email address. It claimed that the
Sponsor used this additional information to contact signers not registered to vote after they
became registered. But regardless of the Sponsor’s motivation for collecting this other
information, the petition parts were valid because they included the information required
by section 805 and substantially complied with the petition format included in section 806.
The statute does not prohibit the collection of additional information, and we will not
impose more requirements on the statute’s plain language. Therefore, collecting this
additional identifying information from petition signers does not negate the validity of the
petition parts. We affirm the circuit court’s dismissal of the petition-parts challenge.
4 V. Paid Canvassers
Stay Strong also argues that the Sponsor lacks sufficient signatures for certification. It
argues that many of the petition parts should be excluded because canvasser Byard was a
“paid canvasser” under Arkansas Code Annotated sections 3-8-801 and 3-8-811 but failed
to fulfill the statutory requirements for paid canvassers. Section 801 defines a paid canvasser
as “a person who is paid or with whom there is an agreement to pay money or anything of
value . . . for soliciting or obtaining a signature on a petition.” Ark. Code Ann. § 3-8-801(3)
(emphasis added). Similarly, section 811 states, “A canvasser is a paid canvasser if he or she
is paid money or anything of value for soliciting signatures.” Ark. Code Ann. § 3-8-
811(b)(3)(B) (emphasis added).
Stay Strong alleged that Byard was a paid canvasser because he entered into a “for
value” agreement with an attorney. The facts alleged were that Byard and the attorney
agreed that Byard would carry and canvass another statewide petition for the attorney, and
in exchange, the attorney would provide the legal assistance in any sufficiency challenges to
the petition.
On review, considering these facts in the light most favorable to Stay Strong, we
cannot say the circuit court erred. Stay Strong failed to allege sufficient facts to support a
finding that Byard was a “paid canvasser.” The exchanged for value, namely legal services,
benefited the petition Sponsor, not Byard. Stay Strong did not plead that Byard,
individually, received anything of value for canvassing this petition. Thus, we affirm. See
Ark. Dep’t of Envtl. Qual. v. Brighton Corp., 352 Ark. 396, 403–09, 102 S.W.3d 458, 462–
66 (2003).
5 VI. Election-Timing Requirements
A. Arkansas Code Annotated Section 3-8-205
Finally, Stay Strong argues we must reverse because its appeal will not be final more
than sixty-five days from the November 3, 2020 election; therefore, the petition cannot
remain on the ballot.1 The timing parameters for setting elections for local-option petitions
are provided in Arkansas Code Annotated section 3-8-205. Section 205(a) requires certified
petitions to be placed on the ballot “at the next biennial general election as provided in
§ 3-8-101.” But if a party appeals the certification, the election may take place at a later
date.2 Section 205(c) states, in that case, “the election shall be had no sooner than sixty-five
(65) days after the appeal is determined, if the decision is in favor of the petitioners.” The
election could be rescheduled again if there is an appeal to the Supreme Court: section
205(d)(2) provides that “the county board of election commissioners may, in its discretion,
delay the election until after the final decision of the Supreme Court.” Section 205(d)(3)
1 Initially Stay Strong raised the impact of § 3-8-205(c) and (d) in its letter to the court requesting an expedited hearing on its petition and now again as a point on appeal. 2 Although not relevant given the outcome, in response to the dissent, we also explain this conclusion. In 1955, the General Assembly enacted § 3-8-101 prescribing that all local option elections involving the sale of alcohol must occur on the regular biennial November general election days. The General Assembly amended § 3-8-205 in 1985 and again in 1993 with the only provision for setting the election “as provided in § 3-8-101.” The General Assembly changed course in 1997, when it amended § 3-8-205 and it added subsections (c) and (d), which did not include the requirement of setting the election according to § 3-8- 101. Instead, the amendment specified alternative timing if an appeal of the certification occurred. In 2007, the General Assembly again amended § 205 further and extended the timing of an election in cases of sufficiency challenges in subsections (c) and (d) to be “no sooner than sixty-five days and no later than ninety days”. This court cannot interpret the deliberate and repeated acts of the legislature to be meaningless.
6 provides the timeline for the resetting of the election date if the commission chooses to
delay the election.
Stay Strong’s argument for reversal based on the timing of its statutory appeal is two-
fold. First, it contends that the petition must be removed from the ballot because the circuit
court decided the appeal sixty-four days before the November 3, 2020 election. Second, it
alleges our decision will not be final sixty-five days before the election.
B. Circuit Court Appeal
Stay Strong appealed Bradford’s certification to the circuit court under section
205(b). Stay Strong asserts that the petition violates section 205 because the statute provides
the election shall be held no sooner than sixty-five days following the circuit court’s decision
to uphold the clerk’s certification. We hold that the order was timely because the sixty-five-
day deadline fell on Sunday, August 30, 2020, so the deadline was the following Monday,
August 31, 2020. See Ark. Code Ann. § 7-1-108 (Repl. 2018). This adheres to our past
decisions. See Richardson v. Martin, 2014 Ark. 429, 444 S.W.3d 855.
In Richardson, this court determined whether an initiative petition for a constitutional
amendment was filed timely. Id. at 3–6, 444 S.W.3d at 858–59. The petition was filed on
July 7, 2014, but the Amendment 7 filing deadline of “not less than four months before the
election” fell on July 4, 2014, a state holiday. Id., at 4, 444 S.W.3d at 858. After reading
Amendment 7 “in light of other provisions relating to the same subject matter,” including
Amendment 51, § 9(l) and Arkansas Code Annotated section 7-1-108, we concluded that
because the election deadline occurred on a legal holiday, the deadline effectively fell on
7 “the next day which [was] not a Saturday, Sunday, or legal holiday.” Id. at 6, 444 S.W.3d
at 859.
Following Richardson, we conclude that the requirement of section 205(c) was
satisfied. Although section 205 does not discuss Sunday deadlines, Title 7 of the Arkansas
Code does provide the general election provisions. Arkansas Code Annotated section 7-1-
108 states that “if an election law deadline occurs on a Saturday, Sunday, or legal holiday,
the deadline shall be the next day which is not a Saturday, Sunday, or legal holiday.” In the
absence of specific guidance from section 205, the more general statute, section 7-1-108,
controls. See Scott v. Greer, 229 Ark. 1043, 320 S.W.2d 262 (1959). We also note that the
General Assembly amended section 205 after Richardson and did not choose to limit its
application. Therefore, although the circuit court decided Stay Strong’s appeal sixty-four
days before the election, no violation occurred because the sixty-fifth day was a Sunday.
C. Arkansas Supreme Court Appeal
Stay Strong next argues, citing section 205(d)(3), that we must reverse because the
election will occur less than sixty-five days from our decision in this appeal. In making this
argument, Stay Strong misreads section 205. Section 205(d) dictates the petition appeal
process beyond the circuit court. That section first provides that if the circuit court’s decision
affirmed the certification, then the challenger may take an appeal “from the final decision
of the circuit court.” Ark. Code Ann. § 3-8-205(d)(1)(B). Section 3-8-205(d) then states,
(2) In that event, the county board of election commissioners may, in its discretion, delay the election until after the final decision of the Supreme Court.
8 (3) If the decision is in favor of the petitioners, then the county board of election commissioners shall set the day for the election, which shall be not earlier than sixty-five (65) days nor later than ninety (90) days after the final decision of the Supreme Court.
(Emphasis added.) Reading section 205(d)(2), even if the circuit court’s decision favors
petitioners, the board of election commissioners may choose to delay the election until after
this court decides the appeal. Section 205(d)(3) then establishes the parameters for setting
the election if a delay occurred.
Stay Strong’s argument that section 205(d)(3) requires that the board always set the
election not earlier than sixty-five days from our final decision disregards section 205(d)(2).
According to the surplusage canon of statutory construction, every phrase within a statute
must be given meaning: “The courts must lean in favor of a construction which will render
every word operative, rather than one which may make some idle or nugatory.” Antonin
Scalia & Bryan A. Garner, Reading the Law: The Interpretation of Legal Texts 174 (2012). We
cannot disregard section 205(d)(2) or its location within the statutory scheme. Certainly, if
the commissioners set the election pursuant to subdivision (d)(1)(A), they would not need
to set another day for the election under subdivision (d)(3). Reading the statute as a whole
and harmoniously, section 205(d)(3) applies when the county board of election
commissioners has chosen to delay the election pending this court’s decision. But here,
nothing in the record suggests that the commissioners have delayed the election. As a result,
section 205(d)(3) does not apply. We therefore decline to address any other arguments
concerning section 205(d)(3).
9 VII. Conclusion
We affirm the circuit court’s denial of Stay Strong’s appeal of the certified election
petition. The petition form, which requested additional information from signers, was not
invalid. We need not strike the petition parts collected by canvasser Byard because he was
not subject to the paid-canvasser statutory requirements. Finally, the record does not
indicate that the election commissioners have delayed the election pending our decision.
Because the election has not been delayed, the election does not need to be reset, and
Arkansas Code Annotated section 3-8-205(d)(3) is inapplicable.
Affirmed.
Mandate to issue immediately.
Special Justice JOHN R. SCOTT joins in this opinion.
WYNNE and WOMACK, JJ., dissent.
BAKER, J., not participating.
ROBIN F. WYNNE, Justice, dissenting. I agree with the majority’s conclusions in
Parts III, IV, and V. But I dissent because I do not think the statutory-timing issues are
properly before us in this appeal. I also think the majority has gone beyond this court’s
proper role in interpreting those statutory issues.
First, the statutory-timing issues are not properly before us in this appeal. In its order,
the circuit court found that the form of the petition is valid and consistent with Arkansas
law and that Byard was not a paid canvasser. The circuit court did not address the timing
issues. We do not presume a ruling from the circuit court’s silence and will not review a
matter on which the circuit court has not ruled. Ark. Lottery Comm’n v. Alpha Mktg., 2012
10 Ark. 23, at 7, 386 S.W.3d 400, 404. Moreover, the parties did not argue the timing issues
below. The only references to the statutory time frames appear in correspondence to the
circuit court. In a letter to the circuit court, appellees argued that Arkansas Code Annotated
section 3-8-205(c) and (d)(1)(A) prohibited the election from being held sooner than sixty-
five days after the circuit court’s ruling. Counsel for Bradford agreed in an email to the
circuit court that a timely ruling was needed. No party mentioned the statutory time frames
applicable when an appeal is taken to this court. It is well settled that we will not consider
arguments made for the first time on appeal. Teris, LLC v. Chandler, 375 Ark. 70, 88, 289
S.W.3d 63, 75 (2008). Therefore, I think the timing issues should be decided in the
companion case, Stay Strong, Status Quo v. Van Buren Cty., 2020 Ark. 329 (CV-20-548).
Nevertheless, because the majority addresses the merits of the statutory-timing issues
here, I will do so as well. Arkansas Code Annotated section 3-8-205 governs the timing of
elections on local-option petitions. If the county clerk determines that a petition is sufficient,
the clerk certifies that finding to the county board of election commissioners for placement
on the following biennial general-election ballot. Ark. Code Ann. § 3-8-205(a).1 If an
appeal is taken to the circuit court, “the election shall be had no sooner than sixty-five (65)
days after the appeal is determined, if the decision is in favor of the petitioners.” Ark. Code
Ann. § 3-8-205(c). After the circuit court’s decision,
[t]he decision shall be certified immediately to the county board of election commissioners, and the day for the election shall be fixed by the county board of election commissioners for not earlier than sixty-
1 Arkansas Code Annotated section 3-8-101 provides that local option elections “shall be held only on the regular biennial November general election days.”
11 five (65) days nor later than ninety (90) days after the certification of the decision of the circuit court.
(B) Any appeal from the final decision of the circuit court shall be taken within ten (10) days and shall be advanced and immediately determined by the Supreme Court.
(2) In that event, the county board of election commissioners may, in its discretion, delay the election until after the final decision of the Supreme Court.
(3) If the decision is in favor of the petitioners, then the county board of election commissioners shall set the day for the election, which shall be not earlier than sixty-five (65) days nor later than ninety (90) days after the final decision of the Supreme Court.
Ark. Code Ann. § 3-8-205(d)(1)–(3). The majority concludes that the provision in section
3-8-205(d)(3) requiring the election to be held no earlier than sixty-five days and no later
than ninety days after the final decision of this court only applies when the county board
has delayed the election pending our decision pursuant to section 3-8-205(d)(2).
In reaching this conclusion, the majority rules on an issue that was neither argued by
the parties nor decided by the circuit court. It is true that this court reviews issues of statutory
interpretation de novo. Arkansas Dep’t of Corr. v. Shults, 2018 Ark. 94, at 4, 541 S.W.3d
410, 412. But as I noted above, the circuit court did not interpret the statute in its ruling. 2
We have repeatedly held that we will not make a party’s argument for them or raise an issue
sua sponte, unless it involves the circuit court’s jurisdiction. Reeve v. Carroll Cty., 373 Ark.
2 I also note that in Stay Strong, Status Quo v. Van Buren Co., 2020 Ark. 329 (CV-20- 548), the circuit court did not make a ruling on the applicability of Arkansas Code Annotated section 3-8-205(c) or (d), other than finding “that a determination on the appeal was made and a decision in favor of the petitioners was entered within the statutorily prescribed timeframe.”
12 584, 587, 285 S.W.3d 242, 245 (2008). And this court will not consider an argument that
is not properly developed. Id. Moreover, “[o]ur adversary system is designed around the
premise that the parties know what is best for them and are responsible for advancing the
facts and arguments entitling them to relief.” Moore v. Moore, 2016 Ark. 105, at 16, 486
S.W.3d 766, 776 (Brill, J., dissenting) (quoting Castro v. United States, 540 U.S. 375, 386
(2003) (Scalia, J., concurring in part and concurring in judgment)). No party argued that
section 3-8-205(d)(3) only applied when the county board delayed the election pursuant to
section 3-8-205(d)(2). In fact, no party made any argument concerning section 3-8-
205(d)(B)(2). No party even argued that a local-option election can be held on any date
other than the regular biennial November general-election day, as set forth in section 3-8-
101.
In my view, nothing in the statute limits the requirement of section 3-8-205(d)(3)
that the election be held no earlier than sixty-five days after this court’s decision to only
those instances in which the county board has delayed the election. There is no such limiting
language in section 3-8-205(d)(3), and we will not read into a statute a provision that was
not included by the legislature. See Keep Our Dollars in Independence Cty. v. Mitchell, 2017
Ark. 154, at 7, 518 S.W.3d 64, 68–69. When the county clerk’s certification is appealed,
the plain language of the statute requires that the county board set the election for not earlier
than sixty-five days nor later than ninety days after the decisions of both the circuit court
and this court. Whether the county board has delayed the election does not change that
timing requirement.
13 In sum, Arkansas Code Annotated section 3-8-205 requires a local-option election
to be held not earlier than sixty-five days nor later than ninety days after the decision of this
court when an appeal is taken. Here, the election is set for November 3, 2020—less than
three weeks from today. We did not decide this appeal in time for Van Buren County
residents to vote on the local-option petition in the November 3, 2020 general election.
WOMACK, J., joins.
Streett Law Firm, P.A., by: James A. Streett; and Brian G. Brooks, Attorney at Law,
PLLC, by: Brian G. Brooks, for appellants.
Murphy, Thompson, Arnold, Skinner & Castleberry, by: Kenneth P. “Casey” Castleberry,
for appellee Let Van Buren County Vote, a Local Option Ballot Committee.