Stephanie Potter Barrett v. John Thurston, in His Official Capacity as Secretary of State

2020 Ark. 36, 593 S.W.3d 1

• Court: Supreme Court of Arkansas
• Decided: January 23, 2020
• Status: Published

Opinion

Cite as 2020 Ark. 36 SUPREME COURT OF ARKANSAS No. CV-19-904

Opinion Delivered: January 23, 2020

STEPHANIE POTTER BARRETT APPELLANT/CROSS-APPELLEE APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION V. [NO. 60CV-19-8051]

JOHN THURSTON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE HONORABLE TIMOTHY DAVIS FOX, FOR THE STATE OF ARKANSAS; JUDGE CHARLES WELCH, CLAUDIA SPEIGHTS, AND KAREN WIEMAN, IN AFFIRMED ON DIRECT APPEAL AND THEIR OFFICIAL CAPACITIES AS THE ON CROSS-APPEAL. COMMISSIONERS OF THE CLARK COUNTY ELECTION COMMISSION; RALPH EDDS, GENE HALEY, AND ELMER BEARD, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE GARLAND COUNTY ELECTION COMMISSION; LORI WEST, DEBBIE MARSH, AND CYNTHIA NEWSOM, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE HEMPSTEAD COUNTY ELECTION COMMISSION; JAMES HOUPT, JERRY CRAYCRAFT, AND WALTER GRANT, IN THEIROFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE HOT SPRING COUNTY ELECTION COMMISSION; ROBERT WILLIAMS, GLEN SEMMLER, AND ANGELA ALLEN, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE HOWARD COUNTY ELECTION COMMISSION; BILLY BOB POUNDS, DON LAMON, AND LESLIE CARTER, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE LITTLE RIVER COUNTY ELECTION COMMISSION; LEE LANE, GARY EVELD, AND RUSSELL PARISH IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE LOGAN COUNTY ELECTION COMMISSION; SANDY BUCHANON, CHARLOTTE FULLER, AND BRANDON COGBURN, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE MILLER COUNTY ELECTION COMMISSION; ROBERT WALTHER, ALMA BLACK, AND MARK WHISENTHUNT, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE MONTGOMERY COUNTY ELECTION COMMISSION; JOHN BENJAMIN, TERRY HUTSON, AND JAMES O’NEAL, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE PIKE COUNTY ELECTION COMMISSION; LANDON COPELIN, BERNARD MIZE, AND J. DAVID RAY, IN THE OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE POLK COUNTY ELECTION COMMISSION; STEPHEN HOLLAND, TOMMY VANOVER, AND RONNIE POWELL, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE SCOTT COUNTY ELECTION COMMISSION; DAVID DAMRON, SAM TERRY, AND LEE WEBB, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE SEBASTIAN COUNTY ELECTION COMMISSION; GAINES SOUTHWORTH, GARY WALKER, AND BARBARA HOLT, IN THEIR OFFICIAL CAPACITIES AS THE

2 COMMISSIONERS OF THE SEVIER COUNTY ELECTION COMMISSION; AND GREG BLAND, HOWARD ORSBURN, AND MONTIE SIMS, IN THEIR OFFICIAL CAPACITIES AS THE COMMISSIONERS OF THE YELL COUNTY ELECTION COMMISSION APPELLEES

EMILY L. LENGEFELD APPELLEE/CROSS-APPELLANT

SHAWN A. WOMACK, Associate Justice

Appellant Stephanie Potter Barrett appeals from the Pulaski County Circuit Court’s

order finding that Appellee Emily White Lengefeld is a certified candidate for the position

of Arkansas Court of Appeals District 4, Position 2. Lengefeld also filed a cross-appeal in

which she contends (1) Barrett lacked standing to establish subject-matter jurisdiction; (2)

Barrett’s petition failed to comply with the requirements of Arkansas Code Annotated

section 7-5-801(d) (Repl. 2018); (3) that Arkansas Code Annotated sections 7-10-

103(f)(1)(B)(ii) (Repl. 2018) and 7-7-305(c)(1)(B) (Repl. 2018) are special or local legislation

violative of amendment 14 of the Arkansas Constitution; and (4) Barrett failed to exhaust

all administrative relief. We affirm both the direct appeal and the cross-appeal.

I. Background

3 Emily White Lengefeld was appointed district judge of the 33rd District on March

19, 2018. She is currently a candidate for the Court of Appeals District 4, Position 2.

Lengefeld filed as a candidate without paying a filing fee in accordance with Arkansas Code

Annotated section 7-10-103(c) by circulating petitions. She filed both her petition to be

placed on the ballot as well as her political-practices pledge under the name “Judge Emily

White.” Lengefeld was later certified to the ballot by the Secretary of State as “Judge Emily

White.” Prior to 2019, Lengefeld resided and was domiciled in Grant County, Arkansas,

which is outside District 4, from 2007 through 2018. In February 2019, Lengefeld

purchased a home in Hot Spring County for the purpose of running for Position 2.

Lengefeld also moved her voter-registration and personal property assessment to Hot

Spring County in February 2019.

Stephanie Potter Barrett, also a candidate for Position 2, filed a petition in the

Pulaski County Circuit Court that requested a writ of mandamus and declaratory

judgement declaring Lengefeld’s petition for candidacy and political-practices pledge

invalid and removal of Lengefeld from the ballot for the election for the office of Arkansas

Court of Appeals District 4, Position 2, to be held on March 3, 2020. In her petition,

Barrett alleges that Lengefeld is not a resident of District 4, that she is not authorized to

use the title “Judge” on the ballot in the election, and the name under which she filed,

“Judge Emily White,” is not her name as it should appear on the ballot. For these reasons,

Barrett asserts Lengefeld has not met the qualification requirements to seek a position on

4 the Court of Appeals under amendment 80, section 16 to the Arkansas Constitution and

Arkansas Code Annotated section 7-5-201.

On November 18, 2019, the trial court held an expedited hearing on the merits of

the petition and Lengefeld’s response. In its final order entered on November 27, 2019,

the circuit court concluded Lengefeld is a citizen, registered voter, and resident of District

4, finding that Barrett failed to meet her burden of proof with respect to the issue of

residency. The court found “Emily White” is an appropriate name to be listed on the ballot

and denied Barrett’s request to require White Lengefeld to use the surname “Lengefeld.”

Consequently, Barrett’s request to remove Lengefeld from the ballot for failure to use the

surname “Lengefeld” was also denied. As an appointed judge and candidate for the Court

of Appeals, the court held that, pursuant to sections 7-10-103(f)(1)(B)(ii) and 7-7-

305(c)(1)(B), Lengefeld may not use the title of “Judge” on the ballot. Lengefeld’s motions

to dismiss for lack of standing, failure to verify the complaint, and failure to exhaust all

remedies were denied. The court also rejected Lengefeld’s counterclaim challenging the

constitutionality of relevant election statutes. The circuit court issued a mandamus order to

the Secretary of State and Respondent County Boards of Election Commissioners to strike

the title of “Judge” from Lengefeld’s ballot name of “Emily White.” Barrett filed a timely

notice of appeal from the circuit court’s order, and Lengefeld filed a notice of cross-appeal.

II. Standing

On cross-appeal, Lengefeld argues the circuit court erred in finding Barrett had

standing to establish subject matter jurisdiction. The question of standing is a threshold

5 issue and should be addressed first. See Bomar v. Moser, 369 Ark. 123, 128, 251 S.W.3d

234, 239 (2007). The circuit court found that Barrett was a certified candidate for the

position of Arkansas Court of Appeals District 4, Position 2 and that she is a citizen,

resident, and qualified elector in Miller County, Arkansas. Lengefeld asserts Barrett failed

to present evidence that she is a registered voter in one of the counties that comprise

District 4, and therefore, the circuit court should have dismissed the case.

Barrett’s petition contained the following statement:

5. Petitioner Stephanie Potter Barrett is (sic) candidate and a registered voter residing in the Arkansas Court of Appeals District 4, in Texarkana, Miller County, Arkansas. Petitioner has the right for the above-mentioned declaratory judgment and subsequent writ issued that mandates all Respondents follow Amendment 80 § 16 of the Arkansas Constitution, Arkansas Code Annotated § 7-10-103, and § 7-7- 305.

The Arkansas Secretary of State John Thurston, in his official capacity, filed an answer to

Barrett’s petition in which he admitted Barrett is a candidate and registered voter:

5. The Secretary admits that Petitioner Stephanie Potter Barrett is a candidate and a registered Voter, as alleged in paragraph 5. Paragraph 5 otherwise contains factual allegations which are denied for lack of sufficient information.

In Lengefeld’s response to Barrett’s petition, she failed to raise the issue of standing.

It was not until the conclusion of testimony that the issue was asserted. The Arkansas

Rules of Civil Procedure require that any matter constituting an avoidance or affirmative

defense must be outlined in a party’s responsive pleading. See Ark. R. Civ. P. 8(c); Poff v.

Brown, 374 Ark. 453, 454, 288 S.W.3d 620, 622 (2008). The failure to plead an affirmative

defense can result in the waiver and exclusion of the defense from the case. Seth v. St.

6 Edward Mercy Med. Ctr., 375 Ark. 413, 417, 291 S.W.3d 179, 183 (2009). Because

Lengefeld failed to affirmatively plead standing, the defense is deemed to be waived.

III. Direct Appeal

Barrett’s central point on appeal is that the circuit court erred in determining

Lengefeld is a qualified elector of District 4, thereby qualifying her as a candidate for

Position 2. As the moving party, Barrett had the burden of proving by a preponderance of

the evidence that Lengefeld failed to reside within District 4 when she filed her candidacy.

See Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000). The standard of review in a

bench trial is whether the circuit court’s findings are clearly erroneous. Searcy Farm Supply,

LLC v. Merchs. & Planters Bank, 369 Ark. 487, 496–97, 256 S.W.3d 496, 503 (2007). A

finding is clearly erroneous when, although there is evidence to support it, a reviewing

court is left with a firm conviction that a mistake has been committed. Id.

Amendment 80, section 16(D) to the Arkansas Constitution governs the

qualifications and terms of justices and judges, providing:

All Justices and Judges shall be qualified electors within the geographical area from which they are chosen, and Circuit and District Judges shall reside within that geographical area at the time of election and during their period of service. A geographical area may include any county contiguous to the county to be served when there are no qualified candidates available in the county to be served.

(Emphasis added.) Therefore, to qualify as a judicial candidate for the Court of Appeals

District 4, Position 2, Lengefeld had to be a qualified elector from a county within District

4 when she filed as a candidate for the office.

7 The circuit court found Lengefeld, at all relevant times, to be a citizen, registered

voter, and resident of Hot Spring County, Arkansas. Barrett contends the circuit court

mistakenly relied on residency without regard to domicile. Under Arkansas Code

Annotated section 7-5-201(b) (Repl. 2018), “voting residence” is a voter’s domicile;

domicile is defined as a person’s fixed habitation, and a change in domicile may only be

made by an act of abandonment, joined with the intent to remain in another place. Barrett

argues Lengefeld never “abandoned” her Grant County home and, as a result, remains

domiciled there. This distinction between “residence” and “domicile” is not contemplated

by amendment 80––it simply requires that justices and judges be qualified electors within

the geographical area from which they are chosen.

In reaching its conclusion that Lengefeld is a resident of Hot Spring County for the

upcoming election, the circuit court relied on this court’s decision in State v. Jernigan. In

Jernigan, we stated that in determining the residency of voters and public officials, this

court considers (1) whether a person was physically present in a particular location, or (2)

whether a person intended to establish a domicile in a particular location. 2011 Ark. 487,

at 10, 385 S.W.3d 776, 782. In other words, if a candidate is unable to establish residency

by showing physical presence in the requisite location, this court has allowed a candidate to

establish residency by showing domiciliary intent in the requisite location. Id.

In the present case, Lengefeld has established that she is physically present in Hot

Spring County. Lengefeld purchased a home in Hot Spring County in 2019 and testified

that she resides at this property with her family. She has also registered to vote and assessed

8 her personal property in Hot Spring County for 2019. As evidence that Lengefeld is not a

resident of District 4, Barrett calls attention to the fact that Lengefeld’s children continue

to attend school in Grant County, that she still spends several nights a week in Grant

County, and that she still owns her Grant County home. Nevertheless, the circuit court

concluded that Barrett failed to meet her burden with the proffered evidence. This court

gives due deference to the superior position of the circuit court to determine the credibility

of the witnesses and the weight to be accorded their testimony. Lee v. Daniel, 350 Ark. 466,

470, 91 S.W.3d 464, 466–67 (2002). Further, it is within the province of the trier of fact to

resolve conflicting testimony. Id. Lengefeld’s actions and testimony indicate that she is

physically present in Hot Spring County––lingering connections to Grant County do not

undermine this point. Because Barrett fails to demonstrate by a preponderance of the

evidence that Lengefeld is not a resident and legal voter of Hot Spring County, the circuit

court’s conclusion that Lengefeld is a qualified elector of District 4 pursuant to

amendment 80, section 16(D) is not clearly erroneous.

Barrett next argues Lengefeld falsified her political practices pledge in bad faith and

the circuit court erred in amending this falsified pledge. Lengefeld filed as a candidate by

petition rather than pay the filing fee. In accordance with Arkansas Code Annotated

section 7-10-103(c)(1), candidates filing by petition are required to file a political-practices

pledge wherein they must request the name of the candidate to be placed on the ballot.

Arkansas Code Annotated section 7-10-103(f)(1) provides which candidates may use a

judicial title on the ballot:

9 (B)(ii) A candidate may use as the prefix the title of a nonpartisan judicial office in an election for a nonpartisan judicial office only if:

(a) The candidate is currently serving in a judicial position to which the candidate has been elected in the last election for the office; or

(b) The candidate:

(1) Is a candidate for the office of circuit judge or district judge;

(2) Is currently serving in the position of circuit judge or district judge as an appointee; and

(3) Has been serving in that position for at least twelve (12) months.

(Emphasis added.)

On September 17, 2019, Lengefeld signed her political practices pledge and printed

her name as it was to appear on the ballot as “Judge Emily White.” Included on the pledge

is the language of Arkansas Code Annotated section 7-7-305(c)(2) (Repl. 2018), which

states “[t]he person filing for office shall include his or her surname in addition to any

given names permitted under subdivision (c)(1)(A) of this section.” Failure of a candidate

to sign and file the pledge will result in the candidate’s removal from the ballot. See Ark.

Code Ann. § 7-6-102(e)(1) (Repl. 2018). Barrett now contends Lengefeld falsified her

pledge by listing “Judge” in her ballot title and listing her surname as “White” instead of

her married name, “Lengefeld.”1 Barrett submits that the filing of a political-practices

1 Additionally, Barrett makes the argument that the voter-signed petitions that Lengefeld submitted to be placed on the ballot had the name “Judge Emily White” on them and, as such, the petitions were defective because the use of the title “Judge” is prohibited by law. Barrett fails to further develop the issue and, as a result, we will not address this point.

10 pledge with inaccurate information is tantamount to not filing at all and should result in

the removal of Lengefeld from the ballot.

Pursuant to the language of section 7-10-103(f)(1), a candidate may use the title

“Judge” only if the candidate is currently serving in a judicial position to which they have

been elected or if they are a candidate for circuit or district judge and they are currently

serving as an appointed circuit or district judge and have been serving in that capacity for

at least twelve (12) months. Subsection (f)(5) further provides that “[a] candidate shall not

change the form in which his or her name will be printed on the ballot after the deadline

for filing the political practices pledge.” As an appointed judge and candidate for the Court

of Appeals, Lengefeld is not authorized to use the title “Judge” on the ballot, however,

Barrett argues subsection (f)(5) prohibited the circuit court from striking the title “Judge”

from Lengefeld’s political-practices pledge after the deadline. Yet by the plain language of

the statute, only candidates are barred from making modifications to their pledges past the

deadline––the law does not restrict courts from ordering a change. Moreover, the current

law only sanctions those who fail to sign the pledge; there is no penalty for those found to

have included inaccurate information on the pledge. Importantly, we have recognized that

it is a fundamental right to become a candidate for public office, and any law by which this

inherent right of the citizen is diminished or impaired ought to receive liberal construction

in favor of the citizen desiring to exercise the right. Populist Party of Ark. v. Chesterfield, 359

Ark. 58, 195 S.W.3d 354 (2004). In an attempt to disqualify Lengefeld as a candidate,

Barrett seeks to impute a penalty under section 7-6-102 that does not exist. The

11 inaccuracies of Lengefeld’s pledge should not alone serve as the basis for her

disqualification.

As for the matter of which surname Lengefeld was required to use on her pledge,

the statute only requires that a candidate use his or her “surname.” Ark. Code Ann. § 7-7-

305(c)(2). Lengefeld testified that her full name is now “Emily Lorraine White Lengefeld,”

her birth name was “Emily Lorraine White,” and “Lengefeld” is her married surname.

Lengefeld further testified that she commonly uses her maiden and married surnames

interchangeably in both her personal and professional life. She was appointed district court

judge under the name “Emily White.” Under the names “Emily Lorraine White Lengefeld”

and “Emily L. White Lengefeld,” Lengefeld registered to vote, obtained a driver’s license,

and was acknowledged in a deed. Both “White” and “Lengefeld” are surnames and it is

common practice for women to maintain their maiden names for professional purposes.

The record indicates that Lengefeld is known professionally as “White”; her use of her

maiden name on the ballot title does not serve to undermine the spirit of the political-

practices pledge by obfuscating her true identity, nor does it run afoul of the applicable

statute, which requires only that a candidate use their “surname.”

Finally, Barrett argues the circuit court erred in failing to award court costs. Barrett,

however, made no such request at the circuit court level and now raises a request for costs

for the first time on appeal. This court will not consider matters raised for the first time on

appeal. Dixon v. State, 2014 Ark. 97, at 4.

IV. Cross-Appeal

12 On cross-appeal, Lengefeld argues Barrett’s petition failed to adhere to the

verification requirements of Arkansas Code Annotated section 7-5-801. Section 7-5-801(d)

provides that in an action brought by a candidate to contest an election certification, the

complaint must be verified by an affidavit of the contestant. Lengefeld claims Barrett failed

to file an affidavit and that such failure should result in the dismissal of the action. This

court addressed the applicability of section 7-5-801 in Tumey v. Daniels. In Tumey, this court

stated that section 7-5-801 is a post-election procedure available only to a competing

candidate who claims to be the rightful nominee or victor. 359 Ark. 256, 260, 196 S.W.3d

479, 482 (2004). Pre-election attacks on a candidate’s eligibility are brought under section

7-5-207(b), which has no such verification requirement. Id. at 260, 196 S.W.3d at 482.

Thus, Barrett’s petition was compliant with Arkansas law.

Lengefeld next challenges the constitutionality of sections 7-10-103(f)(1)(B)(ii) and 7-

7-305(c)(1)(B). She argues these sections arbitrarily distinguish between candidates who

have been appointed to the elective office of judge and candidates who have been

appointed to other elective offices. Arkansas law requires the Attorney General to be given

notice when a statute is alleged to be unconstitutional. See Ark. Code Ann. § 16-111-111

(Repl. 2016). The purpose of the notice requirement is to prevent a statute from being

declared unconstitutional in a proceeding which might not be a fully adversary and

complete adjudication. Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).

Because Lengefeld failed to give notice of her constitutional challenge, this argument is not

preserved for review. See Reagan v. Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991).

13 For Lengefeld’s final point on cross-appeal, she argues the circuit court lacked

jurisdiction to hear Barrett’s petition because her complaint should have been filed with

the State Board of Election Commissioners. The basis for Lengefeld’s contention is

Arkansas Code Annotated section 7-4-101(f)(9), which grants the board the authority to

investigate alleged violations, render findings, and impose disciplinary action for violations

of election and voter registration laws.

This court has previously addressed the issue of administrative exhaustion in ballot

title cases in State v. Craighead Cty. Bd. of Election Comm’rs. There, we stated that an action

for mandamus and declaratory relief is the proper mechanism for enforcing the rights set

forth in section 7-5-207, which prohibits the inclusion of an ineligible candidate on an

election ballot. 300 Ark. 405, 412, 779 S.W.2d 169, 173 (1989). We further stated the

board may not exercise discretion or make findings of fact concerning the eligibility of a

candidate. Id. at 410, 779 S.W.2d at 172. That determination may only be made by a court,

and the court may then direct the board to either place the candidate’s name on the ballot

or remove it. Id. The circuit court clearly had jurisdiction to hear Barrett’s petition.

V. Conclusion

We hold that the circuit court correctly determined that Emily Lengefeld is a

certified candidate for the position of Arkansas Court of Appeals District 4, Position 2.

Accordingly, we affirm both the direct appeal and the cross-appeal. The mandate shall issue

immediately.

Affirmed on direct appeal and on cross-appeal.

14 WOOD and WYNNE, JJ., concur.

RHONDA K. WOOD, Justice, concurring. Fundamental principles of constitutional

interpretation require us to “read laws as they are written” and to give “words . . . their

obvious and natural meaning.” Brewer v. Fergus, 348 Ark. 577, 580–81, 79 S.W.3d 831,

832 (2002). We should interpret constitutional provisions so that each word carries

meaning. Forrester v. Daniels, 2010 Ark. 397, at 7, 373 S.W.3d 871, 875. Applying this

textualist approach to interpreting our Constitution precludes me from joining the

majority’s opinion. Though I would still affirm the circuit court’s order, I must concur due

to my disagreement with the majority’s analysis.

Amendment 80, section 16(D) contains two independent requirements: (i) all

Justices and Judges shall be qualified electors within the geographical area from which they

are chosen (“qualified-elector requirement”) and (ii) Circuit and District judges shall reside

within that geographical area at the time of the election and during their period of service

(“residency requirement”). The majority maintains that Amendment 80 does not

contemplate a distinction between residence and domicile. However, the Amendment does

contain a distinction between being a qualified elector in a geographical area and residing

there. In my view, a “qualified elector” is one who is domiciled in the relevant geographical

district.

As Amendment 80 requires that judges be “qualified electors” without defining the

term, construing the constitution as a whole, our next step is to determine if other

provisions give guidance. See Forrester, 2010 Ark. 397, at 7, 373 S.W.3d at 875 (interpreting

15 Amendment 80 by stating that the constitution “must be considered as a whole, and every

provision must be read in light of other provisions relating to the same subject matter”).

Article 3, section 1 of the Arkansas Constitution is titled “Qualifications of Electors” and

sets forth the constitutional requirements. A person is qualified to vote when he or she is,

among other things, “[l]awfully registered to vote in the election.” Ark. Const. art. 3, § 1(4).

The General Assembly has established certain voter registration requirements. Ark. Code

Ann. § 7-5-201 (Repl. 2018). Under this law, a person cannot be qualified to vote in more

than one precinct at any one time. Ark. Code Ann. § 7-5-201(c). Further, one’s “voting

residence shall be a voter’s domicile.” Ark. Code Ann. § 7-5-201(b)(1) (emphasis added).

Read together, Amendment 80 requires that a judicial candidate be a qualified

elector; Article 3, section 1 requires that the qualified elector be a lawfully registered voter;

and the General Assembly has established that voting residence shall be a voter’s domicile.

Textually, one is a qualified elector only in the precinct in which he or she is domiciled.

See, e.g., Clement v. Daniels, 366 Ark. 352, 355, 235 S.W.3d 521, 524 (2006) (“Thus, for the

purpose of a voter or a public official, a person does not have two domiciles with a right to

choose between them; his domicile is either at one place or the other.”). The majority,

however, extracts the qualified-elector requirement from Amendment 80 and gives

residence redundant application.

The majority relies on State v. Jernigan for support. But the Jernigan court addressed

only a residency requirement for municipal officers, not the qualified-elector requirement

for judicial candidates. The statute there provided that a candidate for mayor “must reside

16 within the corporate municipal limits.” Ark. Code Ann. § 14-42-201(c)(1) (Supp. 2019).

We noted that residency could be proved by (i) physical presence or (ii) domiciliary intent:

“In other words, if a candidate was unable to establish residency by showing physical

presence in the requisite location, this court has allowed a candidate to establish residency

by showing domiciliary intent in the requisite location.” 2011 Ark. 487, at 9–10, 385

S.W.3d at 782 (emphasis added).

Jernigan would be relevant if we were addressing Amendment 80’s residency

requirement for Circuit and District judges. But the present case requires us to interpret

the qualified-elector requirement, which applies to all judicial candidates. By citing

exclusively to Jernigan, the majority makes residency the primary consideration under both.

This interpretation violates the surplusage canon of interpretation: “[E]very word and every

provision is to be given effect. . . . None should needlessly be given an interpretation that

causes it to duplicate another provision or to have no consequence.” Antonin Scalia &

Bryan Garner, Reading Law: The Interpretation of Legal Texts 174 (2012); accord Forrester,

supra. By conflating the residency requirement with the qualified-elector requirement, the

majority duplicates the former and gives the latter no consequence.

The amendment’s drafters were aware of the difference between residency and

domicile. Cf. Quinney v. Pittman, 320 Ark. 177, 184, 895 S.W.2d 538, 542 (1995) (noting

that the legislature “was aware of the difference between the words ‘residency’ and

‘domicile’”). Had they intended residency to control the entire inquiry, they would not

have included the qualified-elector requirement. If the intent were as the majority suggests, 17 then Amendment 80 should read as follows: (i) all Justices and Judges shall be qualified

electors within residents of the geographical area from which they are chosen and (ii)

Circuit and District judges shall reside within that geographical area at the time of the

election and during their period of service. Our rules of interpretation require us to

inquire and to give meaning when the drafters use different terminology. We must give a

distinct meaning to the term “qualified electors” that is consistent with Amendment 80’s

text and well-settled interpretive principles.

Even though I part ways with the majority’s analysis, I would still affirm the circuit

court’s order. The circuit court concluded that appellant failed to meet her burden of

proof with regard to the issue of residency. The court made no ruling regarding the issue of

domicile. Because appellant failed to obtain a ruling on this issue, we are precluded from

reviewing it on appeal. TEMCO Constr., LLC v. Gann, 2013 Ark. 202, at 9, 427 S.W.3d

651, 657; see also Fisher v. Valco Farms, 328 Ark. 741, 748, 945 S.W.2d 369, 373 (1997) (“It

was appellant's burden to obtain a ruling, and the absence of a ruling constitutes a waiver

of this issue on appeal.”).

WYNNE, J., joins.

David J. Potter; and Potter Law Firm, LLP, by: Jacob S. Potter, for appellant.

Waymack Standerfer Law, by: Jennifer A. Waymack; and Jeff Priebe Law Firm, by: Jeff

Priebe, for appellee Emily L. Lengefeld.