Stilley v. Makris

38 S.W.3d 889, 343 Ark. 673, 2001 Ark. LEXIS 76
CourtSupreme Court of Arkansas
DecidedFebruary 15, 2001
Docket00-1102
StatusPublished
Cited by5 cases

This text of 38 S.W.3d 889 (Stilley v. Makris) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stilley v. Makris, 38 S.W.3d 889, 343 Ark. 673, 2001 Ark. LEXIS 76 (Ark. 2001).

Opinion

RAY THORNTON, Justice.

This appeal concerns the validity of an initiative petition that was sponsored and filed by appellant, Oscar Stilley. This initiative petition proposed to require Jefferson County, Arkansas (“County”), to sell its county hospital, known as Jefferson Regional Medical Center (“JRMC”). The ballot title and petition clearly stated that Oscar Stilley, attorney at law, would conduct and administer the ,sale of the hospital in exchange for a commission fee of five percent of the gross receipts from the sale. The proposed initiative would also abate or suspend taxes levied by the County. Appellee, George A. Makris, Jr. (“Makris”), sought a writ of mandamus, challenging the legal validity of appellant’s initiative petition and seeking a temporary restraining order to prevent the county clerk from certifying the adequacy of the signatures on the petition. After appellant intervened, the trial court issued the order of mandamus and the temporary restraining order. We affirm both of the trial court’s rulings.

The County currently leases the hospital property to Jefferson Hospital Association, Inc. (“Association”), pursuant to a lease agreement that does not expire until the year 2029. The County has issued revenue bonds, secured by a mortgage lien on the hospital property and the rental payments made under the lease. This agreement is contained in the trust indenture contract between the County and Simmons First National Bank of Pine Bluff, Arkansas.

On August 7, 2000, appellant filed an initiative petition bearing the popular name of “AN INITIATED ORDINANCE TO PROVIDE FOR THE SALE OF JEFFERSON COUNTY REGIONAL CENTER, A HOSPITAL OWNED BY JEFFERSON COUNTY, ARKANSAS” with the Jefferson County clerk (“Clerk”) as an initiated ordinance, pursuant to Ark. Code Ann. § 14-14-914(c) (Repl. 1998) and Amendment 7 of the Arkansas Constitution. If adopted, the initiative petition would require that the County adopt an ordinance providing for the sale of JRMC to the highest bidder. The initiative also authorizes Mr. Stilley to provide all necessary advertisement, solicitation of bids, accounting and legal work necessary for the sale, and directs the payment of five percent of the gross selling price to Mr. Stilley. The petition further provides that, after Mr. Stilley’s five percent commission is paid, the remaining net proceeds would be split evenly in the following manner: fifty percent would go to the County Road Fund, and the remaining fifty percent would go the County General Fund, County Road Fund, and the County Library Fund in order to offset, for a time, the revenue lost by abating and suspending the County tax millages dedicated to the County General Fund, the County Road Fund, and the County Library Fund.

After appellant filed his initiative petition, the Clerk had ten days to evaluate its sufficiency by determining whether the petition had been signed by not less that fifteen percent of the qualified electors who voted in the last general election for the office of circuit clerk, pursuant to Ark. Code Ann. § 14-14-915(d) (Repl. 1998). Under Ark. Code Ann. § 14-14-914(b) and (c) (Repl. 1998), the initiative petition could not be placed on the ballot without a certification by the Clerk that it contained a sufficient number of signatures.

On August 10, 2000, Makris, a citizen, resident, taxpayer, and registered voter in the County, filed a Petition for Writ of Mandamus challenging the legal validity of the initiative petition. Appellee Makris also filed a motion to expedite, requesting both a hearing within seven days, pursuant to Rule 78(d) of the Arkansas Rules of Civil Procedure, and a temporary order pursuant to Ark. Code Ann. § 16-115-108 (1987), restraining the Clerk from determining the sufficiency of the initiative petition pending a ruling from the Jefferson County Circuit Court on the petition’s validity.

On August 11, 2000, the Jefferson County Circuit Court entered the requested temporary restraining order and set a hearing for August 16, 2000. Mr. Stilley moved to intervene on the morning of August 16, 2000, and the trial court granted his motion. At the hearing, the court ruled that the initiative petition was invalid on its face and should not be certified for inclusion on the general-election ballot.

On August 28, 2000, the trial court entered its order of mandamus, permanently ordering the Clerk to refrain from certifying the sufficiency of the initiative petition. The court ruled that the petition, in requiring the sale ofJRMC under the direction of Mr. Stilley, violated the powers of the county judge and the county court with respect to the sale of county-owned property, contravened the statutory procedures for selling county property, and violated the duties of the county court to appropriate the proceeds from the sale of county property. The trial court further ruled that the proposed abatement or suspension of taxes violated Arkansas law governing the levy of property taxes by the county. Finally, the court ruled that the initiative petition constituted an impairment of contracts because it violated the covenants of the existing lease and impaired the security of its outstanding bonds.

Mr. Stilley brings his appeal from this ordér. He also joins appellee/respondent, Helen McClinton Bradley, in her official capacity as County Clerk of Jefferson County. Appellant relies upon two points for reversal: first, that the trial court erred in enjoining the certification of the petition signatures, and second, that the trial court erred in ruling that the initiative petition for the sale of the county hospital was legally invalid on its face. We affirm the trial court on both points.

I. Mootness

We first address the issue of mootness. It is obvious that the General Election of November 7, 2000, has come and gone. Clearly, the proposed initiative cannot be voted on at an election already held. We first consider whether the issues raised in this appeal are moot. We believe that they are not. Mr. Stilley asserts in his brief that there are three other expected appeals in county cases that are to be filed with this court. We consider this issue affecting ballot eligibility to be one of public importance that is likely to recur. Under such circumstances, we will address the issues on the merits. Allred v. McCloud, 343 Ark. 35, 31 S.W.3d 836 (2000); see also Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998).

II. Legal validity of the initiative petition

Mr. Stilley challenges the jurisdiction of the circuit court to review this pre-election challenge to the validity of the proposed ordinance. Arkansas Code Annotated § 16-115-102 (1987), provides that: “The circuit and chancery court shall have power to hear and determine petitions for the writ of mandamus and prohibition and to issue such writs to all inferior courts, tribunals, and officers in their respective jurisdictions.” Since the enactment of that statute in 1939, however, this court has held that the provision of the statute providing for chancery court jurisdiction over petitions for writs of mandamus violates the Arkansas Constitution. Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 777 (1970).

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Bluebook (online)
38 S.W.3d 889, 343 Ark. 673, 2001 Ark. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stilley-v-makris-ark-2001.