Tom G. Clowers v. Marilyn Edwards, Former Washington County Judge; Joseph Wood, Current Washington County Judge; George Butler, Former Washington County Attorney; Brian Lester, Current Washington County Attorney; Garrett Harlan, Current Washington County Law Clerk; Tim Helder, Current Washington County Sheriff; Colin Jorgensen, Association of Arkansas Counties; Leslie Rutledge, Arkansas Attorney General; Arkansas Board of Election Commissioners; And Arkansas Secretary of State's Office

2020 Ark. 367

• Court: Supreme Court of Arkansas
• Decided: November 5, 2020
• Status: Published

Opinion

Cite as 2020 Ark. 367 SUPREME COURT OF ARKANSAS No. CV-19-965

Opinion Delivered: November 5, 2020

TOM G. CLOWERS APPELLANT APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT V. [NO. 72CV-19-2340]

MARILYN EDWARDS, FORMER HONORABLE DOUG MARTIN, JUDGE WASHINGTON COUNTY JUDGE; JOSEPH WOOD, CURRENT AFFIRMED. WASHINGTON COUNTY JUDGE; GEORGE BUTLER, FORMER WASHINGTON COUNTY ATTORNEY; BRIAN LESTER, CURRENT WASHINGTON COUNTY ATTORNEY; GARRETT HARLAN, CURRENT WASHINGTON COUNTY LAW CLERK; TIM HELDER, CURRENT WASHINGTON COUNTY SHERIFF; COLIN JORGENSEN, ASSOCIATION OF ARKANSAS COUNTIES; LESLIE RUTLEDGE, ARKANSAS ATTORNEY GENERAL; ARKANSAS BOARD OF ELECTION COMMISSIONERS; AND ARKANSAS SECRETARY OF STATE’S OFFICE APPELLEES

SHAWN A. WOMACK, Associate Justice

This case is about the scope of a county court’s authority to alter township lines and, in

turn, alter the number of constable positions. Seven years ago, the Washington County Court

entered an order reducing the number of townships and constable positions from fifteen positions to three. Tom Clowers filed suit against several state and county officials, contending

that the order was illegal because constable positions may be changed only by a direct vote of

the people. The circuit court dismissed his complaint with prejudice and denied his request for

recusal. We find no abuse of discretion and affirm.

I.

In March 2013, Washington County Judge Marilyn Edwards entered an order in the

Washington County Court reducing the number of constables in the county. The order created

three townships and corresponding constable districts, effective for the 2014 election for

constables taking office in January 2015. The three townships together encompassed the entire

county. One constable would be elected by each township. In July 2018, Clowers met with

current Washington County Judge Joseph Wood to challenge the order. He claimed Judge

Wood “seemed to agree” that the order was procedurally erroneous and would be reversed

before the next election. But a year later, Judge Wood refused to sign a proposed order restoring

the twelve eliminated constable positions.

Clowers filed suit in August 2019. He sued both judges and other former and current

Washington County officials, counsel for the Arkansas Association of Counties, and three state

officials. The essence of his complaint was that the county judge lacked authority to alter the

township lines and thereby alter the number of constables. He claimed that constable positions

may only be changed with voter approval. He sought to imprison Judge Edwards for election

fraud, claiming that she criminally eliminated the constable positions, as well as the defendants

accused of colluding with her. Clowers also asked the circuit court to repeal Amendment 55,

2 declare the previous elections under the order invalid, and enjoin the next election. He sought

over a million dollars in relief and punitive damages.

The county and state defendants moved to dismiss under Rule 12 of the Arkansas Rules

of Procedure. The circuit court gave four separate grounds for dismissing the suit with prejudice.

It held that: (1) the complaint failed as a matter of law because the county court order was legal;

(2) the claims were barred by the statute of limitations; (3) the complaint failed to satisfy our

fact-pleading requirements; and (4) the defendants were shielded by various governmental

immunities. It also denied Clowers’s recusal request.

II.

When reviewing an order granting 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. See Dockery v. Morgan,

2011 Ark. 94, at 5–6, 380 S.W.3d 377, 382. No such deference is given to the plaintiff’s theories

or interpretations of law. Id. All reasonable inferences will be resolved in favor of the complaint,

and the pleadings are to be liberally construed. Id. A complaint must state facts, not mere

conclusions, showing that the pleader is entitled to relief. Id. Dismissal under Rule 12(b)(6) will

be reviewed for abuse of discretion. Id. When a complaint is dismissed on a question of law, our

review is de novo. See Dollarway Patrons for Better Schools v. Morehead, 2010 Ark. 133, at 5, 361

S.W.3d 274, 278.

III.

Clowers’s argument for reversal centers on the legality of the county court order. He does

not address the statute of limitations ruling or contend that his complaint meets our fact

3 pleading requirements. He brusquely dismisses the defendants’ immunity arguments in his reply

brief but offers no argument for reversal of that ruling. Given the four possible grounds for

affirmance, Clowers’s decision to challenge only one ground proves fatal to his appeal. When

the circuit court bases its decision on multiple independent grounds, but the appellant

challenges fewer than all those grounds on appeal, we will affirm without addressing any of the

grounds. See Jones v. Miller, 2017 Ark. 190, at 4–6, 520 S.W.3d 253, 256; English v. Robbins, 2014

Ark. 511, at 6, 452 S.W.3d 566, 561. Yet even if the circuit court’s decision was based solely on

the legality of the county court order, the outcome remains the same. Clowers’s complaint is

built on the assertion that the county court order was illegal. But the order was legal as a matter

of law and cannot support a claim for relief.

The county judge has a dual role, serving as the county’s chief executive officer and

presiding over the county court. These distinct roles are recognized in the Arkansas

Constitution. See Ark. Const. amend. 55, § 3 (executive authority); Ark. Const. art. 7, §§ 28–

29, 37 (judicial authority). The County Government Code further delineates the county judge’s

executive and judicial authority. See Ark. Code Ann. §§ 14-14-101 et seq (Repl. 2013). As

relevant to our dispute, the county judge presides over the county court and exercises the judicial

and ministerial duties of that court. See Ark. Code Ann. § 14-14-1301(a)(1). The county court

“shall have the authority to divide the county into convenient townships, subdivide those already

established, and alter the township lines.” Ark. Code Ann. § 14-14-401(b). Indeed, this provision

gives county courts “full power over formation of townships in their respective counties—

including the power to abolish townships already formed.” Caldwell v. Bd. of Election Commr’s of

4 Garland County, 236 Ark. 719, 721, 368 S.W.2d 85, 86 (1963) (interpreting similar language in

prior statute).

The county court’s exercise of this authority directly impacts constable positions in the

county. The position of constable is established in Article 7 of the Arkansas Constitution, which

states that “qualified electors of each township shall elect the Constable for a term of two years.”

Ark. Const. art. 7, § 47. The County Government Code similarly provides that “[t]here shall be

elected in each township, as preserved and continued in § 14-14-401, one (1) constable.” Ark.

Code Ann. § 14-14-1301(b)(2). These provisions make clear that constables are township

officers. See Graves v. Greene County, 2013 Ark. 493, at 5–6, 430 S.W.3d 722, 726–27. It is also

evident that the county court cannot abolish the constable position from a township. Each

township must have an elected constable.

But this requirement does not take away from the county court’s authority to abolish or

alter township lines under section 14-14-401(b). The General Assembly vested this authority in

the county court, knowing it would permit the county court to alter the number of constable

positions in the county. A county court order changing the number of townships will result in

a parallel change in the number of constables in the county. An order altering township lines

will likewise alter the constable’s territorial jurisdiction, which is generally confined to the

boundaries of the township. See Ark. Code Ann. § 16-19-301 (Repl. 1999). Counties are not

required to maintain a specific number of townships or constable positions. There must simply

be one elected constable position in each township.

5 The county court order at the center of this case was a lawful exercise of authority under

section 14-14-401.1 Judge Edwards entered the order in her capacity as the presiding judicial

officer over the Washington County Court. By abolishing twelve townships, the county court

reduced the number of townships and constable positions to three. The three new townships

collectively encompass the entire county. And there remains a constable position in each of the

three townships, which is what the law requires.

Clowers’s reliance on Amendment 55 and section 14-14-604(3) to challenge the legality

of the county court order is misplaced. Amendment 55, in relevant part, outlines the executive

powers of the county judge. See Ark. Const. amend. 55, § 3. The authority to abolish or alter

township lines, however, is statutorily vested in the county court. Amendment 55 did not

transfer that power to the county judge as an executive function, thus it remains within the

county court, over which the county judge presides. See Ark. Code Ann. § 14-14-1105(a). Section

14-14-604(3) is part of the subchapter authorizing the adoption of alternative county government

organizations. See Ark. Code Ann. § 14-14-601. The statute simply clarifies that the quorum

court may not create, abandon, or otherwise modify the position of constable because it is not

an “elective county office” under Amendment 55, § 2(b). See Ark. Code Ann. § 14-14-604(3). In

short, these provisions have no bearing on the county court’s decision here. The circuit court

correctly held that Clowers’s complaint fails as a matter of law.

1 The county court order erroneously cites to Arkansas Code Annotated § 14-14-201, which authorizes the General Assembly to change county boundaries and is not relevant to this case. This appears to be a typographical error.

6 A final point remains: Judge Martin’s refusal to recuse. We review this decision for abuse

of discretion. See Searcy v. Davenport, 352 Ark. 307, 312, 100 S.W.3d 711, 714 (2003). Judicial

impartiality is presumed. Id. The question of bias is a matter confined to the conscience of the

judge. Id. “All judges take an oath to uphold the Constitution and apply the law impartially, and

we trust that they will live up to this promise.” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S.

868, 891 (2009) (Roberts, C.J., dissenting) (citations omitted).

Clowers has asserted nothing more than that Judge Martin previously ruled against him

in a separate, unspecified case. Adverse rulings standing alone demonstrate neither bias nor lack

of impartiality. See Liteky v. United States, 510 U.S. 540, 555 (1994). A party’s displeasure with

legal rulings does not form an adequate basis for recusal. The exercise of judgment does not

show bias. After all, it is what judges must do. He also complains that the case was assigned to

Judge Martin over his objection at the time of filing. This argument is not relevant as judges do

not choose their cases, and litigants do not choose their judges. See Admin. Order No. 14 (each

judicial circuit shall randomly distribute cases). There is nothing presented to suggest even an

appearance of unfairness, let alone actual bias, and recusal was not warranted.

Affirmed.

BAKER, J., concurs without opinion.

HART, J., dissents.

JOSEPHINE LINKER HART, Justice, dissenting. I dissent. The majority identifies various

procedural problems with Clowers’s arguments on appeal, but then disposes of this case on its

merits, holding:

7 Clowers’s complaint is built on the assertion that the county court order was illegal. But the order was legal as a matter of law and cannot support a claim for relief.

(Maj. Op. at 4) (emphasis added). I cannot join this holding. Here, the county court issued an

order effectively reducing the number of elected constables in Washington County from fifteen

to three. The problem, of course, is that the county court engaged in this action without a vote

of the people. The Arkansas Constitution provides that a county’s quorum court “may create,

consolidate, separate, revise, or abandon any elective county office or offices except during the

term thereof; provided, however, that a majority of those voting on the question at a general election have

approved said action.” Ark. Const. amend. 55, § 2(b) (emphasis added). Nothing in the majority

opinion addresses this most fundamental issue. The majority stretches various legislatively

enacted statutes to cover what the county court did here, but even if those statutes did provide

that a county court can abandon (or consolidate, etc.) an elective county office without an

election, those statutes would be unconstitutional. See Ark. Const. amendment 55, § 2(b). For

this reason, the county court’s order was not “legal as a matter of law,” as the majority puts it. 1

Mr. Clowers’s main legal point is that the local government eliminated his job without a

vote of the people who elected him, in violation of the Arkansas Constitution. He’s right about

that. The majority addresses this question but somehow reaches an alternative (and in my

opinion, incorrect) conclusion. Accordingly, I must dissent.

Tom G. Clowers, pro se appellant.

1 The majority’s citation to Caldwell v. Board of Election Commissioners of Garland County, 236 Ark. 719, 368 S.W.2d 85 (1963), a case which had nothing to do with elective county offices and which predated amendment 55 by over a decade, is unavailing.

8 Colin Jorgensen, Litigation Counsel, Association of Arkansas Counties, for Washington

County appellees Marilyn Edwards, Joseph Wood, George Butler, Brian Lester, Garrett Harlan,

Tim Helder, and Colin Jorgensen.

Leslie Rutledge, Att’y Gen., by: Jerry D. Garner, Ass’t Att’y Gen., for State appellees

Attorney General Leslie Rutledge, Arkansas Board of Election Commissioners, and Arkansas

Secretary of State’s Office.