Tracy Johnson, Gina Rambo, James R. "Rick" Bright, Greg Moon, and Karen Pryor v. Carol Wright, Individually and in Her Official Capacity as Past Chairman and Current and Past Member of the Eureka Springs City Advertising and Promotion Commission Jeff Carter, Individually and in His Official Capacity as a Member and Current Chairman of the Eureka Springs City Advertising and Promotion Commission James Devito, Individually and in His Official Capacity as a Member [Of] the Eureka Springs City Advertising and Promotion Commission Melissa Green, Individually and in Her Official Capacity as a Member [Of] the Eureka Springs City Advertising and Promotion Commission Harry Meyer, Individually and in His Official Capacity as a Member [Of] the Eureka Springs City Advertising and Promotion Commission Patrick Burnett, Individually and Ostensibly in His Official Capacity as an Apparent Member [Of] the Eureka Springs City Advertising and Promotion Commission The Eureka Springs City Advertising and Promotion Commission The City of Eureka Springs, Arkansas Robert D. "butch" Berry, Individually and as Mayor of the City of Eureka Springs, Arkansas Kim Stryker, Individually and in Her Official Capacity as Chief Administrative Assistant to Mayor Butch Berry State Auto Mutual Insurance Company And Philadelphia Indemnity Insurance Company

2022 Ark. 48

• Court: Supreme Court of Arkansas
• Decided: March 10, 2022
• Status: Published

Opinion

Cite as 2022 Ark. 48 SUPREME COURT OF ARKANSAS No. CV-21-434

Opinion Delivered: March 10, 2022

TRACY JOHNSON, GINA RAMBO, JAMES R. “RICK” BRIGHT, GREG MOON, AND KAREN PRYOR APPEAL FROM THE CARROLL APPELLANTS COUNTY CIRCUIT COURT [NO. 08WCV-21-19] V. HONORABLE CHARLES SCOTT CAROL WRIGHT, INDIVIDUALLY JACKSON, JUDGE AND IN HER OFFICIAL CAPACITY AS PAST CHAIRMAN AND CURRENT AND PAST MEMBER OF AFFIRMED. THE EUREKA SPRINGS CITY ADVERTISING AND PROMOTION COMMISSION; JEFF CARTER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER AND CURRENT CHAIRMAN OF THE EUREKA SPRINGS CITY ADVERTISING AND PROMOTION COMMISSION; JAMES DEVITO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER [OF] THE EUREKA SPRINGS CITY ADVERTISING AND PROMOTION COMMISSION; MELISSA GREEN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A MEMBER [OF] THE EUREKA SPRINGS CITY ADVERTISING AND PROMOTION COMMISSION; HARRY MEYER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER [OF] THE EUREKA SPRINGS CITY ADVERTISING AND PROMOTION COMMISSION; PATRICK BURNETT, INDIVIDUALLY AND OSTENSIBLY IN HIS OFFICIAL CAPACITY AS AN APPARENT MEMBER [OF] THE EUREKA SPRINGS CITY ADVERTISING AND PROMOTION COMMISSION; THE EUREKA SPRINGS CITY ADVERTISING AND PROMOTION COMMISSION; THE CITY OF EUREKA SPRINGS, ARKANSAS; ROBERT D. “BUTCH” BERRY, INDIVIDUALLY AND AS MAYOR OF THE CITY OF EUREKA SPRINGS, ARKANSAS; KIM STRYKER, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS CHIEF ADMINISTRATIVE ASSISTANT TO MAYOR BUTCH BERRY; STATE AUTO MUTUAL INSURANCE COMPANY; AND PHILADELPHIA INDEMNITY INSURANCE COMPANY APPELLEES

COURTNEY RAE HUDSON, Associate Justice

Appellants Tracy Johnson, Gina Rambo, James R. “Rick” Bright, Greg Moon, and

Karen Pryor appeal the Carroll County Circuit Court’s order denying their motion for an

emergency injunction that sought the removal of three members of the Eureka Springs City

Advertising and Promotion Commission (CAPC). For reversal, appellants argue that (1)

appellee Carol Wright’s appointment to the CAPC violated article 19, section 3, of the

Arkansas Constitution, and (2) the appointments of appellees Melissa Green and Harry

Meyer to the CAPC violated Arkansas Code Annotated section 14-42-107(a)(2) (Supp.

2021). We affirm.

2 The City of Eureka Springs (City) created the CAPC when it approved Ordinance

936 in 1972. The CAPC was organized under Act 185 of 1965 as amended by Act 30 of

the First Extraordinary Session of 1965 and further amended by Act 123 of 1969. At its

inception, the CAPC was composed of seven members, all of whom were required to be

qualified electors of the City. Four members were to be hotel, motel, or restaurant owners

or managers. The mayor and two members of the city council filled the remaining three

positions. Ordinance 936 vested commissioners with the authority to adopt rules and

regulations for the operation of the CAPC and to alter or amend those rules and regulations.

Over the years, Ordinance 936 was amended several times, but it always called for the

CAPC to be composed of, in part, two members of the city council.

In July 2007, the City approved Ordinance 2060, which adopted Arkansas Code

Annotated section 26-75-601 et seq. (Repl. 2020), as the enabling legislation under which

the City collected the Advertising and Promotion Tax (A&P tax). The City collects about

$1.5 million annually pursuant to the A&P tax. Ordinance 2060 provided that the CAPC

was to be composed of seven members; four business owners or managers in the tourism

industry who were to reside in the City, two members of the City’s governing body, and

one qualified elector who resided in the city to be appointed by the mayor from the public

at large. The two members of the governing body were to serve at the will of the governing

body. In January 2015, the City approved Ordinance 2220, which amended its code

regulating the CAPC. Ordinance 2220 provided that the CAPC was to be composed of

seven members: four tourism-industry members, an at-large member who was to reside in

Carroll County, and two members who were required to be “members of the governing

3 body of the municipality and selected by the governing body and serving at the will of the

governing body.” The ordinance authorized the mayor to appoint the at-large member.

At the January 11, 2021, regular City Council meeting, nominations were made for

appointments to CAPC positions five and six. All six members of the council were present:

appellees Green and Meyer, Bill Ott, Autumn Slane, Terry McClung, and LauraJo Smole.

As to position five, Green and Meyer initially received two votes each. After a second round

of voting resulted in Green and Meyer receiving three votes each, Mayor Butch Berry cast

the deciding vote for Green, and Green was appointed to CAPC position five. As to position

six, there were initially three votes for Meyer, and one each for McClung, Ott, and Slane.

A second vote yielded the same results, and Mayor Berry cast the fourth vote for Meyer,

which resulted in Meyer’s appointment to position six. Both Green and Meyer were sitting

city council members at the time of their appointments. Appellee Carol Wright holds

position seven, the CAPC at-large position. Wright was appointed to that position in June

2017. At that time, and all times thereafter, Wright has been a Carroll County resident, but

she has not lived within the Eureka Springs city limits at any time relevant to this appeal.

On January 27, 2021, the CAPC voted to remove appellant Moon from his position

as a CAPC commissioner. Appellants Rambo and Johnson were thereafter terminated from

their employment with the CAPC. Appellants filed a lawsuit alleging, among other things,

that Moon’s removal was illegal. On May 26, 2021, the circuit court entered an order

directing that Moon be reinstated. That did not resolve all the issues, and the case proceeded.

On June 3, 2021, appellants filed a motion for an emergency injunction in which they

asserted that Wright, Meyer, and Green, had been illegally appointed to the CAPC and

4 requested that the circuit court order their removal. Appellants argued that Wright’s

appointment to the CAPC pursuant to Arkansas Code Annotated section 26-75-605(a)(2)

violated article 19, section 3, of the Arkansas Constitution. They further argued that Meyer’s

and Green’s appointments pursuant to Arkansas Code Annotated section 26-75-605(a)(2)

violated Arkansas Code Annotated section 14-42-107(a)(2). On June 14, 2021, appellants

filed an amended complaint making the claims set forth in that motion.

At a June 25, 2021, hearing, the circuit court issued an oral order denying the motion

for an emergency injunction. Appellants filed a motion to reconsider the decision as to

Wright only. On July 19, 2021, the circuit court entered a written order again denying

appellants’ motion. Specifically, the circuit court held that in light of Arkansas Code

Annotated section 26-75-605 permitting the at-large CAPC commissioner to be appointed

from the county, article 19, section 3, of the Arkansas Constitution did not prevent Wright’s

appointment to the at-large position on the Eureka Springs CAPC even though she was not

a resident or an elector of the City of Eureka Springs at the time of her appointment or

service on the CAPC. With respect to Meyer and Green, the circuit court concluded that

Arkansas Code Annotated section 26-75-605 permitted the appointment of two city-

council members to the CAPC despite appellants’ arguments that their appointments were

prohibited by Arkansas Code Annotated section 14-42-107. That order also denied

appellants’ motion to reconsider. On July 29, 2021, the circuit court entered a second order

denying appellants’ motion to reconsider. On August 11, 2021, appellants filed a notice of

appeal as to the denial of their motion for injunctive relief and their motion for

reconsideration. This interlocutory appeal is proper pursuant to Ark. R. App. P.–Civil

5 2(a)(6) (2021), which provides for an interlocutory appeal of an order “by which an

injunction is granted, continued, modified, refused, or dissolved[.]”

This is an appeal of an order denying injunctive relief. Decisions to grant or deny an

injunction are reviewed for an abuse of discretion, but we give the circuit court’s

interpretation of law no deference. United Food & Commercial Workers Int’l Union v. Wal-

Mart Stores, Inc., 2014 Ark. 517, 451 S.W.3d 584. An injunction may be granted if the

petitioner shows (1) that it is threatened with irreparable harm; (2) that this harm outweighs

any injury that granting the injunction will inflict on other parties; (3) a likelihood of success

on the merits; and (4) that the public interest favors the injunction. United Food & Commercial

Workers Int’l Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 120 S.W.3d 89 (2003).

This appeal requires us to interpret our statutes and constitution. In interpreting the

constitution on appeal, our task is to read the law as it is written and interpret it in

accordance with established principles of constitutional construction. Zook v. Martin, 2018

Ark. 293, 557 S.W.3d 880. It is this court’s responsibility to decide what a constitutional

provision means, and we will review a lower court’s construction de novo. First Nat’l Bank

of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005). Language of a constitutional

provision that is plain and unambiguous must be given its obvious and common meaning.

Id. As to statutes, acts of the legislature are presumed constitutional, and the party challenging

the statute has the burden of proving otherwise. Landers v. Stone, 2016 Ark. 272, 496 S.W.3d

370. The primary rule of statutory construction is to give effect to the intent of the drafting

body. White v. Owen, 2021 Ark. 31, 617 S.W.3d 241. We first construe the statute just as it

reads, giving the words their ordinary and usually accepted meaning in common language.

6 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158 of the Am. Legion, Dep’t of Ark., Inc.,

2018 Ark. 91, 548 S.W.3d 137. When the language of a statute is plain and unambiguous,

we determine the drafter’s intent from the ordinary meaning of the language used. Id.

Finally, in construing a statute, we will presume that the General Assembly, in enacting it,

possessed the full knowledge of the constitutional scope of its powers, full knowledge of

prior legislation on the same subject, and full knowledge of judicial decisions under

preexisting law. Robert D. Holloway, Inc. v. Pine Ridge Addition Residential Prop. Owners, 332

Ark. 450, 453, 966 S.W.2d 241, 243 (1998).

Appellants first challenge Wright’s appointment to the CAPC. According to

appellants, the circuit court essentially allowed Arkansas Code Annotated section 26-75-

605(a)(3) to “trump” article 19, section 3, of the Arkansas Constitution. When Wright was

appointed, Arkansas Code Annotated section 26-75-605(a)(3) provided that

(a) Any municipality levying a tax pursuant to this subchapter shall create by ordinance a municipal advertising and promotion commission, to be composed of seven (7) members, as follows: ....

(3) One (1) member shall be from the public at large who shall reside within the levying municipality or in the county of the levying municipality and shall serve for a term of four (4) years.

Although appellants concede that section 26-75-605(a)(3) on its face allows Wright’s

appointment, they insist that it conflicts with article 19, section 3, of the Arkansas

Constitution, which provides in its entirety:

No person shall be elected to or appointed to fill a vacancy in any office who does not possess the qualification of an elector.

7 The “Qualifications of electors” are found in article 3, section 1, of the Arkansas

Constitution, which provides in relevant part:

(a) Except as otherwise provided by this Constitution, any person may vote in an election in this state who is:

(1) A citizen of the United States;

(2) A resident of the State of Arkansas;

(3) At least eighteen (18) years of age; and

(4) Lawfully registered to vote in the election.

(b)(1) In addition to the qualifications under subsection (a) of this section, the General Assembly shall provide by law that a voter shall:

(A) Present valid photographic identification before receiving a ballot to vote in person; and

(B) Enclose a copy of valid photographic identification with his or her ballot when voting by absentee ballot.

It is undisputed that Wright meets the qualifications of an elector as set forth in article 3,

section 1. Nevertheless, appellants contend that our court has construed article 19, section

3, as requiring a person to reside in the political subdivision that he or she seeks to serve.

They therefore claim that Wright’s appointment was a violation of article 19, section 3, and

cite three cases in support of their argument. All three are distinguishable. At a minimum,

each involved elective offices and not appointed positions. Moreover, in each instance, the

challenged official’s eligibility was inconsistent with certain statutory requirements. First, in

Thomas v. Sitton, 213 Ark. 816, 212 S.W.2d 710 (1948), we held that a city marshal was an

“officer” within the meaning of article 19, section 3, and that the marshal was required to

live in the city limits. However, in Sitton, we also noted that a statute required the marshal

8 to be elected by the “qualified voters of the city.” Id. at 821, 212 S.W.2d at 712. Likewise,

in Davis v. Holt, 304 Ark. 619, 622, 804 S.W.2d 362, 364 (1991), a statute purported to

authorize a person whose residential property spanned two school districts to serve on the

school board of either. After reviewing “our prior decisions on the matter of residency in

the context of elections,” we held that a successful candidate for a school board was not

qualified to hold office because he did not reside in the district. Id. at 624, 804 S.W.2d at

365. Our decision in Davis was informed by Arkansas Code Annotated section 6-14-108

(Supp. 1989), which provided that “[a]ll persons who have registered to vote in the manner

prescribed by . . . Amendment 51 . . . shall be deemed qualified electors of the school district

in which they reside.” Although we said that we have interpreted article 19 section 3 to

require residence in the political subdivision to be served by the elected official, Davis also

involved article 19, section 4, which states that “[a]ll civil officers for the State at large shall

reside within the State, and all district, county and township officers within their respective

districts, counties, and townships[.]” We noted that, at that time, a school district was “for

election purposes[,]” the same as a township. Davis, 304 Ark. at 625, 804 S.W.2d 364. See

also Ark. Code Ann. § 6-14-107(a) (1987). Davis ultimately turned on the meaning of the

term “residence” in the “context of [a] school election case.” Davis, 304 Ark. at 624, 804

Ark. at 365. Finally, in Charisse v. Eldred, 252 Ark. 101, 477 S.W.2d 480 (1972), the parties

conceded that a successful candidate for city alderman was required to have been a qualified

elector “of the city” by being a resident of the state for one year prior to election to be

qualified to serve. Id. at 102, 477 S.W.2d at 480. We concluded that substantial evidence

supported the circuit court’s decision that the residency requirement had not been met

9 because of the amount of time the official had spent in California and the fact that he voted

in California elections. Here, there is no statute requiring Wright to be a resident of the

City. Moreover, Wright was not seeking election to a Eureka Springs office, nor was she

appointed to fill a vacancy in an elected office. Instead, she was appointed to a commission

position that was authorized not only by statute but also by a Eureka Springs municipal

ordinance. Thus, the circuit court correctly concluded that Wright’s CAPC appointment

was not constitutionally prohibited.

For their second point, appellants assert that the circuit court erred when it

determined that Green and Meyer were qualified to serve as CAPC commissioners despite

being sitting council members at the time of their appointments. Green and Meyer were

appointed to the CAPC pursuant to Arkansas Code Annotated section 26-75-605(a)(2),

which provides that “[t]wo (2) members of the commission shall be members of the

governing body of the municipality and selected by the governing body and shall serve at

the will of the governing body[.]” Appellants contend that Green’s and Meyer’s

appointments violate Arkansas Code Annotated section 14-42-107(a)(2), which provides

that “[a] council member shall not be appointed to any municipal office, except in cases

provided for in this subtitle, during the time for which he or she may have been elected.”

When statutes seemingly conflict, it is blackletter law for statutory construction to

give effect to the specific statute over the general. Searcy Farm Supply, LLC v. Merchants &

Planters Bank, 369 Ark. 487, 256 S.W.3d 496 (2007). Likewise, if two legislative acts relating

to the same subject matter conflict with each other, the later act controls. Kyle v. State, 312

Ark. 274, 849 S.W.2d 935 (1993). Application of these two canons of construction compels

10 us to conclude that Green’s and Meyer’s appointments were not barred by section 14-42-

107(a)(2).

First, although section 14-42-107(a)(2) prohibits city council members from being

appointed to another municipal office while they are serving on a city council, it is a statute

of general applicability. Arkansas Code Annotated section 26-75-605(a)(2) is more specific

to the issue in this appeal, and it not only allows the appointments of council members to

an advertising and promotion commission, but it also requires them. Next, it is true that

section 14-42-107(a)(2) was amended by Act 879 in 2017. That is more recent than the last

amendment to section 26-75-605(a)(2). However, the modifications made by Act 879 were

not substantive in nature. Act 879 amended section 14-42-107(a)(2) provides as follows:

No alderman or A council member shall not be appointed to any municipal office, except in cases provided for in this subtitle, during the time for which he or she may have been elected.

It is clear that Act 879’s changes to section 14-42-107(a)(2) did little more than

update the statute’s terminology. If, as appellants argue, the General Assembly had wanted

to prohibit sitting city council members from serving on an advertising and promotion

commission, it could have simply repealed Arkansas Code Annotated section 26-75-

605(a)(2). Yet, it did not do so, and Arkansas Code Annotated section 26-75-605(a)(2) is a

more recent enactment than any substantive rule found in section 14-42-107(a)(2).

Therefore, section 14-42-107(a)(2) does not provide a basis to disqualify Green and Meyer.

In conclusion, the circuit court correctly determined that Wright’s appointment as a

CAPC commissioner was constitutionally permissible and that section 14-42-107(a)(2) did

11 not preclude Green’s and Meyer’s appointments. The circuit court therefore did not err in

denying appellants’ motion for emergency injunctive relief.

Affirmed.

WOOD, J., concurs.

RHONDA K. WOOD, Justice, concurring. I join the majority decision but write

separately because I’m frustrated with our court’s inconsistent use of the rules of

constitutional interpretation. For decades, this court has used mixed phrases to explain how

we interpret unambiguous words in our constitution. Sometimes we have said words

“should be given their obvious and natural meaning.” 1 Other times, we have said words

“must be given [their] plain, obvious, and common meaning.” 2 Still other times, the court

has dropped the word “plain” and used only the phrase “obvious and common meaning.” 3

The court has not explained these interpretative shifts, and it must be difficult for

practitioners to understand the court’s approach to constitutional interpretation.

The majority opinion perpetuates this confusion by stating, “Language of a constitutional

provision that is plain and unambiguous must be given its obvious and common meaning.”4

But here, we do not need to search for the meaning of “electors” because the drafters of

1 Brown v. City of Stuttgart, 312 Ark. 97, 101, 847 S.W.2d 710, 712 (1993); Brewer v. Fergus, 348 Ark. 577, 583, 79 S.W.3d 831, 834 (2002). 2 Oldner v. Villines, 328 Ark. 296, 302, 943 S.W.2d 574, 576 (1997) (citing cases using the natural-meaning language). 3 Worth v. City of Rogers, 341 Ark. 12, 26, 14 S.W.3d 471, 478–79 (2001). 4 Citing First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005) (emphasis added).

12 the constitution defined the term in another section, telling us precisely what that word

originally meant.5 Thus, we should not misguide practitioners with the belief that we are

looking for the “obvious and common meaning.” Rather, we must apply the original

meaning the drafters gave us.

Parker Law Firm, by: Tim S. Parker, for appellants.

Amanda LaFever, for appellees.

5 Ark. Const. article 3, § 1.