Garrett v. Andrews

Darrell Hickman, Justice, dissenting. Traditionally, we only grant a rehearing if we have made a mistake of law or fact, but it is not against the law for a judge or a court to change its mind, especially when it is perceived a mistake in judgment has been made. We did both in this case — we made a mistake of law and one in judgment. Unfortunately, the court refuses to acknowledge that.

Our whole debate in this case centered on whether the election code of 1969 applied to local option elections. The issue was critical because the petition to contest the election in this case was not filed within 10 days of the election. Under the old local option law, Act 108 of 1935, the contest petition was filed too late; but, if the election code of 1969 governed, it was timely. This whole lawsuit and the resolution of it focused on this one issue. Did the 1969 law apply to local option elections?

A majority of the court members decided the 1969 election code did not govern local option elections. Justice Dudley wrote the majority opinion and based the court’s decision on several premises. First, the 1969 election code did not specifically repeal the local option provision and repeal by implication is not favored. Another basis was our decision in Wurst v. Lowery, 286 Ark. 474 , 695 S.W.2d 378 (1985), where we made reference to the ten day provision in the local option act as though it were alive and not repealed.

Justice Glaze wrote a powerful dissent, but he was unable to convince a majority of us that he was right. While I did not join the majority opinion, I agreed with the decision reached, relying on the decision in Wurst. Upon reflection, I see that Justice Glaze was right. But perhaps more important, since our decision, Justice Glaze has pointed out a glaring oversight on our part. The answer to our question was literally right under our noses and we all missed it. In fact, a controlling case, Henderson v. Anderson, 251 Ark. 724 , 475 S.W.2d 508 (1972), was cited in the majority opinion but dismissed as not controlling because the pertinent language was mere dicta. That is incorrect. In Henderson, a unanimous decision, we held the election code of 1969 did apply to local option elections. That’s the issue in this case. How could we make such a mistake? That’s the kind of blunder judges have bad dreams about — citing a case for one proposition while it holds exactly the opposite. The majority opinion is simply wrong in its treatment of Henderson and there is no room to quibble about it. Wurst, decided 13 years after Henderson, did not mention Henderson, probably for the simple reason that the Wurst language was indeed dicta and not a holding. It was an inexcusable mistake on our part. How or why we made it is immaterial at this point. What we do about it is all that matters.

I assumed that we, the court, would readily acknowledge the error and correct it. But that is not to be. The decision and opinion will stand. Consequently, I have to write this dissent.

The issue in Henderson was whether a provision, which is a part of the local option act, was governed and indeed changed by the new election law. The local option law said contests would be filed in county court. The 1969 election code said contests would be filed in circuit court. We held in Henderson that the new election law applied, even though no mention was made in the 1969 law that it was intended to govern local option elections. We said in Henderson that had the legislature intended to exclude local option elections, it would expressly have done so.

In the majority opinion in this case, we hold exactly the opposite: if the legislature had intended the new act to govern local option elections, it would have specifically repealed those provisions. How could two decisions be more clearly in conflict? Henderson holds without question exactly contrary to what our decision is in this case, and we refuse to acknowledge it. While this is an embarrassment, we ought to unhesitatingly correct our mistake, acknowledge Henderson, overrule Wurst, and send this case back for a trial.

It matters not what I think Henderson stands for or what the majority thinks it says. It speaks for itself. If there was the slightest chance I thought my judgment was wrong, I would be silent, because this kind of mistake and, more especially the refusal by the court to correct it, reflects upon the integrity of the court.

Hays, J., joins in the dissent.