Garrett v. Andrews

Tom Glaze, Justice, dissenting. The majority members’ decision in this case will assuredly become known as one of this high court’s all-time worst. How is a decision relegated to such an abysmal distinction? Because only a few decisions are so bad that they obtain such infamous distinction, I feel compelled to provide the reader with the criteria that qualify opinions for this lowly status. In order to qualify, an opinion must meet all of the following three tests.

I. THE DECISION MUST FAIL TO FOLLOW PRECEDENT WITHOUT SAYING SO, ERADICATE THE EXISTING LAW (AS IT IS GENERALLY KNOWN) AND REPLACE THAT LAW WITH A WORSE RULE OF LAW IN ITS STEAD.

Since my earlier dissent details how the majority opinion totally “missed” the law that controls this case, I merely summarize those points which serve to meet the first test set out above. In one fell swoop, the majority members’ opinion (1) ignored precedential authority without an acknowledgment of having done so, (2) caused irreparable damage to Arkansas’s Election Code which was intended to furnish the mechanics to hold and conduct elections in this state, (3) readopted a 1935 election procedure which makes it virtually impossible for voters to contest voter fraud allegations in local option elections, (4) buried allegations of wholesale fraud in a recent county-wide local option election, and (5) placed in issue the constitutionality of any called election held for the purpose of allowing citizens to vote on questions involving issues such as bonds, millages, initiatives or referendums, just to name a few.

II. THE DECISION MUST WANT IN FUNDAMENTAL LEGAL SCHOLARSHIP, WHICH ACTUALLY CAUSES AN ERRONEOUS RESULT TO BE REACHED BY THE COURT.

This criterion is undoubtedly the most embarrassing, especially for appellate judges whose stock and trade is to write clear and concise opinions to resolve peoples’ legal disputes. Even so, the majority’s opinion surely qualifies.

The essence of this case is whether the 1969 Election Code applies to local option election contests. In 1972, this court held the Code does cover such contests. Henderson v. Anderson, 251 Ark. 724 , 475 S.W.2d 508 (1972). The issue in Henderson was simple: Must local option election contests be filed in the county court under the 1935 local option law or in the circuit court, as provided by the 1969 Code? I quote the court’s answer:

It is therefore our conclusion that Act 108 of 1935 provides that the contest of any local option election should follow the statutes providing for the contest of any election for county offices; and that Act 465 of 1969 [Election Code] provides that the contest for a county office shall be brought before the circuit court. (Bracketed insertion mine.)

Id. at 726 , 475 S.W.2d at 509 .

The majority members, in their opinion, simply ignore the Henderson court’s holding that applied the 1969 Election Code to local option elections. They did so saying, of all things, that everything in the Henderson opinion was dicta, except that part which stated that local option contests must be filed in circuit court. I can only say that such an explanation reveals a want of basic scholarship of the law — as I know it, at least. Obviously, the Henderson court’s holding required its threshold decision that local option election contests are controlled by the 1969 Election Code. Frankly, if I were asked to give the family law students I instruct an example of an opinion which employed dicta, I certainly would not embarrass myself by citing the Henderson case, as the majority members have done in this case.

In their opinion denying rehearing, the majority members make one last ditch effort to rationalize their failure to follow Henderson and, in doing so, add still another glaring error to those I have already set out in my earlier dissent. Today, the majority says, “. . . [T]he court in Henderson ‘only’ applied the 1969 Act by incorporation through the local option act.” This statement simply is not true. In fact, the court applied the 1969 Election Code because of a repealer provision set forth in Ark. Stat. Ann. § 3-1004(c) (Repl. 1976), which I discuss in point III below. The Henderson court made specific note of § 3-1004 having been cited and argued to support the contention that the county court had no jurisdiction of the election contest. The court then stated unequivocally that it agreed with that contention. Id. at 725-726, 475 S.W.2d at 509 .

III. THE DECISION MUST REQUIRE ACTION BY THE ARKANSAS GENERAL ASSEMBLY TO ENACT REMEDIAL LEGISLATION TO CORRECT THE ERROR OF LAW CONTAINED IN THE COURT’S OPINION.

This court, at times, is requested to unravel problems that have resulted from poorly drafted legislation. That is not the situation at hand. In fact, the Henderson decision made it clear that the 1969 Election Act’s title reflected that it covered local option elections and that one of the Act’s provisions, Ark. Stat. Ann. § 3-1004 (Repl. 1976), specifically provided that other election contest laws — than those contained in the Act — were of no further force or effect.

In conclusion, because of the decision reached by this court’s majority, controversy and confusion will ensue. In the majority members’ view, the 1969 Election Code does not apply except to elections involving candidates, not issues. The state, counties and municipalities are left with no laws or election apparatus by which they can conduct issue-oriented elections. The Governor and the Arkansas General Assembly must now correct this absurdity, which is a direct result of the majority’s decision in this case.

Because of the appellant’s petition for rehearing, the majority members have been given a chance to avoid the infamy their opinion so clearly invites. The petition should be granted, and the court should remand this case for the appellees to show a prima facie case that the election results should be changed. 1

Hays, J., joins in this dissent. Justice Purtle has added his concurrence and refers to Wurst v. Lowery, 286 Ark. 274 , 695 S.W.2d 378 (1985) as being controlling here. As I pointed out in my earlier dissent, the Wurst case did not deal with the issue now before us, of whether the 1969 twenty-day contest provision superseded the prior 1935 ten-day provision. See Garrett v. Andrews, 294 Ark. 160, 168 , 741 S.W.2d 257 (1987) (Glaze, J., dissenting). The only value the Wurst decision has in this case is to serve as a red herring; that decision surely offers no precedent or justifiable comfort for any member of this court to reach the holding the majority reached in this cause.