{ "id": 1606825, "name": "Winthrop Rockefeller et al v. Joe Purcell et al", "name_abbreviation": "Rockefeller v. Purcell", "decision_date": "1968-10-30", "docket_number": "5-4835", "first_page": "536", "last_page": "548", "citations": [ { "type": "official", "cite": "245 Ark. 536" }, { "type": "parallel", "cite": "434 S.W.2d 72" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "172 F. 2d 848", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1182630 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/f2d/172/0848-01" ] }, { "cite": "201 S.W. 2d 686", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 3, "year": 1956, "opinion_index": 0 }, { "cite": "184 Tenn. 550", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8531432 ], "weight": 3, "year": 1956, "opinion_index": 0, "case_paths": [ "/tenn/184/0550-01" ] }, { "cite": "131 S.W. 2d 923", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1939, "opinion_index": 0 }, { "cite": "279 Ky. 712", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 5314605 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/ky/279/0712-01" ] }, { "cite": "265 S.W. 806", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1924, "pin_cites": [ { "parenthetical": "Ky. C.A. 1924" } ], "opinion_index": 0 }, { "cite": "205 Ky. 382", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4826122 ], "year": 1924, "pin_cites": [ { "parenthetical": "Ky. C.A. 1924" } ], "opinion_index": 0, "case_paths": [ "/ky/205/0382-01" ] }, { "cite": "133 Colo. 398", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 88532 ], "weight": 6, "year": 1956, "opinion_index": 0, "case_paths": [ "/colo/133/0398-01" ] }, { "cite": "149 Neb. 679", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5178898 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/neb/149/0679-01" ] }, { "cite": "25 N.W. 2d 474", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1946, "opinion_index": 0 }, { "cite": "223 Minn. 89", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 383406 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/minn/223/0089-01" ] }, { "cite": "83 SW. 2d 16", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1935, "opinion_index": 0 }, { "cite": "259 Ky. 661", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 5230955 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/ky/259/0661-01" ] }, { "cite": "210 Ga. 722", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 258033 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/ga/210/0722-01" ] }, { "cite": "151 Neb. 442", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5289247 ], "weight": 4, "year": 1949, "opinion_index": 0, "case_paths": [ "/neb/151/0442-01" ] }, { "cite": "50 N.W. 2d 150", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1951, "opinion_index": 0 }, { "cite": "331 Mich. 523", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1836727 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/mich/331/0523-01" ] }, { "cite": "56 S.E. 2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "231 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628623 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/231/0111-01" ] }, { "cite": "245 Ark. 522", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606992 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/ark/245/0522-01" ] }, { "cite": "245 Ark. 53", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606980 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ark/245/0053-01" ] }, { "cite": "240 Ark. 1063", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727534 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/240/1063-01" ] } ], "analysis": { "cardinality": 892, "char_count": 22764, "ocr_confidence": 0.477, "pagerank": { "raw": 2.1471670164081693e-07, "percentile": 0.7679837704823718 }, "sha256": "ebc5c2468bd3808710bc2e97011ea9f837c7462c5407221268e67465c5eab3e0", "simhash": "1:81be575fa768a77e", "word_count": 3840 }, "last_updated": "2023-07-14T16:29:50.317094+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Harris, C.J., concurs.", "Fogleman and Byrd, JJ., dissent. Justice Fogleman \u2019s written dissent to be filed later." ], "parties": [ "Winthrop Rockefeller et al v. Joe Purcell et al" ], "opinions": [ { "text": "PER CURIAM.\nThis is in the main an action for a declaratory judgment brought by three members of the State Board of Election Commissioners and sixteen citizens, all as representatives of the Republican Party. The defendants are the other members of the State Board of Election Commissioners and sixteen citizens who were named as the third member of the county board of election commissioners in sixteen counties, who are also joined as representatives of the Democratic Party. The complaint as amended asks for a declaratory judgment construing the statutes governing the selection of election judges and clerks. This appeal is from an order of the circuit court finding that the appellants are not entitled to declaratory relief and dismissing their complaint.\nAt the outset we hold that there is an actual and substantial controversy that should be decided and that falls within our declaratory judgment procedure. Moreover, in election cases we have repeatedly announced decisions in cases that had actually become moot, for the sound reason that controversies about the election laws present issues of public interest that ought to be set at rest. Pirtle v. Dalmasso, 240 Ark. 1063, 403 S.W. 2d 740 (1966), and cases there cited.\nUnder the statutes the county election commission is composed of a representative of the majority party, a representative of the minority party, and a third member chosen by the State Board of Election Commissioners. Initiated Act 3 of 1948, as amended. The majority party is defined as that party receiving the largest number of votes for the office of Governor in the last general election (ibid.) and is therefore now the Republican Party. Under the statutes it is the duty of the State Board to select as the third member of the county boards persons who will \u201crepresent\u201d the majority party, or as we said in Ellis v. Rockefeller, 245 Ark. 53, who will \u201cact on behalf of and . . . work with the majority party in the selection of the election judges and clerks.\u201d\nUnder the statute the two majority members of the county election commissioners are to select two election judges and one clerk for each polling place, with the minority member selecting one judge and one clerk. Ark. Stat. Ann. \u00a7 3-608 (Repl. 1956). It was unquestionably the intention of the lawmakers that the minority party would always be entitled as a matter of right to one judge and one clerk at each polling place.\nThe petitioners assert that the statutes have been construed to mean, and will be so administered with reference to the coming general election, that the minority party (now the Democratic Party) is entitled to select one judge and one clerk for each precinct and that a majority of the commission may then select the other two judges and one clerk. Hence, if the third member of the commission should see fit to join with the minority party member rather than with the majority party member, the result would be that the minority party would select all the judges and clerks, leaving the majority party with no representation whatever at the polls. That result would leave the majority party in a worse position than it occupied when it was the minority party, for then it was entitled to select one judge and one clerk for each precinct as a matter of right.\nWe cannot approve that construction of the statute. In our view the legislature contemplated that the majority member of each county commission and the third member selected by the State Board to represent the majority party would ordinarily agree upon the selection of two judges and one clerk for each polling place. In that respect the third member has a duty of good faith. If the third member and the majority-party member (now the Republican member) are unable to agree upon anyone to serve as judges and clerks selected by the majority party, then it is thereby demonstrated that the third member is not qualified to \u201crepresent\u201d the majority party as we used that term in Ellis v. Rockefeller, supra. The Republican member of the commission then becomes, in fact, the minority member of the commission and as such we hold that he is entitled to select one judge and one clerk for each precinct. This per curiam order so declares the law.\nReversed.\nHarris, C.J., concurs.\nFogleman and Byrd, JJ., dissent. Justice Fogleman \u2019s written dissent to be filed later.\nJohn A. Fogleman, Justice.\nIt is to be regretted that our system has been unable to devise a method to insure fair elections and eliminate the constant struggle for control of election processes. Until we devise that system, we must depend on the machinery which has been devised legislatively, through initiative and General Assembly action. The courts are not empowered to provide election machinery or eliminate what may seem to them to he defects in the machinery provided by the agency government most representative of the people, the ultimate sovereign, in whom the power is properly vested. I have supreme confidence in the judicial department of government in its own area and in its competency to deal with judicial questions. I have no confidence in its ability to deal with legislative problems as competently as the proper branch. Certainly, the courts cannot be expected to do a better job in that field than either the General Assembly or the people of the state.\nI agree estentially with the dissenting opinion of Mr. Justice Byrd. I cannot help expressing my feeling that the court has acted legislatively. One reading the act in question, would be hard put to find the language stating that the county chairman of each party (the majority and minority, as defined in the act) was entitled to name one judge and one clerk of election in each precinct. The act was drawn to protect the minority party, not the majority.\nThere is no need to elaborate on the pleadings in this appeal. Actually, No. 5-4834, Rockefeller v. Purcell, 245 Ark. 522, 434 S.W. 2d 65, and this appeal were from two different judgments in the same case. The judgment from which this appeal is taken denied that part of appellants\u2019 petition praying a declaratory judgment that, in event of disagreement between any third member of any county board of election commissioners and any chairman of the Republican Central Committ\u00e9e \u201cin that county\u201d in the naming of judges and clerks, the Chairman of the Republican Committee should be permitted to name two judges and one clerk in each precinct without \u201cinterference\u201d from the third member or the Chairman of the Democratic Committee. It is alleged and admitted that the Attorney General of Arkansas has rendered an opinion that in the event of disagreement between the Republican chairman and the third member of a county board, then the disagreement would be resolved by appointment of these judges and this clerk by vote of a majority of the board. I do not see how the statute can be read otherwise. The portion of the Attorney General\u2019s opinion overlooked by the majority in its per curiam opinion states that the act clearly requires that in such event, the majority of the county board must name a member of the majority party to fill the vacancy or vacancies. Under his construction, there would be two Republican judges and one Republican clerk in each precinct. It is difficult for me to see how the majority party is thereby discriminated against.\nActually, this is an appeal from the opinion of the Attorney General in the guise of an action for a declaratory judgment. There is not even a remote suggestion of a justiciable controversy.\nThe declaratory judgment procedure \u201cdoes not license litigants to fish in judicial ponds for legal advice.\u201d Lide v. Mears, 231 N.C. 111, 56 S.E. 2d 404 (1949). What I have had to say about the applicability and availability of declaratory judgment procedure in Rockefeller v. Purcell, No. 5-4834, 245 Ark. 522, 434 S.W. 2d 65, is also relevant here, for the most part. This is an even more obvious application for an advisory opinion than was involved in that case, however.\n1 submit that there is no party petitioner who has a \u00a3 \u00a3 legally protectable interest. \u2019 \u2019 I further submit that there is no justiciable controversy in the sense of ripeness for judicial determination. How could the trial court have written a judgment granting specific relief of a conclusive nature to any of the appellants directing what the parties may or may not do?\nThis leads to another important defect in the proceedings which justified the action of the circuit judge in denying a declaratory judgment. The defect of parties appears on both sides of the jurisdictional fence. Not a single petitioner is a member of a county board of election commissioners, nor do any of them show a legal right to act as such. Equally as fatal to the action here is the fact that not a single election commissioner by virtue of his position as Chairman of the Democratic party of his county is a party to the action in any capacity. The rights and duties of these 75 officials are as much involved in this proceeding as those of the other two county members. Not only is there that defect, but the position of appellant petitioners for declaratory relief meets itself coming back when they seek this relief. They ask that the only members of any county election commission made parties to the proceedings be declared ineligible. If declared ineligible as a result of this court\u2019s decision in No. 5-4834, then not only will there be no county board of election commissioners before the court, there might not be a single member of any county board.\nThe action of the trial court was justified because the defect of parties was jurisdictional and required dismissal of the petition.\nThe requirements of the declaratory judgment act are clear. The pertinent part reads:\n\u201cWhen the declaratory relief is sougnt, an persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.\u201d [Ark. Stat. Ann. \u00a7 34-2510 (Repl. 1962)].\nWhile we have no decisions in this state particularly in point, authorities from other jurisdictions having adopted this act are either controlling or highly persuasive. They differ in effect only slightly. By the great weight of authority, the defect of parties is fatal to the action.\nI have already demonstrated the basis of my belief that none of the appellants-petitioners had any \u201clegally protectable interest\u201d in my dissenting opinion in Rockefeller v. Purcell, No. 5-4834 (November 1, 1968). I also set out there authorities supporting my positions that (1) those not parties to the action are not bound and that their rights are not concluded and (2) that a petition for declaratory relief should not be granted unless the court could grant specific relief through a judgment of conclusive character directing, not suggesting what the parties may or may not do. There remains for treatment the defect of parties defendant (or respondent) .\nBefore declaratory relief is granted, all interested parties should be before the court. School Dist. No. 1 v. School Dist. of Lansing, 331 Mich. 523, 50 N.W. 2d 150 (1951). The statutory requirement that all persons having or claiming any interest which would be affected by the declaration be made parties controls over any general statutory provisions as to waiver of objections as to defect of parties when not raised by demurrer or answer. Redick v. Peony Park, 151 Neb. 442, 37 N.W. 2d 801 (1949). The plaintiff, or petitioner, has the duty of joining, as parties, all persons who have or claim any interest which would be affected by the declaration. Redick v. Peony Park, supra. A petition does not state a cause of action for declaratory relief when it fails to name as a respondent (or defendant) an interested and indispensable party. Cook v. Sikes, 210 Ga. 722, 82 S.3D. 2d 641 (1954).\nWhere persons whose rights are affected are not made parties to the proceedings, the court should decline to declare the rights of those who are parties. Jefferson County v. Jefferson County Fiscal Court, 259 Ky. 661, 83 SW. 2d 16 (1935).\nThe presence of all necessary parties is jurisdictional and cannot be waived. Redick v. Peony Park, supra. In order to be entitled to relief by declaratory judgment, the petitioner must prove a legal right capable of, and in need of, protection from claims, demands or objections emanating from a source competent legally to put the legal interest or right in jeopardy. State v. Haveland, 223 Minn. 89, 25 N.W. 2d 474 (1946). The opposition in the case must come from a source competent legally to jeopardize the petitioner\u2019s right. Miller v. Stolinski, 149 Neb. 679, 32 N.W. 2d 199 (1948).\nThe indispensable and necessary parties in any declaratory judgment action are not only those whose rights would be affected thereby, but also those whose legal interests in the controversy are conflicting with those of the petitioner. People v. Baker, 133 Colo. 398, 297 P. 2d 273 (1956). A petition that fails to name as a party defendant (or respondent) anyone whose rights or duties are affected by statutes to be construed in the action should be dismissed for defect of parties. Axton v. Goodman, 205 Ky. 382, 265 S.W. 806 (1924) (Ky. C.A. 1924); Worden v. City of Louisville, 279 Ky. 712, 131 S.W. 2d 923 (1939). It should be dismissed if it fails to join all parties whose interests and rights are affected. Coleman v. Henry, 184 Tenn. 550, 201 S.W. 2d 686. If jurisdiction is not obtained over indispensable and necessary parties, the action' should be dismissed. People v. Baker, 133 Colo. 398, 297 P. 2d 273 (1956).\nIllustrative of the cases cited above are Axton v. Goodman, supra, and Coleman v. Henry, 184 Tenn. 550, 201 S.W. 2d 686.\nIn the Axton case, candidates of the Progressive party for presidential elector brought suit under the Declaratory Judgment Act against the Chairman of the State Board of Election Commissioners and the Chairman of a county board of election commissioners, to obtain a declaration of their rights to appoint challengers and inspectors at the general election. The Attorney General of the State had rendered a written opinion to the Chairman of the Progressive party that they were not entitled to do so. The court said:\n# * No one of the defendants has any duties to perform with respect to the appointment of challengers or inspectors, or their admission to, or exclusion from, the booths.\u201d\nThe petition was said to have been properly dismissed because no one whose rights or duties were affected by the statute to be construed was made an adverse party in the proceeding.\nIn Coleman v. Henry, 184 Tenn. 550, 201 S.W. 2d 686, the petition sought a declaration construing a statute requiring a financial statement of campaign expenditures to be filed by candidates or their campaign managers. The defendant was the campaign manager for the successful Democratic candidates. None of the candidates nor the public officials to whom the report would be made were made parties to the suit. Their joinder was held to be necessary and indispensable and their non-joinder fatal on the question of justiciable controversy in a suit for declaratory judgment. The dismissal of the petition on demurrer was sustained.\nI sincerely trust that the language in the majority\u2019s per curiam opinion as to election controversies can be used to prevent it from opening the floodgate to applications to the courts for advisory opinions. I still subscribe to the belief that judicial controversies are best decided when pounded out on the anvil of advocacy in proceedings between parties whose interests are vitally real, not academic. I further believe that advocacy cannot make its full contribution to our judicial system unless it is invoked from the perspective of the parties really involved. In this case they would be the county election commissioners.\nThe old adage, \u201cHaste makes waste,\u201d states a fact of judicial, as well as everyday, life.\nI would affirm the judgment of the circuit court.\nConley Byrd, Justice.\nI disagree with the majority because it is contrary to Ark. Stat. Ann. \u00a7 3-608 (Repl. 1956), and because the premise stated in the majority opinion is not sustained by the record or the contention of the parties.\nThe statute provides:\n\u201cIt shall be the duty of the County Board of Election Commissioners not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in the respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) clerk in each precinct shall be chosen and appointed by two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party. Provided further that if there are no registered or known members of the minority party m any precinct or precincts within a county the minority party member of the County Board of Election Commissioners is hereby prohibited from naming any person to represent such minority party as a judge or clerk in any such precinct or precincts who is a member of the majority party, and in such event, the County Board of Election Commissioners shall by a majority vote name the judge and the clerk allotted the minority party for any such precinct or precincts ...\u201d\n\u201cIn the event the majority or minority representative on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerhs for each voting precinct, as authorised hereinbefore then the County Board of Election Commissioners by majority vote may fill such vacancy, provided, that in no event shall all of the jiidges or both of the clerics at any voting precinct be members of the same political party unless there are no members of the minority party registered in said precinct.\u201d (Emphasis mine).\nThe appellees concede that when a deadlock occurs between the County Chairman of the majority party and the appointed third member, it is the duty of the County Board of Election Commissioners to select by majority vote \u201cknown\u201d members of the majority party to serve as such judges and clerk. However, appellants in their brief contend that this is not enough, but that the selection should he those members of the party selected by the Chairman of the majority party. The majority opinion makes two conclusions with respect thereto:\n(1) That when the entire County Board makes a selection of two members of the majority party as judges and one member as clerk, the result is that the minority party selects all the judges and clerks leaving the majority party with no representation whatever at the polls; and (2) that when the third member appointed by the State Board of Election Commissioners is unable to agree with the County Chairman of the majority party as to which members of the majority party are to serve as judges and clerks, then such third member has demonstrated that he is not qualified to \u201crepresent\u201d the majority party as we used that term in Ellis v. Rockefeller, 245 Ark. 53.\nApparently the majority does not agree whole heartedly with appellants contention. The conclusions in the majority opinion are not based on logic. As to the first conclusion, I can think of nothing more patently illogical than the statement that, for purpose of insuring a fair election, the Republican Party is without representation at the polls when two \u201cknown\u201d Republicans are serving as judges and one \u201cknown\u201d Republican is serving as a clerk.\nThe fallacy of the second conclusion can be best demonstrated by reference to the recent litigation in this court in Childers v. Roberts, cause #4830, (disposed of by per curiam order on October 21, 1968). Included in the record therein are certified copies of the minutes of the Republican State Convention showing a controversy between Ralph Childers and John Oliger as to which one had been duly selected County Chairman by the township committeemen of Conway County. Until I read the majority opinion, I would not have believed that anyone would say that the third member of the Conway County Election Commission was not properly discharging his duty by insisting* that the clerk in some or all of the precincts be a \u201cknown\u201d Republican selected from the faction supporting Mr. Oliger. The composition of the State Election Board is now and will continue to be such, by the very nature of the selection process, that it should be given some leeway in the selection of the third member for the purpose of insuring fair elections. It is not inconceivable that a situation could develop in a county of such degrading proportions that the State Board might purposely wish to select a third member of the County Board for the very purpose of preventing manipulation of the ballot through the selection of judges and clerks.\nIf one will again refer to the statute, supra, particularly the italicized portion thereof, he will find that the drafters of the statute anticipated that an impasse could be reached in the method provided for the selection of judges and clerks and that they provided a remedy to prevent the impasse from holding up or interrupting the State\u2019s election machinery. Furthermore, in Initiated Act No. 3 of 1948, \u00a7 1, Ai*k. Stat. Ann. \u00a7 3-606 (Repl. 1956), it provided:\n\u201cFor the purpose of this Act (\u00a7\u00a7 3-606 \u2014 3-611), the majority party shall be construed to be that political party polling, in the State of Arkansas, the greatest number of votes for Governor in the last preceding general election and the minority party shall be construed to be that political party polling, in the State of Arkansas, the second greatest number of votes for Governor in the last preceding general election.\u201d\nHow this court can hold that the political party receiving the greatest number of votes for Governor in the last preceding general election can become the \u201cminority party\u201d within the meaning of Ark. Stat. \u00a7 3-606 and \u00cd 3-608 without rewriting the statutes to fit a particular exigency is beyond my comprehension.\nFor these reasons, I respectfully dissent.\nSee, also, People v. Baker, 133 Colo. 398, 297 P. 2d 273 (1956); Hudson v. Newell, 172 F. 2d 848 (5th Cir. 1949).", "type": "majority", "author": "PER CURIAM. John A. Fogleman, Justice. Conley Byrd, Justice." } ], "attorneys": [ "Wright, Lindsey & Jennings (By Ronald A. May) for appellants.", "Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen.; Henry Ginger, Asst. Atty. Gen. for appellees.", "Jerry J. Screeton and James M. Thweatt & Hubert E. Graves for appellee \u2014 Intervenor John D. Thweatt." ], "corrections": "", "head_matter": "Winthrop Rockefeller et al v. Joe Purcell et al\n5-4835\n434 S.W. 2d 72\nOpinion Delivered October 30, 1968\nWright, Lindsey & Jennings (By Ronald A. May) for appellants.\nJoe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen.; Henry Ginger, Asst. Atty. Gen. for appellees.\nJerry J. Screeton and James M. Thweatt & Hubert E. Graves for appellee \u2014 Intervenor John D. Thweatt." }, "file_name": "0536-01", "first_page_order": 560, "last_page_order": 572 }