{ "id": 8153430, "name": "Dwain OLIVER v. Ronnie PHILLIPS, Calhoun County Election Commission (Hon. Allen G. Watson, Chair; Hon. James Rawls; Hon. Barbara Floss); and Hon. Charlie Daniels, in his Official Capacity as Secretary of State, Arkansas's Chief Election Officer", "name_abbreviation": "Oliver v. Phillips", "decision_date": "2008-12-19", "docket_number": "08-1209", "first_page": "287", "last_page": "293", "citations": [ { "type": "official", "cite": "375 Ark. 287" }, { "type": "parallel", "cite": "290 S.W.3d 11" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "369 S.W.3d 341", "category": "reporters:state_regional", "reporter": "S.W.3d", "year": 2007, "opinion_index": 0 }, { "cite": "371 Ark. 621", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3491010 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/371/0621-01" ] }, { "cite": "368 Ark. 60", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3800794 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "67" }, { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/ark/368/0060-01" ] }, { "cite": "300 Ark. 405", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886860 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0405-01" ] }, { "cite": "366 Ark. 352", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3655860 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "355", "parenthetical": "citing State v. Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169 (1989)" }, { "page": "523", "parenthetical": "citing State v. Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169 (1989)" } ], "opinion_index": 0, "case_paths": [ "/ark/366/0352-01" ] }, { "cite": "34 Ark. 410", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875678 ], "year": 1879, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/ark/34/0410-01" ] }, { "cite": "94 S.W.2d 720", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1936, "pin_cites": [ { "page": "721", "parenthetical": "citing Estes v. Martin, 34 Ark. 410, 419 (1879)" } ], "opinion_index": 0 }, { "cite": "192 Ark. 728", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1415005 ], "year": 1936, "pin_cites": [ { "page": "730", "parenthetical": "citing Estes v. Martin, 34 Ark. 410, 419 (1879)" } ], "opinion_index": 0, "case_paths": [ "/ark/192/0728-01" ] }, { "cite": "Ark. Code Ann. \u00a7 7-5-801", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2007, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 7-5-207", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2007, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "364 Ark. 574", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3035891 ], "weight": 10, "year": 2006, "pin_cites": [ { "page": "579" }, { "page": "208" }, { "page": "578" }, { "page": "207", "parenthetical": "\"Ball's inability to have Jones' name removed from the ballot. . . was dire to her decision to wait until eight days before the election to file her petition .... In short, this election case is moot.\"" }, { "page": "577-78" }, { "page": "207", "parenthetical": "\"If Ball had filed hersuit within this thirty-eight day period [after certification] . . . there would have been ample time in which to resolve all relevant issues raised by Ball prior to the September 21, 2004 election.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/364/0574-01" ] }, { "cite": "354 Ark. 716", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36037 ], "weight": 5, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/354/0716-01" ] }, { "cite": "371 Ark. 263", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3490536 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "264" }, { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/ark/371/0263-01" ] } ], "analysis": { "cardinality": 583, "char_count": 13082, "ocr_confidence": 0.755, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20088584315147331 }, "sha256": "ec83bf2193da84009d47bd41c8fbcf18538c5e32581f20a1170d1748793bac4a", "simhash": "1:fb3da8ac764cdc1f", "word_count": 2125 }, "last_updated": "2023-07-14T22:36:16.941269+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Dwain OLIVER v. Ronnie PHILLIPS, Calhoun County Election Commission (Hon. Allen G. Watson, Chair; Hon. James Rawls; Hon. Barbara Floss); and Hon. Charlie Daniels, in his Official Capacity as Secretary of State, Arkansas\u2019s Chief Election Officer" ], "opinions": [ { "text": "Jim Gunter, Justice.\nAppellant, Dwain Oliver, appeals his unsuccessful challenge to his opponent\u2019s qualifications in a judicial race in Calhoun County. Appellant asserts the trial court erred in holding that: (1) it lacked jurisdiction to grant appellant\u2019s petition and (2) the issue presented by appellant\u2019s petition was moot. Because this appeal pertains to elections and election procedures, this court has jurisdiction pursuant to Ark. Sup. Ct. R. l-2(a)(4). We affirm.\nOn March 11, 2008, appellant and appellee Ronnie Phillips were certified by the Calhoun County Board of Election Commissioners as candidates for the position of Calhoun County District Judge. On May 19, 2008, one day before the general election, and sixty-nine days after certification, appellant filed a petition for declaratory relief and motion for writ of mandamus, asserting that Phillips was a resident of Dallas County, not Calhoun County, and was thus ineligible to be a candidate. To support his argument, appellant cited amendment 80, section 16(D) of the Arkansas Constitution, which states:\nAll Justices and Judges shall be qualified electors within the geographical area from which they are chosen, and Circuit and District Judges shall reside within that geographical area at the time of election and during their period of service. A geographical area may include any county contiguous to the county being served when there are no qualified candidates available in the county to be served.\nAppellant requested that Phillips\u2019s name be stricken from the ballot and that any votes cast for Phillips not be counted. Appellant requested an expedited hearing at the court\u2019s earliest opportunity and served notice to Phillips and the other appellees on May 19.\nThe general election was held on May 20, with Phillips receiving 151 votes and appellant receiving 126 votes. On May 22, appellant filed a motion for preliminary injunction, asking the court to enjoin the Calhoun County Election Commission (the Commission) and the Secretary of State from certifying the election results.\nOn May 23, the Commission filed a response to appellant\u2019s petition for declaratory relief and writ of mandamus. In its response, the Commission argued that because no hearing was held or ruling was made prior to the election, appellant\u2019s petition and motion were moot. Phillips filed a separate response on May 28 in which he also asserted appellant\u2019s request was moot.\nA hearing on the matter was held on May 28. At the hearing, the Commission argued that the case should be dismissed for two reasons: (1) because the petition was filed one day prior to the election, it was impossible to have the hearing within two to seven days pursuant to Ark. R. Civ. P. 78(d) (2008), and the issue is now moot; (2) because the court did not have jurisdiction to decide a pre-election challenge post-election. At the conclusion of the hearing, the court agreed with the Commission and found that \u201ca pre-election issue being decided post-election is outside the jurisdiction of the Court.\u201d In its order, filed June 23, 2008, the court made the following findings:\n3. There are two types of election contests provided for by statute: pre-election eligibility challenges and post-election, election contests. Zolliecoffer v. Post, 371 Ark. 263, 264 (2007). A party wishing to challenge a candidate\u2019s eligibility to stand for election must bring the challenge by way of a petition for writ of mandamus and declaratory judgment prior to the election. Id. at 265.\n4. Arkansas statutes do not provide for a post-election petition for writ of mandamus and complaint for declaratory relief to challenge a candidate\u2019s eligibility. Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003). Although Oliver\u2019s petition was filed pre-election, the timing of his petition made it impossible for this issue to be resolved prior to the election.\n5. Because the issue was presented but not expedited and ruled on prior to the election, the issue is now moot. Ball v. Phillips County Election Commission, 364 Ark. 574, 222 S.W.3d 205 (2006). Nor does this court have jurisdiction to decide a pre-election eligibility issue in a post-election proceeding. Zolliecoffer, cited above.\nAppellant then filed a notice of appeal to this court on July 21, 2008.\nThe right to contest an election is purely statutory. Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003). A statutory right to challenge the eligibility of a candidate before the election is provided by Ark. Code Ann. \u00a7 7-5-207(b) (Supp. 2007); however, this statute only allows pre-election challenges to a candidate\u2019s eligibility. Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007). Post-election, the only private right to challenge an election is found under Ark. Code Ann. \u00a7 7-5-801 (Repl. 2007), which provides for a challenge by a candidate to contest certification by the county board of election commissioners.\nOn appeal, appellant first asserts that the trial court erred in finding that it lacked jurisdiction to consider appellant\u2019s petition. In its order, the trial court cited Zolliecoffer, supra, for the proposition that it had no jurisdiction to decide a pre-election eligibility issue in a post-election proceeding. In Zolliecoffer, the losing candidate in a mayoral election filed a petition for writ of mandamus and declaratory judgment two days after the election. This court held that the trial court lacked subject-matter jurisdiction to consider the petition because the petition was filed post-election. Appellant argues that the case at bar is distinguishable because he filed his petition pre-election, not post-election, and therefore the trial court had jurisdiction to decide the case on the merits and prior to the official vote certification.\nIn response, appellees argue that although appellant\u2019s petition was filed pre-election, the lateness of the filing made it impossible to conduct a hearing on the merits prior to the election and within the \u201cno sooner than 2 and no longer than 7 days\u201d requirement of Rule 78(d). And because Arkansas election law does not provide for a post-election petition for a writ of mandamus and declaratory relief, the trial court was without jurisdiction to hear the matter post-election. Pederson, supra.\nAppellant did file his petition pre-election, albeit by only one day. Consequently, the trial court had jurisdiction when appellant\u2019s petition was filed, and Arkansas case law has established that \u201cwhere a court once rightfully acquires jurisdiction of a cause, it has the right to retain and decide.\u201d Wasson v. Dodge, 192 Ark. 728, 730, 94 S.W.2d 720, 721 (1936) (citing Estes v. Martin, 34 Ark. 410, 419 (1879)). Zolliecoffer and Pederson are both distinguishable because the appellants in those cases did not file their petitions pre-election. Accordingly, we hold that because the action was filed pre-election, the trial court did have jurisdiction, and that jurisdiction was not subsequently erased by the election.\nFor his second argument on appeal, appellant contends that the trial court erred in finding that the issue presented by appellant was moot. The trial court\u2019s order stated that \u201cbecause the issue was presented but not expedited and ruled on prior to the election, the issue is now moot\u201d and cited Ball v. Phillips County Election Commission, 364 Ark. 574, 222 S.W.3d 205 (2006). In Ball, this court held that a petition challenging the eligibility of a candidate, filed eight days before the election, was untimely and moot. In so holding, we stated:\nBall failed to pursue her petition for mandamus and declaratory judgment expeditiously in order to obtain the remedy to remove Jones\u2019 name from the ballot before the election or before the election results were certified. In other words, Ball\u2019s lawsuit became moot due to her own failure to act timely in the special proceeding.\nId. at 579, 222 S.W.3d at 208. We also noted that the candidates\u2019 names were certified approximately thirty-eight days previously, and Ball offered no compelling reason for waiting until' eight days before the election to file her petition.\nAppellant attempts to distinguish the holding in Ball by arguing that Ball\u2019s appeal was deemed moot but the petition itself was only deemed untimely. However, this is a distinction without a difference, because in Ball it was the untimeliness of the petition that rendered the case moot. See id. at 578, 222 S.W.3d at 207 (\u201cBall\u2019s inability to have Jones\u2019 name removed from the ballot. . . was dire to her decision to wait until eight days before the election to file her petition .... In short, this election case is moot.\u201d) As in Ball, appellant failed to pursue his petition expeditiously in order to obtain the remedy of removing Phillips\u2019s name from the ballot before the election, and appellant has offered no compelling reason for his delay in filing the petition.\nIn addition, waiting until the day before th\u00e9 election to file the petition rendered it impossible for the trial court to' fulfill the requirement under Rule 78(d) that the trial court hold a hearing no sooner than two and no longer than seven days thereafter. We established in Ball that this type of eligibility challenge should be filed in time to resolve all relevant issues prior to the election. See 364 Ark. at 577-78, 222 S.W.3d at 207 (\u201cIf Ball had filed hersuit within this thirty-eight day period [after certification] . . . there would have been ample time in which to resolve all relevant issues raised by Ball prior to the September 21, 2004 election.\u201d) Also, this court has clearly stated that \u201c[o]nce the election takes place, the issue of a candidate\u2019s eligibility under \u00a7 7-5-207(b) becomes moot.\u201d Clement v. Daniels, 366 Ark. 352, 355, 235 S.W.3d 521, 523 (2006) (citing State v. Craighead County Bd. of Election Comm\u2019rs, 300 Ark. 405, 779 S.W.2d 169 (1989)). We therefore affirm the trial court\u2019s finding that the issue presented in appellant\u2019s petition was moot.\nAppellant also makes the argument that there is a contradiction between amendment 80\u2019s \u201cat the time of the election\u201d provision and \u00a7 7-5-207(b)\u2019s \u201cqualified and eligible at the time of filing as a candidate\u201d language. Appellant asserts that the case was ripe, not moot, at the time it was filed at the brink of the election because under the clear language of amendment 80, a judicial candidate has until \u201cat the time of election\u201d to bring himself within the qualifying parameters by establishing a residence in the geographical area and becoming a qualified elector. According to appellant, the trial court erred in \u201celevating the Election Code\u2019s statutory provisions and case law enforcement procedures over the Constitution\u2019s controlling provisions to dismiss the action below.\u201d\nThough the circuit court ruled on this issue from the bench, the final written order did not address this issue. In a recent case where the judge made a constitutional decision from the bench, we said: \u201cPursuant to Administrative Order 2(b)(2), an oral order announced from the bench does not become effective until reduced to writing and filed.\u201d McGhee v. Ark. State Bd. of Collection Agencies, 368 Ark. 60, 67, 243 S.W.3d 278, 284 (2006). When the circuit court makes no ruling on an issue, the appellate court is precluded from reaching the issue on appeal. Travis v. State, 371 Ark. 621, 369 S.W.3d 341 (2007). Therefore, this issue is. not preserved for our review.\nIn conclusion, we hold that the trial court did have jurisdiction to consider appellant\u2019s petition, but that the trial court was correct in its finding that the petition was moot.\nAffirmed.\nAppellant named Phillips, the Calhoun County Election Commission, and the Secretary of State, Charlie Daniels, as defendants to the suit.\nArkansas Rule of Civil Procedure 78(d) provides:\nUpon the filing of petitions for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of the circuit court having jurisdiction to fix and announce a day of court to be held no sooner than 2 and no longer than 7 days thereafter to hear and determine the cause.\nArkansas Code Annotated section 7-5-207(b) provides in pertinent part:\nNo person\u2019s name shall be printed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of fifing as a candidate for the office to hold the public office for which he or she is a candidatef.]", "type": "majority", "author": "Jim Gunter, Justice." } ], "attorneys": [ "Tony Joe \u201cTJ.\u201d Huffman and Compton, Preu/ett, Thomas and Hickey, P.A., by: Floyd M. Thomas, Jr., for appellant.", "Robin J. Carroll, Calhoun County Prosecuting Att\u2019y, for appel-lee Calhoun County Board of Election Commissioners.", "James M. Pratt, Jr., P.A., by: James M. Pratt, Jr., for appellee Ronnie Phillips." ], "corrections": "", "head_matter": "Dwain OLIVER v. Ronnie PHILLIPS, Calhoun County Election Commission (Hon. Allen G. Watson, Chair; Hon. James Rawls; Hon. Barbara Floss); and Hon. Charlie Daniels, in his Official Capacity as Secretary of State, Arkansas\u2019s Chief Election Officer\n08-1209\n290 S.W.3d 11\nSupreme Court of Arkansas\nOpinion delivered December 19, 2008\nTony Joe \u201cTJ.\u201d Huffman and Compton, Preu/ett, Thomas and Hickey, P.A., by: Floyd M. Thomas, Jr., for appellant.\nRobin J. Carroll, Calhoun County Prosecuting Att\u2019y, for appel-lee Calhoun County Board of Election Commissioners.\nJames M. Pratt, Jr., P.A., by: James M. Pratt, Jr., for appellee Ronnie Phillips." }, "file_name": "0287-01", "first_page_order": 317, "last_page_order": 323 }