IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS SIXTH DIVISION

Transcription

1 IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS SIXTH DIVISION ELECTRONICALLY FILED 2014-May-09 16:08:59 60CV C06D06 : 11 Pages FREEDOM KOHLS; TOYLANDA SMITH; JOE FLAKES; and BARRY HAAS PLAINTIFFS v. CASE NO. 60CV MARK MARTIN, in his official capacity as Secretary of State for the State of Arkansas and his official capacity as Chairman of the Arkansas State Board of Election Commissioners; RHONDA COLE, C.S. WALKER, JAMES HARMON SMITH, III, STUART SOFFER, BARBARA MCBRYDE, and CHAD PEKRON in their official capacities as Commissioners of the Arkansas State Board of Election Commissioners DEFENDANTS ANSWER OF MARK MARTIN, RHONDA COLE, C.S. WALKER, JAMES HARMON SMITH, III, STUART SOFFER, BARBARA MCBRYDE, AND CHAD PEKRON IN THEIR OFFICIAL CAPACITIES AS COMMISSIONERS OF THE ARKANSAS STATE BOARD OF ELECTION COMMISSIONERS For their Answer, Mark Martin, Rhonda Cole, C.S. Walker, James Harmon Smith, III, Stuart Soffer, Barbara McBryde, and Chad Pekron in their official capacities as Commissioners of the Arkansas State Board of Election Commissioners ( the Commissioners ), state: 1. The allegations made in paragraph 1 of the Complaint state a legal conclusion, and so no response is required. To the extent that there are factual allegations therein, the factual 2. The Commissioners admit that that they are sued in their official capacities as Commissioners of the Arkansas State Board of Election Commissioners but deny that they are 1

2 solely responsible for implementation of Act 595 of The Commissioners deny the remaining allegations made in paragraph 2 of the Complaint. 3. The allegations made in paragraph 3 of the Complaint state a legal conclusion, and so no response is required. To the extent that there are factual allegations therein, the factual 4. The allegations made in paragraph 4 of the Complaint state a legal conclusion, and so no response is required. To the extent that there are factual allegations therein, the factual 5. The Commissioners deny the allegations made in paragraph 5 of the Complaint. 6. The Commissioners admit that the Arkansas General Assembly enacted Act 595 of 2013, but deny the remaining allegations made in paragraph 6 of the Complaint. 7. The Commissioners deny the allegations made in paragraph 7 of the Complaint. 8. The Commissioners deny the allegations made in paragraph 8 of the Complaint. 9. The Commissioners admit that venue is proper in Pulaski County, although this Court does not have subject matter jurisdiction because Plaintiffs lack standing, inter alia. The Commissioners deny the remaining allegations made in paragraph 9 of the Complaint. 10. The Commissioners admit that Plaintiffs are registered voters in Pulaski County. The Commissioners, however, lack sufficient information and belief as to the remaining allegations made in paragraph 10 of the Complaint, at least in part because Plaintiffs have failed to allow for any discovery prior to date; therefore the Commissioners deny the remaining allegations made therein. 11. The Commissioners admit that Plaintiffs are registered voters in Pulaski County. The Commissioners, however, lack sufficient information and belief as to the remaining allegations 2

3 made in paragraph 11 of the Complaint, at least in part because Plaintiffs have failed to allow for any discovery prior to date; therefore the Commissioners deny the remaining allegations made therein. 12. The Commissioners admit that Plaintiffs are registered voters in Pulaski County. The Commissioners, however, lack sufficient information and belief as to the remaining allegations made in paragraph 12 of the Complaint, at least in part because Plaintiffs have failed to allow for any discovery prior to date; therefore the Commissioners deny the remaining allegations made therein. 13. The Commissioners admit that Plaintiffs are registered voters in Pulaski County. The Commissioners, however, lack sufficient information and belief as to the remaining allegations made in paragraph 13 of the Complaint, at least in part because Plaintiffs have failed to allow for any discovery prior to date; therefore the Commissioners deny the remaining allegations made therein. 14. The allegations made in paragraph 14 of the Complaint state a legal conclusion, and 15. The allegations made in paragraph 15 of the Complaint state a legal conclusion, and 16. The allegations made in paragraph 16 of the Complaint state a legal conclusion, and 17. The Commissioners admit the allegations made in paragraph 17 of the Complaint. 3

4 18. The allegations made in paragraph 18 of the Complaint state a legal conclusion, and 19. The allegations made in paragraph 19 of the Complaint state a legal conclusion, and Pleading affirmatively, the Commissioners state that Barbara McBryde is no longer an Election Commissioner on the State Board of Election Commissioners. 20. The allegations made in paragraph 20 of the Complaint state a legal conclusion, and 21. The allegations made in paragraph 21 of the Complaint state a legal conclusion, and 22. The allegations made in paragraph 22 of the Complaint state a legal conclusion, and 23. The allegations made in paragraph 23 of the Complaint state a legal conclusion, and 24. The allegations made in paragraph 24 of the Complaint state a legal conclusion, and 4

5 25. The allegations made in paragraph 25 of the Complaint state a legal conclusion, and 26. The allegations made in paragraph 26 of the Complaint state a legal conclusion, and 27. The allegations made in paragraph 27 of the Complaint state a legal conclusion, and 28. The allegations made in paragraph 28 of the Complaint state a legal conclusion, and 29. The allegations made in paragraph 29 of the Complaint state a legal conclusion, and 30. The Commissioners deny the allegations made in paragraph 30 of the Complaint. 31. The Commissioners deny the allegations made in paragraph 31 of the Complaint. 32. The allegations made in paragraph 32 of the Complaint state a legal conclusion, and 33. The Commissioners admit that Plaintiffs are registered voters in Pulaski County. The Commissioners, however, lack sufficient information and belief as to the remaining allegations made in paragraph 33 of the Complaint, at least in part because Plaintiffs have failed to allow for 5

6 any discovery prior to date; therefore the Commissioners deny the remaining allegations made therein. 34. The Commissioners lack sufficient information and belief as to the allegations made in paragraph 34 of the Complaint, at least in part because Plaintiffs have failed to allow for any discovery prior to date; therefore the Commissioners deny the allegations made therein. 35. The Commissioners lack sufficient information and belief as to the allegations made in paragraph 35 of the Complaint, at least in part because Plaintiffs have failed to allow for any discovery prior to date; therefore the Commissioners deny the allegations made therein. 36. The Commissioners deny the allegations made in paragraph 36 of the Complaint. 37. The Commissioners deny the allegations made in paragraph 37 of the Complaint. 38. The Commissioners lack sufficient information and belief as to the allegations made in paragraph 38 of the Complaint, at least in part because Plaintiffs have failed to allow for any discovery prior to date; therefore the Commissioners deny the allegations made therein. 39. The Commissioners re-state their denials and objections set forth in paragraphs 1 to 38 herein. The Commissioners deny any matter not specifically admitted above, and so deny the remaining allegations made in paragraph 39 of the Complaint. 40. The allegations made in paragraph 40 of the Complaint state a legal conclusion, and 41. The allegations made in paragraph 41 of the Complaint state a legal conclusion, and 6

7 42. The allegations made in paragraph 42 of the Complaint state a legal conclusion, and 43. The allegations made in paragraph 43 of the Complaint state a legal conclusion, and 44. The allegations made in paragraph 44 of the Complaint state a legal conclusion, and 45. The allegations made in paragraph 45 of the Complaint state a legal conclusion, and 46. The Commissioners re-state their denials and objections set forth in paragraphs 1 to 45 herein. The Commissioners deny any matter not specifically admitted above, and so deny the remaining allegations made in paragraph 46 of the Complaint. 47. The allegations made in paragraph 47 of the Complaint state a legal conclusion, and 48. The allegations made in paragraph 48 of the Complaint state a legal conclusion, and 7

8 49. The allegations made in paragraph 49 of the Complaint state a legal conclusion, and 50. The allegations made in paragraph 50 of the Complaint state a legal conclusion, and 51. The allegations made in paragraph 51 of the Complaint state a legal conclusion, and 52. The allegations made in paragraph 52 of the Complaint state a legal conclusion, and 53. The allegations made in paragraph 53 of the Complaint state a legal conclusion, and 54. The allegations made in paragraph 54 of the Complaint state a legal conclusion, and 55. The allegations made in paragraph 55 of the Complaint state a legal conclusion, and 8

9 56. The allegations made in paragraph 56 of the Complaint state a legal conclusion, and 57. The allegations made in paragraph 57 of the Complaint state a legal conclusion, and 58. The Commissioners deny any factual allegations made in the Complaint that are not specifically admitted herein. 59. The Commissioners deny the accuracy, authenticity, veracity, and sufficiency of any uncertified exhibits attached to the Complaint. 60. The Commissioners deny that any of the named Plaintiffs are entitled to any of the relief they seek in their Complaint. 61. Pleading affirmatively, the Commissioners state that Plaintiffs have waited too long to make their challenge on an emergency basis and so should be denied any relief as a result of their own laches. 62. Pleading affirmatively, the Commissioners state that Plaintiffs are estopped from challenging the constitutionality of Act 595, at this juncture on the facts as alleged. 63. Pleading affirmatively, in the alternative, the Commissioners state that the provisions of Act 595 are severable, and that any sections of Act 595 that are not challenged must remain in effect. 64. Pleading affirmatively, in the alternative, the Commissioners state that the provisions of Act 595 are severable, and that any sections of Act 595 that the Court determines are not unconstitutional must remain in effect. 9

10 65. Pleading affirmatively, the Commissioners state that Plaintiffs are not entitled to money damages, are not entitled to costs, are not entitled to attorney s fees, are not entitled to expenses, and are not entitled to any monetary compensation for raising any of the issues set forth in their Complaint. Ark. Const. Art. 5, 20 (sovereign immunity). 66. Pleading affirmatively, the Commissioners state that Plaintiffs are not entitled to any injunctive relief. Ark. Const. Art. 5, Pleading affirmatively, the Commissioners state that Plaintiffs have failed to state a claim upon which relief can be granted. ARCP 12(b)(6). 68. Pleading affirmatively, the Commissioners state that Plaintiffs have failed to join necessary parties under ARCP Rule 19, and specifically failed to include any County Board of Election Commission, and so are not entitled to any of the relief they seek. ARCP 12(b)(7). 69. Pleading affirmatively, the Commissioners state that the Court lacks subject matter jurisdiction over this matter. ARCP 12(b)(1). 70. Pleading affirmatively, the Commissioners state that Plaintiffs lack standing to pursue the remedies they seek herein. 71. The Commissioners ask the Court to dismiss the Complaint and to deny Plaintiffs any relief whatsoever. The Commissioners also ask that the Plaintiffs not receive any relief that they have not requested in their Complaint and that they not receive relief on any theory or claim that they have not pled in their Complaint. WHEREFORE, the Commissioners request that the Complaint be dismissed, that the Plaintiffs be denied any relief whatsoever, that the Plaintiffs not receive any relief that they have not requested in their Complaint, and that they not receive relief on any theory or claim that they have not pled in their Complaint. 10

11 Respectfully submitted, DUSTIN McDANIEL Attorney General By: /s/ C. Joseph Cordi Jr. Senior Assistant Attorney General Arkansas Bar No Center Street 200 Catlett-Prien Building Little Rock, AR Phone: (501) Fax: (501) David A. Curran Deputy Attorney General Arkansas Bar No Center Street 200 Catlett-Prien Building Little Rock, AR Phone: (501) Fax: (501) Attorneys for Mark Martin, Rhonda Cole, C.S. Walker, James Harmon Smith, III, Stuart Soffer, Barbara McBryde, and Chad Pekron in their official capacities as Commissioners of the Arkansas State Board of Election Commissioners CERTIFICATE OF SERVICE I, C. Joseph Cordi, Jr., certify that on this 9th day of May, 2014, I electronically filed the foregoing with the Circuit Clerk using the electronic filing system, which shall send notification of such filing to: Jeff Priebe, Esq. A.J. Kelly, Esq. Martha Adcock, Esq. Justin Tate, Esq. /s/ C. Joseph Cordi, Jr. 11