IN THE CIRCUIT COURT OF FAULKNER COUNTY, ARKANSAS DIVISION ONE

Transcription

1 IN THE CIRCUIT COURT OF FAULKNER COUNTY, ARKANSAS DIVISION ONE FAULKNER COUNTY ELECTION COMMISSION and MARGARET DARTER in her official capacity as FAULKNER COUNTY CLERK PETITIONERS vs. Case No. 23CV SHELLY CARPENTER, ANDREW SHOCK and JOHNNY BRADY RESPONDENTS RESPONDENTS SHELLY CARPENTER AND JOHNNY BRADY S MOTION FOR SUMMARY JUDGMENT WITH INCORPORATED BRIEF IN SUPPORT COME NOW Separate Respondents Shelly Carpenter and Johnny Brady, by and through their attorneys Daniel Ford and Chris Burks of Sanford Law Firm, PLLC, and for their Motion for Summary Judgment do hereby state and allege as follows: of law. 1. Respondent Andrew Shock is ineligible for county office as a matter 2. Mandatory and binding case law requires this Court to find that a member of the Arkansas Parole Board ineligible for other constitutionally prohibited offices. 3. No material facts are in dispute. All parties agree that Respondent Andrew Shock holds a civil office as a member of the Arkansas Parole Board. 4. All parties agree that the voters of Arkansas passed Amendment 95 of the Arkansas Constitution in 2016 which established Article 7, 53. Page 1 of 9

2 5. There can be no dispute that the text of Article 7, 53 prohibits a person from serving in one of the listed county offices during the same term as he or she serves in a civil office. 6. Thus, as a matter of law, Respondent Shock is ineligible to serve in any of the county offices listed in Article 7, As such, Separate Respondents Carpenter and Brady are entitled to summary judgment as a matter of law. 8. Plaintiff hereby incorporates the Brief in Support herein below. WHEREFORE, premises considered, Separate Respondents Shelly Carpenter and Johnny Brady respectfully move the Court to enter summary judgment in their favor by declaring Andrew Shock ineligible for county office and all their requested claims for relief stemming from such. BRIEF IN SUPPORT I. INTRODUCTION Respondent Andrew shock is ineligible to serve as Justice of the peace per a plain reading of Article 7, 53 of the Arkansas Constitution. Mandatory and binding case law defines eligibility to serve. By declaring Mr. Shock ineligible to serve as Justice of the peace, as is clear under the law, an orderly election can be ensured without uncertainty for the voters of Faulkner County. Simply put, this Motion must be granted. Page 2 of 9

3 II. STANDARD OF REVIEW A grant of summary judgment is warranted when it is clear that there are no genuine issues of material fact to be litigated and that the moving party is entitled to summary judgment as a matter of law. Sw. Energy Prod. Co. v. Elkins, 2010 Ark. 481, 374 S.W.3d 678. The Arkansas Supreme Court has ceased referring to summary judgment as a drastic remedy and now simply regard it as one of the tools in the trial court s efficiency arsenal. Laird v. Shelnut, 348 Ark. 632, 641 (2002). [I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, shows that there is no genuine issue as to any material fact the moving party is entitled to judgment as a matter of law. Id. at 639. Summary judgment is to be granted by a trial court when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to a judgment as a matter of law. Id. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appeal, the appellate court will determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. Review is not limited to the pleadings, as the court also focuses on the affidavits and other documents filed by the parties. Hatchell v. Wren, 363 Ark. 107, 114 (2005); Laird, Page 3 of 9

4 348 Ark., at 639. Again, summary judgment is no longer considered a drastic remedy; rather, it is now regarded as simply one of the tools available in a trial court s efficiency arsenal. Foreman School District v. Steele, 347 Ark. 193, 198, 61 S.W.3d 801, 804 (2001). III. ARGUMENT Separate Respondents Carpenter and Brady s Motion for Summary Judgment must be granted, as Respondent Shock is ineligible for office as a matter of law. Petitioners and Respondent Shock do not dispute and cannot dispute any material facts. The text of the Constitution is clear that Shock holds a civil office and he is thus ineligible for one of the enumerated county offices, including Justice of the peace. First, Petitioners and Respondent Shock do not dispute any material facts in this matter. As such, they cannot raise an issue of proof to deny Respondents summary judgment. Petitioners agree that Respondent Shock holds a civil office because he is a member of the Arkansas Parole Board. Petitioner s Brief at p. 2. Even beyond Petitioners inability to dispute any material facts, the text of the law makes clear that Respondents are entitled to summary judgment. The People of the State of Arkansas have clearly excluded a person who holds one of the enumerated county offices from serving in a civil office during the term for which he or she serves in a county position. This is clear through a plain reading of Article 7, 53 and the precedent of the Arkansas Supreme Court. Page 4 of 9

5 A. A plain reading of Article 7, 53 clearly precludes a person from serving in one of the enumerated county offices during the same term that he or she serves in a civil office. When the language of a constitutional provision is plain and unambiguous, the language must be given its obvious and common meaning. Forrester v. Daniels, 373 S.W.3d 871, 875 (2010). When a constitutional provision is clear and certain, it cannot be defeated by the rules of constitutional construction. State v. Oldner, 206 S.W.3d (2005). Article 7, 53 was added by the People of Arkansas through Amendment 95 in November, Article 7, 53 provides: A person elected or appointed to any of the following county offices shall not, during the term for which he or she has been elected, be appointed or elected to any civil office in this state: (1) County judge; (2) Justice of the peace; (3) Sheriff; (4) Circuit clerk; (5) County clerk; (6) Assessor; (7) Coroner; (8) Treasurer; (9) County surveyor; or (10) Collector of taxes. Article 5, 10 of the Arkansas Constitution reads: No senator or representative shall, during the time for which he shall have been elected, be appointed or elected to any civil office under this state. A plain reading of the two constitutional provisions shows that they are almost identical and are merely written to apply to different offices. The second clause of the provision, during the term for which he or she has been elected, be appointed or elected to any Page 5 of 9

6 civil office in this state calculates the time period to which the provision applies. The word term that was used in Article 5, 10, has a common meaning of a fixed period of time. Garner, Black s Law Dictionary Pocket Edition, 711 (3rd ed. 2006). The legislature choosing the word time instead of term does not change the meaning of the provision because it also has a plain meaning of indicating a measure of time. Id. at 720. B. Mandatory and binding case law precludes a member of the Parole Board from serving in one of the constitutionally prohibited offices In Starnes v. Sadler, the Arkansas Supreme Court stated that Article 5, 10 clearly precludes a member of the General Assembly from serving as a civil official during the term for which he has been elected to serve as a member of the General Assembly. Starnes v. Sadler, 372 S.W.2d 585, 586 (1963). The Court in Starnes specifically addressed the issue of whether a member of the General Assembly could serve as a Member of the State Board of Pardons and Paroles and found that he was an illegal member of the Board. Id. Similarly, in the case of Wood v. Miller, the Court stated that [t]he purpose of this provision of the Constitution is plain when it decided that a member of the General Assembly was ineligible to hold the office of municipal judge when his term in the Assembly had not expired. Wood v. Miller, 242 S.W. 573, 575 (1922). These cases, taken together, clearly show that a common and clear reading of Article 7, 53 prohibits one of the enumerated county officials from serving in a civil office during a term as a county official. The parties here agree that the Court s interpretation in Starnes of a position on the State Board of Page 6 of 9

7 Pardons and Paroles as a civil office necessarily defines a position on the Arkansas Parole Board as a civil office. Article 7, 53 and Article 5, 10 differ merely in that Article 7, 53 applies to specific county offices while Article 5, 10 applies to members of the General Assembly. Therefore, a common and clear reading of Article 7, 53 shows that a member of the Arkansas Parole Board may not serve in one of the listed county offices during the same term. Justice of the peace is one of the listed county offices in Article 7, 53. Accordingly, this Court should issue a summary judgment that Respondent Shock is ineligible under Article 7, 53 to serve as Justice of the peace. In sum, Respondents Carpenter and Brady have alleged and Petitioners and Respondent Shock cannot raise an issue of material fact as to the following: a. The Arkansas electorate, through the 2016 Amendment 95 to the Arkansas Constitution, added Article 7, 53. b. A plain reading of Article 7, 53 shows that it is identical in form to Article 5, 10, which prohibits a person holding a specified office from also serving in a civil office during the same term. c. The specified offices under Article 7, 53 are enumerated county offices, including the office of Justice of the peace. d. There is no factual dispute that a member of the Arkansas Parole Board holds a civil office under Article 7, 53, and is therefore prohibited from serving in one of the enumerated county offices during the same term. e. Respondent Shock is currently a member of the Arkansas Parole Board and if elected Justice of the peace would continue in that civil office Page 7 of 9

8 f. Respondent Shock is therefore ineligible to serve as a member of the Arkansas Parole Board and Justice of the peace during the same term. g. Respondents Carpenter and Brady are therefore entitled to a declaratory judgment under Ark. Code Ann et seq. Respondents Carpenter and Brady request that this Court issue an Order declaring that Article 7, 53 of the Arkansas Constitution prohibits one of the enumerated county officials from serving in a civil office during his or her term. WHEREFORE, Separate Respondents Carpenter and Brady pray that this Court grant their Motion for Summary Judgment, for attorney s fees and costs, and all other just and proper relief, whether prayed for specifically herein or not. Respectfully submitted, RESPONDENTS SHELLY CARPENTER and JOHNNY BRADY SANFORD LAW FIRM, PLLC ONE FINANCIAL CENTER 650 SOUTH SHACKLEFORD, SUITE 411 LITTLE ROCK, ARKANSAS TELEPHONE: (501) FACSIMILE: (888) /s/ Daniel Ford Daniel Ford Ark. Bar No daniel@sanfordlawfirm.com and /s/ Chris Burks Chris Burks Ark. Bar No chris@sanfordlawfirm.com Page 8 of 9

9 CERTIFICATE OF SERVICE I, Chris Burks, do hereby certify that on March 2018, a true and correct copy of the foregoing MOTION was sent by First Class U.S. Mail, postage prepaid, and electronic mail to the following attorneys of record: Mr. David Hogue 801 Locust St. Conway, AR David.hogue@faulknercounty.org Russell A. Wood Wood Law Firm, P. A. 501 East 4th Street, Suite 4 Russellville, AR woodlaw@suddenlinkmail.com /s/ Chris Burks Chris Burks Page 9 of 9