ELECTRONICALLY FILED Pulaski County Circuit Court Larry Crane, Circuit/County Clerk 2018-Apr-19 15:33:26 60CV-18-2497 C06D09 : 10 Pages IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS DIVISION MICHAEL FORRESTER PETITIONER vs. Case No. 60CV-18- REPRESENTATIVE MARCUS RICHMOND; YELL COUNTY BOARD OF ELECTION COMMISSIONERS; and SHARON BARNETT, in her official capacity as Yell County/Circuit Clerk DEFENDANTS/ RESPONDENTS PETITION FOR ISSUANCE OF A WRIT OF MANDAMUS AND FOR DECLARATORY JUDGMENT COMES NOW er Michael Forrester, by and through his attorney Chris Burks of Sanford Law Firm, PLLC, and for his for Issuance of a Writ of Mandamus and for Declaratory Judgment, does hereby state and allege as follows: I. INTRODUCTION Defendant Marcus Richmond is ineligible for the district he is running for. He did not reside in not the district he is running in for more than a year prior to the election as the Arkansas Constitution requires. He kept his family home outside of the district and has and intends to continue to reside there. Orderly elections with qualified candidates matter this suit seeks no more. The public cannot have confidence in electoral integrity if constitutionally unqualified candidates are allowed to run and serve. Page 1 of 10
II. PARTIES A. Michael Forrester 1. Michael Forrester is a citizen and resident of Scott County, Arkansas, and a registered voter in Scott County, Arkansas. 2. er Michael Forrester is a necessary party because he has the right for his District twenty-one (21) Representative to lawfully stand for election under Arkansas Constitution, art. 5, 4 and Arkansas Code Annotated 7-7-104. Arkansas Constitution, art. 5, 4 and Arkansas Code Annotated 7-7-104 must be followed by Marcus Richmond, the Yell County Board of Election Commissioners, and the Yell County Clerk. er thus may have the validity of acts arising under the Constitution and this statute determined and obtain a declaratory judgment under Arkansas Code Annotated 16-111-104 et seq. 3. er has the right for the above-mentioned declaratory judgment and subsequent writ issued that mandates all Respondents follow Arkansas Constitution, art. 5, 4 and Arkansas Code Annotated 7-7-104. B. Marcus Richmond 4. Respondent Marcus Richmond is running to be the Republican nominee for the district twenty-one (21) seat in the Arkansas House of Representatives Page 2 of 10
5. Respondent Marcus Richmond is a necessary party by virtue of his attempt continue serving as the District twenty-one Representative in violation of Arkansas Constitution, art. 5, 9 and Arkansas Code Annotated 7-7-104. C. Yell County Board of Election Commissioners 6. The Yell County Board of Election Commissioners has the duty under Arkansas Code Annotated 7-5-201 et seq. to give notice to the public of all candidates to be included on the ballot, to have certified the nominee under Arkansas Code Annotated 7-7-401, and to annul the certifications made when ordered by a circuit court as provided by law under Arkansas Code Annotated 7-7-401. 7. The Yell County Board of Election Commissioners is a necessary party by virtue of its duties under Arkansas Code Annotated 7-7-401 to only certify the nomination of those candidates that have been lawfully submitted to them and to annul the certification when ordered. D. Sharon Barnett 8. Yell County Clerk Sharon Barnett, in her official capacity, has the duty under Arkansas Code Annotated 7-7-203 to certify to the county board of election commissioners a full list of all candidates to be voted for in the county as the nominations have been certified or otherwise properly submitted to her. Barnett is a necessary party by virtue of his duties under Arkansas Code Annotated 7-7- 203 to only certify those candidates that have been properly submitted to her. Page 3 of 10
III. JURISDICTION AND VENUE 9. This is an action for declaratory judgment pursuant to the Arkansas Declaratory Judgment Act, A.C.A. 16-111-101, et seq. 10. This is an action in mandamus pursuant to Arkansas Code Annotated 16-115-101, et seq., and Arkansas Code Annotated 7-7-401 that requires When ordered by a circuit court as provided by law, the county board or its officers shall annul the certifications made. 11. This Court has subject matter jurisdiction and personal jurisdiction over the issues and persons before it. 12. Representative Marcus Richmond takes official state acts under his state office and venue is proper in this Court pursuant to Arkansas Code Annotated 16-60-101, et seq. IV. BACKGROUND FACTS 13. The preceding paragraphs are incorporated herein as if set forth word for word. 14. Marcus Richmond filed as a Republican candidate and was given a party certificate to run for re-election to the office of Arkansas House of Representatives, district twenty-one (21) in the May 2018 primary. 15. Marcus Richmond has not been a resident of House District 21. He resides with his wife Susan at the 34300 Lady Bug Ln., Harvey AR 72841, house which they own together and which is in House District 74 in Scott County. See Page 4 of 10
District Map, attached and hereby incorporated as Exhibit A. See Scott County Assessor Land Deed Records, attached and hereby incorporated as Exhibit B. See House Pictures, attached and hereby incorporated as Exhibit C.. 16. Marcus Richmond has registered to vote at 10509 S & G Circle Lane, Harvey AR 72841 in Yell County. However, the attached Yell County land records prove that Marcus Richmond does not live in or own the Yell County land at S&G Circle Lane at all. Instead, Sheila and Garry Garner own the S & G Circle Lane properties where the America s Pet Registry, Inc. business is based. See Yell County Assessor Land Deed Records, attached and hereby incorporated as Exhibit D. See Marcus Richmond Voter Registration, attached and hereby incorporated as Exhibit E. 17. The land records prove there is no such residence at 10509 S&G Circle Lane that Marcus Richmond resides in, owns or pays taxes upon as his family home and residence. Instead, Marcus Richmond owns and pays taxes on his family home in Scott County in District 74. 18. Marcus Richmond is affiliated with the pet business in Yell County on S &G Circle Lane. Yet he does not reside in the Yell County pet business building, and instead resides in the Scott County home he pays taxes on in District 74. 19. Additionally, Richmond has not abandoned or sold his family home that he resides in that is in Scott County in District 74. Page 5 of 10
V. COUNT I: DECLARATORY JUDGMENT 20. The preceding paragraphs are incorporated herein as if set forth word for word. 21. Arkansas Constitution, art. 5, 9, requires any candidate to have been a resident of the district to be represented for one (1) year preceding the general election. 22. To reside in the district means to make it your permanent home and domicile. 23. Marcus Richmond s permanent home and domicile is in district seventy-four (74) in the home he lives in with his wife that they own together and pay taxes upon. 24. To have had changed his permanent home and domicile, Marcus Richmond must have had sold and abandoned his District 74 home, and intended to never go back to the District 74 home. 25. Further, the place where a person s family resides is presumed to be his home. 26. While the residency of Marcus Richmond himself and not his family is at issue, it is Richmond s burden to prove he sold and abandoned his family home and never intends or did go back to his family home. 27. Marcus Richmond cannot meet such a burden, because he has not sold his family home. Page 6 of 10
28. Marcus Richmond cannot meet such a burden because he has taken no steps to abandon his out-of-district residence. 29. Pursuant to the Arkansas Declaratory Judgment Act, Arkansas Code Annotated 16-111-101, et seq., this Court should enter a declaratory judgment that: a. Respondent Marcus Richmond is not a resident of the district he is running for and is ineligible to serve and run for that office under Arkansas Constitution, art. 5, 9; b. Respondent Sharon Barnett shall not certify the name of any replacement nominee; c. Respondent Yell County Board of Election Commissioners shall annul the certification of Marcus Richmond, not accept the name of any replacement candidate for Marcus Richmond, and not count any votes for Marcus Richmond; VI. COUNT II: WRIT OF MANDAMUS 30. The preceding paragraphs are incorporated herein as if set forth word for word. 31. A writ of mandamus is the only practical method of enforcing Arkansas Constitution, art. 5, 4 and Arkansas Code Annotated 7-7-104(c). Page 7 of 10
32. Under Arkansas Code Annotated 16-115-101 et seq., this Court shall determine petitions for mandamus and enjoin an act by an officer that violates the law. See also, Stilley v. Markris, 343 Ark. 673, 38 S.W.3d 889 (2001). 33. By virtue of Arkansas Code Annotated 7-7-104, Respondents Marcus Richmond, Yell County Clerk, and the Yell County Board of Election Commissioners have a mandatory obligation to ensure that they follow Arkansas Code Annotated 7-7-104. 34. Arkansas Code Annotated 7-7-203 requires that the Yell County Clerk exercise non-discretionary duties to certify names of nominees to the Board of Election Commissioner to then place such certified names on the ballot. 35. Arkansas Code Annotated 7-7-401 requires that the Yell County Board of Election Commissioners to exercise non-discretionary duties to certify the nomination of all state offices to the county clerk and Secretary of State. 36. As a result, a writ of mandamus is an appropriate remedy to compel Respondents to refrain from certifying Marcus Richmond s name from the ballot and for the Yell County Board of Election Commissioners to annul Marcus Richmond s certification. 37. A writ must issue to ensure Arkansas Constitution, art. 5, 4 Arkansas Code Annotated 7-7-104 is followed as contemplated by Arkansas Code Annotated 7-7-401. Arkansas Code Annotated 7-7-401 reads that When ordered by a circuit court as provided by law, the county board or its officers shall annul the certifications made. Page 8 of 10
38. er requests that this Court set an immediate hearing on this matter in accordance with Rule 78(d) of the Arkansas Rules of Civil Procedure which provides: (d) Mandamus and Prohibition. Upon the filing of petitions for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of a 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 hereinafter to hear and determine the cause. 39. Additionally, after an expedited hearing as contemplated in Rule 78(d) above, this Court should issue an Order with the declaratory judgment and writ. VII. RELIEF SOUGHT WHEREFORE, er prays that this Court issue summons against Respondents Marcus Richmond, Yell County Board of Election Commissioners, and Sharon Barnett in her official capacity as Yell County Clerk; enter a judgment to the effect that: d. Respondent Marcus Richmond is not a resident of the district he is running for and is ineligible to serve and run for office under Arkansas Constitution, art. 5, 9; e. Respondent Sharon Barnett shall not certify the name of any replacement nominee; f. Respondent Yell County Board of Election Commissioners shall annul the certification of Marcus Richmond, not accept the name of Page 9 of 10
any replacement candidate for Marcus Richmond, and not count any votes for Marcus Richmond; to issue a writ of mandamus ordering the Respondents to follow the law in the declaratory judgment above and annul all names certified in violation of law; to set a hearing in this matter within seven (7) days of the filing of this ; grant er fees and costs in pursuing this matter; and grant all other just and proper relief, whether prayed for specifically herein or not. Respectfully submitted, MICHAEL FORRESTER, PETITIONER SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, Arkansas 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 By: /s/ Chris Burks Chris Burks Ark Bar No. 2010207 chris@sanfordlawfirm.com Page 10 of 10