                                   Cite as 2014 Ark. 213

                SUPREME COURT OF ARKANSAS
                                      No.   CV-14-358

VALERIE BAILEY                                   Opinion Delivered May   14, 2014
                              APPELLANT

V.

MARK MARTIN, IN HIS OFFICIAL
CAPACITY AS THE SECRETARY OF                     APPEAL FROM THE PULASKI
STATE FOR THE STATE OF                           COUNTY CIRCUIT COURT
ARKANSAS; ROB HILL, LOU ANN                      [NO. 60CV-14-980]
CARTER, AND JEFF OLMSTED, IN
THEIR OFFICIAL CAPACITIES AS THE                 HONORABLE JOHN                     C.   COLE,
COMMISSIONERS OF THE PERRY                       SPECIAL JUDGE
COUNTY ELECTION COMMISSION;
LEONARD A. BOYLE, SR., CHRIS                     APPEAL DISMISSED.
BURKS, AND ALEX REED, IN THEIR
OFFICIAL CAPACITIES AS THE
COMMISSIONERS OF THE PULASKI
COUNTY ELECTION COMMISSION;
AND KRISTEN HULSE
                      APPELLEES


                      DONALD L. CORBIN, Associate Justice

       Appellant Valerie Bailey brings the instant appeal from an order of the Pulaski County

Circuit Court, Special Judge John Cole presiding, granting a declaratory judgment and issuing

a writ of mandamus in favor of Appellee Kristen Hulse on the basis that Bailey was not a

qualified or eligible candidate for the office of circuit judge pursuant to section 16 of

amendment 80 to the Arkansas Constitution. On appeal, Bailey argues that (1) a writ of

mandamus was inapplicable and Hulse’s petition should have been dismissed; (2) no rule

provides that an administrative suspension of an attorney’s right to practice law constitutes
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revocation or termination of a license for purposes of amendment 80; (3) payment of her

delinquent license fees and CLE fees had the effect of reinstating her license; (4) the circuit

court erred in its interpretation of amendment 80; and (5) the process of automatic suspension

pursuant to Rule VII(C) of the Rules Governing Admission to the Bar violates Bailey’s rights

to due process and, thus, the circuit court should have granted her motion for reconsideration.

       In her brief to this court, Appellee Hulse counters that the circuit court’s order was

proper and should be affirmed because (1) Bailey was not qualified to be a candidate for circuit

judge; (2) the arguments presented by Bailey have been waived, are untimely, and are now

moot because the ballots for the May 20, 2014 election have already been printed, mailed to

absentee voters, and early voting has commenced; (3) Bailey failed to present and request a

ruling on any constitutional arguments and, as such, those arguments are not properly before

this court.

       Appellees, the Perry County Election Commission and the Pulaski County Election

Commission, as well as Appellee Secretary of State Mark Martin, take no position on Bailey’s

qualifications to assume the office of circuit judge but respond that Bailey’s appeal is untimely

because there is no relief available to Bailey, whose name was removed from the ballot.

       This court has jurisdiction of the instant appeal pursuant to Arkansas Supreme Court

Rule 1-2(a)(4) (2013), as it involves issues pertaining to elections and election procedures. We

dismiss Bailey’s appeal.

       On March 3, 2014, Bailey filed as a candidate for the position of circuit judge, District

06, Division 06, Subdistrict 6.2, which covers parts of Pulaski and Perry Counties. The other


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candidate for this position is the current holder of the office, Circuit Judge Tim Fox. The

person elected to this position will assume office on or about January 1, 2015.

       Hulse, a registered voter in Pulaski County, filed a petition for writ of mandamus and

a declaratory judgment on March 10, 2014. Therein, she alleged, inter alia, that Bailey was

not qualified to hold the office of circuit judge because her license to practice law had been

suspended “for the majority of the period of time between November 2002 and December

1, 2011.” Thus, according to Hulse, during the periods of time that Bailey’s license was

suspended, she was not a licensed attorney; rather, she was a former attorney pursuant to

section 22(A) of the Procedures of the Arkansas Supreme Court Regulating the Professional

Conduct of Attorneys at Law. Hulse requested a declaratory judgment that Bailey was not

qualified and was ineligible to be a candidate for circuit court judge. She further requested

that the circuit court issue a writ of mandamus to Appellees Martin and the Commissioners

of the Pulaski County and Perry County Election Commissions ordering that they not

include Bailey on any ballot as a candidate for the position of circuit judge or, alternatively,

that if she appears on the ballot, that no votes cast for her be counted.

       Bailey filed an answer, admitting that her license had been administratively suspended

for a period of time because of CLE noncompliance and because of failure to timely pay her

annual license fee. Bailey denied that her administrative suspensions rendered her not

qualified for the office of circuit judge. She argued that at all relevant times she remained a

licensed attorney, and the suspensions were merely a limitation on her ability to practice law.




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In other words, Bailey asserted that the administrative suspension did not result in the loss of

her license for purposes of section 16(B) of amendment 80.

       The circuit court held a hearing on March 19, 2014. Denise Parks, office manager for

the Arkansas Supreme Court Clerk’s office, testified that she has been the keeper of the

records related to licensed attorneys for twenty-eight or twenty-nine years. Parks testified that

the annual license fee is due every year between January 1 and March 1. When asked what

happens if an attorney fails to pay his or her annual fee by March 1, Parks stated that the

attorney is “suspended for nonpayment of dues.” Parks further explained that after March 1,

an attorney may pay his or her annual fee, plus a $100 penalty, if the delinquency is for less

than three years. Parks further opined that when a lawyer is suspended for such nonpayment

he or she is not to practice law. According to Parks, an attorney who is suspended for

nonpayment may not practice law or take action in the Supreme Court Clerk’s office.

       With regard to Bailey’s payment history, Parks testified that the Clerk’s office showed

that Bailey had failed to pay her dues and was suspended on March 2, 2002, through

November 14, 2002, when she paid her fee and penalty. She was again suspended on

March 2, 2004, and did not pay her annual fee or penalty until October 27, 2011, when she

paid $2,240 for her annual fees for those years, as well as the applicable penalties.

       Hulse called no other witnesses. Bailey then moved for a directed verdict, arguing that

Hulse failed to prove that Bailey was an unqualified and ineligible candidate for circuit judge.

She further stated that the sole question was whether she had lost her license for CLE

noncompliance and failure to pay bar dues and that the evidence demonstrated that “[s]he was


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reinstated. She always had a law license.” Bailey thus argued that a writ of mandamus was

not warranted, as there was no clearly established, undisputed legal right to demonstrate that

mandamus should issue.

       The circuit court denied Bailey’s motion for a directed verdict. Bailey then called

Nancie Givens, director of the Office of Professional Programs, to testify. Givens testified that

a CLE suspension is a suspension of a person’s right to practice law. She further stated that

it is an administrative suspension, as opposed to a disciplinary suspension. On cross-

examination, Givens stated that when a CLE suspension is imposed on an attorney, that

attorney may not practice law because his or her license is suspended from doing so.

According to Givens, a suspension for nonpayment of the license fee has the same effect.

Givens further testified that a suspension by the CLE Board and a suspension for nonpayment

of the annual license fee both have the same effect as a suspension from the Office of

Professional Conduct.

       At the conclusion of the hearing, the circuit court took the matter under advisement.

Shortly thereafter, the circuit court returned to the bench and announced its ruling, stating

in relevant part, as follows:

               This is a simple, yet fairly complicated case, in thinking through all of the issues
       that are involved. It is going to have some policy effects regarding the licensure of
       attorneys, qualifications to run for office in the State of Arkansas. But I know, and I
       think everyone in this room, especially those of you who are licensed to practice law
       know, that the quintessential, and I suppose the only, franchise that is granted by a
       license to practice law is the right to practice law. And a suspension is a suspension is
       a suspension; it doesn’t matter whether it’s administrative or whether it’s disciplinary.
       Once a person’s right to practice law is suspended, that is tantamount to suspending
       their license. And for the purposes of the 80 Amendment to the Constitution which


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       required lawyers to be licensed in the State of Arkansas for six consecutive years prior
       to taking office was adopted, I believe it meant just what it said. And I think that it
       is essential for a license under that constitutional provision to carry with it the right to
       practice law. I don’t think you have a license if you don’t have the right to practice
       law.

The circuit court then announced that it was granting the writ of mandamus and declaring

that Bailey was not eligible to seek the office of circuit judge. Upon this announcement,

Bailey requested a stay of the writ, pending appeal. The circuit court orally denied the

request for the stay. A written order reflecting the rulings of the circuit court was entered that

same day, March 19, 2014.

       On April 2, 2014, Bailey filed a motion for new trial and reconsideration. She argued

therein that the circuit court’s decision was contrary to the law and she therefore requested

that the court grant her a new trial and vacate its prior orders granting the writ of mandamus

and disqualifying her from the ballot. She then filed an amended motion for new trial or

reconsideration on April 15, 2014, alleging that the circuit court’s decision in her case was

contrary to a decision by another circuit court that automatic administrative suspensions

violate an attorney’s due-process rights because the attorney is not afforded notice or a

hearing. Attached to her amended motion was an order entered by the circuit court in

Williams v. Byrd, No. 60CV-14-1282, (Pulaski Cnty., 5th Div. Apr. 11, 2014). Thereafter,

the circuit court in a letter opinion, filed of record on April 18, 2014, denied Bailey’s motion

and amended motion for reconsideration, stating as follows:

       I have reviewed the motion and response. I am aware of the two subsequent circuit
       court decisions taking an opposite view on the late payment issue. Neither considered
       the CLE question. It would take too much high jingo to bend the constitution or to


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       give a second definition to “suspend.” While the cause of a suspension may not reflect
       on the knowledge, character or competence of the attorney, the effect of a suspension
       is what counts when related to the constitutional qualification requirement at issue.
       This is a rule promulgated and adopted by the Supreme Court. Due process is
       presumptive. Mandamus is proper.

An order reflecting this ruling was entered on April 22, 2014. Thereafter, on that same day,

Bailey filed an amended notice of expedited appeal pursuant to Arkansas Supreme Court Rule

6-1.

       We turn now to the appeal before us. As a threshold matter, however, we must first

determine whether Bailey has properly availed herself of the rules that permit expedited

consideration in election cases. Each Appellee argues that her appeal is moot because she

failed to pursue relief in this court in a timely manner, and now there is no relief available to

her. It is undisputed that the ballots for the May 20 election have already been printed. In

fact, prior to the circuit court hearing, all parties stipulated and agreed that March 21, 2014,

was the “drop dead” deadline regarding the printing of ballots. Bailey, in a motion to this

court, avers that she is not now bound by that stipulation. Whether she is bound by it is

irrelevant. The real question is whether Bailey’s appeal is now moot because this court can

provide no relief, even were we to agree with her contention that she has always remained

a licensed attorney.

       It is well settled that the right to contest an election is purely statutory. Oliver v.

Phillips, 375 Ark. 287, 290 S.W.3d 11 (2008); Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d

818 (2003). Arkansas Code Annotated section 7-5-207(b) (Supp. 2013) provides the means

for a voter to raise a pre-election attack on a candidate’s eligibility to stand for election and


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for the removal of an ineligible candidate’s name from the ballot. See Fite v. Grulkey, 2011

Ark. 188; Clement v. Daniels, 366 Ark. 352, 235 S.W.3d 521 (2006). Section 7-5-207(b)

provides in relevant part:

       No person’s name shall be placed 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
       filing . . . as a candidate for the office to hold the public office for which he or she is
       a candidate.

This court has consistently recognized that the proper procedure to enforce section 7-5-

207(b) is an action for writ of mandamus coupled with a request for declaratory relief, which

provides prompt consideration of a candidate’s eligibility and, if the candidate is determined

to be ineligible, the removal of the candidate’s name before the election. See Tumey v.

Daniels, 359 Ark. 256, 196 S.W.3d 479 (2004); Helton v. Jacobs, 346 Ark. 344, 57 S.W.3d 180

(2001).

       This court has further recognized that a voter may exercise the right to raise a pre-

election challenge at any time prior to the general election. Fite, 2011 Ark. 188; Tumey, 359

Ark. 256, 196 S.W.3d 479. We have observed, however, that the issue of a candidate’s

eligibility under section 7-5-207(b) becomes moot once the election takes place. See, e.g.,

Oliver, 375 Ark. 287, 290 S.W.3d 11; Clement, 366 Ark. 352, 235 S.W.3d 521; McCuen v.

McGee, 315 Ark. 561, 868 S.W.2d 503 (1994). Similarly, we have held that a party may not

utilize the process established in section 7-5-207(b) in a post-election challenge. See

Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007); Pederson, 354 Ark. 716, 128 S.W.3d

818.



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       Here, there is no question that when Hulse filed her petition for declaratory relief and

writ of mandamus, she was initiating a proper pre-election challenge to Bailey’s qualification

to stand for the office of circuit judge. Likewise, no one asserts a lack of compliance with the

requirement of Arkansas Rule of Civil Procedure 78 that the circuit court schedule a hearing

on the petition within two to seven days. The question of timeliness and, therefore, mootness

arises because of Bailey’s delay in pursuing the instant appeal.

       The circuit court entered its order granting Hulse’s requested relief on March 19, 2014.

All parties were aware that the deadline for printing ballots was March 21, 2014. Once the

circuit court granted Hulse’s requested relief and refused to stay its order, Bailey could have

availed herself of the provisions of Rule 6-1 and proceeded with an expedited appeal in this

court. Likewise, she could have requested this court to enter a stay of the circuit court’s order

thus allowing her name to appear on the ballot. As it stands now, however, Bailey does not

appear as a candidate for circuit judge on the ballots, which have been printed, mailed to

absentee voters, and presented to early voters. In concluding her argument that the circuit

court erred and its decision should be reversed, Bailey requests that “Appellee Commissioners

be directed to take whatever steps are necessary to restore her name to a ballot for the

aforementioned position and for any and all other relief” to which she may be entitled. Bailey

makes no suggestion whatsoever as to what steps we could order the Commissioners to take

to restore her name to the ballot.

       Consequently, we find ourselves in a position similar to the one encountered by this

court in Ball v. Phillips County Election Commission, 364 Ark. 574, 222 S.W.3d 205 (2006), in


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which the court held that a petition challenging the eligibility of a candidate, filed eight days

before the election was untimely and therefore moot. In so holding, this court stated as

follows:

       Simply stated, Ball’s petition was untimely. The candidates’ names were certified on
       or before August 6, 2004. Ball offers no compelling reason for waiting thirty-eight
       days to file her petition for writ of mandamus and declaratory judgment to remove
       Jones’ name from the ballot. If Ball had filed her suit within this thirty-eight day
       period (or, including the eight days following the September 13, 2004, the forty-six
       day period), there would have been ample time in which to resolve all relevant issues
       raised by Ball prior to the September 21, 2004 election.

Id. at 577–78, 222 S.W.3d at 207. The court in Ball concluded that it would not review

moot issues because to do so would result in the court rendering an advisory opinion. Id.

       The same holds true in the instant case. Bailey could have pursued her “expedited

appeal” in a truly expeditious manner. She states no reason for having filed a motion for

reconsideration in the circuit court, as opposed to proceeding directly in this court to seek an

expedited appeal and stay of the circuit court’s order. She offers not one suggestion for what

relief this court can grant that would have any practical effect in light of the fact that the

ballots have been printed, and it is axiomatic that this court will not make a party’s argument

for her. E.g., BancorpSouth Bank v. Shields, 2011 Ark. 503, 385 S.W.3d 805. Finally, it is true

that this court has recognized exceptions to the mootness doctrine in cases where the public

interest is involved and where the issues presented are ones likely to recur. See Jenkins v.

Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998) (addressing issue of whether a violation of the

two-to-seven day provision in Rule 78(d) for conducting hearings deprives a circuit court of

jurisdiction); Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000) (addressing issues of


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necessary and indispensable parties and venue arising from a primary-election-eligibility

contest); Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000) (addressing issue of standing

arising from an eligibility contest in a primary election). In the instant case, however, there

is simply no compelling public interest that requires us to address the issue of whether the

circuit court correctly ruled that Bailey was unqualified and ineligible to run as a candidate

for circuit judge, because any such decision by us would amount to an advisory opinion. To

the extent that the substantive issue of a candidate’s eligibility to run for circuit judge pursuant

to amendment 80, section 16(b) is likely to recur, such issue is properly addressed in the

companion cases decided this same day. See Chandler v. Martin, 2014 Ark. ___, ___ S.W.3d

___; Kelly v. Martin, 2014 Ark. ___, ___ S.W.3d ___; and Williams v. Martin, 2014 Ark. ___,

___ S.W.3d ___.

       Appeal dismissed.

       Special Justices RAYMOND R. ABRAMSON and TODD TURNER join in this opinion.

       Special Justice WOODY BASSETT concurs in this opinion.

       DANIELSON, BAKER, and GOODSON, JJ., not participating.

       WOODY BASSETT, Special Justice, concurring. I concur with the majority

opinion and reluctantly agree that the appeal of the appellant must be dismissed on the basis

of mootness. Since our decision in this case, albeit correct, seems inconsistent with the results

in the companion cases handed down today, some elaboration is in order.

       With no clear, or even identifiable, basis in the Arkansas Constitution or the statutory

law of this state upon which to hang my hat, I could not dissent from the majority opinion


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but instead chose to concur for the sole purpose of explaining why I felt compelled to accept

the basis for dismissal of the appeal. The unique circumstances of this case dictate a full

explanation.

       For all the reasons set forth by the majority, there was simply and plainly no relief that

could be granted to the appellant to restore her name to the ballot for the May 20, 2014

election.

       The question then arises whether there was any other viable and lawful remedy this

court could have, or should have, fashioned to afford relief to the appellant. Given the

reasoning of a majority of this court in the three companion cases, Kelly v. Martin, 2014 Ark.

___, ___S.W.3d ___; Chandler v. Martin, 2014 Ark. ___, ___ S.W.3d ___; and Williams v.

Martin, 2014 Ark. ___, ___ S.W.3d ___, this was a question which needed to be addressed

and answered because based on the decisions reached by a majority of this court in the

companion cases, Valerie Bailey meets the requirements of section 16(B) of amendment 80

to the Arkansas Constitution and is eligible to be on the ballot as a candidate to stand for

election to the office of circuit judge and to serve if elected.

       I gave due consideration to whether this court could provide relief to the appellant if

it were to order that the May 20 election for the circuit judgeship, which the appellant filed

to run for, be stayed or that the results of the election be declared null and void and that the

election between the appellant and her opponent be held at the General Election on

November 4, 2014.


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       But in the final analysis, I concluded that taking such a course would create a genuine

risk of unforeseeable or unintended consequences which might spring from such a precedent.

Further, imposing such a remedy would likely trigger additional litigation in response to it and

pushing the election to November would most certainly raise serious and substantial

constitutional concerns rooted in the separation-of-powers doctrine.

       The court’s decision in this case may be viewed by the appellant and others as unfair

or inconsistent with the outcomes of the three companion cases decided contemporaneously

with this one. I understand and acknowledge that. But sometimes the law cannot provide

a remedy to make something right, and this is one of those rare and unfortunate occasions.

       For these reasons, I respectfully concur.

       Nicki Nicolo and Valerie Bailey, for appellant.

       Martha Adcock, General Counsel, and L. Justin Tate, Associate General Counsel, for
appellee Secretary of State Mark Martin.

       Amanda Mankin-Mitchell and Karla M. Burnett, Pulaski County Attorney’s Office; and
Larry Jegley, Prosecuting Attorney, Sixth Judicial District, for appellees Pulaski County
Election Commission and Perry County Election Commission.

       James, Carter & Coulter, PLC, by: Jeff R. Priebe; and Allred Law Firm, by: Allison Allred,
for appellee Kristen Hulse.




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