IN THE CIRCUIT COURT OF HOT SPRING COUNTY, ARKANSAS
MICHAELE McMILLAN, TOM DILLARD, KAY HUGHES, TYLER DRAPER, and CRYSTAL HARVEY PETITIONERS vs. Case No. 30 CV-18-______
REPRESENTATIVE LAURIE RUSHING; HOT SPRING COUNTY BOARD OF ELECTION COMMISSIONERS; GARLAND COUNTY BOARD OF ELECTION COMMISSIONERS; SARAH SMITH, in her official capacity as Garland County Clerk, and SANDY BOYETTE, in her official capacity as Hot Spring County Clerk
DEFENDANTS/RESPONDENTS
PETITION FOR ISSUANCE OF WRITS OF MANDAMUS FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
COME NOW Petitioners Michaele McMillan, Tom Dillard, Kay Hughes, Tyler Draper, and
Crystal Harvey, by and through their attorneys, TERRY P. DIGGS and RAY BAXTER, and for their
Petition for Issuance of a Writ of Mandamus and for Declaratory Judgment, do hereby state and allege as follows:
I. INTRODUCTION
1. Defendant Laurie Rushing is ineligible to be State Representative for District 26, where she is running for re-election. This district includes parts of Hot Spring County and Garland County.
She did not reside in the district wherein she is running for more than a year prior to the upcoming election, as the Arkansas Constitution requires. In various filings she has given mutually contradictory addresses for her residency, but has primarily used the address of 14 Cannon Ridge Point, Hot Springs,
Arkansas. However, she separated from her husband effective January 1, 2017, and he lived in that home after their separation until the house was sold to third parties in November 2017. In the Petition for Mandamus, Declaratory Judgment, and Injunctive Relief McMillan, et al., v. Rushing, et al. Page 2 meantime, she leased an apartment in Little Rock outside the district and has continued to live in Little
Rock outside the district. She has voted three (3) times in the past three (3) years, but has continued to use the 14 Cannon Ridge Point address with election officials.
2. Orderly elections with qualified candidates matter, and constitutionally and legally qualified serving state representatives matter – this suit seeks no more. The public cannot have confidence in electoral integrity and a public servant if constitutionally unqualified candidates are allowed to run and serve.
II. PARTIES
Michaele McMillan, Tom Dillard, Kay Hughes, Tyler Draper, and Crystal Harvey
3. Michaele McMillan, a Republican and an announced candidate for District 26 before withdrawing, is a citizen and resident of District 26, currently residing and registered to vote in Garland
County, Arkansas.
4. Tom Dillard is currently a citizen and resident and registered voter in Hot Spring County,
Arkansas, and as Hot Spring County Democratic Chairman has an interest in assuring constitutionally qualified candidates and representatives in his county.
5. Kay Hughes, an Independent-leaning Democrat, is a citizen and resident and registered voter in Garland County, Arkansas, and District 26.
6. Tyler Draper, a Democrat, is a citizen and resident and registered voter in Malvern, Hot
Spring County, Arkansas, and District 26.
7. Crystal Harvey, a Republican/Independent, is a citizen and resident and registered voter in
Bismarck, Hot Spring County, Arkansas, and District 26.
8. Petitioners Michaele McMillan, Tom Dillard, Kay Hughes, Tyler Draper, and Crystal
Harvey are necessary parties because they have the right for the District Twenty-six (26) Petition for Mandamus, Declaratory Judgment, and Injunctive Relief McMillan, et al., v. Rushing, et al. Page 3
Representative to lawfully stand for election and legally serve as state representative under Arkansas
Constitution, Art. 5, § 4 and Arkansas Code Annotated (A.C.A.) § 7-7-401 and other applicable statutes. Arkansas Constitution, Art. 5, § 4 and A.C.A § 7-7-401 and other applicable statutes must be followed by Laurie Rushing, the Hot Spring County and Garland County Boards of Election
Commissioners, and the Hot Spring County Clerk and Garland County Clerk. Petitioners thus are entitled to have the validity of acts arising under the Constitution and this statute determined and obtain a declaratory judgment under A.C.A. § 16-111-104 et seq.
9. Petitioners have the right for the above-mentioned declaratory judgment and subsequent writs issued that mandate all Respondents follow Arkansas Constitution, Art. 5, § 4 and A.C. A. § 7-7-
401 and/or other applicable statutes.
Laurie Rushing
10. Respondent Laurie Rushing is duly serving and is running as the Republican nominee for the District Twenty-Six (26) seat in the Arkansas House of Representatives, and she currently holds that position by virtue of the 2016 election when she ran unopposed.
11. Respondent Laurie Rushing is a necessary party by virtue of her attempt to secure election to continue serving as the District Twenty-Six Representative in violation of Arkansas Constitution,
Art. 5, § 4 and A.C.A. § 7-7-401 and/or other applicable statutes.
Hot Spring and Garland County Boards of Election Commissioners
12. The Hot Spring County and Garland County Boards of Election Commissioners have the duty under A.C.A. § 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 A.C.A. § 7-7-401, and to “annul the certifications made … when ordered by a circuit court as provided by law” under A.C.A. § 7-7-401.
13. The Hot Spring and Garland County Boards of Election Commissioners are necessary Petition for Mandamus, Declaratory Judgment, and Injunctive Relief McMillan, et al., v. Rushing, et al. Page 4 parties by virtue of their duties under A.C.A. §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.
Sandy Boyette and Sarah Smith
14. Hot Spring County Clerk Sandy Boyette, and Garland County Clerk Sarah Smith, in their official capacities, have the duty under A.C.A. §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 them. Boyette and Smith are necessary parties by virtue of their duties under A.C.A. §7-7-203 to only certify those candidates that have been properly submitted to them.
III. JURISDICTION AND VENUE
15. This is an action for declaratory judgment pursuant to the Arkansas Declaratory Judgment
Act, A.C.A.§ 16-111-101, et seq.
16. This is an action in mandamus pursuant to A.C.A. § 16-115-101, et seq., and A.C.A. § 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.”
17. This Court has subject matter jurisdiction and personal jurisdiction over the issues and persons before it.
IV. BACKGROUND FACTS
18. The preceding paragraphs are incorporated herein as if set forth word for word.
19. Laurie Rushing 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-Six (26) in the May,
2018 primary.
20. Laurie Rushing has not been a resident of House District 26 as required by the Arkansas Petition for Mandamus, Declaratory Judgment, and Injunctive Relief McMillan, et al., v. Rushing, et al. Page 5
Constitution.
21. She previously resided in District 26 at 134 Cannon Ridge Point in Hot Springs, Arkansas
71913 with her ex-husband until January 1, 2017. Se e Divorce Deposition, attached and hereby incorporated as Exhibit “A.”
22. 134 Cannon Ridge Point, Hot Springs AR 71913 was subsequently sold to Jim & Maria
Black. See Garland County Assessor Land Deed Records, attached and hereby incorporated as Exhibit
“B.”
23. However, Laurie Rushing remains to this day registered to vote at 134 Cannon Ridge Point,
Hot Springs, Arkansas 71913 in Garland County. Despite not living there and as a co-sponsor of the so-called Voter Identification Law she even voted using that address in November, 2016, 2018 May 2,
2018 primary election, and early voting October, 2018. S e e Laurie Rushing Voter Registration, attached and hereby incorporated as Exhibit “C.” At not one of these three occasions did she give an address other than 134 Cannon Ridge Point and certainly failed, even though asked, to list her mother’s address at 307 Dellmere, Hot Springs, as her residence.
24. Laurie Rushing actually has resided at Apartment 507 in the Capitol Hill Apartments, Little
Rock, Arkansas since January of 2017, which is outside of District 26. See Laurie Rushing Lease attached and hereby incorporated as Exhibit “D;” and Affidavit of Matthew Campbell, attached and hereby incorporated as Exhibit “E.”
25. Laurie Rushing’s mother lives at 307 Dellmere Dr., Hot Springs Arkansas 71913, but Laurie
Rushing does not and has not registered to vote at that address and does not reside there but rather in
Little Rock outside District 26.
V. COUNT I: DECLARATORY JUDGMENT
26. The preceding paragraphs are incorporated herein as if set forth word for word. Petition for Mandamus, Declaratory Judgment, and Injunctive Relief McMillan, et al., v. Rushing, et al. Page 6
27. Arkansas Constitution, Art. 5, § 4, requires any candidate for the State House of
Representatives to have been a resident of the district to be represented for one (1) year preceding the general election.
28. To reside in the district means to make it your permanent home and domicile.
29. Laurie Rushing’s permanent home and domicile is in Little Rock outside the district.
30. Laurie Rushing changed and abandoned her permanent home and domicile in District 26 by leasing an apartment in Little Rock on January 1, 2017, and living there and then selling 134 Cannon
Ridge Point, Hot Springs, Arkansas 71913, and abandoning her District 26 home.
31. Further, the place where a person resides is presumed to be his home.
32. Laurie Rushing has taken no steps to abandon her out-of-district residence in Little Rock.
33. Pursuant to the Arkansas Declaratory Judgment Act, Arkansas Code Annotated § 16-111-
101, et seq., this Court should enter a declaratory judgment that:
“Respondent Laurie Rushing is not a resident of the district she is now serving and currently running for and is therefore ineligible to serve and run for that office under Arkansas Constitution, Art. 5, § 4, and any election of her should be declared null and void and the office be declared vacant if she is the winner in the general election;
“Respondents Sandy Boyette and Sarah Smith shall not certify the name of any replacement nominee and shall decertify any certification of Laurie Rushing already made and shall make no further certification of the election results or Laurie Rushing as elected;
“Respondents Hot Spring and Garland County Boards of Election Commissioners shall not certify the results of this election, shall annul the certification of Laurie Rushing if made, shall not accept the name of any replacement candidate for Laurie Rushing, and shall not count any votes for Laurie
Rushing.” Petition for Mandamus, Declaratory Judgment, and Injunctive Relief McMillan, et al., v. Rushing, et al. Page 7
VI. COUNT II: WRIT OF MANDAMUS
34. The preceding paragraphs are incorporated herein as if set forth word for word.
35. Writs of mandamus are the only practical method of enforcing Arkansas Constitution, Art.
5, § 4 and A.C.A. § 7-7-401 and/or other applicable statutes.
36. Under A.C.A. § 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).
37. Hot Spring and Garland County Boards of Election Commissioners have a mandatory obligations to ensure that they follow A.C.A. § 7-7-104.
38. A.C.A. §7-7-203 requires that the Garland County and Hot Spring 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.
39. A.C.A. §7-7-401 requires that the Hot Spring and Garland County Boards of Election
Commissioners to exercise non-discretionary duties to certify the nomination of all state offices to the county clerk and Secretary of State and, further, to certify the correct election results.
40. As a result, a writ of mandamus is an appropriate remedy to compel Respondents to nullify and annul the certification of Laurie Rushing’s name on the ballot, to enjoin and mandamus that the votes not be counted, and to enjoin and mandamus that the election results not be certified or, if certified before a hearing, be de-certified.
41. A writ must issue to ensure Arkansas Constitution, Art. 5, § 4 and A.C.A.§ 7-7-401 are followed as contemplated by A.C.A. § 7-7-401. A.C.A. § 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.”
42. Petitioners request that this Court set an immediate hearing on this matter in accordance Petition for Mandamus, Declaratory Judgment, and Injunctive Relief McMillan, et al., v. Rushing, et al. Page 8 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.
43. Additionally, after an expedited hearing as contemplated in Rule 78(d) above, this Court should issue an Order with the declaratory judgment, injunctive, and mandamus writ relief requested.
VII. RELIEF SOUGHT
WHEREFORE, Petitioners pray that this Court issue summons against Respondents Laurie
Rushing, the Hot Spring and Garland County Boards of Election Commissioners, Sarah Smith and
Sandy Boyette in their official capacities as Garland County Clerk and Hot Spring County Clerk, respectively, and enter a judgment to the effect that:
Respondent Laurie Rushing is not a resident of the district in which she is serving and running
for and is ineligible to serve and run for office under Arkansas Constitution, art. 5, § 4;
Respondents Sarah Smith and Sandy Boyette shall not certify the name of any replacement
nominee, nor count the election results, nor make any required certification, but rather decertify
such if certified, of voting results in District 26 showing Laurie Rushing the elected
representative;
Respondents Hot Spring and Garland County Boards of Election Commissioners shall annul the
certification of Laurie Rushing as a candidate, shall not accept the name of any replacement
candidate for Laurie Rushing, shall not count any votes for Laurie Rushing, and shall either not
certify or de-certify any election results showing Laurie Rushing as the elected state
representative; to issue a writ of mandamus ordering the Respondents, and each of them, to follow the law in the declaratory judgment above and annul all vote counts or Laurie Rushing’s name certifications and/or Petition for Mandamus, Declaratory Judgment, and Injunctive Relief McMillan, et al., v. Rushing, et al. Page 9 election in violation of law; to set a hearing in this matter within seven (7) days of the filing of this
Petition; grant Petitioner fees and costs in pursuing this matter; and grant all other just and proper relief, whether prayed for specifically herein or not.
Respectfully submitted,
MICHAELE MCMILLAN, TOM DILLARD, KAY HUGHES, TYLER DRAPER, And Crystal Harvey, PETITIONERS
TERRY P. DIGGS, LAWYER, P.A., Co-Counsel for Petitioners
By: /s/ Terry P. Diggs TERRY P. DIGGS, 82054 102 Archwood Hot Springs, Arkansas 71901 (501) 623-6701 Fax: 623-6798 Email: [email protected]
THE BAXTER LAW FIRM, P.L.L.C.
By: /s/ Ray Baxter RAY BAXTER, 78012 and JAMES R. BAXTER, 2017191 Co-Counsel for Petitioners 3115 Alcoa Road Benton, Arkansas 72015 (501) 315-2971 Fax: 712-2856 Email: [email protected] [email protected]