RULING EXPECTED TODAY IN JP CASE

By Ray King/OF THE COMMERCIAL STAFF

A Jefferson County circuit judge is expected to rule today on a request by a justice of the peace candidate who wants to stop his opponent from being sworn in Jan. 1.

After a one-hour hearing Wednesday, Judge Rob Wyatt Jr. said he would take the matter under advisement and announce his decision by the end of the day today.

“I’m going to take a closer look at this and not just shoot something off the hip,” Wyatt said in explaining his decision to review the court filings.

Wyatt will rule on a request by Republican Mike Burdine, who lost the District 12 race to Democrat John Graves by 17 votes, to issue a temporary restraining order that would prevent Graves from being sworn in Monday.

The request for an injunction followed a lawsuit filed by Burdine on Dec. 4, claiming that approximately 300 voters were not allowed to vote in the race because of a mistake over the boundary lines separating justice of the peace Districts 10 and 12.

The lawsuit named the three members of the Jefferson County Election Commission, Trey Ashcraft, Stuart Soffer and Pam Jones, in their official capacities and asked Wyatt to void the results of the election.

“How Mr. Burdine would be irreparably harmed is where the court is stuck,” Wyatt told Pine Bluff attorney Gene McKissic, who represents Burdine. “For this court to grant the temporary injunction, you have to show irreparable harm would occur.”

Burdine and McKissic contend that if Graves was sworn in, Burdine would lose the chance for a “fair and just election result, and voters disenfranchised would lose any opportunity to vote in determining their justice of the peace representative, and thus be permanently disenfranchised.”

“If Mr. Graves is sworn in, the remedy changes because the seat would be occupied and that would permanently disenfranchise them,” McKissic said.

In a motion to deny the petition for an injunction filed shortly before Wednesday’s hearing, attorney Terry Wynne, who was representing the election commission, said Burdine’s lawsuit did not name Graves and “is fatal to his petition.”

“Clearly Mr. Graves is a necessary party to plaintiff’s petition, as well as to the entire action,” Wynne said during the hearing. “His interest would be jeopardized if the injunction were granted.”

McKissic claimed that Graves was not named because Burdine “believes Mr. Graves did nothing wrong.”

Wynne also asked that Burdine’s petition for an injunction be dismissed because although the original lawsuit was filed within 20 days after the election commission certified the results of the election, the motion for an injunction was not filed until Dec. 20, well after the deadline.

“Plaintiff’s Dec. 20 petition is an improper attempt to amend the original petition,” Wynne said. “Arkansas law does not allow such an amendment after the 20 day period for filing the complaint has elapsed.”

Wynne said he received a copy of the notice for the hearing last Thursday, and was unable to work on a response to the motion for an injunction because of the holidays.

Additionally, Wynne said County Election Coordinator Taylor Eubank and County Clerk Helen Bradley, whose testimony would be necessary for the commission’s case, were not available and had asked that the hearing be postponed.

“Taylor is in Mexico on vacation and Mrs. Bradley is ill,” Wynne said. “It’s not fair of the court to make us proceed without them.”

Although Burdine’s original lawsuit was filed Dec. 4, the members of the election commission were not served with a copy of the complaint until Dec. 13 and have until Jan. 2 to file a response.

Wyatt said he would set a hearing on the matter after that response was filed.

“No motion was filed to shorten the time limit so the court will consider only the motion to dismiss the request for the injunction,” Wyatt said. “The other issue will be decided later when we have a hearing.”