dissent">Lavenski R. Smith, Justice

dissenting. The majority correctly states the analysis to be followed in cases such as this where a challenge is made to a candidate’s qualifications prior to an election. The proper remedy is a Writ of Mandamus and a declaratory judgment in circuit court. However, I disagree that the writ should have been issued on the record before us.

The undisputed facts are that Jacobs filed an action to challenge the qualifications of Tyler on May 5, 2000 and served notice of the same on Tyler on May 11, 2000. The trial court set the matter for hearing on May 16, 2000 at 3:00 p.m. Approximately three hours before the hearing, Tyler filed her answer and a counter claim seeking Jacobs’s removal from the ballot for late payment of fees. As the hearing commenced, Jacobs objected to the court proceeding on the basis that the applicable law required at least two days’ notice. The trial court overruled Jacobs’s objection because of the court’s constricted docket and stated it would not grant a continuance. The majority affirms the trial court’s decision to proceed with the hearing citing Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998) for the proposition that Ark. R. Civ. P. 78(d)’s time limitations, though mandatory, are not jurisdictional. I disagree with the majority’s holding that Jenkins controls and would instead hold that the court’s decision to proceed with the hearing not merely within two days of service of the claim but hardly more than two hours after it was filed was reversible error. The combination of this decision and Jenkins will effectively eliminate the time requirement contained in Rule 78(d). Not only can a trial court apparently delay mandamus actions with impunity it can now also accelerate them. Even assuming the trial court correctly viewed Jacob’s objection as a motion for continuance, to require a party to defend against a claim on three hours notice is at a minimum unfair and should constitute an abuse of discretion.

In Jenkins, this court held that delaying beyond the prescribed seven days did not deprive the trial court of jurisdiction. This case is not about whether the trial court had jurisdiction to accelerate the proceeding but whether it was fundamentally fair to the party defending the claim to do so. I would hold it was not, and therefore I dissent.

Brown and Imber, JJ., join.

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