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McDaniel v. Spencer

Supreme Court of Arkansas

March 5, 2015

DUSTIN MCDANIEL, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL, and MARK MARTIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE, APPELLANTS
v.
PAUL SPENCER and NEIL SEALY, APPELLEES

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APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION. NO. CV-2013-4020. HONORABLE MARY SPENCER MCGOWAN , JUDGE.

Dustin McDaniel, Att'y Gen., by: Patrick E. Hollingsworth, Ass't Att'y Gen., for appellants.

Bettina E. Brownstein Law Firm, by: Bettina E. Brownstein; and David A. Couch, PLLC, by: David A. Couch, for appellees.

ROBIN F. WYNNE, Associate Justice. HANNAH, C.J., and WOOD, J., concur in part and dissent in part. BAKER, GOODSON, and HART, JJ., concur in part and dissent in part.

OPINION

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ROBIN F. WYNNE, Associate Justice

Dustin McDaniel, in his official capacity as Attorney General for the State of Arkansas, and Mark Martin, in his official capacity as Secretary of State for the State of Arkansas, appeal from orders of the Pulaski County Circuit Court declaring certain sections of Act 1413 of 2013 unconstitutional and enjoining their enforcement. As this appeal involves the interpretation or construction of the Constitution of the State of Arkansas, as well as substantial questions of law concerning the validity, construction, or interpretation of an act of the General Assembly, our jurisdiction is pursuant to Arkansas Supreme Court Rules 1-2(a)(1) and (b)(6) (2014). We affirm in part and reverse in part.

During the regular session of the 89th General Assembly of the State of Arkansas, the General Assembly passed Act 1413 of 2013. Act of Apr. 22, 2013, No. 1413, 2013 Ark. Acts 6084. The Act made numerous changes to the portions of the Arkansas Code pertaining to initiatives and referenda. Article 5, § 1, of the Arkansas Constitution, as amended by Amendment 7, reserves to the people of the State of Arkansas the right to propose legislative measures, laws, and amendments to the constitution, and to enact or reject the same at the polls, independent of the General Assembly, and sets out the procedure for doing so. The section also prohibits unwarranted restrictions, stating that

[n]o law shall be passed to prohibit any persons or persons from giving or receiving compensation for circulating petitions, nor to prohibit the circulation of petitions, nor in any manner interfering with the freedom of the people in procuring petitions; but laws shall be enacted prohibiting and penalizing perjury, forgery, and all other felonies or other fraudulent practices, in the securing of signatures or filing of petitions.

In the legislative findings accompanying Act 1413, the General Assembly found that sponsors and paid canvassers may have an incentive to knowingly submit forged or otherwise invalid signatures in order to obtain additional time to gather signatures and submit supplemental petitions. The General Assembly also found that, absent efforts to address the issues, untrained paid canvassers would continue to obtain and submit forged or otherwise facially invalid signatures. The General Assembly further found that passage of the Act would make sponsors and canvassers more accountable to the people, facilitate the initiative process, conserve state resources, and help restore confidence and trust in the initiative process.

In October 2013, Paul Spencer and Neil Sealy filed a complaint against Secretary Martin in his official capacity, alleging that certain sections of the Act violated the Constitution of the State of Arkansas, specifically amendment 7, the right of due process, the right of equal protection, the right to petition, and the right to free speech. They also filed a motion for preliminary injunction in which they sought to enjoin Secretary Martin from enforcing the Act. Attorney General McDaniel, acting in his official capacity, successfully moved to intervene in the action

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and opposed the request for an injunction.

Following a hearing, the circuit court entered an order in which it granted a temporary injunction and found that sections 3, 11, 13, 15, 18, and 21 of Act 1413 violated the state constitution. In the order, the circuit court found that the provisions would cause the citizens of the State of Arkansas to lose their ability to propose legislative measures and laws directly to the people. On April 2, 2014, the circuit court entered a judgment in favor of appellees in which it permanently enjoined Secretary Martin from enforcing the portions of the Act that it had declared unconstitutional. This appeal followed.

This court reviews a circuit court's interpretation of the constitution de novo because it is for this court to determine what a constitutional provision means. Martin v. Kohls, 2014 Ark. 427, at 10-11, 444 S.W.3d 844, 850. Although this court is not bound by the circuit court's decision, its interpretation will be accepted as correct on appeal in the absence of a showing that the circuit court erred. Id. at 11, 444 S.W.3d. at 850.

Appellees challenged the constitutionality of certain provisions of Act 1413 of 2013. Acts of the legislature are presumed constitutional and the party challenging the statute has the burden to prove otherwise. Archer v. Sigma Tau Gamma Alpha Epsilon, Inc., 2010 Ark. 8, 362 S.W.3d 303. An act will be struck down only when there is a clear incompatibility between the act and the constitution. Tsann Kuen Enters. Co. v. Campbell, 355 Ark. 110, 129 S.W.3d 822 (2003).

Section 21 of Act 1413

Section 21 of Act 1413 adds subchapter 6, titled " Paid Cavassers," to Title 7, Chapter 9 of the Arkansas Code. As our holding regarding the constitutionality of this section affects the constitutionality of provisions in several of the other disputed sections, we address it first. Section 21 prohibits a sponsor from providing money or anything of value to a canvasser unless the canvasser meets the requirements of the section. Ark. Code Ann. § 7-9-601(a)(1) (Supp. 2013). Sponsors are required to provide paid canvassers with a copy of the most recent edition of the Secretary of State's handbook on referenda and initiatives and explain Arkansas law applicable to obtaining signatures on an initiative or referendum petition to the canvasser before the canvasser can solicit signatures. Ark. Code Ann. § 7-9-601(a)(2)(A)--(B) (Supp. 2013). Sponsors must also provide a complete list of all paid canvassers' names and current residential addresses to the Secretary of State and update the list if additional paid canvassers are used. Ark. Code Ann. § 7-9-601(a)(2)(C)(i)--(ii) (Supp. 2013).

Before a paid canvasser can obtain signatures on an initiative or referendum, the canvasser must submit to the sponsor the following: (1) his or her full name and any assumed name; (2) his or her current residence address and permanent domicile address if the permanent domicile address is different from the current residential address; (3) a signed statement taken under oath or solemn affirmation that states that he or she has not pled guilty or nolo contendere to or been found guilty of a criminal offense involving a violation of the election laws, fraud, forgery, or identification theft in any state; (4) a signed statement that he or she has read and understands the Arkansas law applicable to obtaining signatures on an initiative or referendum petition; (5) a signed statement that the person has been provided a copy of the most recent edition of the Secretary of State's initiatives and referenda handbook; and (6) a photograph of

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the person taken within ninety days of the submission of the above-required information. Ark. Code Ann. § 7-9-601(b)(1)--(6) (Supp. 2013). Sponsors are required to maintain the information for three years after the general election. Ark. Code Ann. § 7-9-601(c) (Supp. 2013). For the purposes of section 7-9-601, " paid canvasser" means a person who is paid or with whom there is an agreement to pay money or anything of value before or after a signature on an initiative or referendum petition is solicited in exchange for soliciting or obtaining a signature on a petition. Ark. Code Ann. § 7-9-601(d) (Supp. 2013).

Appellants challenged section 21 of the Act as an unwarranted restriction on the rights granted to the people in article 5, § 1 of the Constitution of the State of Arkansas. We hold that the requirements of section 21 do not act as unwarranted restrictions on the rights granted in article 5, § 1. While article 5, § 1 prohibits any law that prohibits the circulation of petitions or interferes with the freedom of the people in procuring petitions, it expressly allows laws to facilitate its operation, as well as acts to prohibit and punish fraud in obtaining signatures and filing petitions. In Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956), this court considered whether Act 195 of 1943, now codified at Arkansas Code Annotated section 7-9-107, which requires that the original draft of any initiative or referendum petition ordering a vote upon any amendment or act be submitted to the attorney general with a proposed legislative or ballot title and popular name before the petition can be circulated, acted as an unwarranted restriction on the rights granted in article 5, § 1. In holding that it did not, we stated,

Obviously, the Legislature considered that in signing a referendum or initiative petition the signer should have the benefit of a popular name and ballot title that would give as much information about the proposed act as is possible to give by such means . . . This statute in no way curtails the operation of Amendment no. 7 but is in aid of the amendment and insures the giving to the signer of the petition as much information as is possible and practicable with regard to what [he or she] is being asked to sign.

Washburn, 225 Ark. at 871--72, 286 S.W.2d at 497.

The rationale used in Washburn is instructive in this case. The State clearly has an interest in ensuring that sponsors are aware of the identity of people who are being paid to solicit signatures from citizens as well as how to locate them should problems arise and to have assurance that the persons so employed are aware of the applicable laws and do not have a criminal history that calls into question their ability to interact with the public in a manner consistent with those laws. These requirements aid in the proper use of the rights granted to the people of this state. Combined with the minimal burden placed on paid canvassers and sponsors, the requirements of section 21 do not act as an unwarranted restriction on the rights of the people under article 5, § 1.

Appellees also argued below that the requirements of section 21 violated their rights to free speech, petition, and due process. Appellees' argument regarding due process stems from the lack in the Act of a definition of the terms " anything of value" as used in the section to describe who is considered to be a paid canvasser for the purposes of the section and " current residence address" as used to describe the address that must be included on the pre-circulation form to be submitted to the sponsor. A law is unconstitutionally vague if it does not give a person of ordinary intelligence fair notice of what conduct is prohibited. Reinert v. State,

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348 Ark. 1, 71 S.W.3d 52 (2002). To satisfy due-process requirements, there must be ascertainable standards of guilt in a statute so that a person of average intelligence does not have to guess at its meaning. See Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998). A statute is void if it is so vague and standardless that it allows for arbitrary and ...


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