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Benca v. Martin

Supreme Court of Arkansas

October 27, 2016

KARA L. BENCA PETITIONER
v.
MARK MARTIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE STATE OF ARKANSAS RESPONDENT ARKANSANS FOR COMPASSIONATE CARE 2016 INTERVENOR

         AN ORIGINAL ACTION PETITION GRANTED.

          Benca & Benca, by: Patrick J. Benca, for petitioner.

          AJ Kelly, Deputy Secretary of State & General Counsel and Michael Fincher, Associate General Counsel, for respondent.

          John Wesley Hall, for intervenor.

          KAREN R. BAKER, Associate Justice.

         Kara L. Benca, petitioner, challenges the sufficiency of signatures counted by the respondent, the Honorable Mark Martin, Arkansas Secretary of State, in the statewide initiative ballot petition entitled "The Arkansas Medical Cannabis Act, " which is on the November 8, 2016 ballot. The proposed Act is sponsored by intervenor, Arkansans for Compassionate Care 2016. Because we conclude that the total number of signatures which should have been counted by respondent falls below the statutory minimum, we grant the petition.

         Article 5, section 1 of the Arkansas Constitution, incorporating amendment 7, governs both statewide and local initiatives and referendums. See Ark. Const. art. 5, § 1, amended by Ark. Const. amend. 7; Mays v. Cole, 374 Ark. 532, 289 S.W.3d 1 (2008). "Jurisdiction to review the sufficiency of statewide initiative petitions is conferred on this court by way of amendment 7 to the Arkansas Constitution. See Ward v. Priest, 350 Ark. 345, 86 S.W.3d 884 (2002). Following certification by the Secretary of State, amendment 7 clearly confers original and exclusive jurisdiction upon this court to review the Secretary of State's decision as to the sufficiency of the petition." Stephens v. Martin, 2014 Ark. 442, at 6, 491 S.W.3d 451, 454. Here, because the Ballot Measure seeks to "propose a law, " the sponsor intervenor needed valid signatures from 8 percent of the voters in the last gubernatorial general election; under amendment 7, 67, 887 signatures of registered voters are required in order for the Ballot Measure to be placed on the November 8, 2016, general election ballot.

         The sponsor intervenor of the measure initially submitted 117, 547 signatures. Martin culled the signatures for various reasons, and ultimately validated 77, 516. In challenging the sufficiency of the petition, Benca needs to invalidate more than 9, 629 signatures to prevail and have the petition removed.

         On September 9, 2016, we appointed the Honorable John B. Robbins as special master in this matter. The master held a hearing on September 19-20, 2016, at which he heard testimony, heard the arguments of counsel, and received evidence.

         On September 27, 2016, the master entered his original and amended findings and found that 2, 087 signatures were disqualified but that the remainder of the signatures could be counted. From that report, Benca presents six points asserting that the signatures accepted by respondent should not be counted because (1) the Sponsor intervenor failed to comply with Ark. Code Ann. § 7-9-111(f)(2) (Supp. 2015); (2) paid canvassers collected signatures in violation of Ark. Code Ann. § 7-9-601; (3) petition parts lack the signature, printed name, and residence address of the canvasser; (4) signatures where the canvasser verification is dated earlier than the date on which a petitioner signed the petition; (5) the canvasser's affidavit failed to indicate whether or not the canvasser was a paid or unpaid volunteer canvasser; and (6) two canvassers failed to personally witness the signatures of individuals who signed the petition.

         Moving to Benca's arguments, our standard of review is that we will accept the master's findings of fact unless they are clearly erroneous. See Roberts v. Priest, 334 Ark. 503, 975 S.W.2d 850 (1998). A finding of fact is clearly erroneous, even if there is evidence to support it, when, based on the entire evidence, the court is left with the definite and firm conviction that the master has made a mistake. Id. Further, we note the case before us asks this court to interpret Act 1413 of 2013 and Act 1219 of 2015, which amended our laws regarding the collection of signatures on initiative petitions. See Ark. Code Ann. §§ 7-9-101 et seq. (Repl. 2011 & Supp. 2015).[1] Accordingly, in interpreting statutes, we construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Berryhill v. Synatzske, 2014 Ark. 169, 432 S.W.3d 637. We construe statutes so that, if possible, every word is given meaning and effect. Cave City Nursing Home, Inc. v. Ark. Dep't of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). With these standards identified, we turn to the merits of Benca's petition.

         I & II. Ark. Code Ann. §§ 7-9-111(f)(2) and 7-9-601

         Benca's first two points challenge the same 8, 620 signatures. Benca first asserts that the signatures should be disqualified pursuant to Ark. Code Ann. § 7-9-111(f)(2) and not counted pursuant to Ark. Code Ann. § 7-9-601. The signatures at issue are challenged based on Benca's position that the sponsor intervenor did not comply with the "paid canvasser" requirements of the statutes. Specifically, she argues that the signatures should be disqualified because the sponsor intervenor failed to provide canvassers with a Secretary of State handbook, failed to train canvassers in the law, failed to provide a list of canvassers to the Secretary of State, and failed to provide a state police criminal background check within 30 days of a canvasser's registration. Because Benca's first two points challenge the same signatures, and because Ark. Code Ann. § 7-9-601 is dispositive on these points, we address the points together.

With regard to the 8, 620 challenged signatures, the master found as follows:
Counts I and II question the same 8, 620 signatures. Count I is based upon Ark. Code Ann. Section 7-9-111(f)(2), however, that statutory requirement did not include a "do not count" penalty. Petitioner did not dispute this. I find that no signatures are disqualified under Count I.
With regard to Count II and Ark. Code Ann. § 7-9-601, the master found:
In Count II Petitioner contends that these 8, 620 signatures should be disqualified for failure to timely provide "paid canvasser list" information to Respondent and meet State Police background check requirements on each paid canvasser prior to circulation. Of the 8, 620 signatures at issue:
a. 2, 548 were alleged to be disqualified for failure of a State Police background check to be obtained on paid canvassers;
b. 5, 032 were alleged to be disqualified as a result of a "date conflict, " where the State Police background check was incorrectly dated after the date the Sponsor made a written statement to Respondent Secretary that a background check had already been done;
c. 399 signatures were allegedly collected by paid canvassers who had not been disclosed by the Sponsor to Respondent Secretary; and
d. 701 signatures were collected by paid canvassers prior to their disclosure to Respondent Secretary.
The above requirements only apply to "paid" canvassers. The proof was undisputed that most of the Sponsor's canvassers were volunteers and many of the canvassers who had been reported as "paid, " as well as many who had checked that they were "paid, " were only to be paid if sufficient funds were contributed to the petition drive in the future. Furthermore, it was undisputed that many of these canvassers were never in fact paid.
Petitioner has not identified which of these canvassers fall into this category.
Consequently, I cannot find how many, if any, of these 8, 620 signatures should be disqualified.

         Benca contends that the master erred because the record demonstrates that the sponsor intervenor did not comply with Ark. Code Ann. § 7-9-601 with regard to the 8, 620 signatures and the signatures must be disqualified pursuant to Ark. Code Ann. § 7-9-111. Benca's position is dependent upon the court's interpretation and holding regarding the "paid canvasser" statute, Ark. Code Ann. § 7-9-601, and whether the petition was in compliance with those requirements. Benca contends that the 8, 620 signatures should have been rejected by the Secretary of State's office for failure to comply with Ark. Code Ann. § 7-9-601 because (1) the sponsor intervenor failed to obtain a state police background check; (2) the State Police background check was incorrectly dated after the date the sponsor intervenor reported to the Secretary of State that it had been conducted; (3) signatures were collected by paid canvassers who had not been disclosed by the sponsor intervenor to the respondent; and (4) the signatures were collected by paid canvassers prior to this disclosure to the respondent. Therefore, we now turn to Ark. Code Ann. § 7-9-601, "Hiring and training of paid canvassers, " which provides in its entirety:

(a)(1) A person shall not provide money or anything of value to another person for obtaining signatures on a statewide initiative or referendum petition unless the person receiving the money or item of value meets the requirements of this section.
(2) Before a signature is solicited by a paid canvasser the sponsor shall:
(A)Provide the paid canvasser with a copy of the most recent edition of the Secretary of State's initiatives and referenda handbook;
(B)Explain the Arkansas law applicable to obtaining signatures on an initiative or referendum petition to the canvasser; and
(C)(i) Provide a complete list of all paid canvassers' names and current residential addresses to the Secretary of State.
(ii) If additional paid canvassers agree to solicit signatures on behalf of a sponsor after the complete list is provided, the sponsor shall provide an updated list of all paid canvassers' names and current residential addresses to the Secretary of State.
(b)(1) To verify that there are no criminal offenses on record, a sponsor shall obtain, at its cost, from the Department of Arkansas State Police, a current state and federal criminal record search on every paid ...

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