KARA L. BENCA PETITIONER
MARK MARTIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE STATE OF ARKANSAS RESPONDENT ARKANSANS FOR COMPASSIONATE CARE 2016 INTERVENOR
ORIGINAL ACTION PETITION GRANTED.
& Benca, by: Patrick J. Benca, for petitioner.
Kelly, Deputy Secretary of State & General Counsel and
Michael Fincher, Associate General Counsel, for respondent.
Wesley Hall, for intervenor.
R. BAKER, Associate Justice.
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
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.
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
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.
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
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). 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.
II. Ark. Code Ann. §§ 7-9-111(f)(2) and
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
a. 2, 548 were alleged to be disqualified for failure of a
State Police background check to be obtained on paid
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
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
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.
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
(2) Before a signature is solicited by a paid canvasser the
(A)Provide the paid canvasser with a copy of the most recent
edition of the Secretary of State's initiatives and
(B)Explain the Arkansas law applicable to obtaining
signatures on an initiative or referendum petition to the
(C)(i) Provide a complete list of all paid canvassers'
names and current residential addresses to the Secretary of
(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 ...