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Zook v. Martin

Supreme Court of Arkansas

October 19, 2018



          Friday, Eldredge & Clark, LLP, by: Elizabeth Robben Murray, Ellen Owens Smith, Joshua C. Ashley, and Allison C. Pearson, for petitioner.

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

          Graves Garrett LLC, by: Edward D. Greim, Alan T. Simpson, and Garrett W. Hunkins; and Quattlebaum, Grooms & Tull PLLC, by: Chad W. Pekron and Brittany S. Ford, for intervenor.


         Randy Zook, petitioner, challenges the sufficiency of the signatures certified by the respondent, the Honorable Mark Martin, Arkansas Secretary of State, in the statewide initiative ballot petition entitled "Arkansas Term Limits Amendment," which is on the November 6, 2018 ballot. The intervenor, Arkansas Term Limits, sponsored the petition. This court addresses the second issue raised in the original action, the sufficiency of the collected signatures. We conclude that the special master was correct in his finding that there were insufficient signatures to keep the amendment on the ballot; we therefore grant the petition.

         On July 6, 2018, the sponsor submitted 135, 590 signatures to the secretary of state. On August 3, 2018, the secretary of state certified that the sponsor had met the requirements under the Arkansas Constitution to be placed on the ballot. The secretary determined that there were no more than 93, 998 valid signatures and that 84, 859 signatures was the minimum required to be placed on the ballot.

         On September 5, 2018, the petitioner filed an original action in this court against the secretary of state, challenging the sufficiency of the popular name and ballot title as well as the sufficiency of the signatures collected. The petitioner additionally moved to bifurcate the proceedings and to have a special master appointed. On September 6, the intervenor filed a motion to intervene in the action. On September 7, we granted the motion to intervene, bifurcated the proceedings, and appointed the Honorable Mark Hewitt as a special master according to Arkansas Supreme Court Rule 6-5(c) (2017) to address the sufficiency of the collected signatures.

         The special master held hearings on September 16, 17, and 20th, and entered his written findings on September 24th; he concluded that the intervenor had failed to provide sufficient signatures for the ballot. That same date, the intervenor filed a letter notifying the special master that he had double-counted multiple petition parts that had been excluded for multiple reasons. On September 25th, the special master filed his amended findings of fact and ultimately concluded that the respondent had erroneously included 14, 806 signatures in the valid and final count. He therefore determined that there were insufficient signatures for the proposed amendment to remain on the ballot.

         I. Standard of Review

         Amendment 7 states that "[t]he sufficiency of all state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes." Ark. Const. art. 5, § 1, amended by Ark. Const. amend. 7. Regarding the special master's findings, our standard of review is that we will accept the master's findings of fact unless they are clearly erroneous. Benca v. Martin, 2016 Ark. 359, at 3, 500 S.W.3d 742, 744; Ark. R. Civ. P. 53(e) (2017). 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. Roberts v. Priest, 334 Ark. 503, 511, 975 S.W.2d 850, 853 (1998). We review issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. State v. Ledwell, 2017 Ark. 252, at 4, 526 S.W.3d 1, 3. Additionally, when interpreting a statute, we construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Benca, 2016 Ark. 359, at 3, 500 S.W.3d at 745. We construe statutes so that, if possible, every word is given meaning and effect. Id.

         II. False Affidavits

         We first review the special master's findings that 4, 371 signatures should be excluded because the canvassers attached false affidavits to the relevant petition parts. The special master noted that the relevant petition parts had the following affidavits attached:

I did not have in mind at the time I executed my Affidavit, but am now informed, that under Arkansas law, my "current residence address" is the place I am staying at the time I swear out my Affidavits, which may be a distinct location from my permanent address.

         The affidavits referred to in the statement above are the sworn signatures that the canvassers must provide on the individual petition parts. See Ark. Code Ann. § 7-9-108(b) (Repl. 2018). The sworn signature section also has a space for the canvasser to place his or her residence address on the petition. The special master noted that the canvassers had executed other documents, sworn statements, and signature cards demonstrating that they understood the difference between their domicile address and their current residence address. He concluded that the later affidavits stating they did not understand the law were false and that the failure to list their true current residence address on the petition renders those signatures invalid.

         In Arkansas, a canvasser is required to sign the petition parts and state that "the canvasser's current residence address appearing on the verification is correct, that all signatures appearing on the petition part were made in the presence of the affiant, and that to the best of the affiant's knowledge and belief each signature is genuine and each person signing is a registered voter." Ark. Code Ann. § 7-9-108(b). The signatures in a petition shall not be counted if "[t]he petition lacks the signature, printed name, and residence address of the canvasser." Ark. Code Ann. § 7-9-126 (b)(2) (Repl. 2018).

         In Benca v. Martin, the petitioner challenged signatures obtained by the sponsor where the canvasser (1) listed a post office box as his residence address, (2) listed a business as the residence address, or (3) failed to include a residence address on the petition parts. 2016 Ark. 359, at 11, 500 S.W.3d 742, 749. We held that if a petition fails to meet the requirements of section 7-9-126, the petition shall not be counted. Benca, 2016 Ark. 359, at 12, 500 S.W.3d at 750; Ark. Code Ann. § 7-9-126. We specifically noted that the term "shall" is mandatory and the clerical-error exception or substantial compliance cannot be used as a substitute for fulfillment with the statute. Benca, 2016 Ark. 359, at 12-13, 500 S.W.3d at 750.

         Here, the special master's findings are not clearly erroneous. The special master used Larry Bradshaw as an example and noted that the sponsor registered him with a Bentonville address with the secretary of state. However, on the petition parts he collected, Bradshaw signed an affidavit that his current resident address is in Florida. He executed documents that he understood Arkansas law. Bradshaw executed his sworn-canvasser statement on June 8, 2018, and listed Florida as his current residence. On that same date, the intervenor registered Bradshaw with the secretary of state using a Bentonville, Arkansas, current residence address. The two residential addresses are in direct conflict. Further, Bradshaw later executed a sworn affidavit that the affidavit on the petition parts he collected was false as to his current residence address. The special master's findings were therefore not clearly erroneous, and he correctly excluded 4, 371 signatures.

         III. Failure to Obtain ...

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