Ark. Hotels & Entm't, Inc. v. Martin

• Decision Date: 20 September 2012
• Docket Number: No. 12–647.,12–647.
• Citation: 2012 Ark. 335,423 S.W.3d 49
• Parties: ARKANSAS HOTELS AND ENTERTAINMENT, INC., Petitioner v. Mark MARTIN, Arkansas Secretary of State, in his Official Capacity, Respondent v. Bill Walmsley, Darrell Meyer, and Bill McDowell, Individually and on Behalf of The Arkansas Racing Alliance, Intervenors/Respondents.
• Court: Arkansas Supreme Court

2012 Ark. 335
423 S.W.3d 49

ARKANSAS HOTELS AND ENTERTAINMENT, INC., Petitioner
v.
Mark MARTIN, Arkansas Secretary of State, in his Official Capacity, Respondent
v.
Bill Walmsley, Darrell Meyer, and Bill McDowell, Individually and on Behalf of The Arkansas Racing Alliance, Intervenors/Respondents.

No. 12–647.

Supreme Court of Arkansas.

Sept. 20, 2012.

[423 S.W.3d 50]

John T. Harmon, for petitioner.

A.J. Kelly, Deputy Secretary of State, and Martha Adcock, Associate Counsel, for respondent.

Friday, Eldredge & Clark, LLP, Little Rock, by: Elizabeth Robben Murray and Robert S. Shafer, for intervenors/respondents.

KAREN R. BAKER, Justice.

Petitioner, Arkansas Hotels and Entertainment, Inc. (“AHE”), brings this original action seeking a writ of mandamus requiring the Secretary of State to accept its petitions for an initiated constitutional amendment to be placed on the November 6, 2012 ballot. Petitioner seeks a writ of mandamus against Respondent Mark Martin, in his official capacity as Arkansas's Secretary of State, requiring him to accept AHE's petition as timely filed containing, prima facie, the required number of signatures

[423 S.W.3d 51]

for an initiated constitutional amendment, and further ordering the Secretary of State to permit AHE thirty days to cure any shortcomings in its petition. We deny AHE's petition for writ of mandamus.

I. Jurisdiction

This court has original jurisdiction of this case pursuant to Arkansas Supreme Court Rule 6–5(a) and 1–2(a)(3)(2011). Rule 6–5(a) provides this court has original jurisdiction in “extraordinary actions required by law, such as suits attacking the validity of statewide petitions filed under Amendment 7 of the Arkansas Constitution.” ¹Rule 1–2(a)(3) allows this court to exercise jurisdiction over this petition for writ of mandamus.

Facts

AHE, a for profit corporation, filed its Articles of Incorporation with the Respondent, the Secretary of State, on January 12, 2009. AHE's President and sole shareholder, Michael Wasserman, resides in Texas. On February 10, 2010, AHE registered as a “Ballot Question Committee” with the Secretary of State. On July 6, 2012, AHE filed a petition under Amendment 7 seeking to place a proposed amendment to the Arkansas Constitution on the November 6, 2012 general-election ballot. The proposed amendment would allow AHE to operate seven casinos in the state. On July 11, 2012, the Secretary of State notified AHE that its petition failed to satisfy the Ark. Const. Art. 5, § 1 requirements. On July 18, 2012, AHE responded to the Secretary of State's finding and requested thirty days to correct or amend its petition based on Ark. Const. Art. 5, § 1 and Dixon v. Hall, 210 Ark. 891, 198 S.W.2d 1002 (1946). On July 20, 2012, the Secretary of State issued a formal Certification to AHE, stating that the petition submitted for a proposed constitutional amendment sponsored by AHE “failed to submit sufficient signatures from at least (15) separate counties and thus did not meet the requirements as established by Ark. Const. Art. 5 § 1 of the Arkansas Constitution in order to place a measure on the Arkansas General Election Ballot on November 6, 2012.” In a letter dated July 20, 2012, the Secretary of State informed AHE that the petition did not meet “prima facie” signature requirements, the petition was a “complete failure,” and no correction or amendment was permitted under Dixon. On August 3, 2012, AHE filed this petition seeking a writ of mandamus requiring the Secretary of State to accept the petitions as timely filed containing, prima facie, the required number of signatures for an initiated constitutional amendment, and further ordering the Secretary of State to permit AHE thirty days to cure any shortcomings in its petition. On August 13, 2012, the Secretary of State responded to the petition, and Intervenors, Arkansas Racing Alliance (“ARA”), filed a motion to intervene. On August 13, 2012, the Secretary of State also filed a Motion for Appointment of Special Master to resolve any outstanding issues of material fact. On August 14, 2012, this court granted ARA's Motion to Intervene and held in abeyance the Secretary of State's Motion for Appointment of Special Master.

II. Points on Appeal A. Whether AHE has Standing to Invoke this Court's Jurisdiction Pursuant to Rule 6–5(a) and Apply for a Writ of Mandamus.

Initially, we must determine if AHE has standing to invoke this court's jurisdiction.

[423 S.W.3d 52]

AHE asserts that this court has original jurisdiction pursuant to Rule 6–5 of the Rules of the Supreme Court and Const. art. 5, section 1 of the Arkansas Constitution. The Secretary of State responds that AHE lacks standing to bring this action because AHE is a for-profit corporation and not a registered voter, not the sponsor of the petition, and no legal voters were joined to invoke the court's jurisdiction. ARA agrees. AHE did not reply to the Secretary of State's or ARA's arguments that it lacks standing to bring this action.

The question of standing is a matter of law for this court to decide, and this court reviews questions of law de novo. Farm Bureau v. Running M Farms, Inc., 366 Ark. 480, 237 S.W.3d 32 (2006).

Arkansas Supreme Court Rule 6–5 provides this court with original jurisdiction “in extraordinary actions as required by law, such as suits attacking the validity of statewide petitions filed under Amendment 7 of the Arkansas Constitution, or where the Supreme Court's contempt powers are at issue.” Amendment 7 provides that “the people reserve to themselves the power 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 ... Initiative. The first power reserved by the people is the initiative. Eight per cent of the legal voters may propose any law and ten per cent may propose a constitutional amendment by initiative petition.” Ark. Const. art. 5, § 1, amended by amend. 7.

Arkansas Code Annotated sections 7–9–101 to –506 (Repl.2011) govern Initiatives, Referenda, and Constitutional Amendments and provide the procedures for initiative approval and placement on the ballot. The statutes define the parties and persons involved in ballot initiatives. First, Arkansas Code Annotated section 7–9–125(8) (Repl.2011) provides that a “sponsor” means a person or persons who arrange for the circulation of initiative, referendum, or constitutional amendment petitions or who file an initiative, referendum, or constitutional amendment with the Secretary of State or other authorized recipient of the petitions. Second, Ark.Code Annotated section 7–9–402(9)(A) defines a person as any individual, business, proprietorship, firm, partnership, joint venture, syndicate, business trust, labor organization, company, corporation, association, committee, or any other organization or group of persons acting in concert. Third, Arkansas Code Annotated section 7–9–402(2)(A) defines a Ballot Question Committee as any person, located within or outside Arkansas, that receives contributions for the purpose of expressly advocating the qualification, disqualification, passage, or defeat of any ballot question, or...