Casteel v. McCuen, 92-925

• Decision Date: 09 October 1992
• Docket Number: No. 92-925,92-925
• Citation: 838 S.W.2d 364,310 Ark. 568
• Parties: John Oather CASTEEL, et al., Petitioners, v. W.J. "Bill" McCUEN, Secretary of State, and Arkansas State Board of Election Commissioners, Respondents.
• Court: Arkansas Supreme Court

Page 364

838 S.W.2d 364

310 Ark. 568

John Oather CASTEEL, et al., Petitioners, v. W.J. "Bill" McCUEN, Secretary of State, and Arkansas State Board of Election Commissioners, Respondents.

No. 92-925.

Supreme Court of Arkansas.

Oct. 9, 1992.

Shawn Sibley, Sherwood, James F. Lane, Little Rock, for petitioners.

Frank J. Wills, Asst. Atty. Gen., Little Rock, for respondent.

GLAZE, Justice.

Petitioners bring this mandamus action against W.J. "Bill" McCuen, as Secretary of State, asking that McCuen certify to the seventy-five county boards of election commissioners the petitioners' initiative constitutional amendment captioned the "Tax Referendum Amendment," so the respective boards can place this issue on the November 3, 1992 General Election ballot. Petitioners timely filed their initiative petitions with the Secretary of State's office, but that office ultimately determined the petitions failed to contain the requisite number of signatures--69,641 signatures were needed to initiate the amendment, but McCuen's office counted only 68,435. All parties agree that, for the petitions to qualify as an initiative measure under Ark. Const. amend. 7, the petitions must, prima facie, contain at the time of filing the required number of signatures. Czech, City Clerk v. Munson, Chancellor, 280 Ark. 219, 656 S.W.2d 696 (1983); Dixon v. Hall, Secretary of State, 210 Ark. 891, 198 S.W.2d 1002 (1946).

Petitioners question McCuen's count, claiming they filed petitions containing more than the required number of signatures. As a consequence, the only dispute between the parties in this action is a factual one. Consequently, we appointed a master, Judge Tom F. Digby, 835 S.W.2d 885, under ARCP Rule 53, and directed that he take evidence on this factual issue and file his findings of fact with the court. ¹ The master has now submitted his findings. In so doing, the master found that the petitioners failed to show by a preponderance of the evidence that they had filed the number of signatures to give legal effect to their petitions. The sole issue before us now is whether the master's findings of fact are clearly erroneous. ARCP Rule 53(e)(2). A finding is clearly erroneous when, although there is evidence to support it, the court, on the entire evidence is left with the definite and firm conviction that a mistake has been made by the master. See Reporter's Note to Rule 53.

Petitioners readily concede the evidence they presented failed to meet their burden of proving they had submitted the required number of signatures. They contend, however, their burden of proof was met when considering the respondents' added testimony given by two Secretary of State employees, John Fincher and Jim Werner. Mr. Fincher testified that one of the counters, Amy Finnegan, had stopped counting signatures when 55,000 signatures were found, thinking the required or threshold number to certify the initiated measure had been met. Fincher subsequently informed Finnegan the required number was 69,641, so Finnegan continued her counting of signatures, which she then claimed totaled 71,060. It was later determined that Finnegan had made an error in counting the Garland County signatures, which required a deduction of 1,800, thereby reducing the total to 69,260, or below the 69,641 threshold amount.

However, petitioners rely on a snippet...