Porter v. McCuen

• Decision Date: 21 October 1992
• Docket Number: No. 92-940,92-940
• Citation: 839 S.W.2d 521,310 Ark. 674
• Parties: Bob PORTER, on Behalf of Himself and All other Similarly Situated; and Arkansas Executive Committee, Petitioners, v. W.J. "Bill" McCUEN, Secretary of State, Respondent, Coalition for a Healthier Arkansas, Inc., Intervening Respondent.
• Court: Arkansas Supreme Court

Page 521

839 S.W.2d 521

310 Ark. 674

Bob PORTER, on Behalf of Himself and All other Similarly Situated; and Arkansas Executive Committee, Petitioners, v. W.J. "Bill" McCUEN, Secretary of State, Respondent Coalition for a Healthier Arkansas, Inc., Intervening Respondent.

No. 92-940.

Supreme Court of Arkansas.

Oct. 21, 1992.

Paul B. Benham, Elizabeth J. Robben, Little Rock, for petitioners.

Ann Purvis, Asst. Atty. Gen., Clayton R. Blackstock, Little Rock, for respondent.

HAYS, Justice.

This is the second phase of an original action attacking the proposed initiated act entitled "Cigarette and Tobacco Products Act." Petitioners are Bob Porter, on behalf of himself and all others similarly situated, and Arkansas Executive Committee. Respondents are W.J. "Bill" McCuen, Secretary of State, and Coalition For A Healthier Arkansas, Inc. (CHAR), Intervener.

Petitioners' challenge is two-fold: they contend the ballot title is misleading and defective (Count I) and that numerous signatures on the initiative petitions are invalid (Count II). Petitioners sought the appointment of a Master to make findings on disputed issues of fact and an order invalidating the proposal.

We ordered expedited proceedings, appointed the Honorable Gerald P. Brown as Master and severed the ballot title issue, solely a question of law, from the factual issues involving the signatures and the initiative petitions.

The parties proceeded promptly to submit briefs on the ballot title issue while they were presenting evidence to the Master. On October 9, 1992, we issued our decision with respect to the ballot title, holding that it was not misleading or otherwise defective and denying the petition as to that part. The arguments and our reasoning may be found in Porter, et al. v. McCuen, et al., 310 Ark. 562, 839 S.W.2d 512 (1992).

We turn now to the Report of Master, whose findings we must sustain unless they are found to be clearly erroneous. The report cites a number of tenets which govern the procedures under Amendment 7, part of which reads:

Only legal votes shall be counted upon petitions. Petitions may be circulated and presented in part, but each part of any petition shall have attached thereto the affidavit of the person circulating the same, that all signatures thereon 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 that the person signing is a legal voter, and no other affidavit or verification shall be required to establish the genuineness of such signatures.

The initiative and referendum amendment must be liberally construed in order to effectuate its purposes and only substantial compliance with the amendment is required. Reeves v. Smith, 190 Ark. 213, 78 S.W.2d 72 (1935).

In Sturdy v. Hall, 201 Ark. 38, 143 S.W.2d 547 (1940), this court held that the circulator or canvasser of an initiative petition is comparable to an election official. The circulator of the petition is the sole election officer in whose presence the citizen exercises his/her right to sign the petition. The circulator must make affidavit that each signature is genuine, and if this affidavit is shown to be false, the petition loses its prima facie verity.

In Ellis v. Hall, 219 Ark. 869, 245 S.W.2d 223 (1952), we held that where fraud on the canvasser's part is shown, the prima facie case made with the affidavit of the circulator in favor of genuineness of the petition is overcome, putting the burden of proof upon the defendant to establish the genuineness of each signature.

In Pafford v. State, 217 Ark. 734, 233 S.W.2d 72 (1950), we held that one who attacks a petition cannot destroy the verity of the circulator's affidavit merely by proving that at least one signature is not genuine. The plaintiff must also adduce proof to show that the falsity of the canvasser's affidavit was conscious, rather than inadvertent.

Ark.Code Ann. § 7-9-108(b) (Supp.1991), provides that each part of any initiative petition shall have attached thereto the affidavit of the person who circulated the petition to the effect that all signatures appearing thereon are made in the presence of the affiant and that to the best of the affiant's knowledge and belief each signature is genuine and that the person so signing is a legal voter.

Ark.Code Ann. § 7-9-109 (Supp.1991), after setting forth the form of verification, provides that the forms are not mandatory, and if substantially followed, shall be sufficient, disregarding clerical and merely technical errors.

In Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 434 (1936), it was held that an affidavit is a written statement which is affirmed or sworn to by some person legally authorized to administer an oath or affirmation. The process requires concurrent action on the part of the affiant and the authorized officer.

Ark.Code Ann. § 21-14-111 (Cum.Supp.1991), provides in part:

(a) It is unlawful for any notary public to witness any signature on any instrument unless the notary either: 1) witnesses the signing of the instrument and...