Roberts v. Priest, 98-1052

• Decision Date: 15 October 1998
• Docket Number: No. 98-1052,98-1052
• Citation: 975 S.W.2d 850,334 Ark. 503
• Parties: Bobby ROBERTS, et al., Petitioners, v. Sharon PRIEST, Secretary of State, Respondent, v. John HOYLE, et al., Intervenors.
• Court: Arkansas Supreme Court

Page 850

975 S.W.2d 850

334 Ark. 503

Bobby ROBERTS, et al., Petitioners, v. Sharon PRIEST, Secretary of State, Respondent, v. John HOYLE, et al., Intervenors.

No. 98-1052.

Supreme Court of Arkansas.

Oct. 15, 1998.

Elizabeth Robben Murray, Robert S. Shafer, Ellen M. Owens, Little Rock, for Complainant.

Winston Bryant, Atty. Gen., Tim Humphries, Senior Asst. Atty. Gen., Ann Purvis, General Counsel for Secretary of State, Little Rock, for Respondent.

Oscar Stilley, Fort Smith, for Intervenors.

ARNOLD, Chief Justice.

Arkansas Supreme Court Rules 6-5(a) and 1-2(a)(8) (1998) authorize us to exercise jurisdiction over this original-action petition, filed by Bobby Roberts, an Arkansas resident, taxpayer, and registered voter, individually, and on behalf of Arkansans to Protect Police, Libraries, Education & Services (APPLES). Specifically, the petitioner challenges the sufficiency of a statewide initiative petition, originated pursuant to Ark. Const. amend. 7, and the inclusion of proposed constitutional Amendment 4 on the November 3, 1998, general-election ballot. In support of removing the proposed measure from the ballot, the petitioner raises two arguments contesting (1) the validity of the signatures appearing on the initiative petition; and (2) the adequacy of disclosure of the proposed measure's ballot title. We find merit in petitioner's first point, grant the petition, and enjoin the Secretary of State from placing the proposed measure on the November 3, 1998, ballot. Alternatively, we direct that any votes cast on the proposed amendment not be counted or certified. Consequently, the petitioner's second point is moot, and we need not consider the merits of the ballot title.

On July 2, 1998, proposed constitutional Amendment 4 was filed with the respondent, Secretary of State. The popular name of the proposed measure reads:

An Amendment To Abolish Ad Valorem Property Taxes; Authorize the Increase of Sales and Use Tax, Require Voter Approval of New Taxes and Tax Rates, Require Periodic Voter Approval for Certain Local Sales, Use, and Occupation Taxes, Limit State and Local Regulation, And For Other Purposes ("Amendment 4").

During the certification process, the Secretary of State determined that the measure's sponsor submitted 72,810 valid legal-voter signatures, representing a margin of 855 signatures over and above the minimum threshold requirement of 71,955 qualified signatures. Amendment 7 to the Arkansas Constitution defines the number of qualified signatures required to initiate a constitutional amendment as equal to ten percent of the votes cast in the gubernatorial race in the preceding general election, here, 71,955 signatures. Accordingly, on July 28, 1998, the respondent stated that Amendment 4 satisfied the signature requirements of Ark. Const. amend. 7 and certified the measure for inclusion on the November 3, 1998, ballot.

Subsequently, on August 26, 1998, the petitioner filed its complaint contesting the sufficiency of the certified signatures and the adequacy of the ballot title. Count I of the original action complaint alleges that in excess of 855 signatures on the initiative petition (i.e., the margin of sufficiency as determined by the Secretary of State), were forged or unlawfully obtained, or are found on petition parts that were illegally or improperly executed by the canvassers or purported canvassers, or were improperly notarized, in violation of constitutional and statutory requirements.

On September 11, 1998, John Hoyle, the initiative's sponsor, intervened in this action, individually and on behalf of Arkansas Taxpayers' Rights Association. In response to the complaint, the intervenors asserted that the petition was not deficient due to invalid signatures. Alternatively, they argued that even if some signatures were invalid, sufficient valid signatures remained to withstand the challenge. The intervenors also filed a counterclaim, seeking thirty additional days to submit proof that previously rejected signatures were valid and to cure defects through continued solicitation of signatures. Finally, the intervenors raised general constitutional objections to the complaint, namely, that a decision adverse to the intervenors would violate their fundamental rights to petition the government for redress of grievances.

In response to the intervenors' counterclaim, the petitioner conceded that the intervenors should be permitted to submit proof that the Secretary of State should have counted previously rejected signatures but denied that the intervenors have suffered any unconstitutional denial of a right to petition the government for redress of grievances. In our per curiam opinion dated September 11, 1998, we addressed the applicability of the intervenors' request for a "thirty-day cure period," pursuant to Ark.Code Ann. § 7-9-111 (Repl.1993). We held that the "thirty-day cure period" applies only in the case of an adverse action on the part of the Secretary of State and has no application to original actions in this court. Roberts v. Priest, 334 Ark. 244, 973 S.W.2d 797 (1998); see Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936).

I. Arkansas Constitution, Amendment 7

Turning to the merits of the petitioner's remaining arguments, we first consider the context of Amendment 7. The relevant portion of Ark. Const. amend. 7 provides that:

The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but 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[.]

Furthermore, through Amendment 7, the "voters of this state essentially have, within constitutional limits, a right to change any law or any provision of our Constitution they deem appropriate." Donovan v. Priest, 326 Ark. at 357-58, 931 S.W.2d 119 (citing Dust v. Riviere, 277 Ark. 1, 4, 638 S.W.2d 663, 665 (1982)) (emphasis added). According to Amendment 7, the sufficiency of statewide petitions for initiatives shall be decided in the first instance by the Secretary of State subject to the review of this court, which has original and exclusive jurisdiction over such matters. Id. at 357, 931 S.W.2d 119. Initially, the Secretary of State must ascertain and declare the sufficiency of each initiative and referendum within thirty days of filing. However, when a proposed initiative is challenged, Amendment 7 places the burden of proof "upon the person or persons attacking the validity of the petition." Id.

II. The Master's report and findings

We granted expedited consideration of this matter and, pursuant to Ark. Sup.Ct. R. 6-5(a) (1998) and Ark. R. Civ. P. 53, appointed the Honorable Jack Lessenberry as master to conduct proceedings and hearings relating to the signature challenge and to report his factual findings to this court. After hearing testimony for three days and reviewing evidence and exhibits offered by the parties, the master filed his report on September 28, 1998. Significantly, he found that 1,830 signatures counted by the Secretary of State should have been excluded, leaving a deficiency of 975 signatures after subtracting the margin of 855 signatures. Generally, the signatures were excluded due to (1) the absence, insufficiency, or falsity of the canvasser's affidavit; (2) a forgery; or (3) evidence that the petitioner was not a registered voter. In light of these findings, the petitioner submits that Amendment 4 lacks sufficient signatures to appear on the ballot.

Pursuant to Ark. R. Civ. P. 53 (1998), we will accept the master's findings of fact unless they are clearly erroneous. See also Porter v. McCuen, 310 Ark. 674, 839 S.W.2d 521 (1992). 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. Casteel v. McCuen, 310 Ark. 568, 569, 838 S.W.2d 364 (1992). In short, the petitioner asks this court to adopt the master's findings of fact and either to enjoin the Secretary of State from placing Amendment 4 on the ballot or to order that any votes cast for the proposed measure not be counted. Petitioner also suggests that the evidence presented to the master clearly indicates that the intervenors ignored and abused the simple requirements of Ark. Const. amend. 7. We agree. Generally, we adopt and affirm the master's findings of fact. However, we do note, as indicated below, minor discrepancies with individual findings that we hold to be clearly erroneous. Notably, these errors are harmless and insufficient to restore the measure to the ballot.

First, we consider 450 signatures excluded by the master and associated with Ms. Cyndi Jarvis. Ms. Jarvis became involved in the petition drive in the fall of 1997 and continued to collect signatures until July 1998, although she testified that she never read the instructions and statement to canvassers printed on each and every petition. Although an initiative and referendum measure must be liberally construed, and only substantial compliance with Ark. Const. amend. 7 is required, the "affidavit of the persons circulating" the petition must be attached to the petition. See Porter, 310 Ark. at 678, 839 S.W.2d 521. Each petition in the instant case contained an affidavit to be signed by the canvasser that states in part:

I, ________, having first duly made oath, state that I personally circulated the above Petition and that each of the above persons signed said Petition in my presence. I further state that to the best of my knowledge and belief each person correctly stated his or her name, residence or town of residence correctly, and that each is a voter of the State of Arkansas.

When an affidavit is demonstrated to be false, a petition loses its prima facie validity. See ...