Zook v. Martin
| Decision Date | 18 October 2018 |
| Docket Number | No. CV-18-715,CV-18-715 |
| Parties | Randy ZOOK, Individually and on Behalf of Arkansans for a Strong Economy, a Ballot Question Committee, Petitioner v. Mark MARTIN, in His Official Capacity as Secretary of State of the State of Arkansas, Respondent Kristin Foster, Individually and on Behalf of Arkansans for a Fair Wage, Intervenor |
| Court | Arkansas Supreme Court |
Friday, Eldredge & Clark, LLP, Little Rock, 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.
David A. Couch, PLLC, by: David A. Couch ; and CapRock Law Firm, PLLC, by: Preston T. Eldridge, for intervenor.
Randy Zook, petitioner, challenges the sufficiency of a statewide-initiative petition. Respondent, the Honorable Mark Martin, Arkansas Secretary of State, certified the initiative entitled "An Act to Increase the Arkansas Minimum Wage Act," also known as "Issue No. 5," which is on the November 6, 2018 ballot. The proposed Act is sponsored by intervenor, Kristin Foster, Individually and on behalf of Arkansans for A Fair Wage ("sponsor-intervenor").
Because we do not find merit in Zook's claims, we deny the petition.
Article 5, § 1 of the Arkansas Constitution governs both statewide and local initiatives and referendums. Jurisdiction to review the sufficiency of statewide initiative petitions is conferred upon this court by way of Amendment 7 to the Arkansas Constitution. See Ward v. Priest , 350 Ark. 345, 86 S.W.3d 884 (2002). 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. Following certification by the Secretary of State, Amendment 7 clearly confers original and exclusive jurisdiction upon this court to review the Secretary of State's decision as to the sufficiency of the petition. See Ward , 350 Ark. 345, 86 S.W.3d 884 ; see also Stephens v. Martin , 2014 Ark. 442, at 6, 491 S.W.3d 451, 454.
The relevant history of this matter is as follows. On July 6, 2018, the sponsor-intervenor initially submitted 69,413 signatures to Martin. Martin performed an initial prima facie review and validated 68,861 signatures. On July 30, 2018, Martin notified the sponsor-intervenor that 52,124 signatures submitted were valid, and pursuant to article 5 section 1 of the Arkansas Constitution, if a petition contains 75 percent of the necessary valid signatures to be certified on the ballot, the petition qualifies for a thirty-day cure period.1 Martin informed the sponsor-intervenor that she had earned the thirty-day cure period to submit additional signatures. On August 3, 2018, the sponsor-intervenor submitted her cure signatures for a total of 113,160 signatures, and 85,526 were valid signatures. On August 16, 2018, Martin certified the petition as sufficient for inclusion on the 2018 general-election ballot.
On September 4, 2018, Zook filed his petition with this court. In challenging the sufficiency of the initiative petition, Zook contends that the sponsor-intervenor did not submit an adequate number of signatures and the petition should not have not qualified for the cure. Zook contends that Martin improperly counted invalid petitions and signatures that qualified the sponsor-intervenor's petition for a cure and ultimately certified Issue No. 5 for the November 6, 2018 general election ballot. Accordingly, Zook contends that because the petitions submitted to Martin failed to contain the 75 percent of the number of valid signatures needed in the initial filing and she was not entitled to the cure period and, therefore, signatures obtained after July 6, 2018 should not have been counted.
On September 6, 2018, we appointed the Honorable Sam Bird as special master in this matter. The special master held a hearing on September 17–19, 2018, at which he heard testimony, heard the arguments of counsel, and received evidence.
On September 24, 2018, the special master entered his findings that the sponsor-intervenor's petition had sufficient signatures to qualify for a cure period and exceeded the minimum number of signatures (67,887) required to qualify for placement on the November 6, 2018 ballot. The parties have now filed their respective briefs in this matter. We deny the petition.
Under our standard of review, we will accept the special master's findings of fact unless they are clearly erroneous. See Roberts v. Priest , 334 Ark. 503, 975 S.W.2d 850 (1998). 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. Id.
On review of this challenge, we are tasked with interpreting article 5, section 1 ––including amendment 93 of 2014—which amended article 5, section 1. "
Proctor v. Daniels , 2010 Ark. 206, at 5–6, 392 S.W.3d 360, 363.
With these standards identified, we turn to the merits of Zook's petition. We begin with article 5 section 1, which provides, Ark. Const. art. 5, § 1. Amendment 7 amended article 5, section 1 of the Arkansas Constitution and is commonly referred to as the "Initiative and Referendum Amendment." Amendment 7 must be liberally construed in order to effectuate its purposes and only substantial compliance with the amendment is required. Kyzar v. City of W. Memphis , 360 Ark. 454, 459, 201 S.W.3d 923, 927–28 (2005) ; Porter v. McCuen , 310 Ark. 674, 839 S.W.2d 521 (1992).
Next, we review additional language in article 5, section 1, "The Petition," which provides:
Ark. Const. art. 5, § (a)(1), (a)(2)(A) (Supp. 2017).
We now turn to Zook's petition. The crux of Zook's argument is that the sponsor-intervenor's petition should not have qualified for the thirty-day cure, any signatures submitted thereafter should not have been counted, and Issue No. 5 should not be on the ballot. The sponsor-intervenor contends that she presented a prima facie case of the requisite number of signatures of legal voters to qualify her petition for the cure. Here, to qualify her petition for a thirty-day cure period, the sponsor-intervenor must have presented Martin with a petition that contains the requisite number of signatures of legal voters—67, 887 signatures upon prima facie review and 50,915 signatures to qualify for the thirty-day cure.
In Stephens v. Martin , Stephens argued that the petition in that case was not prima facie valid when it was submitted because it relied on petition parts with forged notary signatures to meet the initial-count signature threshold and therefore, the sponsor was not entitled to a 30-day cure period. We disagreed with Stephens and held that fraud was not an appropriate consideration for the initial count, and the sponsor was entitled to the thirty-day cure period. We recounted our history regarding amendment 7 and challenges to initial counts and cure periods in initiated petitions and referendums:
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