Ross v. Martin , 2016 Ark. 362 ( 2016 )

Cite as 2016 Ark. 362
SUPREME COURT OF ARKANSAS
No. CV-16-776
COL. MIKE ROSS, RET.; MARION Opinion Delivered: October 27, 2016
HUMPHREY; JAMES BROOKS;
PATRICK ADAM JEGLEY; MARTHA
DEAVER; AND THE COMMITTEE TO
PROTECT AR FAMILIES AN ORIGINAL ACTION
PETITIONERS
V.
MARK MARTIN, ARKANSAS
SECRETARY OF STATE PETITION PREVIOUSLY GRANTED;
RESPONDENT COUNTS I & II MOOT.
CHASE DUGGER AND DR. STEPHEN
CANON, INDIVIDUALLY AND ON
BEHALF OF HEALTH CARE ACCESS
FOR ARKANSANS
INTERVENORS
JOSEPHINE LINKER HART, Associate Justice
This is the second part of a bifurcated case concerning a proposed amendment to the
Arkansas Constitution with the popular name: “An Amendment to Limit Attorney
Contingency Fees and Non-Economic Damages in Medical Lawsuits.” As noted in Ross v.
Martin, 2016 Ark. 340, petitioners Col. Mike Ross, Marion Humphrey, James Brooks, Patrick
Adam Jegley, Martha Deaver, and the Committee to Protect AR Families filed an original
action in this court pursuant to article 5, section 1 of the Arkansas Constitution, as amended
by amendment 7 to the Arkansas Constitution, for an order to invalidate a proposed initiated
constitutional amendment (the amendment), either by striking it from the ballot or by
Cite as 2016 Ark. 362
enjoining the counting of the votes. The petition asserted three bases for relief: (I) the
sponsors failed to comply with mandatory canvasser certification laws; (II) the sponsors failed
to submit the requisite number of verified signatures; and (III) the amendment’s ballot title
is insufficient. On September 9, 2016, we granted a motion to bifurcate this case and
appointed a special master to make findings on counts I and II. We allowed count III, which
challenged the sufficiency of the ballot title, to be submitted directly because sufficiency of the
ballot title is decided by this court as a matter of law. Cox v. Daniels, 374 Ark. 437, 288
S.W.3d 591 (2008). This opinion addresses counts I and II.
This court has original jurisdiction of this case pursuant to Ark. Sup. Ct. R. 6-5(a)
(2016); see Richardson v. Martin, 2014 Ark. 429, 444 S.W.3d 855. Rule 6-5(a) provides that
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.” Id., 444 S.W.3d 855.
A total of 84,859 signatures are required to place the amendment on the ballot for the
November 8, 2016 general election. The sponsors of the amendment submitted 131,687
signatures to the secretary of state. The secretary of state determined that there were 93,102
valid signatures. After bifurcation, counts I and II required factual development. We
appointed Judge J.W. Looney as special master to make findings on the issues presented.
After taking testimony and viewing exhibits, the special master submitted a written
report. The report’s summary and conclusion stated as follows:
1. The failure of the Sponsor to certify to Respondent Secretary that criminal
background checks had been completed on each paid canvasser as required by A.C.A.
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§ 7-9-601(b)(3) could be a material defect and disallow the counting of all signatures
under A.C.A. § 7-9-601(b)(5) which is a “do not count” instruction.”
2. Solicitation of signatures by paid canvassers before their names were submitted to
the Respondent Secretary resulted in 1825 signatures that should not be counted under
A.C.A. § 7-9-126(b)(3)(A).
3. The failure of the sponsor to maintain statements of eligibility on 6 canvassers as
required by A.C.A. § 7-9-601(e) would disallow 47 signatures.
4. If the uses of third party criminal background reports by the Sponsor and its agent
are considered a violation of A.C.A. § 7-9-601(b)(1) then 10,764 signatures would be
disallowed.
With regard to the intervenors’ counterclaim, the master found that
1. A review of culled petitions reveals that 667 signatures were improperly declared
invalid by the Respondent Secretary due to “incorrect canvasser addresses.” These
signatures should be counted.
2. Twenty-nine (29) signatures should be counted as shown to have been obtained
by a paid canvasser who was excluded improperly.
3. Eight (8) signatures were added to the duplicate list by mistake and should be
counted.
4. If the Petitioners’ claims mentioned above in this summary are found valid, then
up to 668 signatures could be removed from the duplicate list and counted. A precise
number cannot be determined, in part due to the imprecision of the calculation
submitted by inervenors and, in part, because upon validation review, the Respondent
Secretary might disallow the signatures on some other ground.
Subsequent to our receipt of the master’s findings, but before we took this portion of
the case under submission, this court handed down opinions holding insufficient the ballot
title in Wilson v. Martin, 2016 Ark. 334 and the companion case, Ross v. Martin, 2016 Ark.
339. We opined that the ballot title is deficient because it leaves undefined the critical term
“non-economic damages.” Accordingly, we granted the petition to enjoin the secretary of
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state from counting or certifying votes cast for the amendment. The mandate for both
opinions issued before this case was submitted. However, having already granted the petition
based on the grounds asserted in count III, our consideration of counts I and II is moot, and
any opinion rendered with regard to these counts would be strictly advisory. Generally, this
court does not issue opinions that are moot or advisory. Our Cmty.,Our Dollars v. Bullock,
2014 Ark. 457, 452 S.W.3d 552.
Counts I and II moot.
Mandate to issue immediately.
Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks; James, Carter & Priebe,
LLP, by: Jeff Priebe; and Walas Law Firm, PLLC, by: Breean Walas, for petitioners.
AJ Kelly, Deputy Secretary of State & General Counsel, and Andrés Rhodes, Associate
General Counsel, for respondent.
Kutak Rock LLP, by: Jess Askew III, David L. Williams, Frederick H. Davis, and Dale W.
Brown (Fayetteville); and Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for
intervenors.
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