Stephens v. Martin

Cite as 2014 Ark. 442
SUPREME COURT OF ARKANSAS
No. CV-14-806
JACKSON THOMAS STEPHENS, JR. Opinion Delivered October 27, 2014
PETITIONER
AN ORIGINAL ACTION
V.
MARK MARTIN, SECRETARY OF
STATE
RESPONDENT
STEPHEN COPLEY, INDIVIDUALLY
AND ON BEHALF OF GIVE
ARKANSAS A RAISE NOW
INTERVENOR PETITION DENIED.
PAUL E. DANIELSON, Associate Justice
Petitioner Jackson Thomas Stephens Jr. brings this original action pursuant to Arkansas
Constitution article 5, section 1, and amendment 80, section 2(D)(4), challenging the
sufficiency of a statewide initiative petition. He asks this court to enjoin respondent Mark
Martin, Secretary of State (“Secretary of State”), from placing the initiated act known as “An
Act to Increase the Arkansas Minimum Wage,” or Issue No. 5, on the November 4, 2014
general-election ballot or, alternatively, from certifying any ballots cast for it. The proposed
act is sponsored by intervenor Stephen Copley, individually and on behalf of Give Arkansas
A Raise Now (“GARN”). On September 25, we ordered expedited proceedings and
appointed the Honorable John B. Robbins as master. See Stephens v. Martin, 2014 Ark. 402
 Cite as 2014 Ark. 442
(per curiam). The “Master’s Report and Findings of Fact” has now been filed with this court,
and the parties have filed their briefs in the matter. We deny the petition.
On January 3, 2014, the Arkansas Attorney General “certified as submitted” the
popular name of the proposed initiated measure, which is set forth above, and the following
ballot title that were submitted by Copley, as chairman of GARN:
AN ACT TO AMEND THE ARKANSAS CODE CONCERNING THE STATE
MINIMUM WAGE; THE ACT WOULD RAISE THE CURRENT STATE
MINIMUM WAGE FROM SIX DOLLARS AND TWENTY-FIVE CENTS
($6.25) PER HOUR TO SEVEN DOLLARS AND FIFTY CENTS ($7.50) PER
HOUR ON JANUARY 1, 2015, TO EIGHT DOLLARS ($8.00) PER HOUR ON
JANUARY 1, 2016, AND TO EIGHT DOLLARS AND FIFTY CENTS ($8.50)
PER HOUR ON JANUARY 1, 2017.1
Op. Ark. Att’y Gen. No. 156 (2013). A petition part was filed on February 20, 2014, with
the Secretary of State’s office in accord with Arkansas Code Annotated § 7-9-104(d)(2) (Supp.
2013),2 and on Monday, July 7, 2014, GARN submitted its initiative petition with signatures
to the Secretary of State. After numbering the petition parts, the Secretary of State “initially
reviewed each petition part to determine three things: if each was an original, not a
photocopy; if there was a legible copy of the entire text of the measure attached; and if the
popular name and ballot title were attached.” As a result of this review, the Secretary of State
culled, or set aside, 1,243 petition parts containing 7,983 signatures, because those parts did
1
The facts are taken in significant part from the master’s report and findings of fact,
which included findings based on the “parties’ Stipulated Exhibit #1 [that] set forth a
summary of the history of the case and procedures that were followed by the [Secretary of
State]’s staff in processing the petitions.”
2
That section provides: “Before the circulation of a statewide petition for signatures,
the sponsor shall file a printed petition part with the Secretary of State in the exact form that
will be used for obtaining signatures.” Ark. Code Ann. § 7-9-104(d)(2).
2
Cite as 2014 Ark. 442
not have a legible copy of the entire text of the measure; those 7,983 signatures were not
included in the Secretary of State’s initial count of the signatures that were submitted July 7
by GARN.
The Secretary of State then reviewed the petition parts for other items, including the
following: “Canvasser signature; Canvasser signature matches printed canvasser name;
Canvasser verification date is on the day of or after the date(s) petitioners signed; Canvasser
and notary are not the same person; Single notary, with notary signature and notary seal;
Notary is currently registered in Arkansas; [and] Potentially fictitious or forged signatures.”3
A total of 754 petition parts were culled for not meeting these criteria; nonetheless, the 5,580
signatures on those parts were included in the initial count of the July 7 signatures.
Ultimately, the initial count conducted by the Secretary of State of the July 7 signatures
resulted in a total of 64,133 signatures, with at least a total of 62,507 signatures, along with
article 5, section 1’s fifteen-county signature requirement, needed to place an initiated act on
the 2014 general-election ballot. GARN was then notified by the Secretary of State on July
16, 2014, that the initial-count requirement had been met, and the petition parts were
3
Although the Arkansas Code contains a statute outlining which petition parts and
signatures should be counted for purposes of the Secretary of State’s initial count, the
Secretary of State, in a separate case, was enjoined by judgment of the Pulaski County Circuit
Court from applying its provisions. See Spencer v. Martin, No. 60CV-13-4020 (Apr. 2, 2014)
(judgment declaring certain provisions of Act 1413 of 2013 unconstitutional and permanently
enjoining the Secretary of State from enforcing those provisions, including Ark. Code Ann.
§ 7-9-126 (Supp. 2013)). At the time of the initial count in this case, the Secretary of State
was operating under this injunction and was precluded from applying the provisions of section
7-9-126. We therefore offer no opinion on that statute’s viability under the constitution or
this court’s case law.
3
Cite as 2014 Ark. 442
submitted for signature review and verification. During that review, more than 3,000
signatures were disqualified, and the Secretary of State notified GARN on July 18 that the
petition did not meet the signature requirements established in article 5, section 1. He then
gave GARN an additional thirty days to “solicit and obtain additional signatures; submit proof
to show that the rejected signatures or some of them are good and should be counted; or
make the petition more definite and certain.” In addition, GARN was advised that it had
thirty days to meet the burden set forth in Ark. Code Ann. § 7-9-111(b) (Supp. 2013) for
signatures rejected due to concerns that the signatures were fictitious or forged.4
GARN subsequently submitted additional petition parts to the Secretary of State on
August 18, and that office conducted the same reviews as on the July 7 petition parts.
Ninety-seven parts containing 635 signatures were culled for failing to have a legible copy of
the text of the measure, and those 635 signatures were not included in the count of the
signatures submitted on August 18. An additional 712 petition parts containing 5,049
signatures were culled after examination of the following: canvasser’s signature; the matching
4
Section 7-9-111(b) provides:
In considering the sufficiency of initiative and referendum petitions, if it is made
to appear beyond a reasonable doubt that twenty percent (20%) or more of the
signatures on any one (1) part thereof are fictitious, forged, or otherwise clouded or
that the challenged petitioners were ineligible to sign the petition, which fact was
known or could have been ascertained by the exercise of reasonable diligence on the
part of the canvasser, then the Secretary of State shall require the sponsors to assume
the burden of proving that all other signatures appearing on the part are genuine and
that the signers are qualified electors and are in all other respects entitled to sign the
petition. If the sponsors refuse or fail to assume and meet the burden, then the
Secretary of State shall reject the part and shall not count as petitioners any of the
names appearing thereon.
Ark. Code Ann. § 7-9-111(b).
4
Cite as 2014 Ark. 442
of the canvasser’s signature to the canvasser name printed; the canvasser verification date being
that on the day of or after the date a petitioner signed; the canvasser and notary not being the
same person; a single notary, with notary signature and notary seal; the notary being currently
registered in Arkansas; and potentially fictitious or forged signatures.
On August 21, 2014, the Secretary of State certified GARN’s proposed initiated act
to the county boards of election commissioners and advised the county boards that the
proposed initiated act would be Issue No. 5 on the November 4 general-election ballot. The
Secretary of State subsequently notified GARN on September 3 that its petition met the
signature requirements of article 5, section 1. At that time, the Secretary of State had
determined that the petition contained “no fewer than 70,074 valid signatures,” which was
in excess of the required 62,507. GARN was also advised that the total number of valid
signatures may increase because additional petition parts had not yet been reviewed for the
sufficiency of signatures and that the verification process would continue. After the Secretary
of State completed its review, GARN was notified on September 9 that of the 130,016
signatures submitted, a total of 89,790 had been validated.
On September 22, 2014, Stephens filed the instant original action with this court and
amended his complaint on September 23. In it, Stephens contended that GARN’s petition
had not been timely filed with the Secretary of State and that the Secretary of State had
counted signatures that were defective. He requested expedited consideration and the
appointment of a master, which we granted in our per curiam order of September 25. See
Stephens, 2014 Ark. 402. We further granted GARN’s motion to intervene. See id. A
5
 Cite as 2014 Ark. 442
hearing was held on October 2–3, 2014, at which the master heard testimony, received
evidence, and heard the arguments of counsel, and on October 10, the master filed his report
and findings of fact with this court’s clerk. We will accept the 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. See id.
Article 5, section 1 of the Arkansas Constitution, incorporating Amendment 7, governs
both statewide and local initiatives and referendums. See Ark. Const. art. 5, § 1, amended by
Ark. Const. amend. 7; Mays v. Cole, 374 Ark. 532, 289 S.W.3d 1 (2008). 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.
We turn then to the two challenges to the sufficiency of the petition made by Stephens
in his brief, that (1) the proposed initiated act was not facially valid because it relied on forged
6
Cite as 2014 Ark. 442
notaries to reach the signature threshold and therefore GARN was not entitled to a thirty-day
cure period; and (2) the petition was not timely filed.
I. Thirty-Day Cure Period
Stephens initially argues that the petition was not prima facie valid when it was
submitted on July 7 because it relied on petition parts with forged notary signatures to meet
the initial-count signature threshold.5 For this reason, he claims, GARN was not entitled to
a thirty-day cure period. With respect to this claim, the master found, in relevant part:
The second issue is Petitioner’s contention that several signatures should not
have been included in the Respondent’s initial count because the notary’s signature on
many of the petition parts had been forged.
(e) Petitioner presented evidence through the testimony of handwriting
analysis expert Joe Lucas that the signature on 1666 petition parts were not that
of Alex Rancifer who purportedly signed as a notary. There are 8611 signatures
on these 1666 petition parts. This total must be reduced by 110 signatures on
19 of the petition parts that I found should have been culled for failure to have
a complete legible text of the entire measure as discussed above in paragraph (c)
dealing with the first issue. These 8501 signatures are found to be invalid.
(f) Although the 8501 signatures are invalid they were not facially
invalid for purposes of the initial count, i.e., their invalidity did not appear on
the face of the petition parts. Facially, these petitions and notary’s
acknowledgments appeared to be compliant, having the purported signature of
notary “Alex Rancifer,” which matched the name in the notary’s seal. In
arriving at this finding, I found it necessary and helpful to review the caselaw
5
We note that Stephens’s challenge appears to be, and the master found it was, limited
to the initial submission of signatures on July 7. As the master noted in his report:
Petitioner does not question the sufficiency of the signatures that were filed
with the Respondent if those filed during the 30-day cure period must be counted.
The thrust of Petitioner’s challenge is that the Respondent erred in allowing
Intervenor a 30-day cure period to obtain and file additional petition parts.
Indeed, Stephens states that his challenge “goes to the authority of the Secretary of State to
grant the additional thirty-day cure period.”
7
Cite as 2014 Ark. 442
on the issue of facial validity and what is curable. I concluded that the
signatures should be counted by Respondent because the signatures themselves
have not been called into question by the evidence and problems with the
notarization have been subject to cure.
(Footnote omitted.)
Stephens maintains that GARN’s petition was not facially valid for purposes of
obtaining a thirty-day cure period since it did not contain the requisite number of signatures.
He contends that because the notary signatures on certain petition parts had been forged, the
petition was not facially valid, which he claims was required in order to obtain a thirty-day
cure period. Stephens avers that if the signatures on the forged petition parts had been
properly excluded from the July 7 count, GARN would have lacked the requisite number of
signatures to entitle it to a thirty-day cure period, and GARN’s proposed initiated act fails for
want of initiation.
This court has previously considered the propriety of the Secretary of State’s
determination relating to the thirty-day cure period under Amendment 7. See, e.g., Arkansas
Hotels & Entm’t, Inc. v. Martin, 2012 Ark. 335, 423 S.W.3d 49 (original action seeking a writ
of mandamus to the Secretary of State to accept the petition); Ellis v. Hall, 219 Ark. 869, 245
S.W.2d 223 (1952) (per curiam) (interim opinion in an original action); Dixon v. Hall, 210
Ark. 891, 198 S.W.2d 1002 (1946) (original action seeking to enjoin the Secretary of State
from accepting additional signatures). In Dixon, this court held that it was intended that a
petition be filed within the time fixed by Amendment 7. Further, “[t]o be a petition, it must
prima facie, contain at the time of filing, the required number of signatures.” 210 Ark. at 893,
198 S.W.2d at 1003. The inverse of this is that the complete failure to obtain the requisite
8
Cite as 2014 Ark. 442
number of signatures results in the proposed measure failing for want of initiation. See id.
The subject of the instant challenge is Amendment 7’s provision of a thirty-day cure
period “[i]f the Secretary of State . . . shall decide any petition to be insufficient.” Ark. Const.
art. 5, § 1, amended by Ark. Const. amend. 7. The Amendment states that “if the petition is
found to be insufficient, time must be allowed for correction or amendment.” Ellis, 219 Ark.
at 871, 245 S.W.2d at 224 (emphasis in original) (quoting Ark. Const. art. 5, §1, amended by
Ark. Const. amend. 7). To qualify for this additional time, we have held that “the petition
must first, on its face, contain a sufficient number of signatures pursuant to both the state-wide
and fifteen-county requirement, before the thirty-day provision to correct deficiencies
applies.” Arkansas Hotels, 2012 Ark. 335, at 10, 423 S.W.3d at 55. To that end, our inquiry
is this: Did GARN’s petition, at the time of filing, contain on its face a sufficient number of
signatures pursuant to the statewide and fifteen-county requirement, such that the Secretary
of State’s grant of the thirty-day cure period was proper? We hold that it did and therefore
that the grant of the cure period was proper.
Particularly instructive for purposes of our inquiry is this court’s decision in Ellis,
despite its subject being a referendum petition rather than an initiated act. In Ellis, the
Secretary of State found the petition when originally filed to have 19,269 signatures, which
was more than the required 19,025 signatures. 219 Ark. 869, 245 S.W.2d 223. It was
declared sufficient; however, a few weeks later, the sponsors were notified that 268 signatures
had been disqualified and a thirty-day period was allowed for the filing of additional
signatures. See id. Within that period, the sponsors filed “petitions bearing enough names to
9
Cite as 2014 Ark. 442
make the total again prima facie in excess of the required number of signatures.” Id. at 870,
245 S.W.2d at 224.
In an original action to this court, the petitioners first challenged the authority of the
Secretary of State to grant a thirty-day extension, asserting that the extension was intended
for only the correction of typographical errors and such and did not permit the filing of new
signatures. See id. We disagreed and held that the grant of an extension was proper. See id.
We further observed that Amendment 7 permitted time for correction or amendment, such
as an addition, if a petition was found to be insufficient following the initial submission of a
sufficient number of signatures. See id. We concluded that the Secretary of State had found
what was initially “a prima facie valid petition to be insufficient for want of qualified signers and
allowed further time for amendment,” a procedure “well within the intention of the
constitution.” Id. at 871, 245 S.W.2d at 224.
The same holds true in the instant case. The record reflects that, at the time GARN
filed its petition, the required number of signatures to place an initiated act on the 2014
general-election ballot, pursuant to the statewide and fifteen-county requirement, was 62,507.
Here, it was determined by the Secretary of State that the initial count of signatures submitted
by GARN on July 7 was 64,133, which met the statewide and fifteen-county requirement.6
The master likewise found that the initial count of signatures met the fifteen-county
requirement and was in excess of the 62,507 signatures needed. While a number of signatures
6
In its July 18 letter to GARN, the Secretary of State stated that the “total number of
submitted signatures submitted and included in the initial count” of GARN’s petition was
64,135.
10
Cite as 2014 Ark. 442
were later disqualified by the Secretary of State after the initial count, GARN’s petition
contained more than the sufficient number of signatures at the time of filing and was
“therefore prima facie sufficient.” Ellis, 219 Ark. at 870, 245 S.W.2d at 224. Because it was
prima facie sufficient, correction or amendment was permitted under Amendment 7 if the
petition became insufficient after the disqualification of signatures, which it did. In accord
with Ellis and Arkansas Hotels, we therefore hold that the thirty-day cure period granted to
GARN was authorized.
Stephens cites this court to numerous cases in which challenges were made to the
validity of a petition’s signatures and affidavits; however, there is an important distinction to
be made. In those cases, the challenges were made with respect to the Secretary of State’s
final determination certifying the measure for placement on the ballot. The sole challenge
being made in this case is not whether Issue No. 5 was appropriately certified for placement
on the ballot, but whether the thirty-day cure period was appropriately granted based on the
Secretary of State’s initial-count determination. Those are two distinct inquiries.
As already noted, we have held that to qualify for a thirty-day cure period, a petition
must contain, on its face, signatures of a sufficient number to meet “the state-wide and fifteen-
county requirement,” and the initial count of GARN’s signatures met that requirement.
Arkansas Hotels, 2012 Ark. 335, at 10, 423 S.W.3d at 55. While Stephens would have this
court hold that fraud is an appropriate consideration for purposes of the initial-count
11
Cite as 2014 Ark. 442
determination, it simply is not.7
The initial count is just that—an initial count of the signatures submitted at the time
of filing and prior to any signature verification. As Ellis, Dixon, and Arkansas Hotels make
clear, our only concern when examining the propriety of the Secretary of State’s decision to
grant or not grant the cure period is whether, on the face of the petition, the signatures were
of a sufficient number. That inquiry is a simple one, and it is in keeping with the object and
purpose of article 5, section 1, as amended by Amendment 7, which was to “increase the
sense of responsibility that the lawmaking power should feel to the people by establishing a
power to initiate proper, and to reject improper, legislation.” Leigh v. Hall, 232 Ark. 558,
566, 339 S.W.2d 104, 109 (1960) (quoting Ferrell v. Keel, 105 Ark. 380, 385, 151 S.W. 269,
272 (1912)). Here, GARN’s petition, on its face, contained the requisite signatures of a
sufficient number, and GARN therefore was entitled to the thirty-day cure period.
II. Timeliness of the Petition’s Filing
Stephens’s second claim for relief is based on his contention that because GARN’s
petition was filed on July 7, 2014, it was not timely filed, because Amendment 7 requires that
petitions for statewide initiated acts “shall be filed with the Secretary of State not less than four
7
Indeed, the very fact that testimony and evidence were required to determine
Stephens’s claims of fraud and forgery belies any notion that such a consideration is relevant
at the initial-count stage. Such an inquiry would far exceed the level of scrutiny appropriate
for a determination of whether the petition on its face contained the sufficient number of
signatures at the time of filing. That is not to say that such claims cannot be made to challenge
the final determination by the Secretary of State of the petition’s sufficiency for placement on
the ballot, as we have certainly entertained such challenges in the past. Be that as it may, they
cannot be raised to challenge the Secretary of State’s initial-count determination.
12
Cite as 2014 Ark. 442
months before the election at which they are to be voted upon.” Ark. Const. art. 5, § 1,
amended by Ark. Const. amend. 7. Stephens avers that Amendment 7’s deadline counts
backward, rather than forward, and that petitions such as GARN’s should have been filed by
July 3 to be considered for placement on the November 2014 general-election ballot. We
recently held, however, in our decision of Richardson v. Martin, 2014 Ark. 429, ___ S.W.3d
___, that the deadline for petitions, such as the one at issue here, was July 7, 2014.
Accordingly, Stephens’s timeliness claim fails too.
Because we conclude that neither of Stephens’s claims is meritorious, we deny his
original-action complaint seeking to remove Issue No. 5 from the ballot. The mandate shall
issue immediately.
Petition denied.
Cox, Sterling & McClure, PLLC, by: David W. Sterling;
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson; and
Gober Hilgers, PLLC, by: Michael Hilgers, for petitioner.
AJ Kelly, Deputy Secretary of State, Arkansas Secretary of State, Martha Adcock, General
Counsel, and L. Justin Tate, Associate General Counsel, for respondent.
David A. Couch, PLLC, by: David A. Couch;
McMath Woods P.A., by: Will Bond;
Alexandra Rouse; and
Justin Craig, for intervenor Stephen Copley, Individually, and on Behalf of Give
Arkansas A Raise Now.
Dustin McDaniel, Attorney General, amicus curiae in support of respondent.
13