Arkansans for Healthy Eyes v. Thurston

2020 Ark. 270

606 S.W.3d 582

ARKANSANS FOR HEALTHY EYES, a Ballot Question Committee; Vicki Farmer, Individually and on Behalf of Arkansans for Healthy Eyes, Petitioners

v.John THURSTON, in his Official Capacity as Secretary of State of the State of Arkansas, Respondent

Safe Surgery Arkansas, a Ballot Question Committee; and Laurie Barber, M.D., Individually and on Behalf of Safe Surgery Arkansas, Intervenors

No. CV-20-136

Supreme Court of Arkansas.

Opinion Delivered: September 17, 2020

Kutak Rock LLP, by: Jess Askew III, Frederick H. Davis, and McKenzie L. Raub (Little Rock); and Dale W. Brown (Fayetteville), for petitioners Arkansans for Healthy Eyes and Vicki Farmer.

Gary L. Sullivan, Managing Attorney, Arkansas Secretary of State's Office, for respondent.

Steel, Wright, Gray, PLLC, by: Ryan Owsley, Nate Steel, Little Rock, and Alex T. Gray, for intervenors.

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, amici curiae for League of Women Voters of Arkansas and Arkansas Voters First.

JOHN DAN KEMP, Chief Justice

Petitioners Arkansans for Healthy Eyes ("AHE"), a ballot-question committee, and Vicki Farmer, individually and on behalf of AHE, have filed an original action pursuant to Article 5, section 1 of the Arkansas Constitution, Amendment 7 of the Arkansas Constitution, and Rule 6-5 of the Arkansas Supreme Court Rules against Respondent John Thurston ("the Secretary"), in his official capacity as Secretary of State of the State of Arkansas. Petitioners challenge the sufficiency of a statewide-initiative petition ("the petition") filed by Intervenor Safe Surgery Arkansas ("SSA"), a ballot-question committee, to refer Act 579 of 2019 ("Act 579") to the people of Arkansas on the November 3, 2020 general-election ballot. Our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1-2(a)(3). We grant the petition in part and dismiss the remainder of the petition as moot.

I. Facts

In March 2019, the Arkansas General Assembly passed Act 579, and the Governor signed it into law. Act 579 expanded the scope of the practice of optometry in Arkansas to permit licensed optometrists to perform the following procedures: (1) "[i]njections, excluding intravenous or intraocular injections"; (2) "[i]ncision and curettage of a chalazion"; (3) "[r]emoval and biopsy of skin lesions with low risk of malignancy, excluding lesions involving the lid margin or nasal to the puncta"; (4) "[l]aser capsulotomy"; and (5) "[l]aser trabeculoplasty." See Ark. Code Ann. § 17-90-101(a)(3)(D)(i)–(v) (Supp. 2019).

On July 23, 2019, SSA timely filed with the Secretary its petition containing more than 84,000 signatures with the popular name, "An Act to Amend the Definition of ‘Practice of Optometry.’ " SSA had paid National Ballot Access ("NBA"), a canvasser firm, to solicit signatures for its petition. On June 12, 2019, NBA had submitted a list of paid canvassers with the following language: "I certify that the canvassers listed below have each passed a criminal background check from the Arkansas State Police within 30 days of canvassing." Those canvassers had collected 12,116 signatures that the Secretary counted as valid. Then, on June 13, a list of paid canvassers was submitted with the following certification language:

In compliance with Ark. Code Ann. § 7-9-601, please find the list of paid canvassers that will be gathering signatures on the Safe Surgery Referendum. On behalf of the sponsor, this statement and submission of names serves as certification that the statewide Arkansas State Police background check, as well as a 50-state criminal background check, have been timely acquired in the 30 days before the first day the paid canvasser begins to collect signatures as required by Act 1104 of 2017.

The canvassers certified under this language had collected 51,911 signatures that the Secretary counted as valid. The Secretary later declared the petition insufficient because it contained less than half the required number of signatures and failed to comply with the requirements set forth in Act 376 of 2019 ("Act 376").

In August 2019, SSA filed an original action in this court and sought mandamus to require the Secretary to count additional signatures on the grounds that Act 376 was not in effect on July 23, 2019, or that Act 376 was unconstitutional. We granted SSA's petition in part and held that Act 376 was not in effect on July 23, 2019, because it had a defective emergency clause. See Safe Surgery Ark. v. Thurston , 2019 Ark. 403, at 6–7, 591 S.W.3d 293, 297–98. We directed the Secretary to review the sufficiency of the petition, pursuant to the law as it existed before Act 376 took effect, and to proceed with reviewing the signatures. Id. at 7–8, 591 S.W.3d at 297–98. Afterward, the Secretary certified that the petition met the signature requirements as required by Article 5, section 1 of the Arkansas Constitution.

On February 28, 2020, petitioners filed the instant original action in this court. Specifically, they averred that the ballot title and popular name are invalid (Count I); SSA's alleged fraud invalidates the petition (Count II); SSA failed to comply with mandatory paid-canvasser and petition requirements (Count III); and SSA failed to submit the requisite number of valid signatures (Count IV). In their prayer for relief, petitioners requested that we grant their petition in full, declare the petition on Act 579 as insufficient, order respondent not to include the referendum on the general-election ballot in November 2020, and award costs and other just and proper relief. We granted an unopposed motion to intervene filed on behalf of SSA and Laurie Barber, M.D., individually and on behalf of SSA; bifurcated the issues; and set a briefing schedule.

On April 2, 2020, we appointed the Honorable Mark Hewett as special master to conduct a hearing on petitioners' allegations contained in Counts II through IV and to report his findings to this court. Based on the testimony presented and the evidence admitted at the hearing, the special master found, inter alia , that SSA lacked sufficient valid signatures to qualify the petition for the ballot under Amendment 7. On the issue of certification, the special master found,

32. The change in the language of the certification to the Secretary after June 12, 2019 to eliminate the statement that the paid canvassers had "passed" a criminal background check was reviewed and approved by attorney Alex Gray, Exhibit 40, acting on behalf of SSA.

33. A total of 8 paid canvassers were certified to the Secretary as having passed a criminal-record check before beginning to collect signatures. Those seven [sic] paid canvassers are: Jay Taylor, Lee Evans, Nicholas Kowalski, Debra McLain, Richard Riscol, Charmaine Vossberg, Jerime Willour, and Daryl Oberg.

34. These 8 paid canvassers collected a total of 12,116 signatures that the Secretary counted as valid.

35. After subtracting the valid signatures obtained by those 8 paid canvassers, the remaining total number of signatures the Secretary counted as valid, 51,911, were procured by paid canvassers not certified as having passed a criminal record search upon submission of the paid canvasser list from June 13, 2019 and afterward. This violation triggers the "do not count" requirement of Ark. Code Ann. § 7-601(b)(5) [sic], which provides that "signatures incorrectly obtained under this section shall not be counted by the secretary of State" and therefore requires disqualification of 51,911 signatures from the 64,027 that the Secretary counted as valid. The term "shall" has been determined to be mandatory and that substantial compliance cannot be used as a substitute for fulfillment with the statute. Benca v. Martin , 2016 Ark. 359, at 12–13, 500 S.W.3d at 750 ; Zook v. Martin , 2018 Ark. 306 [558 S.W.3d 385].

(Transcript references omitted.)

The special master concluded,

132. Based on the foregoing findings, I find that the Respondent, Secretary of State[,] erroneously included 51,911 total signatures in its verified and final count. Therefore, after deducting the 51,911 invalid signatures from the Secretary of State report of 64,027 valid signatures, the remaining 12,116 valid signatures does not satisfy the 54,391 valid signature requirement. Accordingly, I find that the Sponsor, Safe Surgery Arkansas, submitted insufficient signatures to qualify for the November 3, 2020 General Election Ballot. I also find that all other claims made by the Petitioner, Arkansas for Healthy Eyes, should be denied for lack of proof.

The special master also denied petitioners' allegations of fraud.

II. Analysis

A. Paid-Canvasser Registration

Petitioners first contend that the special master correctly found that SSA did not register its paid canvassers as required by law. Specifically, they assert that the Secretary erroneously included 51,911 signatures as valid because "[f]rom June 13 forward, every time [SSA] registered paid canvassers with the Secretary, SSA made no certification that any paid canvasser had passed any criminal background check."

Under our well-established 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. See id. , 975 S.W.2d 850.

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...