Mays v. Cole

289 S.W.3d 1, 374 Ark. 532, 2008 Ark. LEXIS 747
CourtSupreme Court of Arkansas
DecidedNovember 3, 2008
Docket08-1231
StatusPublished
Cited by13 cases

This text of 289 S.W.3d 1 (Mays v. Cole) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mays v. Cole, 289 S.W.3d 1, 374 Ark. 532, 2008 Ark. LEXIS 747 (Ark. 2008).

Opinion

Annabelle Clinton Imber, Justice.

Appellants James Richard Mays and William Coke Viser are appealing an order of the Circuit Court of Clark County that upheld the sufficiency of signatures to an initiative petition to be placed on the ballot at the November 4,2008 general election. The initiative would allow the directors of Arkansas Beverage Control to issue permits for the retail sale of vinous, spirituous, or malt liquor in Clark County. Our jurisdiction to determine this matter is pursuant to Arkansas Supreme Court Rule 1-2 (a) (4) (2008). For the reasons stated herein, we reverse the circuit court’s ruling and direct that no votes cast on this initiative be counted.

On September 15, 2008, Appellee, Rhonda Cole, Clark County Clerk, certified the “wet/dry” initiative petition for placement upon the ballot at the November 4, 2008 general election. Of the 6116 signatures submitted by proponents of the initiative, Appellee certified 4168, leaving twenty-eight more than the 4140 signatures required by statute, 1 as determined by Appellee, for this initiative to be placed on the November ballot. Ark. Code Ann. § 3-8-205 (Repl. 2008). Appellee testified that her office reviewed every signature submitted and removed 1948 of them because they were duplicates, signed on the same day that the signers signed their voter registration applications according to the record, or signed by persons who were not residents of Clark County.

Appellants filed a complaint on September 19, 2008, and an amended complaint on September 24, 2008, challenging the validity of the certification. Appellants alleged that many of the signatures counted for the purpose of certification were in fact void because, among other reasons, (1) some signatures were signed by people who registered to vote on the same day they signed the petition and before they became “registered voters,” and (2) two signatures were forged and were not signed by individuals whose names appeared on the petition. On September 30, 2008, the circuit court granted Morgan A. Berry’s motion to intervene and held a hearing on this matter. During the hearing, Appellants submitted evidence through twenty-six witnesses (by actual or stipulated testimony), who verified that they signed the petitions on the same day they signed their voter registration applications. Appellants also presented affidavits by two people, whose names and signatures appear on the petition, stating that they did not sign the petition. Appellee and Intervenor Appellee (together “Appellees”) did not produce any evidence to the contrary, or otherwise dispute the evidence produced by Appellants. The circuit court entered an order on October 17, 2008, dismissing Appellants’ complaint. The circuit court held, among other things, that (1) Appellants failed to produce evidence that any signature, with the exception of two alleged forgeries, certified by Appellee should be invalidated, and (2) signatures of those who registered to vote on the same day as they signed the petition were valid, and any signature deleted from the petition solely because the voter registration application and petition were signed on the same date should be certified as valid signatures.

Appellants filed a timely notice of appeal and a motion to expedite the appeal on October 23, 2008, which we granted on October 24, 2008. On appeal, Appellants argue that (1) a signature is not valid if the signer signed the petition before he or she was registered to vote, and (2) Appellants produced evidence of two forged signatures on a petition that Appellee counted, which shifted the burden of proof to Appellees to prove the genuineness of the signatures on that petition, and Appellees have failed to meet this burden. We begin with Appellants’ first argument.

I. Validity of Signature

The circuit court held that a signature was valid when the signer signed the petition on the same day he or she signed the voter registration application. The court further held that a strict construction of the provisions concerning local referendums would result in an arbitrary denial of an individual’s reasonable expectation that, once the voter registration application was completed as required by law, he or she was a registered voter and entitled to exercise all the rights of a registered voter.

Appellants argue that, according to section 9(c)(1) of Amendment 51 to the Arkansas Constitution, a voter is not qualified to sign a petition before his or her completed voter registration application is received and acknowledged by the permanent registrar, in this case, the Appellee. As a result, those signatures signed by unqualified voters are void and must be removed from the petition. Appellee concedes that counting signatures by voters who signed their voter registration applications on the same day violates Amendment 51. Intervenor Appellee, on the other hand, advocates the standard of reasonable expectation of a voter as articulated by the circuit court and argues that this interpretation adds certainty to the interpretation of section 9(c)(1) of Amendment 51 “if applied for the period between registration and the recording of that registration.”

We review issues of statutory construction de novo. Sturdivant v. Sturdivant, 367 Ark. 514, 517, 241 S.W.3d 740, 743 (2006). The basic rule of statutory construction is to give effect to the intent of the legislature. Rose v. Ark. State Plant Bd., 363 Ark. 281, 289, 213 S.W.3d 607, 614 (2005). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. Id. However, when a statute is ambiguous, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. Id. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. We also look to the legislative history, the language, and the subject matter involved. Id. Additionally, statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Id.

This initiative was placed on the ballot as a local option election under the Arkansas Alcoholic Control Act, as codified in Ark. Code Ann. §§ 3-1-101 to -606 (Repl. 2008). Section 3-8-204 of the Local Option Code establishes rules on petition procedure and section 3-8-204(e) provides:

Any person who is a qualified elector of the State of Arkansas and who is a resident and registered voter of the county, municipality, ward, precinct, or other defined area in which a local option election is being requested by petitions under Initiated Act No. 1 of 1942, §§ 3-8-201 - 3-8-203 and 3-8-205 - 3-8-209, may sign the local option petition in his or her own proper handwriting and not otherwise.

Ark. Code Ann. § 3-8-204(e) (Repl. 2008).

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289 S.W.3d 1, 374 Ark. 532, 2008 Ark. LEXIS 747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mays-v-cole-ark-2008.