Walmsley v. Martin

2012 Ark. 370, 423 S.W.3d 587, 2012 WL 4712210, 2012 Ark. LEXIS 399
CourtSupreme Court of Arkansas
DecidedOctober 4, 2012
DocketNo. 12-798
StatusPublished

This text of 2012 Ark. 370 (Walmsley v. Martin) 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
Walmsley v. Martin, 2012 Ark. 370, 423 S.W.3d 587, 2012 WL 4712210, 2012 Ark. LEXIS 399 (Ark. 2012).

Opinion

JIM GUNTER, Justice.

| ] Intervenors Nancy Todd and Nancy Todd’s Poker Palace and Entertainment Venues, LLC (NTPPEV), are sponsors of a proposed constitutional amendment that would authorize them to own and operate casinos in four specified counties within the state.1 Respondent Mark Martin is the Arkansas Secretary of State and certified intervenors’ proposed amendment as Issue No. 3 for the November 6, 2012 general election. Petitioners Bill Walms-ley, Darrell Meyer, and Bill McDowell are taxpayers, voters, and members of the | ¡Arkansas Racing Alliance, a ballot-question committee expressly organized to advocate for the defeat of two proposed constitutional amendments, one of which is intervenors’.

In this amendment 7 original action, petitioners complain that (1) the initiative petition submitted by intervenors on July 6, 2012, was facially insufficient and that respondent improperly gave intervenors an additional thirty days in which to file additional signatures; (2) respondent incorrectly certified that the petition contained 95,687 valid signatures on September 14, 2012; (3) respondent’s August 23, 2012 certification of intervenors’ revised ballot title to the county election commissioners was an ultra vires act; and (4) the revised ballot title is not fair and complete. Petitioners request that we appoint a special master, declare the initiative petition insufficient and the revised ballot title invalid, enjoin respondent from placing the proposed constitutional amendment on the November 6, 2012 general-election ballot, and order that any votes cast for or against the measure not be counted.

This court has jurisdiction to hear appeals pertaining to elections and election procedures and to hear suits attacking the validity of statewide petitions filed under amendment 7 to the Arkansas Constitution. Ark. Sup.Ct. R. 1 — 2(a)(4), 6-5(a). We hold that the certification of interve-nors’ revised ballot title was improper because that title was not attached to the petition circulated to, and signed by, the voters. Accordingly, we vacate respondent’s certification of Issue No. 3 and order that any votes cast on such proposal not be counted or certified. We decline to issue advisory opinions as to whether the revised ballot title is legally sufficient or whether intervenors’ petition contained the requisite number of valid signatures.

| ¡¡On March 7, 2012, NTPPEV submitted its proposed amendment to the attorney general for his approval and certification. On April 25, 2012, the attorney general certified the popular name and ballot title, and on April 27, 2012, at NTPPEV’s request, the attorney general recertified them after a provision regarding the distribution of tax proceeds was added to the ballot title. Thereafter, intervenors began canvassing the state for signatures to their initiative petition.

On July 16, 2012, a voter and taxpayer, Chuck Lange,2 challenged the legal sufficiency of the measure’s ballot title by filing an administrative petition with respondent pursuant to Arkansas Code Annotated section 7-9-503 (Repl.2011).3 In support of his administrative petition, Lange asserted that the proposed amendment violated section 2 of the Sherman Act and that its popular name and ballot title were misleading. On July 27, 2012, NTPPEV responded to Lange’s administrative petition maintaining that the Sherman Act claim was hypothetical and premature and that the measure’s popular name and ballot title were fair and complete.

On August 14, 2012, the attorney general issued a letter response to respondent’s request for consultation in which he opined that the state’s adoption of the proposed | ^amendment would not be preempted by the Sherman Act but that the proposed amendment’s implied repeal of the Electronic Games of Skill Act (EGSA)4 should have been expressly stated in the ballot title. Therefore, the attorney general concluded that NTPPEV’s ballot title was not fair and complete. Accordingly, on August 15, 2012, respondent issued an amended administrative declaration finding the measure legally insufficient for inclusion on the November 6, 2012 ballot.

In response to respondent’s administrative declaration, NTPPEV submitted a revised ballot title which added a parenthetical provision stating that the measure “may repeal the Electronic Games of Skill Act, and thereby prohibit Oaklawn Racing and Southland Racing from continuing to operate electronic games of skill at their respective race tracks in Hot Springs and West Memphis.” Respondent again consulted with the attorney general asking if the revised ballot title was sufficient, and if so, was NTPPEV required to obtain new signatures because the new ballot title was not circulated with the petition.

On August 21, 2012, the attorney general responded by letter and advised respondent that NTPPEV’s revision did not fix the problem. The attorney general explained that the revision’s use of the word “may” would “leave the voter wondering how the amendment affects” the EGSA. The attorney general did not address respondent’s second question, finding it unnecessary in light of his answer to the first question. On August 22, 2012, respondent issued another administrative declaration finding that NTPPEVs proposed revision to the |,.¡ballot title continued to be legally insufficient.

When respondent indicated that he would not certify the measure to the county election commissioners, intervenors brought, in this court, an original action against him seeking a writ of mandamus or an order of review.5 In light of that filing, at 5:00 p.m. on August 23, 2012, respondent certified intervenors’ proposed amendment to the county election commissioners as Issue No. 3.

Meanwhile, on July 6, 2012, inter-venors filed their petition to initiate their proposed amendment with respondent. After his initial review, respondent determined that intervenors submitted 79,626 total signatures but that a number of those signatures were not valid. Accordingly, on July 23, 2012, respondent provided interve-nors thirty additional days in which to solicit and obtain additional signatures. On August 22, 2012, intervenors submitted an additional 22,051 pages purportedly containing an additional 121,502 signatures. On September 14, 2012, respondent certified that intervenors’ petition met the signature requirements of amendment 7.6 This original action was filed on September 18, 2012, and we | ^granted intervenors’ motion to intervene on September 20, 2012. The case was simultaneously briefed on September 24, 2012.

Amendment 7 to the Arkansas Constitution, now codified at article 5, section 1, provides 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.” Although this case raises at least four separate issues, the primary question presented is whether a sponsor of an initiated amendment may attach one ballot title to her petition and then ask respondent to certify another. We hold that she may not.

Petitioners assert that the ballot title that intervenors circulated on their petition is not the same as the ballot title respondent certified to the county election commissioners as Issue No. 3.

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Bluebook (online)
2012 Ark. 370, 423 S.W.3d 587, 2012 WL 4712210, 2012 Ark. LEXIS 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walmsley-v-martin-ark-2012.