*1 WITTY, Boone v. David Lillian YARBROUGH Kolb, Hankins, Clerk, Herbert and Don and Bob Bishop, Election Commissioners Boone County 98-552 Court of Arkansas
Supreme March delivered Opinion denied rehearing April 1999.] [Petition *2 for Oscar Stilley, appellant. Rainwater, P.A., for R. Rainwater, Michael
Duncan & by: David Witty. appellee Webb, Election Com- Boone County
Gordon appellee mission. was filed after This litigation Tom Glaze, Justiсe. 97- Court Ordinance Quorum
Boone County passed construc- authorized the issuance of revenue which hospital Medical Center tion bonds for the North Arkansas pro- Regional circulated a Lillian and other electors ject. Appellant *3 referendum to the bond issue on place special-election petition 12, 1997, filed a con- ballot. On November they timely petition David the Boone 433 names with County taining appellee Witty, 20, 1997, letter dated November to Clerk. Yarbrough, Witty By found that 410 of the names submitted were vot- only registered ers; concluded, he without that the electors’ explanation, petition call an was insufficient to election. 3, 1997, December filed this in chan-
On lawsuit Yarbrough relief, court for and injunctive Witty cery declaratory requesting and the Boone Board of to call Election Commissioners County an that the Boone on the election so voters could vote bond ordinance. answered Witty Yarbrough’s allegations, so, letter, 16, 1997, he attached a second dated December doing wherein that he had asked the Yarbrough, Witty explained General for how Attorney opinion concerning many signatures and her needed in their refer- order to make Yarbrough supporters endum sufficient. The General’s Attorney opinion out that Amendment 7 to the Arkansas Constitution pointed Ark. Code Ann. 14-14-914 the calcula- 1998) (Repl. required tion of the number of to be based on the total votes cast signatures in the last election for circuit but because no votes Election, had been tabulated for that office at the 1996 General could not with that petitioners strictly comply requirement. Munson, on the case of Czech Relying part since it S.W.2d 696 General concluded Attorney was to use the 1996 General Election vote count for impossible circuit clerk to determine the number of needed for signatures referendum, the last Governor’s race would be reasonable tо use in the referendum count. The last vote count in calculating 10,341, the Governor’s race was in 1994 which totaled making 1,551. number of to be Based on the signatures General’s offered an addi- Attorney opinion, Witty Yarbrough tional the number obtain ten-day period signatures utilizing the Governor’s vote count as the race. measuring Yarbrough declined offer. Witty’s matter,
At the court’s on this chancery hеaring that the 410 she and her had obtained argued signatures group sufficient, more than because under the of Amend- language plain ment should be computed the total votes cast at the last election for upon preceding general words, the office of circuit clerk. In other because no votes were race, tabulated in the 1996 General Election cirсuit clerk actually asserted that did not have to collect petitioners they any signatures election; thus, a referendum the 410 were compel more than sufficient for such she submit- purpose. Alternatively, ted if election other than the 1996 General Election was to be used to determine the number of then votes cast signatures, in the 1996 Election for circuit clerk should be used. If Primаry used, the votes in that race had been primary Yarbrough’s group would have needed signatures.
The chancellor all of the essentially rejected parties’ argu- ments and refused establish either a race or a measuring specific Instead, number of for a referendum. chancellor in his held as follows: judgment Witty’s November 1997 letter declaring [That initial] — — of numbers
insufficiency in did though lacking specificity nonetheless create a for the statutory opportunity to sub- plaintiff mit more or offer of those of the proof rejected light then and insufficiency, that her failure or refusal to take advantage of that window her of the statutory on deprives right prevail this issue. this from the chancellor’s decision.
Yarbrough brings appeal below, As she contended that Amendment Yarbrough argues statute, 14-14-914, No. 7 and its enabling require signature § count for a referendum election to be calculated county only upon the total votes cast for the office of circuit clerk at the last preced- election. Amendment 7 and ing general 14-14-914(c) respec- in relevant as follows: tively provide, part,
Amendment 7 General laws shall be enacted for the exercise of the providing initiative and referendum as to counties. Fifteen cent of the per voters of legal any order the referen- municipality county may dum, or invoke the initiative local measures. In munic- upon ipalities, signatures required upon any petition shall be the total vote computed cast for office of upon mayor elеction; counties, at the last preceding general the office upon of the Circuit Clerk.
Section 14-14-9i4(c) Petition Electors. The electors of each qualified county may initiate and amend ordinances and submission of require existing ordinances to vote of the if signed by less than fifteen (15%) of the percent electors in the qualified voting clerk, last general electiоn for the office of circuit or the office of Governor where the electors have abolished the office of circuit clerk. Inc., Stores, cites 280 Ark. Bishop Linkway that, for the when a constitu- proposition
tional amendment or a statute is there is plain unambiguous, construction, no room left for judicial neither the exigencies of a case nor a resort to extrinsic facts will be to alter permitted of the stated, used in the meaning statute. language Simply she submits while the constitution and statutes require vote count for referendums to be calculated based on 15% total votes cast in the 1996 General Election for the office of circuit that measure or vote count was not the election officials’ abrogated by failure tо count the votes cast in the circuit clerk’s race because the race was As unopposed. noted, she contends since already the 1996 circuit clerk’s votes, election race tabulated no *5 vote count was 15% zero; thus, of no no more (or than one signature) needed call a referendum election. We cannot agree.
484 with recitation of
We certainly
Yarbrough’s
agree
that,
act
constitutional
the rule
where the
of an
or
meaning
clear and
this court is
con
amendment is
unambiguous,
primarily
drafters
cerned with what the document
rather than what its
says,
109-110,
Ark. at
655 S.W.2d at
have intended.
280
may
Bishop,
However, we have also said that we will not
428-429.
adopt
To
of the law that leads to an absurd result. Citizens
interpretation
Priest,
257,
EstablishA
v.
926 S.W.2d
Party
Reform
State,
38,
Hall,
In
201 Ark.
(1996).
Sturdy
Sеcretaryof
S.W.2d 547
the court
with
state-wide
proposed
dealt
initiated measure under Amendment 7. There the court recog
nized that
of the voters
(initiate)
only eight
may propose
percent
law and
six
of the
voters
any
only
legal
may petition
percent
a referendum on
measure
the General
(order)
passed
Id. The
court
a small
of
stated
Assembly.
Sturdy
percent
our
initiate or refer a law to the vote of the
population may
people
and
if a
a number
so
be exercised
so
power
great may
small, a substantial
with the
of the constitu
compliance
provisions
42,
tion
these
should be
201 Ark. at
conferring
powers
required.
true
485 will not be thwarted a eral construction so the acts petitioners’ strict or technical interpretation. in the circum-
If we were to argument accept Yarbrough’s us, stances before could initiate or rеfer laws to the vote petitioners the elec- of the without to obtain having any signatures tors. That was not under the Amend- undoubtedly contemplated ment Nor can alternate we provisions. agree Yarbrough’s that votes cast for the circuit clerk the 1996 theory primary election is since elections are not mentioned in proper, primary Amendment 7. Czech, had obtаined supra, petitioners signatures
refer an ordinance intended to taxicab regulate companies, of Ark. Stat. Ann. petitioners challenged constitutionality 19-717 Ann. 1980) Code 14-47-124 (Repl. (Repl. § [now § which that the minimum number of 1998)] provided required sig natures is based on 15% of vote cast at the last highest preced election for on the board of ing general any position city’s directors. Thе had a form of city city manager government, did elect a This under Amendment 7. mayor contemplated court 19-717’s that the statute upheld constitutionality, stating did no violence to the overall intent of Amendment 7. 280 Ark. at 656 S.W.2d at The 698. court’s decision was the first to race different from the one recognize measuring specified Amendment. case,
In the Clerk on the present Witty, relying General’s decided that the votes cast in the Attorney opinion, Election race General for Governor should be the basis minimum number of under determining required signatures earlier, Amendment 7. As mentioned that vote count would have 1,551 Yarbrough’s How- gather signatures. ever, a more liberal of Amendment 7 would allow interpretation to have used the total votes cast in last petitioners election for the circuit clerk which was in 1990. That vote count would have circulators to obtain required Yarbrough’s seen, As can be such a minimum number signatures. readily be would large enough segment population justify referendum, but the number is not so onerous that it of a calling the Amendment. thwart the acts under petitioners’ course, and 410
Of Yarbrough’s petition *7 under the Governor’s fall far short of the signatures computed in the Election or the circuit clerk’s race in race 1994 General under 1990. To as an initiative or referendum qualify petition 7, must, facie, at the time Amendment the contain petition prima McCuen, the number of Walker filing signatures. either the or (1994). Using governor’s above, circuit noted under the rule in clerk’s votes Yarbrough, Walker, further would be from precluded submitting signatures to make their sufficient. attempt and the Boone Board of Election
Appellees Witty Commissioners that an all or strenuously argue Yarbrough adopted she contended that when the steadfastly nothing strategy circuit 1996 General Election votes cast for clerk could be used to the minimum number of under compute so, Amendment In 7. never asked chancellor doing Yarbrough to declare what the number of threshold should be signatures under Amendment but instead on her proceeded theory circumstances, no one signatures (or only signature) needed. not too different from the chancellor’s Accordingly, assert that waived other holding, appellees Yarbrough effectively theories because she never them. The record tends to pursued support appellees’ argumеnt. believes in her “zero-vote
Unquestionably, Yarbrough firmly and adds if our court the chancellor’s deci- theory,” upholds sion, effect will be to allow a like practical county Witty, law, disobedience of the to “raise the bar” and create uncer- for all who wish to use the initiative or tainty persons might referendum It is difficult to understand this of Yar- process. part when had to do with brough’s аrgument, especially Witty nothing the 1996 General Election election officials’ failure to place circuit clerk’s race the ballot on so votes cast for unopposed that office could be counted for Amendment 7 Nor purposes. have had control over the election and clerks Witty judges whose it was to count such votes if the responsibility unopposed circuit clerk’s office had on 1996 bal- appropriately appeared mistake, lot. if was his failure to reason Witty’s only any, give any under for 14-14-915(e)] finding Yarbrough’s peti- provided [as However, tion insufficient. based on the record and argument us, the before attributed to the only insufficiency to had do group’s petition mentioning — needed Yar- referendum which is a number herself, tо choose not about. brough, inquire short, we fail to see how clerk would Witty any county be ain events to raise the Amendment 7 position manipulate minimum-signature For clerk to achieve requirement. county bar” “raising officials such as boards (signature count), of election commissioners and election officials would precinct need either omit the circuit clerk’s office on the cooperate election ballot or to refuse to count the circuit clerk’s *8 office. in these and similar circumstances would the Only clerk be to the (or forced) number permitted compute signature the last election vote using count tabulated for that general office. does not or contend such events occurred here. Yarbrough allege alsoWe note if election officials erred somehow to by faffing the correct Amendment 7 race” on the put “measuring ballot, election the result end with a smaller likely since the of number voters have requirement registered increased over the While further years.1 the circuit past Yarbrough suggests clerk vote count would whether or that vary depending upon сontested, office is also does not contend that Witty had or would himself into a circuit clerk’s race order to inject affect the or initiative referendum process. conclusion, above,
In on based the reasons we affirm result reached the chancellor in denying Yarbrough’s The chancellor complaint. “zero- correctly rejected Yarbrough’s addition, count the 410 theory.” she her sup filed in referendum this matter failed to meet the porters badly that minimum-signature numbers would result when either using 1 The State of records reflect that in Boone the number of Secretary County, registered voters increased from in 1990 to 16,027 19,646 in 1996. See v. State, Campbell (1989). 300 Ark.
488 race. The relief 1990 circuit clerk’s
the 1994 Governor’s never asked also be denied since she must by Yarbrough sought number, but instead to a chancеllor declare minimum-signature in the circum- were relied on her belief no signatures required reasons, we affirm. stances. For these Smith, J., Arnold, C.J., dissent. disagree Arnold, Chief I dissenting. Justice, W.H. “Dub” the majority opinion. The provision under majority provision
gree opinion. authorized 1998), Code Annotated 14-14-914 (Repl. Arkansas Constitution, to which addresses Amendment 7 the Arkansas is on referendum petitions, are, therefоre, it. follow This Court we unambiguous; rule or constitutional construction. of statutory has recognized Inc., Stores, In the case of Linkway Bishop stated: this Court AS.W.2d or a stat- It is well-setded that when constitutional amendment ute is no left for unambiguous, judicial is there room plain case, construction, nor and neither the a resort exigencies alter the of the lan- meaning extrinsic facts will be permitted in the statute. guage used rule case
Id. at 109. The majority acknowledged Bishop clear of an act or constitutional amendment is where meaning and unambiguous. case, know that a circuit
From the facts this we elected in the Election. We also David Witty, Primary *9 that a election followed the 1996 Election Primary know general race that David his for Boone and Witty unoрposed ballots, however, were counted in the Clerk. The not The the office of circuit clerk. 1996 General Election for majority that a did occur lead to believe election you would general is, however, false the were not counted. This because ballots elections, even elections follow always premise, general primary are This is how we elect our when candidates county unopposed. in Arkansas. officials is offi- occurred in this case the election
What very simple; the circuit clerk’s did not do their failed job. They cials place race ballot votes that office could on the so that cast for unopposed be counted for Amendment 7 Arkansas Code Anno- purposes. tated 7-5-315 states аs follows: 1997) pertinent part (Repl. site, ballots at the the counting following polling proce- dures shall be followed:
(1) The votes received candidate in unopposed election held in this state shall not be counted or tabulated the election officials. The word “UNOPPOSED” shall be sufficient to insert the tally on the sheet indicate that candidate received the has оf the votes cast in majority However, election. the votesreceived anby candidate unopposed the majoror circuitclerkshall be countedand tabulated for officeof by the election (Emphasis added.) officiak[.] Abraham Lincoln reminds us that the the is “of government the Lincoln, for the ...” A. people, by people, Selected peoplе. America, and Speeches of Writings (Vintage Books/Library us, In the case 1992). before over 400 voters filed their petition for ordinance; however, a referendum of the are they denied this because right elections officials’sfailure to do their job.
The would that we majority excuse this failure and suggest look to other elections general for a tabulation in a circuit clerk’s race. Tabulations in other general elections would not be the election; same as the tabulation for last to look to other general elections we are suggest rules changing the law to assistthe in its failures. This is government not democ- this, in action. If do racy we Lincoln’s statement be should ato changed government people, by people, I don’t think government. so. We cannot their deny This matter should be right. reversed remanded to allow referendum.
Smith, J., joins this dissent.