Opinion
96-1077
Opinion delivered September 23, 1996
1. ELECTIONS — ORIGINAL ACTION — MASTER APPOINTED. — Where an original action filed by the parties raised issues of fact, the supreme court, pursuant to Ark. Sup. Ct. Rule 6-5(b), appointed a master and directed him to conduct such proceedings and hearings subject to and in accordance with Rule 6-5(a) and ARCP Rule 53 as necessary to determine whether the allegations contained in the petition were true and to file his report with the court by a specified date. 2. COSTS — ORIGINAL ACTION — PETITIONERS AND INTERVENORS DIRECTED TO FILE BOND. — As respondent Secretary of State was not subject to payment of costs because of sovereign immunity, the supreme court declared that all costs were to be shared equally between the petitioners and the intervenors and directed petitioners and intervenors to file a bond, to be approved by the clerk, to secure payment of costs adjudged against them incurred in taking and transcribing the proof, including the master's fee.
Master appointed.
Friday, Eldredge Clark, by: Elizabeth Robben Murray and Jonann Coniglio Roosevelt, for petitioners.
Kaplan, Brewer, Maxey, P.A., by: Silas Brewer and Phil Kaplan, for respondent.
On September 13, 1996, an original action was filed in this court for an order to invalidate a proposed initiated constitutional amendment offered under Amendment 7 to the Arkansas Constitution; to enjoin placement of the proposed initiated constitutional amendment on the November 5, 1996, general election ballot; and to direct that any votes cast thereon not be counted or certified because the petition contained invalid signatures and other irregularities and because the ballot title is defective.
[1] This original action filed by the parties raises issues of fact. Arkansas Supreme Court Rule 6-5(b) provides that evidence on issues of fact will be taken by a Master to be appointed by this court. Therefore, we appoint the Honorable Jack Lessenberry as Master and direct him to conduct such proceedings and hearings subject to and in accordance with our Rule 6-5(a) and Rule 53, Arkansas Rules of Civil Procedure, as are necessary to determine whether the allegations contained in the petition are true and to file his report with this court by October 9, 1996.
We also direct the Master to attend to the parties' additional motions for the taking of depositions and the establishment of bifurcated briefing schedules and such other matters as are necessary to discharge his duties.
[2] ARKANSAS SUPREME COURT RULE 6-5(b) Rules of Supreme Court provides in pertinent part:
As a condition to the appointment of a master, the Court may require both parties to file a bond for costs to be approved by the Clerk. Upon the filing of the master's findings, the parties shall file briefs as in other cases.
All costs are to be shared equally between the petitioners and the intervenors, as the respondent, Sharon Priest, Secretary of State, is not subject to payment of costs because of sovereign immunity. Bailey v. McCuen, 319 Ark. 369, 891 S.W.2d 797 (1995) (per curiam). Petitioners and intervenors are directed to file a bond, to be approved by the clerk, to secure payment of costs adjudged against them incurred in taking and transcribing the proof, including the Master's fee.
In addition, the Master is instructed to work with the Supreme Court Clerk and respective counsel in expediting a briefing schedule so that this court will receive the parties' briefs in sufficient time to consider the issues and render its decision as to whether or not this measure is to remain on the ballot to be printed for the November 5, 1996, general election.