Monty Scott et al. v. Sharon Priest, Secretary of State of the State of Arkansas

Monty SCOTT, Bob Wheeler, Bill Goodwin, Eric
Jackson, and Bill Walmsley, Individually and
On Behalf of the Committee Against Amendment
8, and All Others Similarly Situated v.
Sharon PRIEST, Secretary of State of the
State of Arkansas

96-1077                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
              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.

     Per Curiam.
     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.
    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.   
    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.