Late Monday, Sept. 29, Stu Freigy, a representative of Save Energy Reap Taxes (SERT), contacted The Villager Journal to announce their plan to appeal Judge Smith's ruling.
The ruling came after three days of testimony concerning the legitimacy of signature petitions presented in an effort to place the wet/dry issue before voters.
During the first day of the hearing, David Ethridge, Morris Street's attorney and David Blair, who represented Yota Shaw, questioned the way the petitions were presented. Ethridge said the petitions stated the signatures gathered were for an ordinance, when in fact, it was for a county vote. Ethridge explained that an ordinance is controlled by the county. He went on to say, if Sharp County is voted wet the county will have no say in the liquor laws at all, which made the petition very misleading to those who signed it.
After each side presented their case, Judge Smith ruled that the wording was something easily fixed on the ballots. Judge Smith then eased the temporary injunction to allow the ballots to be printed for the November general election. Now that the ruling is final, any votes received on the issue will not be counted.
The second day of the hearing, Sept. 23, Blair began the plaintiffs' case with several witnesses. The first witness Blair called to the stand was Circuit Clerk Alisa Black. Black testified that it was a long meticulous process to verify the 5,017 names that were signed to the petitions but she felt it was done thoroughly and correctly. When Black made it clear she did not know the answers to all of the questions being asked, she referred Blair to Deputy Clerk Tony Powell.
Blair then called Powell to the stand and asked her if the signatures on the petitions were compared to those on the voter registration cards. Powell answered, "No." She continued to inform Blair that this was not a requirement for certifying the petitions. Powell also said she had attended training on how to process petitions.
Blair told the court that the petitions were turned in with 5,017 signatures, of those, 4,620 signatures were certified by the clerk's office which exceeded the number of signatures required by 251 signatures. "251 is the magic number," Blair said.
When Blair called Bernadett Freigy, a member of SERT who is also a certified CPA, to the stand he pointed out that many of the signatures on the petitions were marked through. Blair asked Freigy why this was done. Freigy stated that she had kept up with the voter registration list she had purchased from the clerk's office and if someone signed the petition who was not a registered voter, she marked through their name and if she found duplicate signatures she followed the same procedure.
Freigy testified that since she kept the petitions organized, they all ended up in her possession. Blair asked Freigy if the petitions were always signed by the canvasser when she received them and she said, "Yes." Blair then asked her if they were always notarized when she received them and Freigy said, "No."
"Wait a minute, now I see what you're saying, yes, if the petition was signed by the canvasser it was notarized as well," Freigy said. "I know it looks bad, me back pedaling but I misunderstood what you were asking."
After Freigy's testimony Blair called several of the notaries who had notarized the petitions in question to the stand. One of the notary publics called to the stand was Sharp County Judge Larry Brown's secretary, Linda Thompson.
Thompson testified that she had notarized several petitions for Ruth Reynolds, the president of SERT and one of the canvassers. Reynolds collected signatures outside of the courthouse and would bring them in to Thompson to be notarized as she filled them.
Thompson testified that at first she followed procedure and asked for Reynold's identification but as the visits became more frequent, she was comfortable just notarizing them without question.
Thompson testified that about 85 percent of the petitions she notarized for Reynolds were already signed when she affixed her seal and were not signed in front of her.
In Judge Smith's findings he considered 85 percent of the petitions canvased by Reynolds and notarized by Thompson to be invalid which equaled 222 signatures.
After Blair was done questioning each of the notary publics, he prepared for his key witness in the case, document examiner Dawn Reed.
Reed took the stand and stated a long list of credentials including her service as a chief document examiner in the crime lab for the state of Arkansas. Reed was given all of the petitions to review for signs of the same person signing more than one name.
Reed provided the court with a definition of her findings. Reed explained that primarily she had seen several instances of signatures that shared common authorship, which meant there were similarities in the signatures that led her to believe some of them could have been signed by the same person.
While Reed did not find any signatures she could positively testify had been signed by the same person, many of the names in her report shared characteristics.
R.T. Starken, the attorney representing SERT, asked Reed in his cross examination if she had worked from the original petitions. Reed replied that she had been given photo copies to examine.
Starken asked Reed if working from photocopies could compromise her findings. Reed said, "Yes, there are definitely some things compromised." Reed explained photocopies make it harder to read stroke patterns and pressure used in the signature.
The last day of the hearing, Sept. 24, Starken called several witnesses to the stand. Starken's witnesses consisted of people whose signatures were questioned by Reed. All of the witnesses called to the stand testified that they had in fact, signed their own name and no one else.
In closing arguments, Blair said 438 signatures should be disregarded due to findings by Reed of common authorship. Blair said even after the testimony of Starken's witnesses there are 397 names still in question.
Starken said in his closing statements, that the allegations of false affidavit, made by the plaintiff, lacks proof that the mistakes were made intentionally. Starken said while there were mistakes made by the canvasers, they were made inadvertently. Starken went on to remind the court that Reed did not find any positive identifications of signatures made by the same author.
Judge Smith did not make a ruling on the case until late in the afternoon Sept. 25. In the report of his findings, Judge Smith ruled the 23 pages containing signatures Reed had question to be invalid. Judge Smith did not only find the questionable signatures invalid, but all of the signatures on each of the pages containing a signature in question, due to the clause on each of the petition pages that stated, "the foregoing persons signed this sheet and each of them signed his or her name thereto in my presence." Judge Smith ruled these to be false affidavits of the canvassers on each of the 23 pages.
The total signatures Judge Smith declared invalid was 461. With 461 signatures found invalid, the petitions fell short of necessary signatures by 210.
Stu Freigy said SERT did not have the money to appeal but there is an outside source funding the costs. "We even had someone come up to us and say, 'I am voting against it but I feel the people should have the right to vote,' and they donated $1,000 for the cost." Freigy said.
Freigy said they have not filed the appeal yet but it will be done. Friegy said he doesn't know who their attorney will be yet.