The opinion
David Newbern, Justice, dissenting. We presume legislation to be not unconstitutional, we are permitted to speculate as to a rational basis for legislation, and we defer to the general assembly’s institutional ability and responsibility to determine the need for any particular law. These three principles have been stated often by this court. They were all restated and more than adequately supported in Streight v. Ragland, 280 Ark. 206 , 655 S.W.2d 459 (1983), where this court, in a very thorough opinion by Special Justice W.W. Bassett, Jr., made it clear that it is the duty of the party challenging the constitutionality of legislation to demonstrate that it could have no rational basis. That has not been accomplished in this case.
The classifications of cities under 30,000 population may or may not be unconstitutional. The question here is whether it constitutes local legislation to permit the upper classification, which includes the City of Little Rock, to choose a method of elections combining representation of wards with representation at large. My speculation is that the general assembly passed this law because its members knew that in larger cities representatives may come from only more affluent districts whose candidates can better afford expensive media for campaigning. The law permits a city to choose to allow its less affluent, and previously less influential, citizens to have a voice in government.
By overruling Streight v. Ragland, supra, and its predecessors we will shift the burden to the general assembly to justify its every act. It may seem laudable to remove a requirement that a party challenging legislation meet the difficult burden of “proving a negative,” but that burden has not been insurmountable in the past. We have been willing to declare legislation “special” or “local” in violation of Amendment 14 where we have been unable to find any redeeming rationality. See, e.g., Lawson v. City of Mammoth Spring, 287 Ark. 12 , 696 S.W.2d 712 (1985); Arkansas Commerce Comm. v. Arkansas & Ozarks Ry., 235 Ark. 89 , 357 S.W.2d 295 (1962); Board of Trustees v. Pulaski Co., 229 Ark. 370 , 315 S.W.2d 879 (1958). While we have not stated the burden of proof in each of these cases, it seems to me we have clearly placed it upon the challenger. Now, virtually every piece of legislation involving the inevitable need for classifications will be subject to easy challenge because the burden will apparently be on the general assembly to have announced its rationale or upon the party supporting the legislation in question to know what it is through some as yet unknown process.
The duty of this court in our constitutional framework is to serve as a check on the legislative branch of government. That should mean, as it has until now, that we should intercede only when the general assembly has demonstrably overstepped the constitutional boundary. Until now, we have maintained our proper role by requiring the party challenging legislation to be the demonstrator. Judicial restraint should operate against the majority’s decision in two ways; we should not abandon our cases in this instance, and we should not tilt the delicate constitutional balance among our institutions.
I respectfully dissent.
Dudley, J., joins in this opinion.