U.S. Term Limits, Inc. v. Hill

Robert H. Dudley, Justice, concurring in part, dissenting in part. I concur in three of the holdings of the majority opinion, dissent from one, and do not reach the other two.

I.

I concur with the holding that this case presents a justiciable issue. The petitioners below sought a judgment declaring that Amendment 73 is invalid. We have said that a declaratory judgment is especially appropriate in disputes between private citizens and public officials about the meaning of the constitution or statutes. Culp v. Scurlock, 225 Ark. 749 , 284 S.W.2d 851 (1955). If, as argued by intervenors, some state officeholders are illegally holding office, their salaries would constitute illegal exactions, and a declaratory judgment action is appropriate to determine that issue. McDonald v. Bowen, 250 Ark. 1049 , 468 S.W.2d 765 (1971). Thus, there is a justiciable issue, and a suit for declaratory judgment is the proper action to determine the issue.

II.

I concur with the holding that Amendment 73, in part, violates the Constitution of the United States. It does so for three reasons. First, the framers rejected the idea of term limits in drafting the Constitution. Second, allowing a several state to create qualifications for national officeholders is antithetical to republican values. Third, the imposition of term limitations upon members of the Congress of the United States would violate the Qualifications Clause of the Constitution because it would add a qualification — lack of incumbency — to the requirements that are fixed by the Constitution, and the several states do not have this power. See Plugge v. McCuen, 310 Ark. 654, 661 , 841 S.W.2d 139, 143 (1992) (Dudley, L, dissenting).

The third reason stated above is a close question and difficult issue. The articulate dissenting opinions of Justices Hays and Cracraft cause one to pause. The argument that a candidate is only barred from appearing on the ballot, but is not barred as a write-in candidate, is appealing at first blush, but when one thinks about it the issue becomes clear because, as a practical matter, the amendment would place term limits on service in the Congress. I am reassured by the style of this case, U.S. Term Limits, Inc. That name implies just what this amendment is: A practical limit on the terms of the members of the Congress. The fact that a person can conceivably be elected as a write-in candidate does not vitiate the fact that, as a practical matter, write-in candidates are at a distinct disadvantage. The result would be that the Qualifications Clause would be violated by the amendment.

III.

I concur in the holding that the voters of this State can, by amendment of the state constitution, limit the terms of state officeholders. There is no violation of the First and Fourteenth Amendments to the Constitution of the United States because the state interest of limiting the terms of officeholders clearly outweighs the burden on the officeholders and those supporting them. See Anderson v. Celebrezze, 460 U.S. 780 (1983).

IV.

I dissent from the holding in the plurality opinion that the provision in the amendment for limiting the terms of federal officeholders can be severed from the provision limiting the terms of state officeholders. This is a state issue and is governed by state law.

Amendment 73 contains a severability clause, but that clause alone does not necessarily determine severability. In Combs v. Glen Falls Insurance Co., 237 Ark. 745 , 375 S.W.2d 809 (1964), we wrote:

A severability clause is frequently an aid to the Courts in the construction of a statute, but, in the oft-quoted words of Justice Brandéis, it is not “an inexorable command.” Dorchy v. Kansas, 264 U.S. 286 , 68 L. Ed. 686 , 44 S. Ct. 323 . While such a clause deserves reasonable consideration it should not be paid undue homage. Sutherland, Statutory Construction (3d Ed.) §2408. For example, if an act should levy a new tax and create a new agency for its collection, no one could doubt that the invalidation of the tax would also do away with the collection agency, despite the presence of a severability clause. In Nixon v. Allen, 150 Ark. 244 , 234 S.W. 45 , we declared an entire act to be invalid, in the face of such a clause, because we concluded that if the legislature had known in advance that part of the act was unconstitutional it would not have enacted the rest. That is really the test.

Id. at 747-48, 375 S.W.2d at 810-11 (emphasis added).

After writing the above, we declared the entire act void even though the act at issue contained a severability clause and only part of the act was invalid. We did so because the “alternatives are complementary and interdependent.” Id. at 748 , 375 S.W.2d at 811 .

Somewhat like the case at bar, in Allen v. Langston, 216 Ark. 77 , 224 S.W.2d 377 (1949), the citizens of Lee County passed an initiated motor vehicle tax act pursuant to Amendment 7, the initiative amendment. The initiated act authorized a tax on motor vehicles as well as wagons and buggies. A part of the tax was for the privilege of driving motor vehicles on the highways, and we held that the county’s attempt to tax the use of the highways for motor vehicles was contrary to the general law of the state and therefore unconstitutional. However, that part of the act which taxed wagons and buggies was valid since state law had not pre-empted that field. In sum, part of the initiated act was valid and part of it was invalid. We held the entire initiated act void “for the reason that it seemed apparent that the people of Lee County had no intention of separating and enforcing the provision as to wagons and buggies in the event the remaining tax on motor vehicles was declared void and of no effect.” Id. at 85 , 224 S.W.2d at 381 (emphasis added).

Likewise, in Wenderoth v. City of Fort Smith, 251 Ark. 342 , 472 S.W.2d 74 (1971), we said that when parts of a law are connected and interwoven, and the legislature intended to enact the law as a whole and not in parts, severance is not appropriate.

In Hasha v. City of Fayetteville, 311 Ark. 460 , 845 S.W.2d 500 (1993), the city placed a sales and use tax proposal on the same ballot as an invalid proposal to construct school facilities. The invalid proposal to construct school facilities was a lure to obtain a favorable vote on the tax. We held severance was not appropriate because the two proposals were “inextricably linked” and “tied together.” We wrote: “There was a natural relationship between them. The two proposals were part of the same plan. They were united.” Id. at 470 , 845 S.W.2d at 505 . Also, the bonds were “a primary purpose of the tax.” Id., 845 S.W.2d at 506 . Both the dissenting opinion and the dissenting opinion on rehearing make clear the fact that no evidence was submitted to support the holding that the voters were lured into voting for the tax. See 311 Ark. 460, 471 , 845 S.W.2d 500, 506 (Glaze, L, dissenting); Hasha v. City of Fayetteville, 311 Ark. 476 -A, 476-C, 847 S.W.2d 41, 42 (1993) (supplemental opinion denying rehearing) (Glaze, L, dissenting). The pertinent questions are whether there the two proposals were inextricably linked in the minds of the voters, whether they were tied together in the minds of the voters, whether the voters perceived a natural relationship between them, whether they were presented as being united, whether the voters had any .intention of separating the proposals and enforcing them separately, and whether both were a primary purpose of the amendment. To state the questions is to answer them. The two proposals were clearly tied together. They were linked. There was a natural relationship between them. Limiting the terms of members of Congress was a primary purpose of the amendment. Both proposals were sold together as one political package.

Each ballot cast at the election contained a ballot title, or summary, of the amendment. The great majority of voters derived their information about the amendment from the ballot title. Dust v. Riviere, 277 Ark. 1 , 638 S.W.2d 663 (1982). The ballot title that the voters read in voting on this amendment was as follows:

An Amendment to the Constitution of the State of Arkansas limiting the number of terms that may be served by the elected officials of the Executive Department of this state to two (2) four year terms, this department to consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, Commissioner of State Lands; limiting the number of terms that may be served by members of the Arkansas Senate to two (2) four-year terms, these members to be chosen every four years; providing that any person having been elected to three (3) or more terms as a member of the United States House of Representatives from Arkansas shall not be eligible to appear on the ballot for election to the United States House of Representatives from Arkansas; providing that any person having been elected to two (2) or more terms as a member for the United States Senate from Arkansas shall not be eligible to appear on the ballot for election to the United States Senate from Arkansas; providing for an effective date of January 1, 1993; and making the provisions applicable to all persons thereafter seeking election to the specified offices.

Before the vote on the amendment was held, the proponents of the measure were aware of the problems involved in linking the two measures. In declining to remove the proposal from the ballot before the election this court wrote:

Undoubtedly, a strong case can be made concerning the Term Limitation Amendment’s invalidity both under Arkansas’s and the United States’ Constitutions, and voters should be aware that their votes for or against this measure may ultimately have value only as an expression of public sentiment on the subject. In short, a future judicial proceeding will be required to decide the Amendment’s validity if it is adopted by the people. If that occurs, the constitutional arguments posited here will then be placed squarely before us and can be decided after due and proper consideration.

Plugge v. McCuen, 310 Ark. 654, 661 , 841 S.W.2d 139, 143 (1992) (emphasis added).

Undisputedly, the two proposals were packaged and sold together. One of the proposals is valid, while the other is unconstitutional. The proponents of the amendment were aware of the pending constitutional issue, but they objected to it being decided before the election. Still, they continued to sell the proposals together. The majority opinion severs the two proposals after the election and declares one of them valid.

The precedent set by the majority opinion runs counter to the efforts of this court to require fairness and honesty in the presentation of initiated proposals to the voters. We have required that ballot titles be honest and impartial. Dust v. Riviere, 277 Ark. 1 , 638 S.W.2d 846 (1984); Shepherd v. McDonald, 189 Ark. 29 , 70 S.W.2d 566 (1934). We have mandated that ballot titles fairly assess the general purpose of the act. Coleman v. Sherrill, 189 Ark. 843 , 75 S.W.2d 248 (1934). We have held they must not be misleading. Westbrook v. McDonald, 184 Ark. 740 , 43 S.W.2d 356 (1931).

The troubling aspect of the precedent set by the case at bar is illustrated by the case of Hoban v. Hall, 229 Ark. 416 , 316 S.W.2d 185 (1958). It that case we ordered a proposal removed from the ballot before the people voted on it, and, to that extent it is not applicable, but it is applicable to demonstrate how some people will attempt to bait a proposed amendment. The proponents of the initiated amendment named their proposal “The States’ Rights Amendment” since that was a popular concept in the South at the time. However, the ballot title failed to disclose that the amendment would create a commission with overreaching authority. It could conduct investigations and conduct public or secret hearings and “interrogate any citizen in the state about his business affairs, his private life, his political beliefs, or any other subject that can be imagined.” Id. at 420 , 316 S.W.2d at 187 . If a public official failed to carry out “the clear mandates” of the amendment, he was subject to a fine, imprisonment, and automatic forfeiture of office. Id. In removing the proposal from the ballot because the proponents only disclosed the bait of states’ rights, we wrote:

The cause of states’ rights, like that of the aged and the blind, is deservedly a popular one and undeniably appeals to the great body of the electorate. But are there provisions in the amendment which, if made known, would give the voter serious ground for reflection?

Id. at 418 , 316 S.W.2d at 187 . We did not allow the misleading political packaging.

The majority opinion does not fully address political packaging and the questionable precedent. Rather, it misses the mark and concentrates on whether the two proposals can be said to literally stand independently.

In summary, I concur in holding that the part of Amendment 73 which is in violation of the Constitution of the United States is void, and that part which limits the terms of state officeholders is valid. I would hold that in the minds of the voters the invalid part of the amendment was inextricably linked with the valid part, and, as a result, I would not allow the two proposals, to be severed after the election. Consequently, I would hold that Amendment 73 is void.

V.

Since I would hold that Amendment 73 is void for the reasons set out above, I do not reach the issues regarding the enacting clause and terms of service counted.