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

Steele Hays, Justice, concurring in part and dissenting in part. Although I agree with today’s decision upholding term limits upon state officeholders and severing that part of Amendment 73,1 disagree with the holding of the majority that the eligibility restriction upon United States senators and representatives is unconstitutional. I start from the premise that all political authority resides in the people, limited only by those provisions of the federal or state constitutions specifically to the contrary. In this instance the people of Arkansas have spoken, prudently or otherwise, in the most direct means available to them — an initiated amendment to their state constitution. That expression should not be denied them except on clear and compelling grounds. Such grounds have not been demonstrated to my satisfaction.

The people of each state possess all powers which are not expressly or impliedly delegated to the federal government or which they are not prohibited from exercising by the United States Constitution. U.S. Const, amend. 10. See State v. Nichols, 26 Ark. 74 (1870). Further, we must presume the amendment is constitutional, and all doubts must be resolved in favor of its constitutionality if it is possible to do so. Fayetteville School Dist. v. Arkansas State Bd. of Education, 313 Ark. 1 , 825 S.W.2d 122 (1993); Gazaway v. Greene County Equalization Board, 314 Ark. 569 , 864 S.W.2d 233 (1993). Accordingly, if a provision of the amendment is not clearly prohibited, we are obliged to construe it as constitutional.

I find the United States Constitution does not prohibit additional qualifications for senators and representatives. The Qualification Clauses of Article 1 of the Constitution simply provide: “No person shall be a representative [senator] who shall not have . . . .” (Emphasis supplied.) This language indicates the qualifications are to be the minimum requirements rather than the exclusive requirements. I see it as significant that the Constitution provides; “the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” Art. 1, § 2, cl. 1. This provision contemplates allowing a state to require an elector to have attained the age of thirty years. 1 It seems clear the framers intended to prevent a person under the age of twenty-five years from being elected to the House of Representatives, but, if a state required electors to be at least thirty years of age, it is implausible to conclude the state would be required to allow a person to run for office who could not vote. Since the framers determined that the people of each state could establish requirements for their electors, it stands to reason that the qualifications in Article 1 are minimum requirements. In sum, the framers intended merely to insure that no state lowered the standards for being elected to the House of Representatives or Senate.

The majority states that the history surrounding the drafting of the Constitution is inconclusive, yet they rely upon that history as discussed in Powell v. McCormack, 395 U.S. 486 (1969). In Powell, the Court held the House of Representatives could not exclude Congressman Powell, a duly elected member of Congress, for any reason other than the qualifications set forth in the Constitution. In so holding, the Court examined the debates surrounding the drafting and ratification of the Constitution itself. While it is clear that the framers discussed term limits, I am not convinced that the failure to include term limits in the Constitution prohibits the people of the states from enacting term limits.

The only “intent” that can be ascertained from the framers’ exclusion of term limits is that the delegates considered it undesirable to impose a uniform tenure limitation upon the representatives of every state. However, this does not confirm that the people of each state are prohibited from enacting term limits. Even the majority recognizes that whether the States are foreclosed from adding a restriction to candidacy is not specifically addressed in the Constitution or the historical debates. Nevertheless, the majority places emphasis upon the historical debates and Alexander Hamilton’s “allusion to the fixed and immutable character of the enumerated qualifications.”

Justice Holmes observed that government is an experiment. The people are the conductors of that endless experiment and have the right to tinker with it as they choose, free of unwarranted interference. Although it may make “eminently good sense” to have uniform qualifications for federal legislators in order to prevent an “imbalance among the states,” I submit the drafters of the Constitution intended merely to establish uniform minimum qualifications.

Nor can I agree that the effective date of the amendment for purposes of compliance is other than January 1, 1993, the date specified in the provision. The avowed purpose of Amendment 73 is to revitalize government, inhibit voter apathy and stimulate voter participation and involvement. I can find no basis for concluding that the electorate intended to defer those objectives for an additional six years.

Amendment 73 contains an effective date and states that none of the State elected officials, whether executive or legislative, may serve more than the specified number of terms. It further proclaims that it is “applicable to all persons thereafter seeking election.” The Ballot Title contained the same quoted language. The purpose of the amendment, as stated in its Preamble, is to limit the terms of elected officials who are described as an entrenched incumbency who ignore their duties and are preoccupied with reelection. The language of the amendment itself read as a whole runs counter to an interpretation that it is not to take effect, practically speaking, until 2000 or thereafter.

I do not believe that Amendment 73 is a retroactive law because the amendment does not take away a vested right or impose a new obligation, duty, or disability regarding matters that already have occurred. F.D.I.C. v. Faulkner, 991 F.2d 262 (5th Cir. 1993), citing Bowen v. Georgetown Univ. Hospital, 488 U.S. 204 (1988); Miyazawa v. City of Cincinnati, 825 F.Supp. 816 (S.D. Ohio 1993); Ficaria v. Dept, of Reg. Agencies, 849 P.2d 6 (Colo. 1993). A statute does not operate retroactively merely because its application requires some reference to prior facts. F.D.I.C. v. Faulkner, supra, citing McAndrews v. Fleet Bank of Massachusetts, 989 F.2d 13 (1st Dir. 1993) [citing Cox v. Hart, 260 U.S. 427 1922 )]. Furthermore, it is clear that holding public office is a privilege, not a vested right. Miyazawa v. City of Cincinnati, supra.

For the reasons stated, I concur in the majority opinion as to Section I (JUSTICIABILITY), Section II (ENACTING CLAUSE), Section IV (SEVERABILITY), and Section V (STATE OFFICEHOLDERS), but not as to Sections III (QUALIFICATIONS CLAUSE) and Section VI (TERMS OF SERVICE COUNTED), to which I respectfully dissent.

I recognize that Amendment 26 of the United States Constitution prohibits such an action; however, the actions of the framers must be examined within the proper context. At the time the Constitution was ratified, a state could abridge the right to vole by establishing a property requirement or an age restriction beyond 18 years of age.