referring to "six separate monthly insertions in one newspaper in each county prior to the election"
How later courts described this case
- referring to "six separate monthly insertions in one newspaper in each county prior to the election"
- distinguishing the constitutional standards in reviewing ballot titles
Written by the judges who cited it.
The opinion
John I. Purtle, Justice, dissenting. I agree with the dissent filed by Justices George Rose Smith and Hickman. However, I feel some important additional reasons should be expressed. As a general rule, I agree with allowing the people to vote on any proposed changes in our constitution. However, I cannot agree as in this case when the proposal is presented in a manner obviously calculated and designed to mislead the public. If the public wants to raise the interest rate to 100%, they should have the right to knowingly do so (emphasis mine). But to raise the interest rate under the guise of an "Interest Rate Control Amendment” simply is not fair to the public.
In view of the fact that the General Assembly undertook to construct a ballot title it should have been either in a form to identify the proposal or have been framed in terms which would enable the electors to understand its general purpose. This proposed amendment is designed to remove the present 10% interest ceiling and to substitute a maximum of 17% for consumer loans and a floating rate tied to the federal reserve discount rate for other loans. The title mentions neither of these two fundamental and far reaching changes.
The majority opinion apparently determined that the ballot title for proposed Amendment 60 was designed to identify the proposal rather than inform the voters. This opens the door for future proposals to be as deceitful and misleading as desired. It removes all barriers to unfairness and deliberate misrepresentation. The present title is very misleading and deceitful but it is nothing compared with what may be placed on the ballot in future proposals.
Proposed Amendment 60 provides for interest on general loans to be no more than 5% per annum above the federal discount rate. This rate fluctuates many times during the year and sometimes even on a daily basis. The FRDR is determined in Washington, D.C. by the federal reserve board. The rate has ranged from the present rate of 9.5% to a high of 14% within the past several months. Therefore, had Amendment 60 been in effect general loans could have gone to 19%. If the FRDR rises to 20%, the rate of interest on general loans in Arkansas could be 25%. Nowhere does the ballot title give any indication of this tie-in.
This proposed amendment has still another undisclosed facet which is not generally known nor even hinted at in the ballot title. Section 1 (d) (ii) provides in effect that even higher interest rates may be charged if federal law so provides. Therefore, this amendment would allow interest for consumer loans.at 17%, or general loans at 5% above the FRDR, or as otherwise provided by federal law (emphasis mine). The fact that the FRB will be a new government entity or would be subject to no control or checks at all by any of the existing branches of Arkansas government is not disclosed or referred to. See Dust v. Riviere, 277 Ark. 1 , 638 S.W.2d 663 (1982) at p. 7. Certainly, no branch of the existing Arkansas government has any control or right of review over the actions of the FRB which will, if Amendment 60 is adopted, establish the FRDR as the controlling factor in Arkansas law on interest rates.
In Becker v. Riviere, 270 Ark. 219 , 604 S.W.2d 555 (1980), we approved a ballot title for the same amendment now presented. It would have been a simple matter to copy the same one for the present proposal. The reason this was not done is obvious. The ballot title adopted is far less revealing and much more susceptible to misleading advertisement. The majority holds that this proposal and future proposals are or may be permissible unless the title constitutes a “manifest fraud.” Manifest fraud is not defined in the opinion. Therefore, simple fraud, so long as it is not manifest, appears to be permissible. With this I cannot agree. Before the people are allowed to vote on a proposal the ballot title should be free and clear from partisan coloring and should accurately and fairly set forth the proposition to be voted upon or there should be no title at all except such as is necessary to identify the proposition. The title as presently composed is unabashedly misleading and a great disservice is being done to the people of Arkansas in allowing it to stand in its present form. Therefore, I must respectfully dissent.