holding that verbiage in a preamble should not have been in the ballot title
How later courts described this case
- holding that verbiage in a preamble should not have been in the ballot title
- noting that a preamble is not a part of the text of a proposed amendment
- language "must be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and it must not be tinged with partisan coloring"
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Bailey v. McCuen, 318 Ark. 277 (1994)
841 S.W.2d 139, 140 (Ark. 1992), overruled on other grounds by Bailey v. McCuen, 884 S.W.2d 938, 942
The opinion
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
Friday, Eldredge & Clark, by: Robert S. Shafer, and T. Wesley Holmes, for petitioners. Winston Bryant, Att’y Gen., by: Jeffrey A. Bell, Deputy Att’y Gen., for respondent Secretary of State. Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: Sam Hilburn, for intervenor-respondent Arkansas for Governmental Reform, Inc. .
Per Curiam. Petitioners’ petition for rehearing is moot since immediate mandate was issued when this court’s opinion was handed down. This procedure is followed in election cases because time constraints preclude ordinary briefing and motion schedules.
This per curiam will not consider the merits of the matter, but addresses only the procedural matter contained in petitioners’ rehearing petition and their suggestion that Rule 17 was invoked by the majority court in an uneven manner. Actually, it was the petitioners’ burden, not the respondent’s or intervenor’s, to show error. Whether respondent or intervenor abstracted any part of the record does not eliminate petitioners’ duty to do so.
Even though petitioners failed to abstract the proposed amendment, the court did its best to address all of the petitioners’ issues, and in fact, reached them all except the two bearing on the proposed measure’s validity. The alternative was to dismiss petitioners’ case without reaching any of their issues. We avoided such choice.
Considering the text of the proposed measure was in question when determining its validity, the court obviously was hampered in reviewing the two issues urged by the petitioners and argued by all parties. In sum, the court, while not required to do so, reached every issue it could reasonably address with the proposed amendment not having been abstracted, as is clearly required under Rule 17. In sum, we accepted much set out in the argument of petitioners’ brief which was not supported by an abstract in order to reach issues in this case because it was one of public significance.
Finally, we would note that the court did not reach the merits of the .proposed amendment’s validity for two reasons, not one. As clearly stated, the court, too, declined to offer an advisory opinion on the constitutionality of the proposed measure. The court chose not to be rushed to a decision on a serious issue where no clear or compelling precedent had been offered showing the proposed measure’s unconstitutionality. This reason, of course, had nothing to do with any failure to abstract the record.
Corbin, J., not participating.