Finn v. McCuen

Robert H. Dudley, Justice, dissenting. For many years, proposed statewide initiated measures have been subject to last minute attacks filed in this court. See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463 , 677 S.W.2d 846 (1984). At such a late hour, there has not been any way to amend the popular name or correct the ballot title. The result has been a waste of human resources in gathering signatures, a waste of money in campaign advertising and promotion, and, most of all, a defeat of the initiative process. See T. Kennedy, Initiated Constitutional Amendments in Arkansas: Strolling Through The Mine Field, 9 UALR L.J. 1, 52-53 (1986-87).

In order to make the initiative process more workable the General Assembly passed Act 280 in 1989 which is codified at Ark. Code Ann. § 7-9-107 (e). The statute may be summarized as follows: The sponsor of a proposed statewide initiative may elect to submit the popular name and ballot title to the Attorney General before September. 30 of the year before the election; the Attorney General must then accept or reject the proposed popular name and ballot title; if he approves the name and title he must deliver his certification to the Secretary of State who, in turn, certifies and approves the name and title, and publishes them in a newspaper with statewide circulation. Any legal action against the certification of the popular name and ballot title must be filed within 45 days of the publication. “No such action filed later than forty-five (45) days following publication shall be heard by the Supreme Court.” Ark. Code Ann. § 7-9-107 (e)(B)(ii) (Supp. 1989). If the sponsor filed the petition before September 30, and is successful in court or if no contest is filed, the sponsor may then proceed to collect signatures on the petitions.

In this case it is undisputed that the sponsors of the “Lottery Amendment” fully performed all of the statutory steps for obtaining early review of the popular name and ballot title under Ark. Code Ann. § 7-9-107 (e). The proposed amendment was published on June 26 and 27,1989. No objections were filed until September 10,1990, which was much longer than forty-five (45) days following publication. The respondents subsequently obtained the required number of signatures. Thus, in spite of the statute, the petitioners waited until the eleventh hour to file this suit to bar the placing of the proposed “Lottery Amendment” on the ballot. The majority opinion holds that the statute is impermissibly in conflict with Amendment 7 to the Arkansas Constitution and, accordingly, is invalid. It is my view that the statute does not conflict with the amendment.

Amendment 7 to the Constitution of Arkansas reserves to the people the power to initiate legislation and constitutional amendments. Ten percent of the voters “may propose a Constitutional Amendment by initiative petition. . . .’’The sufficiency of all statewide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such cases. This Amendmemt “shall be self-executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation.” “No legislation shall be enacted, however, to restrict, hamper, or impair the exercise of the rights herein reserved to the people.”

In their brief, the petitioners contend that the 1989 statute, Ark. Code Ann. §7-9-107 (e), is unconstitutional because it limits jurisdiction in the Supreme Court to forty-five (45) days while Amendment 7 contains no such limitation. The majority opinion ignores that argument and, therefore, impliedly rejects it. The signers of the majority opinion are correct in that regard. We have frequently upheld statutes of limitation against allegations of constitutional infirmity. See, e.g., Jackson v. Ozment, 283 Ark. 100 , 671 S.W.2d 736 (1984). In Westbrook v. McDonald, 184 Ark. 740 , 43 S.W.2d 356 (1931) we indicated, without so holding, that a statute of limitation on Amendment 7 actions might be valid. More recently we have upheld a limitation statute which is specifically applicable to Amendment 7. Committee for Utility Trimming, Inc. v. Hamilton, 290 Ark. 283 , 718 S.W.2d 933 (1986). The reason we uphold such statutes is that they do not deprive this court of jurisdiction; they merely place a reasonable limitation upon the time in which jurisdiction is to be exercised. Thus, the reason the majority opinion is not based on the limitation period is clear.

Instead, it is based on the premise that Ark. Code Ann. § 7-9-107 (e) violates Amendment 7 by expanding this Court’s jurisdiction to allow review of the popular name and ballot title on a petition prior to obtaining signatures. I do not share that view. The pertinent part of Amendment 7 provides: “The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court. . . .” The language of the amendment simply does not prohibit a review by this court of the popular name and ballot title before the petitions are signed. The procedure under the 1989 statute does not expand this Court’s jurisdiction. It does not require this court to review any more, or any less, than has been reviewed previously. It only provides the option for a bifurcated review. Accordingly, the statute is not in violation of Amendment 7. Such a conclusion seems unconditionally mandated when two other factors are considered. The first of these factors is that the amendment provides that “laws may be enacted to facilitate its operation.” The 1989 statute undoubtedly facilitates the operation of Amendment 7. The second factor is that an act of the legislature is presumptively constitutional, and all doubt as to its validity must be resolved in favor of the act unless it is clearly incompatible with our constitution. Curry v. State, 279 Ark. 153 , 649 S.W.2d 833 (1983).

The majority opinion does not explain how the statute fails to facilitate the operation of Amendment 7, or how it restricts, hampers, or impairs the exercise of the initiative, power, or how it is incompatible with the amendment. Instead, the majority opinion claims to be bound by the holdings in three of our cases, Scott v. McCuen, 289 Ark. 41 , 709 S.W.2d 77 (1986); Bailey v. Hall, 198 Ark. 815 , 131 S.W.2d 635 (1939); and Rambo v. Hall, 195 Ark. 502 , 112 S.W.2d 951 (1938). Yet, the majority opinion admits:

Both the Rambo case and the Bailey case can be distinguished from the situation now before us. In the Rambo case, the secretary of state had taken no action whatever, and here he had certified the ballot title when Mr. McCuen contends the challenge should have been undertaken. In the Bailey case, we did not have before us the question whether we would have had jurisdiction if only one aspect of the petition had been certified.

That admission leaves the majority opinion with only one thread of authority, a sentence from the Scott case. That sentence is: “Our jurisdiction attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures.” See Bailey v. Hall, 198 Ark. 815 , 131 S.W.2d 635 (1939).” The “see” prefix is fair warning that the Bailey case does not precisely stand for the position asserted in the sentence, and, in fact, it does not. The sentence is much broader than the holding in the Bailey case.

Accordingly, the majority’s one thread of authority is clearly weak, at best. It breaks completely when one compares the sentence from Scott with the language of Amendment 7. Further, at the time Scott was decided there was no enabling act, passed pursuant to Amendment 7, which supplied the authority for early review of the ballot title. That authority was supplied by the 1989 act, after Scott was decided. In sum, the one sentence in the Scott case should not now be used to hold that the statute is repugnant to the amendment when, in fact, it is not.

The majority opinion also quotes from Scott at length concerning the reasons an early review of the popular name and ballot title is not wise. Those are political reasons why the 1989 act may be unwise, but they are not legal reasons why the statute is unconstitutional. The wisdom of legislation should be left to the General Assembly.

A case more in point is Washburn v. Hall, 225 Ark. 868 , 286 S.W.2d 494 (1956). The background of the case is as follows: Amendment 7 provides that “[t]he sufficiency of all statewide petitions shall be decided in the first instance by the Secretary of State. . . .” The legislature passed an act, codified at Ark. Code Ann. § 7-9-107 (a) — (d), which requires that the popular name and ballot title must first be submitted to the Attorney General. The review of the name and title by the Attorney General is not mentioned in Amendment 7. Still, we approved the act because:

Obviously, the Legislature considered that in signing a referendum or initiative petition the signer should have the benefit of a popular name and ballot title that would give as much information about the proposed act as is possible to give by such means. It is apparent that the Legislature considered that the safer method would be to first submit the proposed popular name and ballot title to the Attorney General of the State for his approval and, if he did not approve that which was submitted, he should substitute and certify more suitable ones. This statute in no way curtails the operation of Amendment No. 7 hut is in aid of the amendment and insures the giving to the signer of the petition as much information as is possible and practical with regard to what he is being asked to sign.

(Emphasis added.)

Similarly, in 1989, the Legislature thought that the sponsors of an initiative or referendum should have the benefit of an early decision on the validity of the popular name and ballot title. The statute enacted “in no way curtails the operation of Amendment 7, but is in aid of the amendment. . . .’’As a result of the statute, sponsors would no longer be required to speculate on whether the name and title are sufficient before they obtain the required number of signatures. The statute would neither restrict, nor hamper, nor impair the right of the people to exercise the power of initiative; rather, it would facilitate the exercise of that power in accordance with the very terms of Amendment 7. Accordingly, I dissent.

Hays, J., joins in this dissent.