Mason v. Jernigan

Conley Byrd, Justice, dissenting. I can see no reason to depart from our prior rulings upon the sufficiency of ballot titles to Initiative and Referendum petitions. In Bradley v. Hall, Secretary of State, 220 Ark. 925 , 251 S.W. 2d 470 (1952), we had before us a proposal carrying the popular name “Modern Consumer Credit Amendment.” In holding both the popular title and the ballot title deficient, we stated the simple basic rules for determining the sufficiency or insufficiency of the ballot title to an initiated proposal in this language;

“Our decisions upon the sufficiency of ballot titles have been so numerous that the governing principles are perfectly familiar. On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785 , 164 S.W. 2d 884 . It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740 , 43 S.W. 2d 356 , 44 S.W. 2d 331 . We have recognized the impossibility of preparing a ballot title that would suit every one. Hogan v. Hall, 198 Ark. 681 , 130 S.W. 2d 716 . Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, of omission, or of fallacy, and it must not be tinged with partisan coloring, Walton v. McDonald, 192 Ark. 1155 , 97 S.W. 2d 81 .

It is evident that before determining the sufficiency of the present ballot title we must first ascertain what changes in the law would be brought about by the adoption of the proposed amendment. For the elector, in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new. It is the function of the ballot title to provide information concerning the choice that he is called upon to make. Hence the adequacy of the title is directly related to the degree to which it enlightens the voter with reference to the changes that he is given the opportunity of approving. ”

To determine the scope and import of the proposed amendment we must first determine what changes would.be brought about by the proposal. Since the proposal here involved re-enacts both sections of the “Freedom to Work” amendment but amends each section with a proviso, that portion of the proposal before us which contains the language of the Freedom to Work amendment is hereinafter set out in ordinary type and the provisos added by the sponsors of the proposal are italicized. The proposed amendment sponsored by the Labor Union provides:

“Be It Enacted by the People of the State of Arkansas:

Amendment No. 34 to the Constitution of Arkansas is amended to read as follows:

Section 1. No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union; nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union, or because of resignation from a labor union; nor shall any person against his will be compelled to pay dues to any labor organization as a prerequisite to or condition of employment; provided, however, that the foregoing governmental restrictions shall not apply if all of the following free choices have been made: (a) the employees in an existing collective bargaining unit have had an opportunity to participate in a secret ballot election conducted by an Arkansas State agency and the result of such election is a majority vote to remove the foregoing restrictions for that unit, (b) the affected employer has agreed to an otherwise legal contract provision concerning labor union membership as a condition of employment, and (c) all employees have freedom to participate or not participate in labor union meetings and similar activities.

Section 2. The General Assembly shall have power to enforce this article by appropriate legislation; provided, however, that the Arkansas Department of Labor (or, if there is no Arkansas Department of Labor, such executive department as designated by the Governor) shall have power to establish rules and regulations for the administration of the election provisions of this article, and to conduct such elections. ”

When the “proviso” in Section 1 is reduced to ordinary language it amends the Freedom to Work Law to permit a labor union when certified as a bargaining unit by the Arkansas Department of Labor to compel an employer to discriminate against persons who refuse to join a union. Included in the amendment is a deceptive requirement that “all employees have freedom to participate ... in labor union meetings” but of course after the employer is forced to hire only union members, the provision becomes nothing more than window dressing because federal law now guarantees each union member such rights.

The proviso in Section 2 of the labor union proposal is still more deceptive. It abolishes the usual checks and balances of the three departments of government — i.e. the executive, the legislative, and the judicial — and gives to the governor through the Department of Labor the right to legislate the ground rules for determining what shall be a bargaining unit, how and when the employee elections shall be held and the sole power to determine the outcome of the elections.

Now in determining whether the ballot title before us has fulfilled its function of providing the voter with the information concerning the choice that he is called upon to make, we must look to the ballot title which provides:

“AN AMENDMENT TO AMENDMENT NO. 34, “RIGHTS OF LABOR.” TO THE CONSTITUTION OF ARKANSAS: TO CONTINUE THOSE PROVISIONS OF AMENDMENT NO. 34 WHICH PROHIBIT DENIAL OF EMPLOYMENT BECAUSE OF MEMBERSHIP IN, AFFILIATION WITH, RESIGNATION FROM, OR REFUSAL TO JOIN A LABOR UNION, PROHIBIT ANY CONTRACT WHICH DENIES EMPLOYMENT BECAUSE OF MEMBERSHIP IN, REFUSAL TO JOIN, OR RESIGNATION FROM A LABOR UNION, AND PROHIBIT COMPELLING OF THE PAYMENT OF LABOR ORGANIZATION DUES AS A CONDITION OF EMPLOYMENT; BUT TO PROVIDE THAT THE FOREGOING PROVISIONS SHALL NOT APPLY IF THREE CONDITIONS ARE MET: (a) EMPLOYEES IN AN EXISTING BARGAINING UNIT VOTE BY SECRET BALLOT MAJORITY VOTE TO REMOVE THEM IN AN ELECTION CONDUCTED BY AN ARKANSAS STATE AGENCY, (b) THE AFFECTED EMPLOYER AGREES TO CONTRACT FOR LABOR UNION MEMBERSHIP AS A CONDITION OF EMPLOYMENT, AND (c) ALL EMPLOYEES MAY PARTICIPATE OR NOT PARTICIPATE IN LABOR UNION MEETINGS AND SIMILAR ACTIVITIES; TO CONTINUE THE ENFORCEMENT POWER OF THE GENERAL ASSEMBLY; BUT TO GIVE THE ARKANSAS DEPARTMENT OF LABOR (OR DEPARTMENT DESIGNATED BY THE GOVERNOR) THE POWER TO ESTABLISH RULES AND REGULATIONS FOR EMPLOYEE ELECTIONS AND TO CONDUCT SUCH ELECTIONS: AND FOR OTHER PURPOSES.”

While I consider the whole ballot title deceptive, for purposes of demostration, I will particularize with reference to the latter portion of the ballot title which provides:

. . to continue, the enforcement power of the General Assembly, but to give the Arkansas Department of Labor (or Department designated by the Governor) the power to establish rules and regulations for employee elections and to conduct such election; and for other purposes.”

No where in the ballot title can it be determined that the General Assembly has no control over what shall constitute a bargaining unit. No where does it appear that the General Assembly cannot provide for a contest of the results of an election held by the Department of Labor. Yet the fair implication of the ballot title is to the contrary. With respect to a similar implication in Bradley v. Hall, Secretary of State, 220 Ark. 920 , 929, 251 S.W. 2d 470, 472 (1952), we said:

“The ballot title itself is also misleading. It states that the amendment will empower the General Assembly ‘to authorize, define, and limit charges, in addition to interest.’ The word ‘authorize is taken from the measure itself and is accurately used; as we have seen, the amendment does authorize charges in addition to interest. But the term is not used alone; the phrase is ‘authorize, define, and limit.’ The fair implication of the phrase as a whole is that the legislature is to be given new and additional power to curb charges in addition to interest. Yet this implication has a manifest tendency to mislead, since the true purpose of the amendment is pretty nearly the exact opposite.”

While I will not address the matter in detail, I only ask how, a voter, in making his choice, could realize that the scope and import of the proposal is so great that “closed” shops in governmental agencies (i.e. police departments, fire departments, schools, etc.) could result.

Supplemental Opinion on Rehearing delivered October 11, 1976 Since I believe that the law should be applied alike fairly and impartially to all litigants and all proposals, I can find no good reason not to apply simple test of our former decisions to the ballot title before us. It must be remembered that the citizens of this State have consistently placed restrictions upon the making of amendments to the constitution whether it be a proposal submitted by the General Assembly pursuant to Article 19 § 22 or by a petition of the electorate pursuant to Amendment No. 7.

For the reasons stated, I respectfully dissent.

Fogleman, and Roy, JJ., join in this dissent.