Pеtitioner, Eugenia T. Donovan, citizen and taxpayer, asks this court to enjoin Respondent, Secretary of State Sharon Priest, from placing the proposed Amendment 9 to the Arkansas Constitution on the ballot for the general election on November 5, 1996. Petitioner also requests that any votes that may have already been cast for the proposed Amendment 9 not be counted. We allowed the intervention of three additional parties in this original action, which was filed pursuant to Amendment 7 to the Arkansas Constitution of 1874: “Arkansas Term Limits,” the unincorporated sponsor of the proposed Amendment 9; Frank Gilbert, Executive Director of “Arkansas Term Limits”; and Spencer G. Plumley, Chairman of “Arkansas Term Limits.”
Petitioner asserts that the рroposed Amendment 9 exceeds the legislative powers reserved to the people of this state by our Amendment 7 in that it directly contravenes the amendment process provided for in Article V of the United States Constitution. Respondent and Intervenors contend that the proposed Amendment 9 does not exceed the powers of the people reserved in Amendment 7 and that, even if it did, Petitioner’s challenge to the proposal is a question of substantive constitutional law that is not yet ripe for our review. Our jurisdiction to hear this case is original and exclusive pursuant to Amendment 7 of the Arkansas Constitution.
I. Justiciability
Respondent and Intervenors urge us to decline review of Petitioner’s constitutional challenge tо the proposed Amendment 9 because the issue is not ripe for adjudication and, as such, any opinion issued by this court on the matter would be purely advisory. Petitioner asserts that our review of the sufficiency of the petition for this proposed amendment, as provided in Amendment 7, necessarily encompasses the issue of whether the proposal is within the powers reserved to the people in Amendment 7. Petitioner argues that the people of this state do not have the right to propose such a measure as the proposed Amendment 9, which instructs the legislators of this state, along with the Arkansas delegation to Congress, to use all the powers of their respective offices in proposing and securing an amendment to the United States Constitution limiting the number of terms members of Congress may serve. Petitioner asserts that the procedures for proposing amendments to the United States Constitution are specifically and exclusively provided for in Article V of that Constitution. Respondent and Intervenors counter that Petitioner’s argument is nothing more than a substantive constitutional challenge to the proposal, and as such, our review of the issue is not proper unless and until the measure has become law.
Our reading of the proposed Amendment 9 indicates that it is procedural in nature, purporting to empower the electorate with an indirect and prohibited means to propose an amendment to the United States Constitution. Hence, we agree that the threshold issue presented requires an analysis of whether such a procedure is encompassed within the powers reserved to the people of this state in Amendment 7.
Amendment 7 to the Arkansas Constitution of 1874 provides in part:
The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly[.] [Emphasis added.]
Amendment 7 further provides that the sufficiency of statewide petitions for initiatives shall be decided in the first instance by the Secretary of State, subject to the review of the supreme court which has original and exclusive jurisdiction over such causes. Upon legal challenges to initiative matters, Amendment 7 places the burden of proof “upon the person or persons attacking the validity of the petition.” As to the scope of Amendment 7 and its incorporation of the reserved rights of the people, this court has previously observed that “[t]he voters of this state essentially have, ivithin constitutional limits, a right to change any law or any provision of our Constitution they deem appropriate through Amendment 7 to the Constitution.” Dust v. Riviere,
This cоurt has previously decided cases in which it reviewed the validity of the people’s reserved powers of initiative and referendum. In Czech v. Baer,
At the outset the appellees argue that we should permit the measures to be placed on the ballot without first determining their validity. Certainly it is true that a party who resists an initiated petition on grounds such as insufficiency of signatures or improper ballot tide is not required to question the validity of the proposed measure. On the other hand, that question may be considered and decided when it is properly raised, even before the election. Proctor v. Hammans,277 Ark. 247 ,640 S.W.2d 800 (1982); Hodges v. Dawdy,104 Ark. 583 ,149 S.W. 656 (1912).
Id. at 459,
In Hodges v. Dawdy,
More recendy in Plugge v. McCuen,
It has been said that the pertinent issue in cases such as this one “is not the hypothetical question whether the law, if passed, would be constitutionally defective; rather, it is the present and ripe question whether the measure’s proponents are entitled to invoke the direct legislation process at all.” James D. Gordon III & David B. Magleby, Pre-Election Judicial Review of Initiatives and Referendums, 64 Notre Dame L. Rev. 298, 314 (1989) (emphasis added). We agree, especially when considering our decisions in Czech, Hodges, and Plugge. We also agree that a case such as this one is ripe for the following reasons: (1) The case is concrete and the record will not be improved by waiting until after the election is held; (2) the factual controversy — whether procеdural and subject-matter requirements have been met — exists before the election; (3) post-election events will not sharpen the issues, as no additional facts are necessary for decision; and (4) the issue is not speculative nor hypothetical because the only constitutional issues involved are those that govern the proponents’ right to invoke the direct-legislation process. Id.
Regarding justiciability in general, this court has previously stated that declaratory relief will lie where (1) there is a justiciable controversy; (2) it exists between parties with adverse interests; (3) those seeking relief have a legal interest in the controversy; and (4) the issues involved are ripe for decision. US. Term Limits, Inc.,
Other courts have conducted preelection reviews of a proposed measure’s validity. In Hawke v. Smith, No. 1,
Based on the aforementioned decisions of this court as well as other courts, we hold that our review of the sufficiency of a proposed measure, as provided for in Amendment 7, includes a review of whether the measure’s proponents are entitled to invoke the direct initiative process when such issue is properly presented. In so holding, we do not conclude that we will entertain substantive constitutional challenges to a proposed measure, such as whether it violates the free speech provision of the First Amendment, before an election has been held. We distinguish such substantive constitutional challenges from procedural challenges in that the former necessarily involve faсt-specific issues and thus are not ripe for review until the proposed measure becomes law and a case in controversy arises. Given that the review we are asked to conduct in this case is not one of direct review of the proposed amendment’s validity, but rather one of whether the proposed amendment’s advocates are entitled to invoke our initiative process in the first place, we will address the merits of Petitioner’s challenge. Our discussion of this issue necessitates our review of the powers authorized by Article V of the United States Constitution and the case law that has interpreted those powers.
II. Constitutional Challenge
Article V of the United States Constitution provides in pertinent part:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress [.]
The pertinent sections of the proposed Amendment 9 provide as follows:
(e) It is the will of the people of the State of Arkansas that the following amendment be added to the United States Constitution:
Congressional Term Limits Amendment
Section a. No person shall serve in the office of United States Representative for more than three terms, but upon ratification of this amendment no person who has held the office of United States Representative or who then holds the office shall serve for more than two additional terms.
Section b. No person shall serve in the office of United States Senator for more than two terms, but upon ratification of this amendment no person who has . held the office of United States Senator or who then holds the office shall serve more than one additional term.
Section c. This article shall have no time limit within which it must be ratified by the legislatures of three-fourths of the several states.
(g) Each member of the Arkansas delegation to the United States Congress is hereby instructed to use all of the powers of the Congressional office to pass the Congressional Term Limits Amendment set forth in subsection (e) above.
(h) All primary, general, and special election ballots shall have the information “DISREGARDED VOTER INSTRUCTION ON TERM LIMITS” printed adjacent to the name of any United States Representative or United States Senator who:
(1) Failed to vote in favor of the Congressional Term Limits Amendment proposed in subsection (e) when brought to any vote;
(2) Failed to second the Congressional Term Limits Amendment proposed in subsection (e) if it lacked for a second before any proceeding of the legislative body;
(3) Failed to propose or otherwise bring to a vote of the full legislative bоdy the Congressional Term Limits Amendment proposed in subsection (e) above if it otherwise lacked a legislator who so proposed or brought to a vote of the full legislative body the Congressional Term Limits Amendment proposed in subsection (e) above; or
(4) Failed to vote in favor of discharging the Congressional Term Limits Amendment proposed in subsection (e) before any committee or subcommittee upon which the legislator served in the respective legislative body; or
(5) Failed to vote against or reject any attempt to delay, table, or otherwise prevent a vote by the full legislative body on the Congressional Term Limits Amendment set forth in subsection (e); or
(6) Failed to vote against any term limits proposal with tеrms longer than those set forth in the Congressional Term Limits Amendment proposed in subsection (e); or
(7) Sponsored or co-sponsored any proposed constitutional amendment or law that proposes term limits longer than those in the Congressional Term Limits Amendment set forth in subsection (e); or
(8) Failed to ensure that all legislative votes on congressional term limits were recorded and made available to the public.
(k) The House of Representatives of the State of Arkansas, and the Arkansas Senate, due to the desire of the people of the State of Arkansas to establish term limits for the Congress of the United States, are hereby instructed to make the following application to the United States Congress, pursuant to their powers under Article V of the United States Constitution, to wit:
“We, the people and legislature of the State of Arkansas, due to our desire to establish term limits on the members of the Congress of the United States, hereby make application to the United States Congress, pursuant to our power under Article V of the United States Constitution, to call a convention for proposing amendments to the Constitution.”
(1) All primary, general, and special election ballots shall have the information “DISREGARDED VOTER INSTRUCTION ON TERM LIMITS” printed adjacent to the name of any state senator or state representative who:
(a) Failed to vote in favor of the application set forth in subsection (k) above when brought to a vote; or
(b) Failed to second the application set forth in subsection (k) above if it lacked a second; or
(c) Failed to vote in favor of all votes bringing the application set forth in subsection (k) above before any committee or subcommittee upon which the legislator served; or
(d) Failed to propose or otherwise bring to a vote of the full legislative body the application set forth in subsection (k) if it otherwise lacked a legislator who so proposed or brought to a vote of the full legislative body the application set forth above; or
(e) Failed to vote against any attempt to delay, table, or otherwise prevent a vote by the full legislative body on the application set forth in subsection (k) above; or
(f) Failed to ensure that all votes on the application set forth in subsection (k) were recorded and made available to the public; or
(g) Failed to vote against any change, addition, or modification to the application set forth in subsection (k) above; or
(h) Failed to attend a hearing, session, or vote of the legislative body concerning any aspect of consideration of the proposals in subsection (e) and subsection (k) above, where such failure to attend resulted in any failure to obtain a quorum sufficient to conduct business; or
(i) Failed to move for, second, or vote in favor of a roll-call vote on any aspect of consideration of the proposals in subsection (e) and subsection (k) above, where such failure resulted in the defeat of any aspect of subsection (e) and subsection (k) above, without recording the votes of individual legislators to be held accountable at a later time.
0 Failed to vote against any effort to rescind the application.
(k) Failed to vote in favor of the amendment set forth in subsection (e) above, when the amendment was sent to the states for ratification; or
0 Failed to vote against any term limits amendment with terms longer than the limits set forth in the proposed amendment in subsection (e) above, when such an amendment is sent to the states for ratification.
(n)(l) The Secretary of State of the State of Arkansas shall be responsible for making an accurate determination as to whether a candidate for state or federal legislative office shall have placed next to the candidate’s name on the election ballot the information “DISREGARDED VOTER INSTRUCTION ON TERM LIMITS” or the information “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS” and for certifying the appropriate indication to the appropriate county clerks and other appropriate voting officials. [Emphasis added.]
It is clear from the aforementioned provisions that the proposed Amendment 9, which bears the popular name “THE CONGRESSIONAL TERM LIMITS AMENDMENT OF 1996,” directs both state and federal legislators to use the power of their respective offices to advance the cause of adopting a proposed amendment to the United States Constitution that would limit the number of terms of United States Representatives and Senators. The proposed Amendment 9 also directs the General Assembly to use the power specifically granted to the state legislatures in Article V to ask the United States Congress to call a constitutional convention. The proposed Amendment 9 essentially provides for a vote of the people to initiate the application process for a constitutional convention and, likewise, it provides for a vote of the people to propose to Congress an amendment to the United States Constitution. In the event any individual legislator, state or federal, fails to do as instructed, the prоposed Amendment 9 states that the words “DISREGARDED VOTER INSTRUCTION ON TERM LIMITS” shall be placed adjacent to their names on any ballots in future elections.
Respondent and Intervenors assert that the proposed Amendment 9 does not contravene Article V because it neither prevents nor compels any action by any legislator, state or federal; it merely puts the legislators on notice of the desire of the people to have term limits on members of Congress. Further, Respondents and Intervenors assert that the main focus of this proposed amendment is its provision for additional ministerial duties of the Secretary of State, and that there is no binding effect on any legislative power nor any penalty assessed to legislators. As discussed earlier, we limit our review to the only justiciable issue — whether Amendment 7 reserves to the people of the State of Arkansas the power to propose amendments to the United States Constitution and to make application to Congress for a constitutional convention. In order to resolve this issue, it is helpful to review the case law interpreting the provisions of Article V.
In Hawke,
It is true that the power to legislatе in the enactment of the laws of a State is derived from the people of the State. But the power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification by the State derives its authority from the Federal Constitution to which the State and its people have alike assented.
Id. at 230 (emphasis added). Ultimately, the Court held that Article V only authorized state legislatures (i.e. the law-making bodies themselves) to ratify amendments to the United States Constitution. The Court thus concluded that the people, through the process of initiative and referendum, did not have the same power.
Two years after the decision in Hawke, the Supreme Court had anothеr occasion to address the ability, or lack thereof, of the people of the states to ratify a proposed amendment to the United States Constitution. In Leser v. Garnett,
[T]he function of a state legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State.
Id. at 137 (citations omitted) (emphasis added).
Respondent and Intervenors argue that neither Hawke nor Leser is applicable to the situation presented in this case because both cases pertain only to the ratification clause of Article V. Instead, they assert that Kimble v. Swackhamer,
In State ex rel. Harper v. Waltermire,
Relying on the holdings of Hawke and Leser, the Montana court held that the word “legislatures,” as used in both the ratification clause and the proposal clause of Article V, referred to the legislative bodies of the states. The court reasoned that the framers of the United States Constitution would not have ascribed different meanings to the two instances in Article V where the word “legislatures” is found. The court further echoed the framers’ sentiments that the amendatory process should be deliberate, holding that “whenever a state legislature acts to amend the United States Constitution under Article V powers, the body must be a deliberative representative assemblage acting in the absence of any external restrictions or limitations.” State ex rel. Harper,
Thе sponsors of the Montana measure argued, just as Respondent and Intervenors do in this case, that the initiative was merely a nonbinding recommendation to the legislature. In rejecting that argument, the Montana court pointed to the express language directing the actions of the legislature as well as the consequences for not following those directions, namely that the legislature would be kept in “perpetual session” and, after a period of ninety days, legislators would no longer receive compensation. Id. The court determined that such restrictions violated the spirit of Article V as interpreted in Hawke and Leser. Finally, the court concluded that “[[legislative deliberation cannot exist where thе outcome is a predetermined specific action. . . . The people through initiative cannot affect the deliberative process.” State ex rel. Harper,
In Eu,
Article V provides for apрlication by the “Legislatures of two-thirds of the several States,” not by the people through the initiative; it envisions legislators free to vote their best judgment, responsible to their constituents through the electoral process, not puppet legislators coerced or compelled by loss of salary or otherwise to vote in favor of a proposal they may believe unwise.
Id. at 613.
The California court reasoned that the purpose of that state’s initiative process is to allow a means of enacting legislation, not a means of conducting public opinion polls. The court stated that the voters were not without remedy, as they had ample opportunity to make their views known to the various candidates through the campaign process. The court acknowledged that the United States Supreme Court had not yet addressed this particular issue involving Article V’s proposal clause, but it found the Court’s previous interpretations of Article V’s ratification clause to be persuasive. Furthermore, the court cited with approval an earlier determination by the Supreme Judicial Court of Massachusetts that the reference to “legislatures” in the proposal clause, like that in the ratification clause, meant the legislative body of a state, not the whole legislative process. Eu,
The California court further submitted that the framers of the United States Constitution knew exactly what distinction they were making in providing that only “Legislatures” were able to make application to Congress to convene a constitutional convention. Relying on the constitutional analysis in Hawke,
The framers were, of course, aware of the difference between a representative body and the electorate as a whole; they knew that a legislature is a deliberative body, empowered to conduct hearings, examine evidence, and debate propositions. Its members may be assumed generally to hold views reflecting the popular will, but no one expects legislators to agree with their constituents on every measure coming before that body. Yet, although undoubtedly aware that the views of a deliberative body concerning a proposed amendment might depart from those of a majority of the voters, the framers of the Constitution chose to give the voters no direct role in the amending process; legislatures alone received the power to apply for a national convention, and legislatures or conventions, as Congress chose, the power to ratify amendments.
The only conclusion we can draw from this fact is that the drafters wanted the amending process in the hands of a body with the power to deliberate upon a proposed amendment and, after considering not only the views of the people but the merits of the proposition, to render a considered judgment. A rubber stamp legislature could not fulfill its function under article V of the Constitution.
Eu,
Most recently, the Supreme Judicial Court of Maine was asked by its house of representatives for an opinion on a proposed initiative measure comparable to the proposed Amendment 9. In Opinion of the Justices,
These three cases from Montana, California, and Maine, along with the Supreme Court cases interpreting Article V’s ratification clause, are persuasive authority for Petitioner’s proposition that Article V prohibits the action proposed by the measure at hand. Clearly, the proposed Amendment 9 is nothing more than a coercive attempt to compel the Arkansas General Assembly to do as the alleged majority of the people wish, without any intellectual debate, deliberation, or consideration of whether such action is in the best interest of all the people of this state. This intent is clear from the language of the proposed Amendment 9 that the legislators are hereby instructed to do as told. Although the proposed Amendment 9 does not compel such action by the legislature on threat of loss of salary, it is nonetheless binding on the legislators in an extortive manner as failure to heed the amendment’s instructions will result in their threatened potential political deaths. Contrary to what Respondent and Intervenors contend, the proposed duties to be given to the Secretary of State by Amendment 9 are not merely ministerial; rather, they amount to substantive penalties that are equivalent to an officially sanctioned recommendation by the State of Arkansas not to vote for such candidates because they disregarded the instructions and wishes of the voters. If, as Respondent and Intervenors assert, the proposed measure is merely a nonbinding attempt to communicate the desire of the people for term limits, then their remedy is to voice their desires at the polls by voting for candidates who share these beliefs.
The proposed Amendment 9 is clearly violative of the provision in Article V of the United States Constitution that all proposаls of amendments to that Constitution must come either from Congress or state legislatures — not from the people. It is an indirect attempt to propose an amendment to the United States Constitution, and as such violates the narrow, specific grants of authority provided in Article V. The proposed Amendment 9 would virtually tie the hands of the individual members of the General Assembly such that they would no longer be part of a deliberative body acting independently in exercising their individual best judgments on every issue. Consequendy, the measure is an impermissible use of the initiative power reserved to the people of this state in Amendment 7 to the Arkansas Constitution and is clearly contrary to law. See Plugge,
Intervenors raise the issue in their reply briеf that placing the information “DISREGARDED VOTERS INSTRUCTION ON TERM LIMITS” adjacent to candidates’ names on election ballots is constitutionally permissible as a time, place, and manner regulation under the Elections Clause of Article 1, Section 4, of the United States Constitution. Because we conclude that the proposed Amendment 9 exceeds the scope of the powers reserved to the people in Amendment 7, we need not address this issue. We thus enjoin Respondent from placing the proposed Amendment 9 on the ballot, or alternatively from declaring the results. The mandate is ordered issued on Friday, October 25, 1996, unless a petition for rehearing is filed. If a petition for rehearing is filed, briefing will be on an expedited basis to be set by the clerk.
Petition granted.