*1 of conviction that the follows It judgment accordingly it refused to in so far as is reversed trial court affirmed but the bill, $20 than the marked refund the other money, appellants. and reversed
Affirmed part. part and Holt We agree: Harris, Roy, C.J., JJ. LAMB and Bob L. MASON
James Secretary Jr., O. JERNIGAN, George of Arkansas the State of State of 2d 851 540 S.W. 76-197 20, 1976 delivered September Opinion Banc) (In on Denial of Opinion Rehearing
[Supplemental 11, 1976, p. October delivered 399.] *2 Clark, William & Williams, El Smith, by: dredge Friday, V. for Smith, petitioners. and Robert Light, W. Moore James J. Powers, At- Gen., A. Tucker, Lonnie Dep. by: Atty. Guy Jim Gen., for respondents. ty. Intervenor, Arkansas Larrison & Agee, Youngdahl, State AFL-CIO. ac- is an This original Chief Harris, Carleton Justice. 7 to the No. Petitioners, to Amendment
tion. pursuant 9, 1976, their Constitution, filed petition on July Arkansas cer- from State court, the Secretary this enjoin seeking Com- of Election Boards and County State tifying of a name ballot title and proposed missioners the popular Amend- Constitution, known as Proposed amendment to Amend- amendment ment No. specifically, contention of It is the 34 of our Constitution. ment No. (cid:127) name to the proposed given popular petitioners obscures and amendment is deceptive, partisan, misleading, It is also of the amendment. of the content the true nature insufficient and ballot title is asserted that inadequate nor description par- and is not an intelligible impartial withholds as it distorts perti- ticular inasmuch provisions, effect and nent vital information scope concerning measure. the proposed The length. pop is not great
The entire amendment1 1“Amendment No. 34 to the Constitution of Arkansas is amended to read as follows: 1. shall be denied because of person employment
Section
No
“Amendment
‘Rights
is
ular name
proposal
given
name
that the
it
contended
is
of Labor’ Amendment”
to mislead
has a
in that
it
tendency
is deficient
given
constitutional
out
voter. Petitioners
present
point
General
34),
at the
No.
when
(Amendment
adopted
provision
“Freedom to
name
1944, bore the
Election of
popular
used
been
the name that has
Work;”
generally
that this is
in legal
constitutional
provision
particular
identifying
familiar
articles,
that the
public
periodicals
press
true,
remains that
this is
the fact
with that title. While
be termed a com
what
to Work”
might
“Right
only
phrase
the Act. Actually,
or informal identification
monplace,
characterizes
of the laws of Arkansas
official compilation
Labor,” this
34 as
designation
Amendment No.
“Rights
Revision Comm
*3
the Arkansas Statute
by
being approved
to the
with the duties
ission,2 which is
necessary
charged
statutes,
has been
of our
and such designation
publication
time,
manner
in like
used from 1947 to the
appearing
present
(1975)
last
Digest.
Supplement
union,
in or affiliation with or
membership
resignation from a labor
or
union;
because
or
join
of refusal to
affiliate with a labor
nor shall any cor-
contract,
or
or
poration
any
individual
association of
kind enter into any
oral,
written or
to exclude from employment members of a labor union or
union,
persons
join
who refuse to
a labor
or
of
because
from a
resignation
union;
labor
any
nor shall
his will be
person against
compelled
pay
dues
any
labor organization
prerequisite
as a
to or condition of employment;
however,
provided,
that the
governmental restrictions shall not
foregoing
made(: (a)
if all of the
apply
following free choices have been
the employees
in an existing collective
unit have had
bargaining
opportunity
an
to par-
in a secret
ticipate
ballot election conducted by an Arkansas state agency
and the result of such election is a majority vote to remove the foregoing
unit,
(b)
restrictions for that
the affected employer
agreed
has
to an
legal
otherwise
contract provision concerning labor union membership as a
(c)
condition of employment, and
all employees
participate
have freedom to
participate
or not
in labor union meetings and similar activities.
Section 2.
Assembly
The General
shall have
to enforce this article
power
however,
by appropriate legislation; provided,
that the Arkansas Depart-
(or,
ment
Labor,
of Labor
if there
nois Arkansas
of
Department
such ex-
Governor)
ecutive
department
designated by the
shall have
to es-
power
tablish rules and regulations for the administration of the election provisions
article,
of this
and to conduct such elections.”
viz.,
2This
is composed
Commission
of five
of the
persons,
Dean
Arkansas,
School of Law of the
of
University
Attorney
General of the
Arkansas,
State of
and three members of the
named by
Supreme
Bar
Court.
as follows:
title in
The ballot
provides
question
No.
to Amendment
‘Rights
“An Amendment
To continue
To the
Arkansas:
Labor.’
Constitution
34 which
No.
of Amendment
prohibit
those provisions
in, affilia-
denial of
because membership
employment
from,
a labor un-
with,
or refusal to
tion
join
resignation
which
ion,
contract
denies employment
prohibit any
refusal to
because membership,
join,
resignation
union,
from a
and
pay-
labor
compelling
prohibit
as a condition of
labor
dues
ment of
organization
but
foregoing
provide
employment;
are met:
if three conditions
shall
apply
provisions
unit vote
(a)
by
existing bargaining
Employees
an election
to remove them in
vote
secret ballot majority
(b) The
conducted
an Arkansas State Agency,
for labor union
to contract
affected employer agrees
(c)
as a condition
employment,
membership
in labor
or not
may
participate
employees
participate
activities;
similar
to continue
union
meetings
power
Assembly;
but to
enforcement
the General
give
the Arkansas
(or
of Labor
Department
department
Governor)
to establish rules
power
designated
to conduct
elections and
for employee
regulations
elections;
for other
such
purposes.”
*4
involved,
Before
the particular points
perhaps
discussing
of law
it would be well to mention
general principles
v.
243
case. In Fletcher
Ark.
to this
of
applicable
864,
Bryant,
type
698,
that some
422 S.W. 2d
we
out
significance
pointed
General
must be
to the fact that the Arkansas Attorney
given
title,
Ann.
2-208
to Ark. Stat.
the ballot
approved
pursuant
§
fact,
1956); in
we
from a Colorado case3
(Repl.
quoted
case),4 to the
(which
of a California
quoted
language
case,
in a clear
should a title so
effect that only
prepared
cases,5
Fletcher,
Arkansas
earlier
held insufficient.
citing
this court said:
Baker,
235
389 title, “In of this ballot determining sufficiency we will in mind that we a liberal constructionand keep give 7 in of Amendment interpretation requirements order to secure its to reserve to the purposes people or right adopt, reject, approve disapprove legislation.” emphasis] [Our
We added that:
“Actions
electors in
exercise
seeking
right
must not be thwarted
strict or technical construc-
”
Smith,
tion.
213,
Reevesv.
190 Ark.
We have said
(as
that a
well
name
as a ballot ti-
popular
tle) must be free from “catch
which tend
phrases
slogans
to mislead and color
Hall,
v.
merit
Moore
proposal.”
411,
Ark.
This
us to the ballot title itself.
brings
We have said that
a ballot title must be “free from ‘any misleading tendency,
whether of
omission,
amplification,
and it
fallacy,’
must not be
tinged
partisan coloring.” Bradley
*5
925,
220 Ark.
ing state: Petitioners complished. to amendment Amendment
“While masquerading than more drastic is much 34, No. the in fact proposal in the aborted such as advanced an outright repeal the General Assembly A would leave attempt. with repeal its to extent the legislative to authority occupy, of State the area sovereignty prompted, judgment would The measure 14(b). Sec. proposed preserved formula, the beyond in our Constitution enshrine rigid revise, for the of the General to Assembly competence on of labor union membership support imposition *** Arkansas. the workers of unwilling first assurance that “The elector is beguiled of the that Constitution proposed very provisions be ‘con- to will Amendment is emasculate designed is made certain (d)’, tinue and then reference in which situations narrow and unimportant seemingly sole of the ballot ‘shall not The they apply.’ purpose how the would is inform the elector change proposal — law the or retention of is law that change existing choice left to him not
at the The ‘shall polls. apply’ that calculated to the voter clause is apprise hardly con- would of the repeal existing adoption proposal ***.” stitutional prohibitions. that there is
As the elector deceived fact being in the of the amend original duplication language appearing it, ment, course, is true that the amendment original however, half Section copied; way through approximately “shall the amendment restrictions provides foregoing not if free have been made.” choices apply following words, In other amend are created exceptions original statutes, ment. In this is the procedure amending generally often, followed. Most when a statute is amended by of the statute General it reiterates all the Assembly, language that are made. retained inserts simply changes if the Amendment No. 34 is Actually, original language be retained as a constitutional amend part ment, course, must such necessarily placed language, the amendment. We do understand relative argument *6 to narrow to “shall not “certain apply” referring seemingly situations” for the are exceptions certainly unimportant out the “meat” the no is of by language pointed proposal; wherein the amendment indicates that these petitioners course, are “minor.” Of the fact that the only changes effect, in of Amendment No. would provisions presently not be situation arise if that might applicable every propos not, think, ed Amendment No. 59 is could we be adopted known, more made than the that clearly by using language conditions, under certain those “shall not provisions apply.” There is that the ballot title does not mention “u complaint ” nion but those terms do shop” “agency shop, particular in No. 59.6 it Amendment be appear Let remembered that the a title is not “inter purpose amendment, the but to summarize pret” only adequately amendment; of such nor it our function provisions the amendment itself. present litigation interpret The defects which have invalidated some ballot titles in as are il- past inadequate, partisan, misleading Hall, lustrated several cases. In the ballot supra, Johnson “An Amendment provided Prohibiting Operation Trains with Unsafe Crews.” Inadequate disapproving title, this we said:
“We think it can said ail citizens are safely of trains that do not against operation suf- carry ficient crews to assure We cannot reasonably safety. conceive would vote anyone this contrary viz., to proposition, trains with permit operation unsafe and crews. The amendment itself inadequate seeks declare that to trains with operate inadequate crews, course, a crew less than that (meaning, provid- ‘ act), ed in the is detrimental and welfare safety * * *’ But there been no has deter- people. prior mination that this assertion is true. always Actually, is a fact question, circumstances in depending upon 6In Moore v. supra, cited petitioners, we held a ballot title defec- because, tive says petitioners, “while it was aimed at prohibiting ’ ” the ballot ‘featherbedding, did not widely mention that understood term. amendment, We simply out that in point that proposed Section provided “Practices known as ‘featherbedding’ contrary are to the public policy of this state.” in the nature each case. Such ‘begging reasoning a conclusion which is defined ‘founding question,’ as much as the con- on a basis that needs to be proved Here, voter is a clusion itself.’ urged support crew measure which provides particular *7 trains, with a smaller of because to operate operation crew title, is, ‘unsafe inade- to the ballot and according — the ‘unsafe and remains to be but inadequate’ quate’ proved.” 404, at 229 Ark. In another found Johnson 197, constitutional
S.W. 2d the ballot title for proposed 52 was the court Amendment No. rejected inadequate, stating: — amendment
“The ballot title here An require devices at all railroad safety public crossings, adequate — think, voter, would we or obviously, convey him, that at carry present presumption at railroads were not devices all using adequate safety our statutes do and that public crossings present for the traveler. provide adequate protection highway would vote all citizens for Certainly good adequate There in at this nothing protection public crossings. tells the voter that this amendment that would in Arkansas to install and railroads require maintain at each or street electrically public crossing in addition controlled and warning signals, electrically controlled boards or on each side of the gates public railroad without distance any regard crossings, said be from a source of electric crossing might such a would an and that ad- power, place requirement on the ditional burden of railroads of heavy expense devices, install and maintain such millions dollars to 3,600 railroad at an estimated in public crossings Arkansas, traffic count over such whether the daily or to a dozen vehicles thousands.” amounted crossings McDonald, State, Walton v. Ark. Secretary Again, 81, 97 S.W. 2d a constitutional amendment brief, contained sections and of a forty-nine levy provided, cent, further sales tax of two per permanent general an provided and one-third appropriation thirty-three per cent of a tax on of the horse gross proceeds dog racing, to be old these taxes levied for benefit of the pen- age title, court, in an sion fund. opinion by rejecting Smith, Frank said: Justice
“The humane title carries to all instincts. appeal Few would some made for the object provision being blind; sales but to support levy general aged cent, that, tax of two for other is a per any purpose, different and would furnish question altogether, elector, be, however his serious generous impulses might if that were reflection information ground imparted to him the title of the which exer- he question cised his would true this be right suffrage. Especially if he were also advised the act to its appropriates cent, and one-third purposes thirty-three per tax on horse and which gross proceeds amounted, dog racing, *8 last biennium, the sum of during gross $379,059.73.”
How does the title of ballot Amendment No. proposed 59 standards, with mentioned, earlier comport which must be followed if a ballot title is to be considered proper In words, and other is it from “free adequate? any misleading omission, whether of or a tendency, amplification, fallacy, and not with us tinged Let partisan coloring?” compare amendment title. ballot PROPOSED
AMENDMENT BALLOT TITLE however, provided, that the forego- provide foregoing but to ing governmental restrictions shall shall provisions apply not if three not if apply all free following are met: conditions choices have been made: (a) the in an employees existing (a) in an employees existing collective unit have had bargaining unit vote bargaining by secret to an in a opportunity participate majority vote to remove secret ballot conducted election election them in an conducted state and the agency Arkansas state an Arkansas agency, result of such election is majority vote to remove the foregoing for that unit. restrictions
394 (b) the to (b) employer agrees affected affected employer has union contract labor to an agreed legal otherwise con- as a condition membership provision concerning tract labor employment, a condition of membership union employment. (c) (c) may par- employees all employees have in labor or not not participate par- ticipate participate freedom or in labor union and similar ac- ticipate meetings meetings union tivities; similar activities. that this abstract or summation is ade It is apparent and sufficient summarize the quate changes proposed 59,7 No. and is Amendment No. Amendment by proposed nor tinged partisan coloring. misleading It follows that to enjoin petition seeking from State and State County Secretary certifying Boards of Election Commissioners the ballot title and pop- amendment, ular name of this should denied. It is so ordered. Byrd, Roy,
Fogleman, dissent. JJ., Conley see reason I can no Justice, dissenting. Byrd, of ballot from our sufficiency depart prior rulings titles to Initiative and Referendum petitions. Bradley State, (1952), 2d 470 Ark. S.W. Secretaryof name us a we had before carrying popular *9 proposal both Amendment.” Credit holding “Modern Consumer deficient, we the title stated and the ballot the title popular insuf- rules for the sufficiency basic determining simple to an of the ballot title initiated proposal ficiency language; titles the of ballot
“Our decisions sufficiency upon are that the have been so numerous governing principles hand, it is one familiar. On the required perfectly of the amendment the contain synopsis 884. Hall, 785, 164 2d v. 204 Ark. S.W. or statute. Sturdy full con- reflect the provisions similarly other are summarized 7The of the measure. tent title to to con It is be sufficient for the complete enough the of the idea intelligible scope import vey McDonald, 740, v. Ark. law. Westbrook proposed 356, 331. S.W. 2d 44 S.W. 2d We have recognized would suit a ballot title that impossibility preparing 2d 716. one. 198 Ark. 130 S.W. every Hogan Yet, hand, free from on must be the other ballot title whether of ‘any misleading tendency, amplification, omission, or of and it must not fallacy, tinged McDonald, 1155, 97 Waltonv. 192 Ark. partisan coloring, S.W. 2d 81.
It is evident that before determining sufficiency of the ballot title we what must first ascertain present in the law would be about changes by adop- brought elector, tion of the amendment. For the proposed amendment, a constitutional mak- voting upon simply a choice between retention of the law and ing existing the substitution of new. It is the function of something the ballot title to information provide concerning choice that he is called to make. Hence the ade- of the title is related quacy directly degree which it the voter with reference to the enlightens ” that he is changes given opportunity approving. To determine the of the scope import proposed amendment we must first determine what changes would.be about brought Since the here in- by proposal. proposal volved re-enacts both sections of the “Freedom to Work” amendment but amends each section with a proviso, of the before which us contains the portion proposal language of the Freedom to Work amendment is hereinafter set out in and the added ordinary type provisos by sponsors are italicized. The proposal amendment sponsored the Labor Union provides: “Be It Enacted of the State of Arkansas: People
Amendment No. 34 to the Constitution of Arkansas is amended to read as follows: 1.
Section No shall be denied person employment *10 because of in membership or affiliation with or resigna- of or union, or because to labor refusal join
tion from a or union; nor shall with a labor affiliate any corporation of kind con- or association enter into any individual any oral, or to exclude tract, written from employment a union or refuse to a labor who join members of persons un- union, from a labor labor or because of resignation his ion; will be nor shall compelled any person against to a to dues labor as any organization prerequisite pay of to or condition employment; however, that provided, all restrictions shall not apply foregoing governmental of if in an ex- have been made: choices (a) employees following free to unit have had collective an par- isting bargaining opportunity State a secret election conducted an Arkansas ticipate by result is a vote to remove such election majority agency of unit, restrictions that (b) the employer foregoing affected an contract has to otherwise concerning legal provision agreed (c) labor union as a condition membership employment, in labor have participate employees participate freedom activities. union similar meetings to en- The shall have Section 2. General Assembly power force this article by legislation; appropriate however, provided, no Arkansas the Arkansas Labor there is (or, Department if Labor, such executive department Department designated ad- shall have rules Governor) establish power regulations for article, such ministration the election and to conduct provisions of ” elections. 1 is When the Section reduced ordinary “proviso” it the Freedom to Work a amends Law language labor union when permit
certified the Arkan- as a unit bargaining to dis- sas Labor to Department compel employer criminate who refuse to a union. Includ- join against persons ed in the amendment “all deceptive requirement ... have freedom to in labor union employees participate course but of after the is forced hire meetings” employer members, union becomes more only nothing provision than law window because federal now dressing guarantees each union member such rights.
The in Section 2 of the labor union proviso proposal It still abolishes the usual checks and more deceptive. — three balances of the departments government i.e. *11 — executive, legislative, judicial gives of Labor governor through right Department rules for what shall be a legislate ground determining unit, how and when the elections shall bargaining employee held and sole to determine the outcome power elections.
Now in whether title before the ballot us determining has fulfilled its function of the voter with the infor- providing mation the choice that he make, is called concerning we must look to the ballot title which provides:
“AN AMENDMENT TO AMENDMENT NO.
“RIGHTS OF LABOR.” TO THE CONSTITUTION OF ARKANSAS: TO CONTINUE THOSE PROVISIONS OF AMENDMENT NO. WHICH PROHIBIT DENIAL OF EMPLOYMENT IN, BECAUSE OF MEMBERSHIP AFFILIATION WITH, FROM, RESIGNATION OR REFUSAL TO UNION, A LABOR ANY PROHIBIT JOIN CONTRACT WHICH DENIES EMPLOYMENT BECAUSE IN, OF MEMBERSHIP REFUSAL TO OR JOIN, RESIGNATION A FROM LABOR UNION, AND PROHIBIT COMPELLING OF THE PAYMENT OF LABOR ORGANIZATION DUES AS A EMPLOYMENT; CONDITION OF BUT TO PROVIDE THAT THE FOREGOING PROVISIONS SHALL NOT APPLY IF THREE (a) CONDITIONS ARE MET: IN AN EMPLOYEES EXISTING BARGAINING UNIT VOTE BY SECRET BALLOT VOTE TO MAJORITY 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, (c) AND 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 (OR OF LABOR DEPARTMENT GOVERNOR) THE THE BY
DESIGNATED AND RULES ESTABLISH POWER TO ELECTIONS FOR EMPLOYEE REGULATIONS AND ELECTIONS: TO SUCH AND CONDUCT OTHER PURPOSES.” FOR *12 title for whole pur- I the ballot While consider deceptive, reference to demostration, I will particularize poses title which the of the ballot provides: latter portion General continue, . of the . to the enforcement power Arkansas but the Department Assembly, give Governor) the the (or Labor by designated Department for rules and employee establish regulations power election; for other and to conduct such and elections purposes.” that in it be determined the
No where the ballot can what constitute a General has no control over shall Assembly the General unit. where does it that No bargaining appear a contest of the results cannot Assembly provide fair im- of Labor. the election held the Yet Department to a of the title is With ballot plication contrary. respect State, in similar implication Bradley Secretaryof 920, 929, (1952), Ark. 2d said: 251 S.W. we
“The title itself is It states also misleading. that the amendment will the General empower authorize, define, limit in ‘to and ad- charges, Assembly is from the dition to interest.’ The word ‘authorize taken used; seen, we have measure itself and is accurately addition to in- the amendment does authorize in charges alone; terest. But term is not used phrase ‘authorize, define, limit.’ The fair and implication as a whole is that the is to be given phrase legislature in addition to new and additional to curb power charges Yet interest. has a manifest tendency implication mislead, true since the amendment purpose exact nearly pretty opposite.” detail, in I I will not address the matter ask only While how, voter, choice, his could realize that a making “closed” is so great scope import proposal fire (i.e. agencies police departments, governmental shops schools, etc.) could result. departments, alike I believe that the law should fairly Since applied find I can no to all proposals, impartially litigants of our former decisions not to test reason good apply simple us. It must be remembered to the ballot title before restrictions of this State have citizens consistently placed whether of amendments to the constitution making it be a submitted General Assembly pursuant proposal the electorate to Article 19 22 or by petition pursuant § No. 7. Amendment stated, I dissent.
For the reasons respectfully in this dissent. Roy, JJ., join Fogleman, on delivered Supplemental Opinion Rehearing *13 11, October 1976 denied. Rehearing In Chief their Harris, petition Carleton Justice. contend that this Court’s decision is
rehearing, petitioners based on a sentence in the taken from the appearing opinion, 864, in Fletcherv. 243 Ark. 2d 698, S.W. holding Bryant, viz., “and that where reasonable minds differ as to the might title, same should be held sufficient.” sufficiency The are in error to the basis of our petitioners holding in fact, present litigation. quoted language might even be and, rate, considered so dictum1 at means little to any the decision that we herewith amend the opinion striking said from same. language
The crux of our holding, emphasized throughout the summation in the ballot title is opinion, adequate and sufficient to summarize the is not mis- changes proposed, As stated in leading, tinged partisan coloring. Hall, 416, Hoban v. 229 Ark. 185, 2d it is our S.W. duty “represents where impartial it summa- approve the sentence, Fletcher, 1Petitionersstate that this was dictum.
399-A Hall, 411, 316 229 Ark. v. also Moore measure.” See
lion 2d 925, 251 S.W. 220 Ark. 207, and S.W. 2d Bradley is our 470. That litigation. finding denied. Rehearing H. HUGHES v. STATE Arkansas
John 2d 592 540 S.W. 76-72 CR delivered Opinion September *14 Defender, for Don Public appellant. Langston, Isbell, Tucker, Gen., Asst. Atty. by: Gary Atty. Guy Jim Gen., for appellee. George Charged first-degree Smith, Rose Justice. Crutchfield, in the murder shooting appellant Jason received the murder and found was guilty second-degree sentence, His maximum argument years. principal