Opinion No.

Check Treatment

The Reverend Miriam (Peggy) Hays 12 Deerwood Conway, AR 72034

Dear Rev. Hays:

You have requested certification, pursuant to A.C.A. § 7-9-107 (Repl. 2000), of a popular name and ballot title for a proposed initiated measure. Proponents of the proposed animal cruelty act have previously submitted a similar measure that my office revised and certified, as evidenced by Op. Att'y Gen. 2001-299. That measure was subsequently withdrawn. You have since made additional changes to the measure and submitted a revised popular name and ballot title for my certification. Your proposed popular name and ballot title state:

Popular Name THE ARKANSAS ANIMAL CRUELTY ACT Ballot Title

AN ACT AMENDING ARKANSAS LAW CONCERNING CRUELTY TO ANIMALS TO ADD A SECTION ESTABLISHING THE OFFENSE OF "AGGRAVATED CRUELTY TO ANIMALS," TO BE CODIFIED AS ARKANSAS CODE ANNOTATED § 5-62-102; PROVIDING THAT A PERSON COMMITS THIS OFFENSE IF HE OR SHE KNOWINGLY TORTURES, MUTILATES, MAIMS, BURNS, POISONS, OR MALICIOUSLY KILLS, STARVES, OR DISFIGURES ANY ANIMAL; CLASSIFYING AGGRAVATED CRUELTY TO ANIMALS AS A CLASS D FELONY; PROVIDING AN EXEMPTION FOR CONDUCT OTHERWISE AUTHORIZED BY LAW OR LEGAL PRIVILEGE, INCLUDING, BUT NOT LIMITED TO: 1) HUNTING, FISHING, OR ANY OTHER ACTIVITY AUTHORIZED BY AMENDMENT 35 OF THE ARKANSAS CONSTITUTION, THE ARKANSAS CODE, OR ANY ARKANSAS GAME AND FISH COMMISSION REGULATIONS PROMULGATED THEREUNDER, 2) ROUTINE ACCEPTED LIVESTOCK, POULTRY, OR AQUACULTURE MANAGEMENT PRACTICES, 3) THE PROTECTION OF LIVESTOCK AND POULTRY AS AUTHORIZED BY ARKANSAS CODE ANNOTATED § 20-19-102, WHICH ESTABLISHES THE RIGHT TO KILL A DOG THAT HAS KILLED OR IS ABOUT TO CATCH, INJURE, OR KILL LIVESTOCK OR POULTRY, 4) LAWFUL VETERINARY PRACTICES, AND 5) LAWFUL PEST CONTROL PRACTICES; ESTABLISHING A NEW SECTION TO BE CODIFIED AS ARKANSAS CODE ANNOTATED § 5-62-103, AUTHORIZING THE COURT TO ORDER ANY OFFENDER CONVICTED OF CRUELTY TO ANIMALS, AGGRAVATED CRUELTY TO ANIMALS, UNLAWFUL ANIMAL FIGHTING, OR UNLAWFUL BEAR EXPLOITATION TO UNDERGO A PSYCHIATRIC OR PSYCHOLOGICAL EVALUATION AND COUNSELING OR TREATMENT, AT THE OFFENDER'S EXPENSE; ESTABLISHING A NEW SECTION TO BE CODIFIED AS ARKANSAS CODE ANNOTATED § 5-62-104, RECOGNIZING THE STATUS OF ABUSED ANIMALS, IN THE HANDS OF THEIR ABUSER, AS CONTRABAND; PROVIDING A PROCEDURE FOR CIVIL FORFEITURE OF SAID ANIMALS; PROVIDING FOR THE RELEASE OF FORFEITED ANIMALS TO A SOCIETY INCORPORATED FOR THE PREVENTION OF CRUELTY TO ANIMALS; AND PROVIDING SUCH SOCIETY A STATUTORY LIEN AGAINST ABUSED ANIMALS SEIZED AS EVIDENCE FOR COSTS OF FOOD, HOUSING, MEDICAL, AND OTHER NECESSARY EXPENSES; AMENDING ARKANSAS CODE ANNOTATED § 5-62-101 (CRUELTY TO ANIMALS) TO DELETE EXISTING PROVISIONS FOR MENTAL HEALTH EVALUATION, COUNSELING, OR TREATMENT, TO DELETE EXISTING PROVISIONS FOR CUSTODY TRANSFER OF ABUSED ANIMALS, AND TO ADD A PROVISION SPECIFYING THAT AN OFFENSE OF CRUELTY TO ANIMALS SHALL BE A CLASS D FELONY IF THE DEFENDANT HAS PREVIOUSLY BEEN CONVICTED OF ANY OFFENSE INVOLVING THE USE, ATTEMPTED USE, OR THREATENED USE OF VIOLENCE TOWARD OR CRUEL MISTREATMENT, CRUEL NEGLECT, ABANDONMENT, OR UNAUTHORIZED KILLING OF AN ANIMAL; AMENDING THE EXISTING ARKANSAS UNLAWFUL DOG FIGHTING STATUTE (ARKANSAS CODE ANNOTATED § 5-62-120) TO CHANGE THE WORD "DOG" TO "ANIMAL" THEREBY ESTABLISHING THE OFFENSE OF "UNLAWFUL ANIMAL FIGHTING" AND EXTENDING THE EXISTING FELONY AND MISDEMEANOR PENALTIES TO COCKFIGHTING AND OTHER ANIMAL FIGHTING EVENTS; DEFINING "ANIMAL" FOR PURPOSES OF THE ANIMAL FIGHTING SECTION AS ANY ANIMAL THAT IS IN THE CUSTODY OF HUMANS, INCLUDING ANY DOG OR BIRD; DEFINING" ANIMAL FIGHT" OR "ANIMAL FIGHTING" AS COMBAT BETWEEN TWO OR MORE ANIMALS AS DEFINED IN THE ANIMAL FIGHTING SECTION; ESTABLISHING A CLASS D FELONY OFFENSE FOR THE MANUFACTURE OR SALE OF DEVICES INTENDED TO ENHANCE AN ANIMAL'S FIGHTING ABILITY; ESTABLISHING A CLASS D FELONY OFFENSE FOR THE PURCHASE, POSSESSION, OR CONFIGURATION OF ANY DEVICE WITH THE INTENT OF USING SUCH DEVICE FOR ANIMAL FIGHTING OR TO ENHANCE AN ANIMAL'S FIGHTING ABILITY; AND ESTABLISHING A CLASS D FELONY OFFENSE FOR PERMITTING ONE'S PREMISES TO BE USED FOR ANIMAL FIGHTING; AND PROVIDING FOR THE SEVERABILITY OF PROVISIONS OF THE ACT.

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition.

A.C.A. § 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. Consequently, this review has been limited to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the proposed popular name and ballot title accurately and impartially summarize the provisions of your proposed act.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed act. See Arkansas Women's Political Caucus v.Riviere, 282 Ark. 463, 466, 677 S.W.2d 846 (1984).

The popular name is primarily a useful legislative device. Pafford v.Hall, 217 Ark. 734, 233 S.W.2d 72 (1950). It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency. Id.

The ballot title must include an impartial summary of the proposed act that will give the voter a fair understanding of the issues presented.Hoban v. Hall, 229 Ark. 416, 417, 316 S.W.2d 185 (1958); Becker v.Riviere, 270 Ark. 219, 223, 226, 604 S.W.2d 555 (1980). According to the court, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938 (1994), citing Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990); Gaines v.McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988); Hoban v. Hall, supra; andWalton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936). At the same time, however, a ballot title must be brief and concise (see A.C.A. §7-9-107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522's five-minute limit in voting booths when other voters are waiting in line. Bailey v. McCuen, supra. The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke. Pluggev. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring. Id. A ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law. Christian Civic ActionCommittee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). It has been stated that the ballot title must be: 1) intelligible, 2) honest, and 3) impartial. Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990), citingLeigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960).

Having analyzed your proposed act, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must reject your proposed ballot title due to ambiguities in the text of the measure. Several additions or changes to your ballot title are necessary, in my view, in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed act to the electorate in a popular name or ballot title without the resolution of the ambiguities. I am therefore unable to substitute and certify a more suitable and correct ballot title pursuant to A.C.A. § 7-9-107(b).

I refer to the following ambiguities:

1. Section 4 of your initiated measure establishes a new Code section, A.C.A. § 5-62-104, entitled "Disposition of animals." Subsection (a) of this provision authorizes the prosecuting attorney to bring a civil action" procedurally consistent with A.C.A. § 5-5-303 . . ." for forfeiture of an animal seized as evidence of violation of the animal cruelty provisions. This reference to the civil action being "procedurally consistent with" § 5-5-303 is ambiguous, in my opinion. Specifically, I am uncertain as to the exact applicable provisions of § 5-5-303 in the case of a forfeiture action under this new provision. This should be clarified for proper reflection in the ballot title. For instance, § 5-5-303 (a) (2) specifies the information that must be set forth in a petition filed pursuant to that Code section, and I am uncertain whether this substantive requirement applies to the civil action authorized under your measure. If it does not apply, then I believe a question might arise regarding the required showing under the new § 5-62-104.

2. An ambiguity also arises, in my view, under subsection (b) of this new § 5-62-104. Your proposed ballot title states that § 5-62-104 (b) "provid[es] a procedure for civil forfeiture of [abused] animals," that it "provid[es] for the release of forfeited animals to a society incorporated for the prevention of cruelty to animals" and that it "provid[es] such society a statutory lien against abused animals seized as evidence. . . ." It is unclear to me whether this accurately summarizes the text of your proposal, which gives a lien to "any society . . . having custody of an animal seized as evidence of a violation of this subchapter. . . ." (Emphasis added). The term "custody" is not defined in the act. Your proposed ballot title seems to suggest that this statutory lien applies in connection with the civil forfeiture action under § 5-62-104 (a). I believe this is suggested by the ballot title's reference to "such society" having a statutory lien following the clause referring to the "release of forfeited animals to a society. . . ." Read on its face, however, § 5-62-104 (b) may not be so limited. It states that "[i]n addition to any other provision of law, any society . . . having custody of an animal seized as evidence of a violation of this subchapter shall have a lien. . . ." Again, "custody" is not defined. As noted in Black's Law Dictionary 347 (5^th ed. 1979), this term is "very elastic." It is my opinion that some clarification is necessary in order to avoid confusion or a misleading tendency and to fully inform the voter regarding the circumstances under which a society has a lien arising from its" custody" of a seized animal.

My office, in the certification of ballot titles and popular names, does not concern itself with the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in A.C.A. § 7-9-107 and my duty is to the electorate. I am not your counsel in this matter and cannot advise you as to the substance of your proposal.

At the same time, however, the Arkansas Supreme Court, through its decisions, has placed a practical duty on the Attorney General, in exercising his statutory duty, to include language in a ballot title about the effects of a proposed measure on current law. See, e.g., Finnv. McCuen, 303 Ark. 418, 793 S.W.2d 34 (1990). Furthermore, the Court has recently confirmed that a proposed amendment cannot be approved if "[t]he text of the proposed amendment itself contribute[s] to the confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure." Roberts v. Priest, Case No. 00-485 (July 7, 2000). The Court concluded: "[I]nternal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." Id. Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without clarification of the ambiguities.

My statutory duty, under these circumstances, is to reject your proposed ballot title, stating my reasons therefor, and to instruct you to "redesign" the proposed measure and ballot title. See A.C.A. §7-9-107(c). You may, after clarification of the matters discussed above, resubmit your proposed act, along with a proposed popular name and ballot title, at your convenience. I anticipate, as noted above, that some changes or additions to your submitted ballot title may be necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.

Sincerely,

MARK PRYOR Attorney General

MP:EAW/cyh