Ward v. Priest

at the the award on vided for ultimately basing percent- hearing, We affirm the trial court’s determi- thus age judgment. nation of fees. attorney’s

Affirmed as modified. WARD, and on Behalf Arkansans to Harry Individually Libraries, Services, Police, Protect Education & Petitionerv. PRIEST, State, Kimball, Sharon Karl Respondent; Cantwell, Gerhard and as Langguth, Individually Jeff Members of the Arkansas Libertarians Taxes Eliminating Regressive Tax, d/b/a Committee to Axe the Food Intervenors (ALERT) 02-954 86 S.W.3d 884 Court of Arkansas

Supreme delivered October Opinion Clark, for & Robert S. by: Shafer, petitioner. Friday, Eldredge Counsel, State; Sec. of and Mark Pryor, Gen. Tim Humphries, Priebe, Gen., Gen., R. for Ass’t by: Att’y respondent. Att’y Jeff Deere, III, LLP, M. Askew Beth & Anderson by: Williams Jess Priebe, M. intervenors. and Sarah for This case involves Imber, Annabelle Clinton Justice. filed to Amend- an action pursuant original petition Ward, on ment Arkansas Constitution Harry petitioner situated, and a himself and others similarly ballot-ques- behalf of Libraries, Police, to Protect tion known as Arkansans committee Education, as “APPLES”). (referred and Services collectively to the Arkansas deals with a amendment petition medicine. May to abolish taxes on food and On Constitution an with cer- General issued certifying, the Attorney opinion revisions, text name and ballot title for the tain known as the Arkansas amendment submitted committee On (ALERT). Taxes May Libertarians Eliminating Regressive and certified as sufficient State approved title and ALERT name and ballot ballot proposed popular number of ALERT gather requisite signatures. proceeded on with the of State July then filed initiative 5, 2002, an amendment to the to have on asking placed Arkansas Constitution entitled “Amendment Taxes Eliminating 10, 2002, on Food and Medicine.” On the Secretary September of State certified that the submitted for the petition proposed amendment met and signature requirements requirements of Amendment 7 to the Arkansas Constitution order place the initiative on the election ballot for the November general election. filed

APPLES its action in this court on original petition 13, 2002, a review of the of State’s September seeking Secretary Const, decision in accordance with Ark. amend. In7. its petition, APPLES asks this court to declare that the name and bal- popular inaccurate, lot title of the amendment are proposed incomplete, and invalid. APPLES maintains that misleading, (1) Specifically, the references to matters outside the ballot title are insufficient to inform the voters the choice are called concerning they upon make, (2) ballot title fails to inform the voters about the fiscal amendment, of the and consequences definitions proposed (3) of the terms “food” and “medicine” as referenced on the ballot title are claims, inaccurate and Based on these misleading. APPLES asks that the of State be from enjoined placing ballot, amendment on the proposed that alternatively votes cast on the amendment counted or proposed certified. for review is petition Sharon opposed by respondent, State, Kimball, and Karl Gerhard Langguth, Cantwell, and ALERT, on behalf of themselves and the com- Jeff

mittee amendment, sponsoring who have joined the respondent’s of intervention. The position by way respondent also lack of affirmatively pleads subject-matter-jurisdiction failure to exhaust administrative remedies under Act 877 of 1999.

A court majority is agrees jurisdiction proper; whereas, three of the seven would justices dismiss for lack of juris- diction. Oh the merits of the to the challenge title, name and ballot has been una- majority justices ble to on a agree single ground grant petition. Justices Arnold, Imber, Hannah, Special agree Holt Justice jurisdiction Glaze, Corbin, and Brown proper. Justices and, therefore, for lack jurisdiction dismiss the

would merits, the merits. On address do not Arnold Justices Spe- while Imber would deny petition, Hannah Justice three the Accordingly, Holt would grant petition. cial Justice the would deny two justices dismiss the would petition, justices Thus, because the would grant petition. and two justices petition, is effectively to the do not grant, petition four agree justices the ballot on the merits of denied, of this court and the opinions value. title have no precedential

I. Jurisdiction initi the of statewide to review sufficiency Jurisdiction of Amendment this court way conferred by ative upon petitions 7 states that Constitution. 7 to the Arkansas “[t]he in the first shall be decided all of State-wide sufficiency petitions State, the to review by of subject instance Secretary by State, and exclu which shall have original of Court Supreme Const, amend. 7. On all causes.” Ark. over such sivejurisdiction 10, 2002, certified that the initia of State Secretary September 7. Follow of Amendment met all tive requirements petition State, Amendment 7 of a certification the Secretary such ing this court exclusive jurisdiction upon confers clearly original of decision as to sufficiency of State’s to review Secretary the petition.

Nonetheless, that with the enactment argues respondent 1999, et Ann. 7-9-501 codified at Ark. Code seq. of Act 877 in § a constitu- has the General Assembly 2000), provided (Repl. that effectively initiative and referendum strips tional procedure a time as the of State until such Secretary the court of jurisdiction a written of makes a determination legal sufficiency following Act con- 877. By for such a determination pursuant request sug- that Act 877 is essentially mandatory, respondent tending this court conferred that the jurisdiction upon gests original enactment. 7 be restricted by legislative Amendment may words, to invoke this submits that order other the respondent ini- has certified an after the of State court’s jurisdiction and voter to Amendment taxpayer tiative petition pursuant of under to the State submit a written must first

353 Act before this 877 determination sufficiency requesting legal court review the statewide initiative may petition.

Under the of Act 877 respondent’s interpretation this decision in v. S.W.3d court’s 16 Stilley the General would be allowed to 251(2000) II), Assembly (Stilley of Amendment 7 to Arkansas Constitu change provisions —tion an exercise clearly legislative impermissible authority. We decline construe Act 877 so as to render it unconstitutional. All doubts to a are statute resolved in favor pertaining question Skelton, v. Ark. 2 Skelton constitutionality. S.W.3d Ark. (1999); Arnold 813 S.W.2d (1991). Kemp, Where a constitutional construction is we are compelled possible, Skelton, of the statute under attack. uphold validity supra. Thus, in the Act of 877 to the extent upholding constitutionality that it allows this take court to to the jurisdiction prior gathering of we stated in II: signatures, Stilley McCuen,

We have come to the conclusion that both Scottv. supra McCuen, and Finn v. were decided supra, with to wrongly respect the of this court. jurisdiction We first obser've that while Amendment 7 does the initiative with contemplate filing petition the with requisite signatures the of State a suffi- Secretary for determination, ciency at no doesit an of point preclude earlierreview of the text the name and ballot title or popular validity the amendment. On the contrary, specifi- 7 cally provides that “laws be enacted to may facilitate its opera- tion.” An a earlyresolution contestto content the a name popular of of title and the the validity initiativewouldcertainly of facilitate the enactments process legislative the by people. II, Ark. 341 at 16 Stilley S.W.3d at 254 added). (emphasis By that Amendment 7 does not an holding earlier review of preclude the determination, of State’s this court did sufficiency Act 877 to restrict our to the interpret original jurisdiction Indeed, confines of the Act. it is one to state that an earlier thing review is not the precluded constitution another to by quite uphold a constitutionality enactment legislative requiring review of the a text of name and early ballot title. 354 is to for the timely

Act 877’s stated provide purpose of initiative by sufficiency petitions review legal expeditious 2000). Ark. Ann. 7-9-501 (Repl. Court. Code Supreme § II, that of Amendment to we held the operation Stilley it 877 in that allowed facilitated Act Constitution was by Arkansas of. an initiative to sufficiency petition the court review legal II, Act 877 also to the gathering Stilley supra. signatures. prior “a review the it is timely intended to states provide process voter con- in a manner which avoids of a measure legal are occur measures stricken which when fusion frustration on the measure.” Ark. the eve of an election the ballot on from contends 2000). Ann. 7-9-502 respondent Code (Repl. § in Act would make the holding only procedures to the for ballot-title review gathering signa- mandatory prior concerns about last-minute would be inconsistent with our tures challenger On contrary, requiring challenge?. determination under Act of State for legal-sufficiency initiative as has been certified meeting 877 after require- hinder of Amendment 7 would fact review. ments expeditious hour, Instead, court in the final it would review this promote this court has been avoid. See Roberts the exact scenario trying Priest, Scottv. v. 975 S.W.2d 850 (1998) (RobertsI); McCuen, 932 S.W.2d (1996); Page Ark. 884 S.W.2d 951 (1994). advanced our

Under reasoning respondent, of a submitted after have review sufficiency challenge signatures much as See been could as delayed by thirty days. gathered Ann. the 7-9-503(a), (b) 2000) Ark. Code (Repl. (providing § of to the This court State review thirty petition). Secretary days -adhered to the of ballot titles ear has steadfastly policy reviewing Priest, I, v. lier rather than later. SeeRoberts Scott supra; supra; Page McCuen, v. an additional review the of by Secretary supra. Forcing review; the State does to facilitate to early contrary, nothing quite fact, in it review. In oral ALERT con late argument, promotes if for lack of ceded that this court dismissed this case jurisdiction have the reviewed APPLES could theoretically by today, tomorrow, and then refile an action the of State Secretary original

355 in this court 'on the same Our review would thus day. post- the eleventh hour. beyond poned

Moreover, as to timeliness of an action challenging 877, an of under Act we stated in determination early sufficiency 1989, Roberts v. that Act of which such chal Priest 280 required to be filed within of had been lenges forty-five days publication, Act Act 877 877 “contains no time limita superseded tion for to determinations challenges sufficiency Secretary 826, Priest, 813, 376, of State.” Roberts v. 341 Ark. 20 S.W.3d (Roberts II). 383 while Act can 877 this Accordingly, provide court with to of it jurisdiction prior does gathering signatures, a bar as time to this from operate court prevent reviewing determination after have sufficiency been signatures gathered of State has certified the initiative for on placement the ballot. 877,

Prior to Act this court’s attached jurisdiction pur suant to Amendment 7 after the of State certified name, title, of ballot sufficiency on an popular signatures initiative McCuen, 418, Finn See v. 303 petition. Ark. S.W.2d 798 McCuen, 41, 34 v. (1990); Scott 289 Ark. 709 S.W.2d 34 (1986). II, In we held that Act Stilley a manner in which this provides court may review constitutionally legal of ballot title II, to the prior collection of signatures. Stilley 16 S.W.3d 251. Contrary contention that respondent’s Stilley S.W.3d 189 (2000) curiam) (per I) is (Stilley of Act are controlling, requirements only when, I, mandated as in review is Stilley sought prior gath of ering I, signatures. In II Stilley supra. we overruled Stilley Finn and Scott“to the extent that a review the they text prevented] of a name and ballot title popular and the validity measure prefatory 341 Ark. at gathering signatures.” S.W.3d at 256-57 I (emphasis added). II Stilley Stilley cases both involved a to the name and challenge title to the prior Roberts gathering signatures. II Similarly, involved a under Act pre-signature sufficiency 877. 341 challenge Ark. at cases, 20 S.W.3d at however, 383. this trilogy we have never that Amendment 7 no suggested confers longer and exclusive this original jurisdiction court once the Secre- upon has met the the initiative requirements certifies that of State tary on the ballot. for Amendment 7 placement of Act 877 sup language More importantly, plain is discretionary with Act 877 that holding our compliance ports submit may voter Arkansas “Any taxpayer and not mandatory: the determi of State to the Secretary requesting a written petition Ark. initiative of statewide petitions.” nation of sufficiency legal We 2000) added). Ann. 7-9-503(a)(l) (Repl. (emphasis Code § our that either Act 877 or holdings the reasoning decline adopt I this court of original jurisdiction II Stilley Stilley stripped makes a sufficiency as the of State legal until such time A to the Act. a written determination following request pursuant of an initiative sufficiency petition seek to have challenger may to the collection of signatures this either reviewed court prior and the Sec have been under Act after signatures gathered certified initiative pursuant State has petition retary Act available under 7. The alternative early-review to the Attorney to “all initiative submitted petitions applies Ann. 7-9-506(b) 1999.” Ark. Code General after March § a Act 877 whereby 2000). merely provides procedure (Repl. of a ballot title’s voter seek an review legal may early taxpayer is, it is discre to the gathering signatures; prior we reaffirm that this court has original tionary. Accordingly, that an after the of State certifies exclusive jurisdiction and the has met the initiative petition signature requirements 7. of Amendment requirements Remedies

II. Administrative also maintains that the should respondent has failed to exhaust its administrative dismissed because APPLES Act is an she asserts that administrative remedies. Specifically, to court must exhaust before resorting that APPLES remedy action this action. By way analogy, respondent suggests relief, such, and as Act 877’s similar to request declaratory action be exhausted of an review must filing process prior for declaratory judgment.

357 with the We statement of general agree respondent’s the law that it is better to administrative remedies to con pursue clusion before to the court See Bethle v. resorting Meyers system. hem 303 U.S. 41 Such is on (1938). based Bldg. Corp., logic for relief to the jurisprudential reasoning supports applying Co., See, Indem., first. v. Great Am. place e.g., proper Ragon Ark. a (1954) S.W.2d in workers’ (holding compen sation claim that “the Workmen’s Commission is Compensation Further, for relief). the rule proper place” go promotes establishment of a record which an can intelli court by appellate determine Downs, of acts. Dixie Inc. v. Arkansas gently validity Commission,219 Ark. 242 S.W.2d 132 Racing (1951). however, These do general propositions, apply where the Constitution confers and exclusive original jurisdiction Const, Moreover, this court. Ark. amend. upon 7. no “record” is established when the of State makes a Secretary legal-sufficiency determination under Act 877. of ballot title mat Sufficiency ter McCuen, of law be decided this court. Bailey Thus, 884 S.W.2d 938 (1994). this court is the place proper relief; is, for a review of go of State’s certification that an initiative has met all the requirements of Amendment 7 for on the ballot. placement

III. Name Sufficiency and Ballot Title Popular action, In this original APPLES challenges name and ballot title amendment proposed pur- suant to I, Amendment 7 III, on five separate grounds. points IV, APPLES contends that the ballot title is insufficient to inform the voters the choice are concerning asked to they being V, make. In II and APPLES points asserts that the ballot title is inaccurate, and inadequate, with partisan, to the misleading regard impact amendment on taxes services. public name and ballot title proposed popular as certified of State are below. reproduced Name)

(Popular ON TAXES ELIMINATING AMENDMENT AND MEDICINE POOD Title) (Ballot CONSTITU THE ARKANSAS AN AMENDMENT TO TION, TAXATION AND PROHIBITING ABOLISHING MEDICINE; “FOOD” TO DEFINING POOD AND ON ELIGIBLE FOR ITEM THAT WAS MEAN “ANY ON APRIL FEDERAL FOOD STAMPS WITH PURCHASE ANY AVAILABLEUNDER OR IS OTPLERWISE PRO ASSISTANCE FEDERAL NUTRITION STATE OR 1, 2001;” DEFINING APRIL AS EXISTING ON GRAM BEING FUR MEAN “ANY ITEM “MEDICINE” TO A REDUCED COST OR AVAILABLE AT NISHED FEDERAL HEALTH CARE UNDER ANY STATE OR 1, 2001;” ON PROVID PROGRAM APRIL ASSISTANCE NEW, ADDITIONAL, ALL OR INCREASED ING THAT AND MEDICINE EXEMPTING FOOD TAXES NOT VOID; THAT TAXES ON FOOD BE PROVIDING SHALL EFFEC BEFORE THE AND MEDICINE ESTABLISHED SHALL EXPIRE ON DATE OF THIS AMENDMENT TIVE TO REQUIRED THAT THOSE 4th EXCEPT JULY OBLI OR OTHER CONTRACTUAL SECURE BONDS TO SATISFY THOSE GATIONS MAY BE EXTENDED OBLIGATIONS; REQUIRING THAT ALL REVE AND SUCH TAXES REGARDLESS OF SOURCE NUE FROM TER BE TO FULFILL AND SHALL USED EXCLUSIVELY AT THE EARLIEST POSSI MINATE SUCH CONTRACTS ALL AMENDMENT ABOLISHES BLE DATE. THIS ON FOOD AND AND TYPES OF TAXES FORMS HEREIN) ARE DEFINED (AS MEDICINE THOSE TEPMS A REVENUE FOR WILL RESULT IN LOSS OF AND GOVERNMENTS, STATE, COUNTY, AS AND CITY DISTRICTS, WITH THE RESULT WELL AS SCHOOL PROVIDED BY A REDUCTION IN THE SERVICES THAT IN OTHER ENTITIES AND/OR AN INCREASE THOSE REQUIRED. BE TAXES MAY text amendment title mirrors the ballot proposed itself, at the end that the title adds language except abolishes all forms the voters that amendment informing of taxes on food and medicine and will result in a loss of types entities, a revenue for various such that reduction in governmental services, taxes, both, or an increase in other government may be required.

a. the Voters Insufficient Inform The rules and standards initiatives under governing are well established in Arkansas. The various tests honest, on focus whether the ballot title (1) (2) intelligible, Hall, (3) impartial. 339 S.W.2d 104 Leigh (1960). However, this court is neither to amendment interpret proposed McCuen, nor discuss its merits or faults. Ferstl v.

758 S.W.2d 398 The ballot (1988). title must an impartial amendment it summary and must voters give fair of the issues and the understanding presented scope signif of Priest, 434, icance the Kurrus v. changes. 342 Ark. 29 proposed Priest, 123, S.W.3d 669 Parker v. (2000); 326 Ark. 930 S.W.2d 322 The ballot (1996). title must be free from tenden misleading that, omission, cies whether by or thwart a amplification, fallacy, fair the Priest, of issues understanding Parker v. presented. supra; Hall, 925, v. 220 Ark. 251S.W.2d 470 Bradley (1952); Westbrookv. McDonald, 740, Ark. 184 43 S.W.2d It 356 is (1931). insufficient if it omits material information that would the give voter serious McCuen, 241, for grounds reflection. v. Ark. Bailey 318 884 S.W.2d 605 It that, also (1994). be stated if the may safely ballot tide identifies the amendment and proposed the fairly alleges gen thereof, eral it McCuen, is sufficient. purposes Porter v. 310 Ark. 562, Hall, 929, 839 S.W.2d 512 (1992); Newton v. Ark. 196 120 S.W.2d 364 Our (1938). rule is a long-settled that ballot title is sufficient if it recites the the of law general purposes proposed if the ballot tide contains information to enough advise sufficiently of voters the true contents of the law. Walker v. proposed McCuen, 410, 342 Ark. 29 S.W.3d Hall, 657 Newton v. (2000); Furthermore, it be supra. must to an complete enough convey idea of the intelligible scope law. import proposed II, 813, Roberts Hall, 20 S.W.3d 376 v. (2000); Bradley The supra. the ballot title party has burden challenging 360 Const, 7; amend. Ark. it or insufficient. is misleading

proving Priest, Parker v. supra. name of a constitutional popular to that is not held a device is legislative

amendment primarily be as as ballot and need not standards explicit same stringent II, is for Its proposal identify title. Roberts supra. purpose Women’sPoliticalCaucus to the election. Arkansas discussion prior However, Riviere, 463, it 846 (1984). 677 S.W.2d v. that tend to mislead or catch cannot contain slogans phrases Furthermore, when we Id. coloring partisan proposal. give name, we will title and review the sufficiency II, Addition Roberts together. supra. construe two provisions General’s certifica Attorney court does defer to this ally, effect. v. title or it Crochet tion of the ballot give presumptive McCuen, 128 (1996); Ark. 931 S.W.2d Bailey 326 rule Our most (1994). significant Ark. 884 S.W.2d a lib the title is that it given determining that it secure order pur eral construction interpretation to the right reject, approve, of reserving people adopt, poses McCuen, Ark. Gaines v. or disapprove legislation. (1988). S.W.2d 403 at in this action defines

The ballot title issue original to state and fed “medicine” cross-references “food” and by using eral nutrition and healthcare assistance Specifically, programs. food means item and the amendment state that “any ballot title Federal Food on with Stamps April was eligible purchase available under state or federal nutri 2001 or otherwise 1, 2001,” and that tion on assistance existing April program available at a item furnished or “any medicine means being or federal health care assistance reduced cost under state pro 1, that the 2001.” APPLES maintains cross-refer on gram April health care assistance federal and state nutrition and ences to the of the are insufficient scope proposed explain programs on line of to the voters. APPLES relies authority amendment Priest, decided this court in in Kurrus v. culminating supra, Kurrus, the of the the 2000. In petitioner argued organization the of the concealed controversial effectively aspects ballot title title, the The and struck court holding agreed proposal.

361 that the ballot title was insufficient because it did not inform the measure, voter that the he she risk may losing approving Priest, 434, services. Kurrus v. 29 Ark. S.W.3d government 669. ballot title before the court informs today clearly voter that a loss an of services or increase in taxes or both may of the occur with amendment. passage The Kurrus decision further that the definition held “tax increase” in both the and text of ballot title the amend ment did itself differences sufficiently convey legal “fee,” thus, between the terms “tax” and the ballot title was contrast, In the ballot title and amendment here misleading. give the voter an established benchmark. The definitions of “food” and “medicine” are that have been keyed government programs in existence for such as Federal many Food Pro years, Stamp families, for low-income gram the Medicare and Medicaid for the and low-income families. programs elderly Kurrus, the ballot title’s summing up deficiencies the court determined that the ballot title did not “honestly reflect what contained in the accurately amend proposed [was] Here, v ment.” Kurrus 342 Ark at at S.W.3d 675. title, Riviere, in the ballot as in Beckerv. language 219, 604 S.W.2d (1980), tracks virtually language amendment. As ALERT proposed most accurate suggests, the to reflect what contained in way amendment is to proposed amendment word for nearly repeat word. Likewise, in Christian Civic Action Committee v. McCuen, 884 S.W.2d 605 we (1994), struck ballot and held the combination of unacceptable and the length “strate gic abstract employment to mask terminology plain meaning and the tactical elements placement key relating for-profit in the middle or near the gambling end of title’s text.” 318 Ark. at at S.W.2d 609. The sponsors scrupulously avoided the use of the term “casino” to describe enterprise, and they stated that the affirmatively measure would prohibit “casinos, houses, and gambling and other gambling operations activities,” gambling gaming electo thereby misleading Id. rate. at 884 S.W.2d at The court 610. concluded 362 in semantic obscurity to cloak designed language

euphemistic a paints impermissibly actual nature of enterprise proposed CivicAction Committee Christian coloring. ballot title with partisan vein, title McCuen, court struck ballot In this a similar supra. v. 338, Priest, where 128 (1996), v. 326 Ark. 931 S.W.2d in Crochet was a the term “video terminal games” that the use of we held a mis- machines and created fatally for slot disguise euphemistic it col- title with in the ballot and tinged partisan leading tendency Here, the ballot title is of v. length Crochet oring. supra. Furthermore, is no there no strategic concern. certainly mask- in the of “food” and “medicine” of words. The definitions ing There no an established benchmark. ballot title incorporate over the voter.” wool eyes attempt “pull APPLES, Arkansas Women’s Another case cited by Riviere, (1984), Ark. 677 S.W.2d 846 PoliticalCaucus v. a title. We held that involved a of ballot naming pop partisan was ular name “The Unborn Amendment” designed Child reasoned, from the elec rather than a evoke response passionate, abortion. matter of the amendment was torate where subject here, title’s name “Amendment Eliminating The ballot Medicine,” is It is on Food and not emotionally charged. Taxes identifies an honest and adequately impartial description amendment. proposed II, case where this court

Another is Roberts inapposite title insuffi rendered held that internal inconsistencies at the terminol cient. 341 Ark. 20 S.W.3d 376. We looked that it was as in the initiative itself to show just only ogy proposed as title. Id. The ballot title before us the ballot incomprehensible inconsistencies, whether be internal or not contain they does and the amendment. between the ballot title essence, use In court to hold that the APPLES this urges acts, cross-references, those renders bal- to legislative specifically Venhaus, title se lot insufficient. Ragan per Daniel v. 966 S.W.2d (1986), Jones, S.W.2d to the do not have access we stated voters (1998), ready exaction and Daniel were both illegal acts the legislature. Ragan tax the issue of disclosure on local initiatives. cases with dealing that In the ballot title did not inform voters were Ragan, they but not a sales tax also a use tax. v. only authorizing Ragan Venhaus, the ballot stated that ordinance supra. Specifically, would a sales tax to an act that had been impose pursuant amended act. act another Id. The amended that both provided a sales tax and use tax be would levied. Id. the ordi- holding referendum, nance anwas to enact a tax without a we attempt stated ‘salestax’ with no mention of “[e]mploying phrase ‘use tax’ is at best if a even referenced act in the ballot misleading, title a tax clearly use to be if a specifically requires imposed sales tax is at Id. at S.W.2d 469. imposed.” cross-reference Daniel was Similarly, misleading was not used to define a term. The Daniel ballot cross-referenced act an a certain distribution of the required funds collected tax. Daniel v. through 966 S.W.2d 226. Jones, The Daniel court found an exaction where ordinance illegal allowed tax revenues to be on other spent than those purposes revealed on the ballot. Specifically, cross-referenced act allowed funds be distributed to cities for use after a general service Treasurer; three-percent was to the charge paid State whereas, the ballot title stated that the funds be would used in their for five entirety Id. We stated that specified voters purposes. could have known that the cities would receive funds and them for spend other than those purposes on the designated a mere reference that the ordinance was to an act. Id. pursuant Here, and Daniel are

Ragan there is full inapposite. disclosure that the amendment will abolish taxes on food and medicine those as terms are defined. The definitions of the terms “food” and “medicine” in the ballot title an estab adopt food, lished benchmark. In the case of that benchmark is the Fed eral Food state or federal Stamp program nutrition assistance state or federal program. health care Any assistancepro is its benchmark gram for medicine. Once a reasonable again, voter would that these definitions are recognize keyed govern ment that offer assistance to programs and low-income elderly such, voter would sufficiently reasonable As

families. of his or her vote.1 the scope import informed of in that title is insufficient that the ballot next asserts APPLES title and the in the ballot and “medicine” definitions of “food” to the from their meaning are different of the amendment text on Scott voter. largely average Relying would not is that the voters the contention 746 (1996), S.W.2d or were for items that purchase certain eligible reasonably expect 1, 2001, under the identified govern- on otherwise available April APPLES food and medicine. to be considered ment programs codified at 7 Food that under the Federal Stamp program, explains for or food is defined as food “any product U.S.C. food 2012(g), § tobacco, and hot alcoholic home beverages, consumption except immediate food for consumption” foods hot products ready clauses, two which define “food” additional followed by eight would think of as contends no reasonable in APPLES ways person would claims that reasonable voter food. APPLES Particularly, in to as and for use gardens pro- think of food “seeds not plants for pro- duce food for the or “equipment personal consumption” nets, hooks, rods, and such as food curing by hunting fishing, ALERT dis- (6). 7 and knives.” U.S.C. 2012(g)(2), harpoons, § food is food only that stating procuring agrees, equipment that and while the notion of Alaska remote inapplicable regions either or immaterial. constitute food is reasonable seeds plants title, ballot As of “medicine” in the definition amendment includes medi- APPLES maintains that proposed the common under- cal medical devices beyond equipment Furthermore, asserts to the voters. APPLES of medicine standing be to learn that some over-the-counter that voters will surprised the definition of not others will be covered by but products familiar maintains that voters are medicine. In ALERT response, medicine and will amendment’s definition of with proposed 1 were used in ballot that this court has We that similar cross-references titles note 410, 342 Ark. 29 428, to be sufficient under Amendment 7. See Walker v. held (2000) (referencing Programs,” “Targeted “Prevention and Cessation 657, S.W.3d 666 Program”); McCuen, 310 Programs,” Needs and “the Medicaid Porter State Expansion (1992) existing rate on “other (referencing 512 all taxes the tax Ark. S.W.2d Administration). Finance and to be determined tobacco products” Department its ALERT concludes surprised by impact. exploration immaterial where under the amendment issue is voters will vote on food medicine simply taxing policy as the defines terms. those government all

Had the ballot title listed provisions arguably constitute food or medicine under federal and state nutrition assis tance or medical assistance the voter would programs programs, lost in minutiae and bureaucratese. As likely get governmental stated, a title ballot is sufficient if it identifies the previously pro Act and the general thereof. Porterv. posed fairly alleges purpose McCuen, Sherrill, Coleman v. 189 Ark. 75 S.W.2d 248 supra; More “it is (1934). not our function in the importantly, present the amendment or it litigation how is to be interpret explain McCuen, 504, 510, Ferstl v. implemented.” 758 S.W.2d 385, 391, see also Mason v. (1988); O. Jernigan, 54 S.W.2d it (1976) (“Let be remembered that the pur amendment, of a title is not to

pose but ‘interpret’ only amendment; to summarize of such nor is adequately provisions it our function the amend present litigation interpret ment itself’).

APPLES’s in this is position action original also Priest, our decision in Scott v. supported S.W.2d 746 where the (1996), ballot title failed to mention pref erential treatment that was granted by amendment Priest, itself. Scottv. The court held that an supra. such omission would Further, voters serious give reflection. grounds Id. the court concluded that the definition of revenues mis gross was as it was later leading defined as an amount received less an amount Id. the court found paid. Additionally, other descriptions that were out in the amendment but left out spelled of the ballot title. Id. The Scottdecision held that ballot title was insuf simply ficient inasmuch as it omittednumerous in the amend provisions ment’s text. Id. The ballot title before us does not such present Indeed, facts. the ballot title defines the clearly scope amendment by virtually amendment’s reproducing language word for word. is to be resolved the central

Ultimately, question that item eligi of understanding voter is capable whether state or fed available under any or otherwise ble be purchased will no be longer care assistance eral nutrition or health program omissions or mis “no material because taxed. The answer yes title’s wording result from tendencies leading pur understanding thwart fair [amendment’s] [would] at 664. at 29 S.W.3d Walker poses.” b. Partisanship Consequences contentions and fifth APPLES’s In their second points, to inform the title for of the ballot failing amount a challenge We their vote and for being partisan. voter of the consequence “abolishes are informed that amendment The voters disagree. terms on medicine those (as of taxes food and all forms types state, revenue for in a loss of are defined and will result herein) districts, with as weE as school city governments, county, entities in the those result that a reduction services provided an increase in other taxes and/or may required.” not be is that the voters wiE The crux APPLES argument of the amendment the fiscal able to understand passage impact does not claims that the baEot In that APPLES wiE have. regard, tax” inform voters “soft-drink sufficiently cut in tax” would be resulting significant “hamburger repealed Act, Drink Tax The Arkansas Soft the State Medicaid Program. 1997), codified at Ark. Ann. 26-57-901 —909 Code (Repl. §§ bottled soft levies a tax on soft-drink simple syrup, syrup tax,” drinks, and or other base The “hamburger products. powder 26-75-602(a), (c)(2) codified at Ark. Code Ann. 26-74-501(2), §§ meals. the of certain for taxation 1997), prepared (Repl. provides that to the and determines APPLES looks statutory language in the definition of food covers items amendment’s proposed and, thus, Drink Tax tax” Soft “soft-drink effectively repeals Moreover, that APPLES concludes food Act. encompasses pre- meals, be tax” also so the would repealed. “hamburger pared tax” are the revenues from the “soft-drink APPLES aEeges Fund and used Medicaid Trust Program in Arkansas deposited the state match federal funds under the Arkansas exclusively Medicaid APPLES on to conclude that the loss of Program. goes alone result in a revenue from “soft drink-tax” will loss of Thus, in $118.9 million federal funds. matching according APPLES, not fair the voters will a of what it is get understanding are asked to decide. APPLES also that the they being alleges “a reduction in the those entities by services and/ phrase provided an in other increase taxes may required” soft-pedals amendment, material fiscal it impact making partisan misleading.

These conclusions are ALERT. It disputed by sug wholesalers, distributers, and manufacturers are gests only tax,” to the “soft-drink and since subject food cannot be stamps entities, from used these the “soft-drink tax” will not be buy affected. ALERT also asserts that APPLES is actually arguing initiative, merits of the and the out that find respondent points as to the amendment on the ing impact “soft- drink tax” or tax” an “hamburger necessarily requires interpreta tion of the measure’s is language review beyond scope earlier, this court. We As stated it is not agree. our function to the amendment or interpret how it is to be explain implemented. McCuen, 504, v. Ferstl 296 Ark. 758 S.W.2d 398 (1988).

This ballot title is readily from three distinguishable Here, other cases cited APPLES. in the text of representation title, the amendment is not omitted from ballot as in happened McCuen, 318 Ark. 884 S.W.2d Page The bal (1994). title detailed, lot at issue not simply mislead complex, lengthy, Riviere, as was case in ing, confusing Dust v. 277 Ark. 638 S.W.2d 663 (1982). internal inconsistencies present Priest, the ballot title in Roberts v. 20 S.W.3d 376 are (2000), here. present Lastly, General Attorney appro added to the ballot title order priately language with comply our in Kurrus v. holding 29 S.W.3d 669 (2000) (satisfaction of contractual and the risk obligations possible of losing government services).

The ballot title in this case the voter with a presents fair of the issues and the understanding presented scope signifi- even a exam- cursory the canee of changes. Specifically, proposed that the and title reveals name ination the popular on food and medicine. will eliminate taxes amendment proposed amendment tracks the in The ballot title language proposed — n to define food and medicine an established benchmark and uses care assistance and nutrition and health programs. state federal tells the voter proposed The ballot title also unequivocally state, and loss of revenue for county, amendment “will result in a and that “a reduction as well as school districts” city governments, an increase in those entities and/or in the services provided by other taxes bemay required.” reasons, ballot tide we hold that the

For foregoing Further, honest, we case is and con in this intelligible, impartial. title that the ballot is an summary proposed clude impartial fair issues amendment and it voters gives understanding of the and the and scope significance changes. presented proposed Moreover, title is free from tendencies the ballot any misleading that, omission, would thwart whether or fallacy, by amplification, short, of the issues fair understanding presented. name, and its initiative is identified by general adequately are the ballot title. stated in fairly purposes Petition denied. The mandate shall issue immediately. and concur and dissent Holt, part Hannah, Sp.J., J., Brown, Arnold, dissent. Glaze, Corbin, JJ., part. C.J., Holt, Imber, Hannah, would deny petition. J., J., would See concurring opinions grant petition. Sp.J., Holt, Thornton, J., Hannah, Sp.J. participating. J., at The Glaze, majority opinion clearly Jus Constitution, statutes, e.e. Arkansas ti ti c c Arkansas Tom law. decision reached the court can- and this court’s case therefore, more I dissent. not be vigorously wrong, was overwhelm- Amendment 7 the Arkansas Constitution 7, the enacted in 1920. peo- voters By ingly reserved themselves the legislative ple power propose Amendment 7 measures and amendments to constitution. to initiate and erosion against right guarded people’s

369 refer to the the measures vote of “No legis- people, by providing, restrict, to of lation shall be enacted or the exercise impair hamper, to the reserved To further dilu- against rights people.” protect tion of this reservoir of to initiate and refer power given people vote measures to the of the amendment also people, provided that the General enact laws to facilitate Assembly may only voters’ power. twelve soor citizens of this state have

During past years, made concerted efforts initiate measures to the Arkansas voters to have their efforts rebuffed because this court found the only measures’ titles names be to mislead- popular cases, In those the court struck ing confusing. those proposed ballot, measures from or directed the votes should not result, counted or certified. As a the General in 1998 Assembly Act in an 280 effort to passed timetables that would provide per- mit the names, of ballot titles early review so the vot- popular ers’ to vote on such would not be rights In proposals impaired. sum, the timetable allowed a review of ballot titles and binding names to the date when popular on such prior signatures petition must 1989, be filed with the Act 280 Secretary State. See The General intent was to Assembly’s facilitate expressed §10. to initiate measures under Amendment people’s rights 7. ain Unfortunately, decision later subsequent was over- ruled, this court held Act to be 280 See unconstitutional. Finn v. McCuen, 798 S.W.2d 34 The Finn (1990). majority held that Act 280 was unconstitutional because the Act permitted this court to review the decision of the of State with title, to the ballot when respect only this court authority given 7 Amendment was the review the authority State’s certification of an initiative which includes both the ballot McCuen, title and the SeeFinn v. signatures. 303 Ark. at words, 425. In other because the constitution set no timetable constraints on this review of on the signatures initiative petition, the timetables set out Act in 280 for review of early names popular and ballot titles were in conflict with Amendment 7. Our court later overturned the Finn decision because our interpretation Act was 280 too restrictive. v. See 341 Ark. 16 Stilley S.W.3d 251 (2000).

370 as fact, with this court into obvious disfavor Finn came that, since the Finn court as when the recognized

early case, initiative review had with more petitions it been presented See election year. had had Page than court any past timeta- McCuen, Without (1994). Ark. 884 S.W.2d court (which those set Act or constraints like out bles the court was not Finn), unconstitutional in permitted found title and name issues. needed to deliberate ballot time the last-min- its frustration with In the court Page, explained issues follows: and name as ute reviews of ballot title popular effort Act past [by the General Assembly’s We commend statutory reasonable time- in to establish attempting of 1989] and referendum measures under tables to initiative implement ask further consideration and Amendment 7. We its respectfully to make another Assembly action and General encourage and referendum that to establish an initiative procedure attempt Until will resolution of such issues. appropriate permit early sub- taken attendant to proposals action is to correct problems to under citizens can continue expect mitted to immediately prior measures to be removed from ballot in the “last-minute” enjoy being This court does not election. deserve an initiative of review. The Arkansas position people them the confidence and which allows referendum procedure measures, reviewed, will not be adequately that after been having initiative should removed from the ballot. The sponsors proposals also assured titles and measuresmeet required their ballot proposed time, and moniesin their spend energy rules guidelines they before the voters. their getting proposalbefore at 348 added). 315 Ark. foregoing language Page, (emphasis its the court was to mis- indicated ready recognize Page clearly a law would take in Finn and its to consider that willingness pro- review of ballot titles and vide for the of State’s early Secretary be cured to so deficiencies could sig- names that any prior popular nature gathering. Priest, v. S.W.2d Scott its over continued last-minute this court concern

(1996), repeated for title and name issues. reviews of ballot popular Again, requests to a constitutional asked the General establish Assembly the court an initiative that would resolution petition procedure permit early of ballot title cases.1 Once General heeded Assembly again, Act our 877 of 1999. The Act established a request enacting initiative could follow that procedure sponsors proposals would assure their ballot titles would meet required guidelines rules their time and monies in they expended gathering sig- before natures to their measures on the ballot. Under Act place 877, the have the time cure deficiencies found sponsors State, so the voters can be signing assured the of State has ruled certified that title is correct.

After Act 877 was in our court reconsidered the place, Finn decision in the case of 16 S.W.3d Stilley There, 251 (2000) II). our court (Stilley overruled the predictably decision, Finn case and that Finn’s acknowledged Act declaring unconstitutional, 280 and its that, timetables was heldWe wrong. Finn extent a review of an initiative prevented petition’s name ballot title prefatory circulating petitions II, decision signatures, was in error.2 341 Ark. at Stilley Such 337. a restrictive conflicted with liberal interpretation manner in which Amendment 7 should be reviewed. hand,

On the other II the General Stilley upheld Assembly’s enactment of Act 877 as constitutional. While Act 877 did not set aout timetable like 280, those found earlier in Act Act 877 clearly of a provides sponsors measures with proposed can procedure they utilize to the and get Attorney General’s the of State’s Secretary review and early certificate as to whether the ballot titles sponsors’ case, names are valid. In the instant the example, General certified the Attorney initiative on sponsors’ petition May 7, 2000, and the of State Secretary their on approved petition May 10, Nevertheless, APPLES, 2001. a waited until taxpayers’ group, 13, 2002, to attack the September name and sponsors’ popular 1 The General referring first to court’s this Assembly actually to responded by plea 3, which was the same as Act 280 of people’s proposed essentially but that failed to be the voters at the 1996 General Election. proposal by approved 2 overturning After the Finn decision, the General was to free re-enact Assembly Act if it had chosen to do so. of this never asked Secretary ballot title in court. APPLES title ballot of the State determine the sponsors’ to legal Act is 2 of Act This 1999 abundantly as is 877. under required § its now follow all must provisions. clear that initiative petitions otherwise, this clear court wording holds majority Although an or alternate does render Act 877 as proce- merely option be on the ballot. dure a measure can which placed 813, 20 S.W.3d 376 (2000) (where See Roberts terms, all to court held that Act its applies petitions of General and filed with Secretary Attorney approved by 7-9-107, to as March 1999). State pursuant § that Act 877 is merely In an to its contention attempt support its on an alternate attaches reasoning procedure, majority the Act that any sentence in of Act 2(a)(1) whereby provides § to the of State submit a written may taxpayer petition statewide initi- the determination legal sufficiency requesting voter, course, no or other ative Of person taxpayer, petitions. but if one must a statewide initiative entity petition, challenge does, the dictates mandates that the must follow 2(a)(1) taxpayer § of Act If there as to what Act 877 877. is any question requires, its stat- General made intention clear by Assembly specifically Act is intended to (1) timely ing process provide of a in a manner which avoids review the measure legal sufficiency are voter when measures confusion and frustration which occurs measure, stricken from the ballot on the eve of an election on out terms that Act 5(a)(1) and set (2) (2), 5(b) cogent § initiative that received shall applicable General and has been filed with the Sec- approval Attorney State, all and the of State shall review retary petitions addition, General. In I would ask approved by Attorney review if Act 877 was an alternate merely question procedure titles, this court been have General why Assembly them to to obtain to laws adopt striving giving interpretations reviews of initiative if we knew another early procedure petitions, that still the continuation of last-minute existed authorized reviews? to court have worked hard

The General and this Assembly to a to review initiative eliminate achieve petitions early procedure that, done but confusion to the voters. We have majority works, court’s decision has those voters away good leaving swept to no effective to assure who wish initiate measures way proposed their voices are heard such laws. regarding proposed

Even our court has held that the can though clearly sponsors submit their ballot titles and names to Gen- popular Attorney to eral and the State for their review Secretary prior gathering ignores signatures, majority opinion simply language mandates of Act 877 and our in II and Roberts. holdings Stiltey Instead, the tries to breathe new life into the Finn majority ruling to lie wait in order to a by last-min- permitting taxpayers bring ute challenge decision in petition. majority sponsors’ no facilitates voters’ initiative way as rights pursue petitions pro- 7, vided and in fact restricts and those hampers to the of Amendment rights contrary 7. The explicit language decision also this court’s majority earlier decision in totally ignores Stilley S.W.3d 189 (2000) (Stilley I), wherethis courtdismissedthe to this courtbecausethose sponsors’appeal to have the State sponsors reviewand Secretary their certify popu- failed lar name and ballot title as case, Act 877. In the instant required obtained the sponsors of State’s Secretary certification that valid, APPLES, their ballot title is but as chal- taxpayer group certification, of State’s lenging has failed steadfastly that certification challenge its by submitting request legal determination of the initiative See petition’s sufficiency. §§ and 4 of Act 877. Under Act must taxpayers review, State for and until first do they so, our court does not have jurisdiction the ballot title regarding name issues. II,

Once as this court noted in again, I must out Stilley point that in the twelve at least past measures years, eight have been stricken from the at the eleventh hour before the November election to an general owing the text of the alleged deficiency conclusion, ballot title. In I must that this say court’s that, decision to the law returning once fosters last-min- again, ute that allow little time for rulings this court to consider seriously whether a ballot title is valid and whether ballot title in ques- tion should be so, removed from the voters’ ballots. In doing II, Roberts, I, Act decisions in Stilley Stilley

court its ignores itself, instructs and in Amendment improperly the and language man- law in restrictive 7 and its enabling to Amendment us read subverts its real Amendment 7 pur- a construction of ner. Such laws and Arkansas to initiate the of which is to allow people pose, or not such to decide whether the voters an to give opportunity to inter- us the merit. The returning have majority proposals Finn, in and it will 7 this court of adopted Amendment pretation and vote on to initiate laws to thwart the citizens’ serve rights only them. con- the of the majority opinion,

After ending analysis my addressed, since of Hannah must briefly curring opinion Justice he raises it until any an issue never mentioned by he raises party as follows: of his reads now. The relevant opinion part which the the citizens Amendment gives passed to determine sufficiency court “[ojriginal jurisdiction supreme consti- State and referendum petitions of initiative Amendment 80 amendments.” The of purpose drafting tutional these matters jurisdiction the court give supreme original which it could was to court vehicle supreme by provide to ballot challenges of last minute frustrating address problem lack time to correct deficiencies. of proposals 80 that last avoiding citizensweretold Amendment by proponentsof Amendment to ballot was one challenges proposals things minute of With the of Amendment this 80 would accomplish. passage has the vehicle which by court now to fashion opportunity money sig- those invest so much time and obtaining who to correct timely opportunity natures will have reasonable their on the ballot. deficiencies in order to any keep proposal for review in this court after provided the Secretary had been decided of State. sufficiency issue of provides jurisdiction Amendment 80 alters this simply in this court. There is no mention in the issue State. involvement of the Amendment 80 added.) (Emphasis First, that, I out contrary respectfully point Justice assertion, in the record to reflect the

Hannah’s there is nothing avoid- were told of Amendment 80 that citizens proponents was one of the things last-minute ing challenges proposals Amendment 80 would Where this idea or accomplish. thought from, know, comes I do not nor does the concurring say. opinion Second, Amendment 80’s terms it suggest repeals but the law is well settled that repeals by implica- fact, tion are not favored. In Amendment 7 and Amendment 80 be construed since both amendments the may harmoniously give court and exclusive over initiative supreme original jurisdiction and referendum measures. Most on this the important point, Clause of Amendment 80 makes no mention of Amend- Repealer 7, and, fact, ment that no other specifically provides provision of the Constitution of the State of Arkansas shall be repealed by this Amendment the unless is in irreconcilable conflict provision See, with its section of Amendment the 80 to provisions. Arkansas Constitution. The Amendment 80 interpretation given is, word, in a concurring opinion “wrong.”

Third, to this suit have not mentioned parties this Amendment 80 forth argument Hannah’s concur- put by Justice Serious constitutional ring opinion. should be arguments fully researched, briefed, and before are argued addressed. they this JJ., join opinion. Brown,

Corbin L. dissenting. petitioner Brown, Jus case, ce,ce, t t i i and on behalf Harry of individually Robert Police, Libraries, Arkansans to Protect Education & Services failed to (APPLES), with the for comply statutory requirements name, title, and amendment. I contesting popular would dismiss his for lack of petition subject-matter this jurisdiction court due to this failure to with those comply requirements. Hence, I would not review the merits of this case. For that rea- son, I dissent.

Act 877 of now codified at Ark. Code Ann. 7-9- §§ declares that through 2000), its “is to (Repl. purpose pro- vide for the review of the timely expeditious legal sufficiency of initiative Court.” Ark. Code Ann. petitions Supreme 2000). for con- (Repl. describing procedure § 7-9-501 title, of a ballot section 2 Act testing legal sufficiency 7-9-503, now codified at provides: § submit a written may and voter Arkansas (a)(1) Any taxpayer the determination of State requesting petition initiative of statewide petitions. legal measure shall (2) notify sponsor The petitioner that it certified mail on the date determination by for petition of State. is submitted to of the (30) after (b) thirty days receipt Within declare, determination, of State shall decide the Secretary General, on one with the Attorney questions after consultation issues: (1) following or both and the ballot title of name (1) Whether are fair and complete; the measure measure, by if (2) subsequently approved Whether electorate, violate state constitutional any provi- would constitutional, or statutory, regulatory sion or federal any be invalid for other reason. or would provision be in and shall be mailed to (c) The declaration shall writing certified mail on by and the of the measure the petitioner sponsor date that it is issued. shall of review authorized this (d) by subchapter The scope (b) to in subsection of limited to the referred be strictly questions not include the suffi- regarding this section and shall questions of on the initiative validity signatures petitions. ciency added). Ann. 7-9-503 2000) Ark. Code (Repl. (emphasis § out in Act 877 was followed Not one of the set requirements in this case: Ward by

(cid:127) of State Secretary failed to file a with Ward petition a determination of legal sufficiency.

requesting (cid:127) not notified of such a (ALERT) The was petition. sponsor (cid:127) with the Attorney of State never consulted Secretary

General about legal sufficiency. (cid:127) that the declaration of State Secretary There was no was fair and and would violate complete

initiative Federal Constitution or State statutes. State or (cid:127) of State of legal sufficiency by Secretary No declaration (ALERT). mailed to the sponsor

was this, APPLES, In the face of all counsel for Ward and made announcement at oral that a surprising suffi- argument legal declaration had been made of on ciency State Secretary But 2002. is not the case. September What did simply occur on that date is the (ALERT) received certification sponsor that the had been met.1 That certification signature requirements from the of State read: Secretary

I, State, Arkansas, Sharon of State do hereby that the certify submitted for the petition Medicine, An Amendment Taxes on Food and Eliminating has met the signature and the requirements requirements Amendment 7 of the Arkansas Constitution in order to an place initiative on the Arkansas General Election Ballot of November 5, 2002.

There was no confusion on this Ward’s own point. petition 10, 2002, admits this: “On September Respondent [Secretary declared that the contained a sufficient petition number of State] signatures voters and registered certified the Amendment on the November appear election ballot.” general There in Ward’s filed nothing in this court that the suggest of State had declared the initiative sufficient. She legally made no declaration that it was fair constitutional, and complete, And, in with state statutes. compliance the again, procedures for a followed, determination were legal-sufficiency not as simply Act 877. required To that notice to the argue that suffi- sponsor cient had been signatures obtained to a declaration a equates to that the ballot petitioner title is sufficient anis legally illogical stretch. impermissible

There is also the that like point ALERT would sponsors not the challenging of their legal own ballot sufficiency titles amendments. That would be absurd. Such an flies interpretation in the face 877, of the of Act very which takes language to pains between distinguish the sponsor initiative and the petitioner 1 A is defined as “a group fifing or sponsor of an initiative or person persons referendum with the 7-9-101(8) of State.” Ark. Code (Repl. petition Ann. Secretary § 2000).

378 in is made in two the distinction places initiative. This

challenging Code Ann. 7-9- See Ark. Act as above. highlighted § the of what State and (c) 2000). Again, 503(a)(2) (Repl. ALERT, 2002, had nothing told on September the sponsor, a declaration petitioner do a requested by with legal-sufficiency the that the was certification to signatures but rather a sponsor were sufficient. it. as the would have is Act 877 majority

Nor permissive, the is indication that follow- in the Act there any given Nowhere to Amend- an alternative procedure ing language merely provides ment 7: a and voter submit written

(a)(1) may Arkansas Any taxpayer of State the determination of to the Secretary requesting petition of initiative sufficiency petitions. statewide legal lan- 2000). Ann. What this 7-9-503(a)(l) Ark. Code (Repl. § is for a does provide authority taxpayer guage manifestly of an initiative voter to legal by petition. challenge that Act is This does mean yielding process tired, business with last minute old respect way doing under The whole filed in this court Amendment 7. challenges and it did behind Act was remedy problem, purpose so. which was debated landmark decision hotly court, of this we justices constitutionality

among upheld Act and concluded it did not conflict with Amendment 7 Amendment 7 to the Arkansas Constitution but “facilitated” the for initiatives. See Stil process determining legal sufficiency S.W.3d 251 We II). (2000) (Stilley ley stated that Amendment 7 determinations contemplated sufficiency as It true of State on as well signatures legality. case, that in that for declaration insufficiency petition legal had filed But whether a been before of signatures. gathering is filed before after legal insufficiency gathering 877, is Act as that Act makes no such of irrelevant under signatures the time the is filed distinction. Whatever contesting petition amendment, of Act 877 must be ballot title procedures with, this and that was not done in case. complied result is that for all intents and of decision pur- today’s eviscerated, been and we are back to the Act 877 has poses pre- 877, Act filed frenzied ballot-title challenges being just practice an at the before election. Petitions ballot initiatives days contesting unfair, will, eleventh hour on once illegal grounds incomplete, become collected the after has again, commonplace, sponsor Act will be tossed aside for late required signatures. challenges, which Act means the whole reason for 877’s has been aban- being doned. And court will not have the benefit of a this review of the ballot title amendment legal sufficiency of State in consultation with the General. Attorney

A at the last minute what this court has challenge precisely fact, tried to avoid for In this court called many years. specifically on the General to at situation in least two Assembly rectify Priest, 328, cases. Scott See v. 326 Ark. 932 S.W.2d 746 (1996) our earlier for the General to (emphasizing again request Assembly to establish an initiative that would attempt procedure permit early McCuen, resolution of ballot-title v. issues); Page 884 S.W.2d 951 (1994) General to (encouraging Assembly make another an establish initiative attempt for procedure early resolution of ballot-title The General issues). did so with Assembly so, the enactment Act In 877. it doing spoke people this State who chafed at last minute which often resulted petitions, in issues struck from the ballot mere being before the days election.

The majority unravels what has opinion been accom- simply over the three plished past breathes new life into the years once-defunct of last minute ballot system Not challenges. only retrenched, has the Act majority and overruled gutted Stilley II, adherence, which Act 877 it has also treated requires petitioners See, other cases differently. e.g., Stilley I, S.W.3d 189 (2000) curiam) (per I). we (Stilley Stilley as a required the Act Stilley, petitioner, jump through pro- so, cedural He had not done and we hoops. said that was pre- to our review. we do requisite Ward to do the Today, require same. The is that Ward is not majority’s explanation required with Act because filed comply he a signatures after had been Act gathered. 877 does not make this Again, pre-signa- has crafted. distinction majority tures/post-signatures short, conclusion 7. In majority’s does Amendment Nor in has no basis to Act 877 does not apply post-signature petitions that. to in Act 877 remotely suggest There is nothing reality. challenges, and eleventh-hour Act is now history, But collected, in are back That been vogue. after have signatures events, title before us today not only terrible turn of the Ward I would dismiss peti- future ballot-title contests. but for in this court and tion for lack of subject-matter jurisdiction this amend- and ballot title for name address whether inform the ment voting public. adequately and JJ., join. Corbin, Glaze in in dissenting part. concurring part; Hannah, Ju e,e, that this court has jurisdiction. s s ti ti c c majority Jim Further, do with the concern more than I nobody agrees last in the dissents about minute ballot challenges. expressed have the disa- to amendments developed Those proposed opposed title name the ballot and popular greeable practice challenging is no time to that if there so late in election they cycle prevail, this thwart the whole In they purpose remedy any problems. way, this to decide the matter on 7 and force court of Amendment and in Those have invested time money eve of the election. who feel frustrated on the ballot amendments understandably getting However, under the terms of should. they and angry, court now has over Amendment this original jurisdiction peti- to rules issue control- tions sufficiency, authority challenging under of statewide challenging sufficiency petitions ling petitions article, did The to Amendment Amendment 7. judicial prior initiative and court jurisdiction not give original supreme referendum, constitutional amendments. petitions proposed was in these matters found The court’s supreme jurisdiction 2000, the citizens Amendment 7. passed deter- court “[ojriginal jurisdiction which supreme gives of State initiative and referendum mine petitions of drafting amendments.” constitutional purpose court original jurisdiction Amendment 80 give supreme the vehicle court these matters was supreme provide it which could address the of last-minute chal- frustrating problem time the and the lack of to correct defi- lenges proposals ciencies. were told the The citizens of by proponents Amendment 80 that last minute to ballot avoiding challenges pro- was one of the Amendment 80 would posals things accomplish. 80, With of this Amendment court now has passage to fashion the vehicle which those who so invest opportunity by much time and in will have a money rea- obtaining signatures sonable to correct in deficiencies timely opportunity any order to their on the ballot. keep proposal

Amendment in 7 for review this court after the provided issue of had been decided of sufficiency State. by Secretary Amendment 80 alters this and of simply jurisdiction provides the issue of in this court. There is no sufficiency mention in Amendment 80 of involvement of the any of State. Secretary

With Amendment 7 regard sufficiency, provided: of all State-wide shall be sufficiency petitions decided in the State, first instance of by to review the Secretary subject by State, Court of Supreme which have shall and exclu- original

sive over such jurisdiction all causes. 80, however, Amendment provides: (D) The . Supreme Court shall have: . .

(4) jurisdiction to determine Original of sufficiency State initia- tive and referendum petitions proposed constitutional amendments; Amendment omits 80 reference to sufficiency decided being in the first instance of State. This conflict raises an issue of constitutional In Harris v. interpretation. Little City of Rock, 95, 344 Ark. 40 S.W.3d 214 (2001), this court stated: interpreting of the language provision Arkansas Con-

stitution, we endeavor to effectuate as possible as the intent nearly McLoud, in people measure. Allred v. passing 343 Ark. 35, 31 S.W.3d 836 (2000). Where the language constitu- tional is provision each plain word unambiguous, must given its obvious and common Worthv. meaning. City Rogers, 12, 341 Ark. 14 S.W.3d (2000); 471 Daniel v. Jones, 332 Ark. 382 nor of construction

489, “Neither rules (1998). S.W.2d 226 966 and certain used to defeat the clear bemay rules of interpretation at at 966 S.W.2d Id. of a constitutional meaning provision.” Quorum Court, v. County Foster 231 (quoting Jefferson 105, 108, (1995)). S.W.2d 810 901 that a Harris, challenge law Ark. at 99. The former provided 344 State, and had to be first to brought in court. The to review this the decision there was then subject this court. to be now are challenges brought law provides v. 80 the later amendment prevails. Wright later This issue of (1989). Ark. 769 S.W.2d Storey, detail in was discussed Chesshir Copeland, amendments greater the court in cited (1930), Wright, S.W.2d Chesshir, this stated: court supra, supra. must be

It that the Constitution application is a rule of universal that, whole, to at of any part a get meaning considered as it, to relating of read it in the of other light provisions we must is that constitutional The rule subject. general provi- same where and amendments thereto must harmonized practi- sions inconsistency If is to extent an or repugnancy cal. there some and an amendment of the Constitution between provision thereto, the amendment so that one or the other must yield, will will of the Sovereign people the last of being expression The to the extent of conflict. repeal as an prevail implied in the construction same rule of construction would apply would extent amendments. The later amendment govern with the provisions that it was to or in conflict repugnant 195, Rock, v. S.W. one. Little North Little 72 Ark. 79 former Rock 386, 269; Keel, 785; ex v. v. 105 Ark. 151 S.W. State rel. Ferrell 746; 56, v. 166 S.W. Grant Hard age, 166 Ark. 152 Donaghey, 269; Dorado, 10, 506, v. Ark. 278 S.W. Babb El 170 Ark. 153 729; 649; 298, Polk v. 174 Ark. 296 S.W. Wafford, S.W. Lybrand 1602; 76, S.W. v. Mona Star 175 Ark. 298 Company, County Tatum, 90, con- v. 1 S.W.2d 554. principle Lake has been uniformly above laid down stitutional construction facts of the dif- to and according varying adhered applied ferent cases.

Chesshir, Ark. at 429. 182

383 Under Amendment 7 as it was the vot- originally passed by ers, do with to suffi- there was this court could nothing regard until the had been to the ciency question presented acted State. “Until of State shall have suffi- upon and his action therein shall have been ciency prop- Hall, we have to review.” Rambo v. 195 erly challenged, nothing 502, 80, Ark. 112 951 under S.W.2d Now (1938). to determine lies in this court. original jurisdiction sufficiency 1999, Discussion of Act 877 of It is in conflict superfluous. with and therefore was Amendment 80. An displaced by existing statute is constitutional amendment superseded subsequent when there is an irreconcilable conflict or the statute is necessarily Burris, to the new constitutional McKenziev. repugnant provision. also, Mack, 500 S.W.2d 357 see Priestv. (1973); Thus, case, Ark. 109 S.W.2d 665 in the (1937). this present court has jurisdiction.

I must also dissent because the chal- respectfully although late, to the of the ballot title lenge was there is sufficiency brought merit to the claim that it is In Westbrook misleading confusing. McDonald, Ark. 44 S.W.2d 331 this court dis- (1931), cussed its under Amendment 7 to consider on a chal- obligation whether the ballot title is lenge sufficient and whether it is This court has been such an misleading. undertaking See, ever since. White v. Ark. analysis e.g., S.W.3d 572 (2002).

The ballot measure is one to abolish taxes on food and one, medicine. the idea is the defini- Although arguably simple tions of food and medicine in the title are not. The ballot title provides:

AN AMENDMENT TO THE ARKANSAS CONSTITU- TION, ABOLISHING AND PROHIBITING TAXATION MEDICINE; ON FOOD AND DEFINING “FOOD” TO MEAN “ANY ITEM THAT WAS ELIGIBLE FOR PURCHASE WITH FEDERALFOOD STAMPS ON APRIL 1, 2001 OR IS OTHERWISE AVAILABLEUNDER ANY STATE OR FEDERAL NUTRITION ASSISTANCEPRO- 1, 2001;” DEFINING EXISTING ON APRIL

GRAM ITEM BEING FUR- TO MEAN “ANY “MEDICINE” COST AVAILABLE' AT A REDUCED NISHED OR FEDERAL' HEALTH CARE UNDER ANY STATE OR . . ON APRIL 2001. ASSISTANCE PROGRAM like a on food and medicine seems idea of taxes abolishing will title. the voter until one reads the ballot What one simple we should be think the vote is about is whether taxing likely food, think of we think of we substance necessities of life. When nourishment. That is sim- that we take into our for pretty body medicine, take think we think of substances we When we ple. But, us well. That is once into our to make pretty simple. body read, wonder what will and what the ballot title is one must just be definition of food be will not be taxed. The might argued life, be nar- than the necessities of but then it more broader might the ballot what food I know that I cannot tell row. you by reading taxed. I do not believe the rea- and what medicines will not be tell either. In oral counsel for sonable voter could argument, measure, intervenors, of the ballot was who were proponents taxed. He whether over-the-counter medicine would be asked as follows: responded draw a definition of anything, capable time tries to

Any anyone That, with at the I margins. can that definition lawyer quibble think, is a definite definition. If any- we have to concede. This wants to know whether which Pedialyte Pepto-Bismol, one raised, are covered are two of the has examples petitioner 1, 2001, I as we can find out the answer. items April Brown, today, can’t tell what the answer is here you Justice is, can determine that because I don’t know. The we point with That is not a material issue for voters certainty. answer booth. voting If the cannot tell what medicines would be Intervenors lawyer tax, could not from sales average certainly person exempt find there was an know. Most would be likely surprised people would not be taxed. issue of whether would or Pedialyte Pedialyte of the most forms of medication a would seem to one simple ill, and it not be seek when a child is yet may may might parent taxable. To definitions chosen are com- say proponents addresses the issue. Even defini- only plex partially assuming finite, title, tions are are not contained in the ballot but rather they the voter is referred to a number of federal and State programs. essence, title, in the ballot the voter is told to vote for this measure and those items under food or state or federal provided stamps nutrition will not be taxed. The voter is further told to programs vote for this measure item furnished under federal and State health will not be taxed. It is far from a programs arguably more, ban on taxation of food and medicine. It be far itor may be far less. may

A ballot title must with certain In Stil- comply requirements. Priest, v. 341 Ark. 16 S.W.3d ley this court (2000), stated:

We have held that a ballot title must be free from a misleading McCuen, McCuen, tendency. v. Bailey v. supra; Plugge 654, 841 S.W.2d (1992). We have further held that a ballot honest, title be must intelligible, so as to impartial inform voters with such clarity can cast their they ballots with a fair Priest, issues understanding presented. Parker v. Bai supra; McCuen, v. If ley supra. information is omitted from the ballot tide which is an essential fact which would the voter give serious reflection, ground it must be disclosed. Parker v. supra; McCuen, v. Bailey we supra. Finally, have held that we are liberal construing 7 and in determining of a McCuen, McCuen, ballot tide. v. Bailey Porter v. supra; Ark. 839 S.W.2d 512 (1992). This ballot title is It is misleading insufficient unintelligible. to inform the voter. It is to the ballot title that the voters may look to ascertain whether what are asked to they Daniel approve. Jones, 966 S.W.2d 226 A voter is also (1998). entitled to be informed by Daniel, plain language. Voters supra. cannot be to refer to statutes required Daniel, or an act. supra. Here, the that, voter is to do to look at required just definitions in Further, federal and State programs. ballot title is far from where a voter plain is referred to language federal and multiple State to understand what is and programs what is not going court this is and confusing, a ballot title misleading

taxed. Where has been unfortunate this It is challenge must find it insufficient. this that does not alter but made late in election cycle, so however, in now be addressed may That court’s duty. problem, be Rules should under Amendment 80. future this court cases by However, ballot title challenges. that last minute stop promulgated case, be in this should granted. petition Justice, joins. Special Holt, that this court concurring Jr., Special J Holt, as to the sufficiency ce,ce, u u sti sti Jack ballot title. court has I with the this jurisdiction majority agree 7. under Amendment all of this and sentiments of members

I share concerns as to the chaotic in their written pro- court as opinions expressed on take in amendment submitting ceedings place these may a vote of the ballot for Surely, procedures people. amendments, clear future constitutional made by appropriate court rule. legislation, by well in Amendment 7 of this court is' grounded Jurisdiction in the voters

and more by recently (approved set out Hannah in his 2000), concurring as opinion. Justice Likewise, It discussion Act 877 is permissive, superfluous. to the determi- It an optional mandatory. provides approach title, of a name ballot nation of the sufficiency legal popular embraces not the itself which name, title, and ballot signature requirements. as to the this instance certification signature requirements amendment of Amendment 7 requirements place on was made of State

on September 12. This 2002. Petition for review was filed on timely September court has jurisdiction. I dis- ballot title does not muster. Thus respectfully pass Rather than embellish on

sent the plurality opinion. Justice I add the Hannah’s this which I merely writings regard, adopt, following: voters,

It has been as that the regarded majority axiomatic long a. when called to vote for or measure at upon against proposed election, will derive their its contents general information about from an of the ballot title before exercis- inspection immediately Hall, Id.; ing Hoban 229 Ark. 316 right suffrage. McDonald, (1958); S.W.2d 185 Westbrookv. Ark. 184 43 This, indeed, (1931). S.W.2d 356 ballot purpose Riviere, Hall, tide. Dust v. Hoban v. supra; supra. 241, 244, McCuen,

Christian Civic Action Comm. v. 318 Ark. 884 605 S.W.2d (1994). Riviere, 1, 4,

In Dust v. 277 Ark. 638 S.W.2d 663 we (1982) choice, held that are allowed to an make intelligent “[the voters] aware of Dust, vote.” fully their consequences supra. Priest, 434, 452,

In Kurrus v. S.W.3d (2000), we stated:

This has court held that the repeatedly central question ballot tide resolving issues is voter whether the is able to reach an and informed intelligent decision and to understand conse- quences See, of his or her vote. Roberts v. e.g., 813, 20 S.W.3d (2000); Christian Civic Action Comm. v.

McCuen, Ark. 884 S.W.2d 605 (1994).

Kurrus, supra.

There is no the voters can way examine this ballot title and decision, an make informed or be aware of the fully consequences of their vote. order In to determine what is meant the words “medicine,” “food” and voters are referred to definitions con- tained federal food and state and federal nutri- stamp programs tion Mere reference these not programs. do programs provide sufficient information for the voters to make an informed decision on what food what short, will medicines taxed. title as written does not allow the voters to make an intelli- choice, aware of gent of their vote. fully consequences

Hannah, joins. J.,

Case Details

Case Name: Ward v. Priest

Court Name: Supreme Court of Arkansas

Date Published: Oct 24, 2002

Citation: 86 S.W.3d 884

Docket Number: 02-954

Court Abbreviation: Ark.