Opinion No. ( 2009 )

July 14, 2009 Mr. Kylan C. Utley 566 Reno Road Hector, Arkansas 72843

Dear Mr. Utley:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2000), of the popular names and ballot titles for five (5) initiated acts and one (1) proposed constitutional amendment. Your submitted popular names and ballot titles are as follows:

Popular Name AN AMENDMENT TO CHANGE ALL PERSONAL PROPERTY AND REAL ESTATE TAXES TO SALES TAX WITH EDUCATION FUNDS BEING PROVIDED TO THE PARENTS IN THE FORM OF A VOUCHER FOR K-12 EDUCATION WHERE THE PARENTS DECIDE WEITHER [SIC] IT IS PUBLIC, CHARTER, OR PRIVATE SCHOOLS Ballot Title

AN AMENDMENT TO ARKANSAS STATE CONSTITUTION TO CEASE THE IMPLEMENTATION AND COLLECTION OF THE USE TAX, OWNER'S TAX, OR ANY OTHER SIMILAR TAX ON PERSONAL PROPERTY AND REAL ESTATE AND IMPLEMENT A STATE SALES TAX TO BE DETIRMIND [SIC] BY THE STATE LEGISLATURE AS TO THE AMOUNT AND THE TAXABLE GOODS SERVICES; THIS TAX REVENUE SHALL BE DEDICATED AND DISTRUBUTED [SIC] PRO RATA TO THOES [SIC] ENTITIES CURRENTLY RECEIVING FUNDS FROM PERSONAL PROPERTY AND REAL ESTATE TAX EXCEPT EDUCATION FUNDS; FUNDS FOR K-12 DEUCATION [SIC] WILL BE DIRECTED BY THE STATE LEGISLATURE AND PROVIDED TO THE PARENTS IN THE FORM OF A VOUCHER THAT IS TO BE USED WHERE THEY DETIRMEND [SIC] WEITHER [SIC] IT IS PUBLIC, CHARTER OR PRIVATE SCHOOLS

* * * Popular Name

AN INITIATIVE ACT TO HELP FUND ARKANSAS VOLENTEER [SIC]

FIRE DEPARTMENTS Ballot Title

AN INITIATIVE ACT TO HELP FUND ARKANSAS VOLENTEER [SIC] FIRE DEPARTMENTS BY THE STATE LEDGESTLATERS [SIC] ESTABLISHING A SET PERCENT OF THE GENERAL REVENUE TO BE SENT TO THE ARKANSAS VOLENTEER [SIC] FIRE DEPARTMENT CHIEFS STATE WIDE ONCE A YEAR. THESE FUNDS WILL BE USED TO IMPROVE THEIR ISO RATEINGS [SIC] ONLY. THESE FUNDS WILL BE DIVIDED BY THE NUMBER OF VOLENTEER [SIC] FIRE FIGHTERS STATEWIDE EQULEY [SIC]. THE ARKANSAS VOLENTEER [SIC] FIRE DEPARTMENT CHEIFS [SIC] WILL RECIVE [SIC] THE AMOUNT OF FUNDS ACCORDING TO THE NUMBER OF VOLENTEER FIREFIGHTERS IN EACH DEPARTMENT. THIS ACT WILL NOT REPLACE OR REDUCE ANY CURRENT FUNDING FROM THE STATE

* * * Popular Name

AN INITIATIVE ACT THAT UPON THE SECOND CONVICTION OF HIRING AN ILLEAGEL [SIC] ALIEN, THE EMPLOYERS WILL BE SENTENCED TO A MANDATORY ONE (1) YEAR IN STATE PRISON

Ballot Title

AN INITIATIVE ACT THAT UPON THE SECOND CONVICTION OF HIRING AN ILLEAGEL [SIC] ALIEN, THE EMPLOYERS WILL BE SENTENCED TO A MANDATORY ONE YEAR IN STAT [SIC] PRISON PLUS ANY AND ALL CURRENT PENALTIES AND FINES

* * * Popular Name

AN INITIATIVE ACT THAT WILL UPON CONVICTION OF DUI/DWI FOR UNDERAGE DRIVERS, THE STATE WILL CRUSH THE VEHICLE

Ballot Title

AN INITIATIVE ACT THAT WILL UPON CONVICTION OF DUI/DWI FOR DRIVER 20 YEARS AND UNDER, IN ADDITION TO ALL OTHER FINES AND PENALTIES CURRENTLY ESTABLISHED, THE STATE WILL CRUSH THE VEHICLE

* * * Popular Name

AN INITIATIVE ACT TO REPEAL ALL NEW TAXES INACTED [SIC] 2009 ON TOBACCO PRODUCTS

Ballot Title

AN INITIATIVE ACT TO REPEAL ALL NEW TAXES INACTED [SIC] 2009 ON TOBACCO PRODUCTS

* * * Popular Name

AN INITIATIVE ACT TO REPEAL THE CLEAN AIR ACT OF 2006

Ballot Title

AN INITIATIVE ACT TO REPEAL THE CLEAN AIR ACT OF 2006

RESPONSE:

I am 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 state constitutional amendments before the petitions are circulated for signature. My review is limited to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, of whether the proposed popular name and ballot title accurately and impartially summarize the provisions of a proposed amendment or act. The ballot title in particular must be fair, impartial and complete in order to withstand scrutiny if challenged before the Court.

In accomplishing this task, however, I must be provided with thecomplete text of your proposed act or amendment before I can perform my statutory duty in certifying a popular name and ballot title. This is reflected in A.C.A. § 7-9-107(a), wherein it states that "the sponsors shall submit the original draft to the Attorney General, with a proposed . . . ballot title and popular name." (Emphasis added.)

You have failed to submit the texts of the proposed constitutional amendment and initiated acts which you seek to have adopted. It is thus impossible for me to determine whether your proposed ballot titles are accurate and impartial summaries of your proposed measures. Section 7-9-107(a) of the Arkansas Code is very clear in requiring a sponsor of a measure to submit theactual text of the measures for my review with both a proposed ballot title and popular name for each proposal. See also Ops. Att'y Gen.2001-378 and-379.

In addition, to the extent you intend your submitted ballot titles to also serve as the texts of your proposed measures, I must note that this type of format may lead to ambiguities, necessitating rejection of your proposed ballot titles and popular names. I explained the difference between the text of a measure and its ballot title in Op. Att'y Gen.2007-183 as follows:

The text of a proposed constitutional amendment, if adopted, becomes a part of the Arkansas Constitution. Ideally it consists of clear, complete sentences that actively dictate the legal effects desired by the sponsors. A ballot title, on the other hand, is an impartial, concise summary of the proposed amendment. As a consequence, it usually consists of a series of short descriptive phrases or clauses, which refer to, summarize and delineate the various important provisions of the amendment. The format and wording of these summary phrases or clauses, however, do not ordinarily direct action or actively bring about changes in the law. As a consequence, this summary format, while entirely appropriate for a ballot title, causes interpretive difficulty when used as a template for the language of a constitutional amendment.

Id. at 4.

I must therefore return your submissions and instruct you to submit the actual language of your proposed measures together with proposed popular names and ballot titles. The content, draftsmanship, and detail of the text of an initiated measure are matters for the sponsor of the initiative. Please be aware in this regard that the language of each of your proposed acts and the proposed constitutional amendment must be capable of fair summarization in a ballot title in order for me to be able to perform my statutory duty in certifying a ballot title and popular name for each measure. I must be able to clearly understand the text and clearly understand how each proposal will change current law.

As a consequence of this rigorous standard of review, I strongly encourage you to confer with someone experienced in the drafting of legislation and/or the editing of legal documents before resubmitting your proposed initiated act. I will of course be pleased to perform my statutory duties in a timely manner after resubmission.

Sincerely,

DUSTIN McDANIEL Attorney General