Opinion No. ( 2001 )

Travis J. Morrissey Hurst Law Firm 213 Woodbine Hot Springs, AR 71901

Dear Mr. Morrissey:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2000), of the following ballot title for a proposed amendment to the Arkansas Constitution:

Ballot Title

PROPOSING AN AMENDMENT TO AMENDMENT NO. 75 TO THE CONSTITUTION OF THE STATE OF ARKANSAS TO PROVIDE FOR ARKANSAS GENERAL ASSEMBLY TO CHANGE THE NAME OF THE ENVIRONMENTAL EHANCEMENT [SIC] FUNDS, TO CHANGE THE PURPOSE FOR WHICH SUCH FUNDS ARE TO BE USED; AND FOR OTHER PURPOSES

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 amendment or 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 amendment or act. See Arkansas Women's PoliticalCaucus 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 amendment or 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; and Walton 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. Plugge v. 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 CivicAction Committee 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), citing Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960).

Having analyzed your proposed amendment, as well as your proposed ballot title under the above precepts, it is my conclusion that I must reject your proposal at this time. As an initial matter, you have failed to submit a proposed popular name for my review. Section 7-9-107 (a) of the Arkansas Code is very clear in requiring a sponsor of a measure to submit the measure for my review with both a proposed ballot title and popular name. In addition, I must reject your proposed ballot title due to ambiguities in the text of your measure. A number of additions or changes to your ballot title are, in my view, necessary 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 measure 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 1 of your proposal states that "The Title of Amendment 75 to the Constitution of the State of Arkansas shall be changed to the `Citizen and Resource Protection Funds.'" I am uncertain whether this provision is self-executing in changing the Publisher's designation of the current title for Amendment 75 or whether an act of the General Assembly will be necessary to change the title, as appears to be the intention from your proposed ballot title.

2. Section 2 of your proposal, which amends Section 1 of Amendment 75, is confusing and refers to a non-existent state Department. Your measure amends Section 1 of Amendment 75 to state in its entirety that: "The people of the State of Arkansas find that preservation and protection of its elderly citizens as well as its natural resources constitute a major economic and natural resource of the state and they desire to provide extra funds to the Department of Health and Human Services, the Department of Parks and Tourism, the Department of Heritage and Keep Arkansas Beautiful." This language is confusing and tautologous in stating that natural resources constitute a major natural resource. In addition, your use of the term" natural resources" as a purpose for which the tax levy may be used appears to be broader than the language used in the current Amendment, which refers only to fish, wildlife, parks, tourism and natural heritage as "natural resources." I am uncertain whether your broader reference to "natural resources" in general expands the permissible scope for which the tax may be expended. Finally, this Section refers to a non-existent state department. There is currently no "Department of Health and Human Services." There is a Department of Health (see A.C.A. § 25-9-101 (Supp. 2001) and there is a separate Department of Human Services (see A.C.A. § 25-10-101 (Repl. 1996). This reference is therefore confusing.

3. A possible ambiguity could arise from the language of Section 3 of your proposal, which requires the appropriation of a portion of the tax revenues to further "protection of the elderly citizens of this state housed in state owned, operated or funded nursing homes." An ambiguity may arise as to exactly which nursing homes are "state . . . funded" for purposes of this provision.

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,341 Ark. 813, 20 S.W.3d 376 (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 matter discussed above, resubmit your proposed amendment, 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

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