Opinion No. ( 2007 )

The Honorable Charles L. Ormond State Representative 1500 View Street Morrilton, AR 72110-3725

Dear Representative Ormond:

I am writing in response to your request for certification, pursuant to A.C.A. § 7-9-107, of the popular name and ballot title for a proposed amendment to the Arkansas Constitution. Neither certification nor rejection of a popular name and ballot title reflects our view of the merits of the proposal because this Office has been given no authority to consider the merits of any measure. You previously submitted a ballot title and popular name for a similar measure, which I rejected due to ambiguities in the text of the measure. See Ark. Op. Att'y Gen. No.2006-208. You have made revisions in the text of your measure and now resubmit your proposed popular name and ballot title as follows:

Popular Name THE CHANGE IN TERM LIMITS OR TERMS OF OFFICE FOR CERTAIN ELECTED OFFICIALS AMENDMENT Ballot Title

AN AMENDMENT TO THE ARKANSAS CONSTITUTION CHANGING THE CONSTITUTION TO STATE THAT THE LENGTH OF THE TERM OF OFFICE FOR A MEMBER OF THE ARKANSAS HOUSE OF REPRESENTATIVES AND ARKANSAS SENATE SHALL BE FOUR (4) YEARS; PROVIDING THAT THE TERMS IMMEDIATELY PRIOR TO AN APPORTIONMENT AFTER THE FEDERAL DECENNIAL CENSUS SHALL BE A TWO-YEAR TERM; PROVIDING THAT THE TERMS OF OFFICE OF MEMBERS OF THE HOUSE OF REPRESENTATIVES AND SENATE SHALL NOT BE MODIFIED TO BE STAGGERED; PROVIDING THAT THIS CHANGE SHALL NOT MODIFY A TERM OF OFFICE OF A PERSON WHO WAS ELECTED TO THE OFFICE IN THE 2008 GENERAL ELECTION; PROVIDING THAT A PERSON MAY NOT SERVE MORE THAN THREE (3) TERMS IN THE HOUSE OF REPRESENTATIVES WHETHER THE TERMS ARE TWO-YEAR OR FOUR-YEAR, EXCEPT THAT THE RESTRICTION APPLIES ONLY TO TERMS BEGINNING AFTER DECEMBER 31, 1992, AND THAT A PERSON WHO SERVED THREE (3) TWO-YEAR TERMS IN THE HOUSE OF REPRESENTATIVES AFTER DECEMBER 31, 1991, AND BEFORE JANUARY 1, 2009, SHALL BE ELIGIBLE TO SERVE ONE (1) ADDITIONAL TERM IN THE HOUSE OF REPRESENTATIVES WHETHER THE TERM IS A TWO-YEAR TERM OR A FOUR-YEAR TERM; PROVIDING THAT A PERSON MAY NOT SERVE MORE THAN THREE (3) TERMS IN THE ARKANSAS SENATE WHETHER THE TERMS ARE TWO-YEAR OR FOUR-YEAR, EXCEPT THAT THE RESTRICTION APPLIES ONLY TO TERMS BEGINNING AFTER DECEMBER 31, 1992, AND THAT A PERSON WHO SERVED TWO (2) FOUR-YEAR TERMS IN THE SENATE AFTER DECEMBER 31, 1992, AND BEFORE JANUARY 1, 2009, SHALL BE ELIGIBLE TO SERVE ONE (1) ADDITIONAL TERM IN THE SENATE WHETHER THE TERM IS A TWO-YEAR TERM OR A FOUR-YEAR TERM; PROVIDING THAT A PARTIAL TERM IS NOT COUNTED WHEN DETERMINING MAXIMUM NUMBER OF YEARS ALLOWED TO SERVE AND DEFINING "PARTIAL TERM"; CHANGING TERM OF OFFICE FOR CIRCUIT CLERKS TO A TERM OF FOUR (4) YEARS; CHANGING TERM OF OFFICE FOR COUNTY JUDGES TO A TERM OF FOUR (4) YEARS; CHANGING TERM OF OFFICE FOR COUNTY EXECUTIVE OFFICERS TO A TERM OF FOUR (4) YEARS; CHANGING THE TERM OF OFFICE FOR JUSTICES OF THE PEACE TO A TERM OF FOUR (4) YEARS, EXCEPT THAT THE TERM PRIOR TO AN APPORTIONMENT AFTER THE FEDERAL DECENNIAL CENSUS SHALL BE A TWO-YEAR TERM; AUTHORIZING THE QUORUM COURT TO CREATE AN ELECTIVE TOWNSHIP OFFICE OR OFFICES; AUTHORIZING THE QUORUM COURT TO CONSOLIDATE, SEPARATE, REVISE, OR ABANDON ANY ELECTIVE TOWNSHIP OFFICE EXCEPT DURING THE TERM OF THE OFFICE; CHANGING TERM OF OFFICE FOR CONSTABLES TO A TERM OF FOUR (4) YEARS; CHANGING TERM OF OFFICE FOR ELECTED MUNICIPAL OFFICERS TO A TERM OF FOUR (4) YEARS, EXCEPT THAT ANY MEMBER NOT ELECTED AT-LARGE THE TERM PRIOR TO AN APPORTIONMENT AFTER THE FEDERAL DECENNIAL CENSUS SHALL BE A TWO-YEAR TERM; REPEALING SECTION 38 OF ARTICLE 7 OF THE ARKANSAS CONSTITUTION CONCERNING JUSTICES OF THE PEACE; SETTING TERM OF OFFICE FOR JUSTICES OF THE ARKANSAS SUPREME COURT TO A TERM OF SIX (6) YEARS; PROVIDING THAT A JUSTICE OF THE SUPREME COURT MAY NOT SERVE MORE THAN TWO (2) SIX-YEAR TERMS, EXCEPT THAT A JUSTICE SERVING ON JANUARY 1, 2009, MAY BE ELECTED TO ONE (1) ADDITIONAL TERM OF SIX (6) YEARS UNLESS AT THE END OF THE TERM EXISTING ON JANUARY 1, 2009, THE JUSTICE WILL HAVE SERVED AT LEAST TWELVE (12) YEARS ON THE SUPREME COURT; AND PROVIDING THAT THIS AMENDMENT BECOMES EFFECTIVE ON JANUARY 1, 2009

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.

In this regard, 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.

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. See Arkansas Women'sPolitical Caucus v. Riviere, 282 Ark. 463, 466, 677 S.W.2d 846 (1984).

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

The ballot title must include an impartial summary of the proposed amendment 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 popular name and ballot title under the above precepts, it is my conclusion that I must reject your proposed popular name and ballot title due to several remaining ambiguities in the text of your measure. The first area of ambiguity involves the "additional term" authorized under subsections 2(b) and (c) for persons who served in the House of Representatives and the Senate. These subsections state in relevant part:

A person who served three (3) two-year terms in the House of Representatives after December 31, 1992, and before January 1, 2009, shall be eligible to serve one (1) additional term in the House of Representatives whether the term is a two-year term or four-year term.

Section 2(b)(2).

A person who served two (2) four-year terms in the Senate after December 31, 1992, and before January 1, 2009, shall be eligible to serve one (1) additional term in the Senate whether the term is a two-year term or four-year term.

Section 2(c)(2).

It is unclear, in my opinion, precisely to whom the "one (1) additional term" authorization under these provisions applies. First, there is an ambiguity in the requirement that for a person to be eligible for an additional term, he or she must have "served . . . before January 1, 2009." Although legislative terms expire before January 1 (see Ark. Const. art. 8, § 6, as amended by Amendments 23 and 45, providing that the terms of office of Representatives and Senators "shall begin on January 1 next following [their election]"), the traditional holdover period is not completed before that date.See Ark. Const. art. 19, § 5 and Op. Att'y Gen. 97-101. The period of service of a legislator extends until the point at which his or her successor is elected and qualified. Id. Consequently, as to those who are still in office on January 1, 2009, as "holdovers," it is possible that such persons would be ineligible for the "additional term" because they will not have completed their service "before January 1, 2009." It is not clear from the text of your measure whether you intended that result. I note, by contrast, that in the provision regarding Supreme Court Justices, for example, you have used different language, providing for an additional term for those serving "on" January 1, 2009, rather than for those serving "before" that date. Compare Section 10(a)(3) (". . . a Justice of the Supreme Court serving on January 1, 2009, may be elected to one (1) additional term. . . ." (Emphasis added.))

Second, another ambiguity regarding the provision for an "additional term" under Section 2(b) and (c) concerns whether to be eligible for the additional term the person must have served consecutive terms prior to January 1, 2009.

A third ambiguity regarding this provision for an "additional term" is whether that provision only applies to persons currently in office when the amendment would take effect, or whether it would also allow an additional term for persons who served some time prior to January 1, 2009, but are no longer in office at that time.

The second remaining area of ambiguity involves Section 10 of the proposed amendment regarding term limits for Justices of the Arkansas Supreme Court. The proposed measure sets six-year terms for the Justices, and provides that a Justice "shall not serve more than two (2) six-year terms. . . . " An exception is made, however, for a Justice who is "serving on January 1, 2009." The amendment authorizes an additional six-year term for that person, unless at the end of the term, the Justice will have served twelve (12) years on the Court. Section 10(A)(3). The first ambiguity concerns the potential retroactive effect of Section 10. The amendment appears to be retroactive to the extent that it authorizes an additional term, subject to the 12-year service caveat, for a Justice who is "serving on January 1, 2009." The question is whether a Justice who completed one or more terms before January 1, 2009, is eligible to serve two (2) six-year terms under the proposed amendment.

Another ambiguity regarding Section 10 is whether the twelve (12) years must have been served consecutively in order to render the Justice who was serving on January 1, 2009, ineligible for an additional term of six (6) years.

The provisions discussed above in my opinion clearly constitutes an "essential fact[s] which would give the voter serious ground for reflection." Bailey, supra, 318 Ark. 277, 285. As such, they must be fully and accurately disclosed. Id. Given the above uncertainties, however, I cannot fairly or completely summarize the effect of your proposed measure in this regard. Additions or changes to your popular name and ballot title may be necessary in order to more fully and correctly summarize your proposal. However, I am unable at this time to fully summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of these remaining ambiguities. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

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.,Finn v. 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, and instruct you to "redesign" the proposed measure and ballot title. See A.C.A. § 7-9-107(c). You may, after clarification of the matters discussed above, resubmit your proposed 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,

MIKE BEEBE Attorney General