Becker v. Riviere, 82-221

• Decision Date: 26 October 1982
• Docket Number: No. 82-221,82-221
• Citation: 641 S.W.2d 2,277 Ark. 252
• Parties: J. Bill BECKER et al., Appellants, v. Paul RIVIERE, Secretary of State, et al., Appellee, and Arkansas Credit Council et al., Appellee/Intervenor.
• Court: Arkansas Supreme Court

Page 2

641 S.W.2d 2

277 Ark. 252

J. Bill BECKER et al., Appellants, v. Paul RIVIERE, Secretary of State, et al., Appellee and Arkansas Credit Council et al., Appellee/Intervenor.

No. 82-221.

Supreme Court of Arkansas.

Oct. 26, 1982.

Youngdahl & Larrison by Jay Thomas Youngdahl and Randall G. Wright, Little Rock, for appellants.

Steve Clark, Atty. Gen. by Frederick K. Campbell, Asst. Atty. Gen., Little Rock, for Riviere.

Owens, McHaney & Calhoun by James M. McHaney, Little Rock, for appellee.

ADKISSON, Chief Justice.

Appellants brought an action in the chancery court of Pulaski County to enjoin appellee, Paul Riviere, Secretary of State, from furnishing the State Board and County Boards of Election Commissioners with the "Ballot Title" of proposed Amendment 60. The trial court held that, although not required, the "Ballot Title" was sufficient and refused to grant the injunction. On appeal, we affirm.

Proposed Amendment 60, which deals with interest rates on loans, was promulgated by House Joint Resolution 7 of the 1981 General Assembly. It was proposed pursuant to Art. 19, § 22 of the Arkansas Constitution which provides:

Constitutional amendments.--Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately. (Emphasis supplied)

The General Assembly gave proposed Amendment 60 a "Ballot Title," although Art. 19, § 22 does not require that one be given to an amendment submitted by the General Assembly.

Appellants argue that we should review this "Ballot Title" by the same standard we use in reviewing a ballot title of an amendment proposed by the people pursuant to Amendment 7. We disagree. An Amendment 7 standard of review should not be applied to an Art. 19, § 22 "Ballot Title" because there are significant differences between Amendment 7 and Art. 19, § 22.

Amendment 7 does not require publication of the proposed amendment except as may be required by the General Assembly, but it does provide a safeguard by specifically requiring that the proposed amendment have a ballot title. The purpose of such a ballot title is to inform the voter so that he can mark his ballot with a fair understanding of the issues presented. Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958). On review of an Amendment 7 ballot title, we look to see if the title is "free from any misleading tendency, whether of amplification, of omission, or of fallacy." Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952).

On the other hand, as pointed out above, Art. 19, § 22 does not specifically require a ballot title. All that is required is that proposed amendments under Art. 19, § 22 "be so submitted as to enable the electors to vote on each amendment separately." So, the purpose of the "Ballot Title" under Art. 19, § 22 is not to inform the voter, but merely to distinguish and identify the amendment. Voters can be presumed to be informed as to the contents of the amendment since Art. 19, § 22 specifically requires an extended publication period of six separate monthly insertions in one newspaper in each county prior to the election. See Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917).

When the purpose of a ballot title is to identify, as opposed to inform, the title is sufficient if it distinguishes the proposed amendment from others and is recognizable as referring to the amendment that was previously published in the newspapers. A ballot title which meets this test will be upheld unless it is worded in some way so as to constitute a manifest fraud upon the public.

Here, the actual wording of the "Ballot Title" in question is as follows:

An Amendment to Section 13 of Article XIX of the Constitution of the State of Arkansas to Control Interest Rates and Set the Penalty for Violations Thereof.

It is not suggested that this wording is insufficient to distinguish or identify the amendment.

Affirmed.

GEORGE ROSE SMITH, HICKMAN and PURTLE, JJ., dissent.

HICKMAN, Justice.

The ballot title is, of course, misleading. The irony or indignity, as the case may be, is that no ballot title is required for an amendment to the constitution that is proposed by the General Assembly. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976).

But the question presented to us is what happens when the General Assembly does attach a ballot title and it is misleading? Is there any remedy to correct such action? Does this court have the authority to act as it would in a case involving other ballot titles? It is my judgment that once the General Assembly elects to attach a ballot title, that title is subject to the same review as any other. We did not hold in the Chaney case that we did not have the authority to intervene in a case involving a defective ballot title. We held that after the people had approved such an amendment, we should be most reluctant to intervene. In Riviere v. Wells, 270 Ark. 206, 604 S.W.2d 560 (1980), we held that we had the authority to rule on the ballot form of the proposed constitution of 1980. There was no constitutional or explicit authority in the legislation creating the constitutional convention that granted us that right or power. We found the authority in years of precedents in which this court has considered ballot titles and elections. We found no violation of the separation of powers doctrine and observed that courts should intervene in matters where a department of government attempts to act ultra vires.

In Riviere v. Wells, supra, the proponents of the proposed constitution, rather than simply placing on the ballot a "for or against" opportunity, as they should have, created a ballot form as follows:

FOR PROPOSED CONSTITUTION OF 1980

FOR RETENTION OF THE CONSTITUTION OF 1874

This rather shoddy deception was found to be misleading and the proposal was declared void.

The deception in the ballot title before us is not of the same magnitude of that we recently found in the ballot title for proposed amendment 63. Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982). But if we apply the usual legal test for ballot titles to proposed Amendment 60's ballot title, it still fails. Our general test is that the ballot title must be free from any misleading tendency by amplification, omission, or fallacy, and it must not be "tinged with partisan coloring." Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). In applying that test we have said:

It is our duty, ... to approve the ballot title only if it represents an impartial summation of the measure and contains enough information to enable the voters to mark their ballots with a fair understanding of the issues presented ... Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958).

The ballot title for proposed Amendment 60 reads:

AN AMENDMENT TO SECTION 13 OF ARTICLE XIX OF THE CONSTITUTION OF THE STATE OF ARKANSAS TO CONTROL INTEREST RATES AND SET THE PENALTY FOR VIOLATIONS THEREOF.

The proposed amendment itself does four things: (1) It changes the rate of interest allowed which is presently 10%; (2) It raises that limit in the case of consumer loans to 17%; (3) it provides that in commercial loans the limit shall be 5% above the Federal Reserve discount rates; and, (4) it changes in some cases the present penalty for usury. None of these changes is spelled out in the ballot title. In fact, there is no mention at all of "usury," which is the key word contained in the constitution. In my judgment the word "control" is decidedly deceptive. See Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The proposed amendment controls nothing. The use of that word in its ordinary meaning would be to restrain. It does exactly the opposite--it removes the existing control. So, the ballot title fails the test in several respects. It misleads by omission, it is deceptive, and it is tinged with partisan coloring to make it more attractive to voters. Any misleading characteristics in a ballot title, particularly those involving deception, have been readily rejected. Dust v. Riviere, supra; Bradley v. Hall, supra; Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Hoban v. Hall, supra; Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936).

While the deception in this case does not amount to fraud, it nonetheless exists--the majority does not deny it is a misleading statement to the voter. Here the deception was unnecessary. While the unvarnished truth in simple ordinary language may risk rejection, it is preferable to reform through deception. With all due respect to the majority I think it is a mistake to set a precedent that will permit the constitution to be changed through deception.

It is not difficult to draft a proper ballot title. But one must have the will to state the facts without deception. Only two years ago we approved...