Cox v. Daniels

• Decision Date: 16 October 2008
• Docket Number: No. 08-1092.,08-1092.
• Citation: 288 S.W.3d 591,374 Ark. 437
• Parties: Jerry COX, Individually, and On Behalf of Family Council Action Committee, Petitioner, v. Charlie DANIELS, Secretary Of State, Respondent, John Bailey, Bill Halter and Charles Hathaway, Intervenors.
• Court: Arkansas Supreme Court

288 S.W.3d 591

374 Ark. 437

Jerry COX, Individually, and On Behalf of Family Council Action Committee, Petitioner, v. Charlie DANIELS, Secretary Of State, Respondent John Bailey, Bill Halter and Charles Hathaway, Intervenors.

No. 08-1092.

Supreme Court of Arkansas.

October 16, 2008.

Martha M. Adcock, for petitioner.

Tim Humphries, General Counsel; and Dustin McDaniel, Att'y Gen., by: Patrick Hollingsworth and Matthew McCoy, Ass't Att'ys Gen., for Respondent.

Williams & Anderson, PLC, by: W. Jackson Williams, Jess Askew III, Michele Simmons Allgood, and Shelli H. Jordan, Little Rock, for Intervenors.

ANNABELLE CLINTON IMBER, Justice.

Petitioner Jerry Cox has filed, individually and on behalf of the Family Council Action Committee and all other Arkansas voters similarly situated,¹ an original action asking this court to declare the popular name and ballot title of Proposed Amendment 3 insufficient and to enjoin Respondent Arkansas Secretary of State Charlie Daniels from placing the measure on the ballot for the November 4, 2008 General Election. The proposed amendment is sponsored by Intervenors John Bailey, Bill Halter, and Charles Hathaway, acting individually and as members of HOPE for Arkansas. Our jurisdiction to determine this matter is pursuant to Amendment 7 of the Arkansas Constitution and Arkansas Supreme Court Rule 6-5(a) (2008). We deny the petition.

The text of Proposed Amendment 3 is as follows:

Be it enacted by the people of the State of Arkansas:

Section 14 of Article 19 of the Constitution of the State of Arkansas is amended to read as follows:

Section 14. Lotteries prohibited

No lottery shall be authorized by this State, nor shall the sale of lottery tickets be allowed.

(a) The General Assembly may enact laws to establish, operate, and regulate State lotteries.

(b) Lottery proceeds shall be used solely to pay the operating expenses of lotteries, including all prizes, and to fund or provide for scholarships and grants to citizens of this State enrolled in public and private non-profit two-year and four-year colleges and universities located within the State that are certified according to criteria established by the General Assembly. The General Assembly shall establish criteria to determine who is eligible to receive the scholarships and grants pursuant to this Amendment.

(c) Lottery proceeds shall not be subject to appropriation by the General Assembly and are specifically declared to be cash funds held in trust separate and apart from the State treasury to be managed and maintained by the General Assembly or an agency or department of the State as determined by the General Assembly.

(d) Lottery proceeds remaining after payment of operating expenses and prizes shall supplement, not supplant, non-lottery educational resources.

(e) This Amendment does not repeal, supersede, amend or otherwise affect Amendment 84 to the Arkansas Constitution or games of bingo and raffles permitted therein.

(f) Except as herein specifically provided, lotteries and sale of lottery tickets are prohibited.

The initiative's popular name is:

A CONSTITUTIONAL AMENDMENT AUTHORIZING THE GENERAL ASSEMBLY TO ESTABLISH, OPERATE, AND REGULATE STATE LOTTERIES TO FUND SCHOLARSHIPS AND GRANTS FOR ARKANSAS CITIZENS ENROLLED IN CERTIFIED TWO-YEAR AND FOUR-YEAR COLLEGES AND UNIVERSITIES IN ARKANSAS."

Its ballot title, which essentially mirrors the text of the initiative, is as follows:

AN AMENDMENT TO THE ARKANSAS CONSTITUTION AUTHORIZING THE GENERAL ASSEMBLY TO ENACT LAWS TO ESTABLISH, OPERATE, AND REGULATE STATE LOTTERIES; REQUIRING LOTTERY PROCEEDS TO BE USED SOLELY TO PAY THE OPERATING EXPENSES OF LOTTERIES, INCLUDING ALL PRIZES, AND TO FUND OR PROVIDE FOR SCHOLARSHIPS AND GRANTS TO CITIZENS OF THIS STATE ENROLLED IN PUBLIC AND PRIVATE NON-PROFIT TWO-YEAR AND FOUR-YEAR COLLEGES AND UNIVERSITIES LOCATED WITHIN THE STATE THAT ARE CERTIFIED ACCORDING TO CRITERIA ESTABLISHED BY THE GENERAL ASSEMBLY; REQUIRING THE GENERAL ASSEMBLY TO ESTABLISH CRITERIA TO DETERMINE WHO IS ELIGIBLE TO RECEIVE THE SCHOLARSHIPS AND GRANTS; DECLARING THAT LOTTERY PROCEEDS SHALL NOT BE SUBJECT TO APPROPRIATION BY THE GENERAL ASSEMBLY; DECLARING LOTTERY PROCEEDS TO BE CASH FUNDS HELD IN TRUST SEPARATE AND APART FROM THE STATE TREASURY TO BE MANAGED AND MAINTAINED BY THE GENERAL ASSEMBLY OR AN AGENCY OR DEPARTMENT OF THE STATE AS DETERMINED BY THE GENERAL ASSEMBLY; REQUIRING LOTTERY PROCEEDS REMAINING AFTER PAYMENT OF OPERATING EXPENSES AND PRIZES TO SUPPLEMENT, NOT SUPPLANT, NON-LOTTERY EDUCATIONAL RESOURCES; DECLARING THAT THIS AMENDMENT DOES NOT REPEAL, SUPERSEDE, AMEND OR OTHERWISE AFFECT AMENDMENT 84 TO THE ARKANSAS CONSTITUTION OR GAMES OF BINGO AND RAFFLES PERMITTED THEREIN; PROHIBITING LOTTERIES AND THE SALE OF LOTTERY TICKETS EXCEPT AS HEREIN SPECIFICALLY PROVIDED.

On November 1, 2007, Attorney General Dustin McDaniel issued an opinion approving the popular name and ballot title and concluding that the popular name is sufficient as submitted and the ballot title plainly represents an impartial summary of the proposed amendment. Thereafter, Intervenors collected sufficient signatures to place the proposed amendment on the ballot. On July 21, 2008, Respondent announced that the signatures were sufficient and certified the proposed amendment to be placed on the ballot for the November 4 General Election. Petitioner filed this original action on September 19, 2008, and we heard oral argument on October 13, 2008.

Petitioner argues that the ballot title for Proposed Amendment 3 is insufficient because (1) the proposed amendment amounts to a repeal of article 19, section 14 of the Arkansas Constitution and the ballot title fails to inform the voters of such a change; (2) the ballot title fails to define the key term "state lottery" and therefore fails to disclose the broad range of games of chance that may be permitted under the amendment; and (3) the ballot title does not adequately inform the voters of its possible impact on the constitutionality of casino gaming. We begin our analyses with a review of the law regarding the sufficiency of ballot titles.

The ballot title must be an impartial summary of the proposed amendment, and it must give voters a fair understanding of the issues presented and the scope and significance of the proposed changes in the law. May v. Daniels, 359 Ark. 100, 106, 194 S.W.3d 771, 777 (2004). It must be free from misleading tendencies that, whether by amplification, omission, or fallacy, thwart a fair understanding of the issues presented. Id. It cannot omit material information that would give the voters serious ground for reflection. Id. It is required that the title be complete enough to convey an intelligible idea of the scope and import of the proposed law. Id. Thus, it must be intelligible, honest, and impartial so that it informs the voters with such clarity that they can cast their ballots with a fair understanding of the issues presented. Id. at 107, 194 S.W.3d at 777. This court has long recognized the impossibility of preparing a ballot title that would suit everyone. Id. Thus, the ultimate issue is whether the voter, while inside the voting booth, is able to reach an intelligent and informed decision for or against the proposal and understands the consequences of his or her vote based on the ballot title. Id.

The issue of the sufficiency of a ballot title is a matter of law to be decided by this court. Id., 194 S.W.3d at 777. Thus, we will consider the fact of Attorney General certification and attach some significance to it; however, we will not defer to the Attorney General's certification or give it presumptive effect. Id. Our most significant rule in determining the sufficiency of the title is that it be given a liberal construction and interpretation in order that it secure the purposes of reserving to the people the right to adopt, reject, approve, or disapprove legislation. Id. It is not our purpose to examine the relative merit or fault of the proposed changes in the law; rather, our function is merely to review the measure to ensure that, if it is presented to the people for consideration in a popular vote, it is presented fairly. Id. Ultimately, Amendment 7 places the burden upon the party challenging the ballot title to prove that it is misleading or insufficient. Id., 194 S.W.3d at 777-78. With these standards in mind, we discuss each of the points raised by Petitioner.

I. Failure to Inform Voters of the Constitutional Provision Being Changed

The ballot title expressly states that the proposed measure is a constitutional amendment. The ballot title essentially mirrors the text of the proposed amendment except that it does not specifically refer to article 19, section 14. Petitioner argues that this is a material omission because the amendment is not proposing a new provision to the Constitution but changing an existing provision, which amounts to a repeal of the provision. Petitioner asserts that failure to inform voters that the amendment repeals or amends a particular constitutional provision would give voters serious ground for reflection on how to vote.

Respondent and Intervenors argue that the proposed amendment amends article 19, section 14 but does not repeal it because the current constitutional ban on lotteries is preserved in subsection (f) of the amendment. Respondent argues that a ballot title is not required to describe the existing law and asserts that the citizens of this State are acutely aware of the fact that lotteries are currently banned. They also argue that since the ballot title expressly states that it is a constitutional amendment, it fairly and accurately apprises the voters that this measure proposes a new, limited exception to the current prohibition on lotteries.

We conclude that the proposed amendment does not repeal the existing article 19, section 14 of the Arkansas Constitution. We note at the outset that Petitioner has failed to...