Donovan v. Priest, 96-1120

• Decision Date: 21 October 1996
• Docket Number: No. 96-1120,96-1120
• Citation: 931 S.W.2d 119,326 Ark. 353
• Parties: Eugenia T. DONOVAN, Individually, and On Behalf of All Others Similarly Situated, Petitioner, v. Sharon PRIEST, Secretary of State of the State of Arkansas, Respondent, Arkansas Term Limits, Frank Gilbert, and Spencer G. Plumley, Intervenors.
• Court: Arkansas Supreme Court

Page 119

931 S.W.2d 119

326 Ark. 353

Eugenia T. DONOVAN, Individually, and On Behalf of All Others Similarly Situated, Petitioner, v. Sharon PRIEST, Secretary of State of the State of Arkansas, Respondent Arkansas Term Limits, Frank Gilbert, and Spencer G. Plumley Intervenors.

No. 96-1120.

Supreme Court of Arkansas.

Oct. 21, 1996.

Paul B. Benham, III, Elizabeth Robben Murray, Robert S. Shafer, Little Rock, for appellant.

Tim Humphries, Dep. Atty. General, William F. Knight, Asst. Atty. General, A.J. Kelly, Little Rock, for intervenors Arkansas Term Limits, Frank Gilbert, and Spencer G. Plumley.

CORBIN, Justice.

Petitioner, Eugenia T. Donovan, citizen and taxpayer, asks this court to enjoin Respondent Secretary of State Sharon Priest, from placing the proposed Amendment 9 to the Arkansas Constitution on the ballot for the general election on November 5, 1996. Petitioner also requests that any votes that may have already been cast for the proposed Amendment 9 not be counted. We allowed the intervention of three additional parties in this original action, which was filed pursuant to Amendment 7 to the Arkansas Constitution of 1874: "Arkansas Term Limits," the unincorporated sponsor of the proposed Amendment 9; Frank Gilbert, Executive Director of "Arkansas Term Limits"; and Spencer G. Plumley, Chairman of "Arkansas Term Limits."

Petitioner asserts that the proposed Amendment 9 exceeds the legislative powers reserved to the people of this state by our Amendment 7 in that it directly contravenes the amendment process provided for in Article V of the United States Constitution. Respondent and Intervenors contend that the proposed Amendment 9 does not exceed the powers of the people reserved in Amendment 7 and that, even if it did, Petitioner's challenge to the proposal is a question of substantive constitutional law that is not yet ripe for our review. Our jurisdiction to hear this case is original and exclusive pursuant to Amendment 7 of the Arkansas Constitution.

I. Justiciability

Respondent and Intervenors urge us to decline review of Petitioner's constitutional challenge to the proposed Amendment 9 because the issue is not ripe for adjudication and, as such, any opinion issued by this court on the matter would be purely advisory. Petitioner asserts that our review of the sufficiency of the petition for this proposed amendment, as provided in Amendment 7, necessarily encompasses the issue of whether the proposal is within the powers reserved to the people in Amendment 7. Petitioner argues that the people of this state do not have the right to propose such a measure as the proposed Amendment 9, which instructs the legislators of this state, along with the Arkansas delegation to Congress, to use all the powers of their respective offices in proposing and securing an amendment to the United States Constitution limiting the number of terms members of Congress may serve. Petitioner asserts that the procedures for proposing amendments to the United States Constitution are specifically and exclusively provided for in Article V of that Constitution. Respondent and Intervenors counter that Petitioner's argument is nothing more than a substantive constitutional challenge to the proposal, and as such, our review of the issue is not proper unless and until the measure has become law.

Our reading of the proposed Amendment 9 indicates that it is procedural in nature, purporting to empower the electorate with an indirect and prohibited means to propose an amendment to the United States Constitution. Hence, we agree that the threshold issue presented requires an analysis of whether such a procedure is encompassed within the powers reserved to the people of this state in Amendment 7.

Amendment 7 to the Arkansas Constitution of 1874 provides in part:

The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly[.] [Emphasis added.]

Amendment 7 further provides that the sufficiency of statewide petitions for initiatives shall be decided in the first instance by the Secretary of State, subject to the review of the supreme court which has original and exclusive jurisdiction over such causes. Upon legal challenges to initiative matters, Amendment 7 places the burden of proof "upon the person or persons attacking the validity of the petition." As to the scope of Amendment 7 and its incorporation of the reserved rights of the people, this court has previously observed that "[t]he voters of this state essentially have, within constitutional limits, a right to change any law or any provision of our Constitution they deem appropriate through Amendment 7 to the Constitution." Dust v. Riviere, 277 Ark. 1, 4, 638 S.W.2d 663, 665 (1982) (emphasis added). Clearly those constitutional limitations derive from both the United States Constitution and this state's constitution. On the federal level, the rights reserved to the states and to the people of the states originate from the Tenth Amendment to the United States Constitution, which provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Thus, our Amendment 7 cannot empower the people of this state to initiate any measure, law, or amendment which falls outside the powers reserved to the states and their citizens by the United States Constitution. We understand this to be the essence of Petitioner's challenge.

This court has previously decided cases in which it reviewed the validity of the people's reserved powers of initiative and referendum. In Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984), this court was presented with a challenge to the validity of a proposed local initiative. In determining that such a review of the initiative could be conducted by this court prior to the election, the majority opinion stated:

At the outset the appellees argue that we should permit the measures to be placed on the ballot without first determining their validity. Certainly it is true that a party who resists an initiated petition on grounds such as insufficiency of signatures or improper ballot title is not required to question the validity of the proposed measure. On the other hand, that question may be considered and decided when it is properly raised, even before the election. Proctor v. Hammons, 277 Ark. 247, 640 S.W.2d 800 (1982); Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912).

Id. at 459, 677 S.W.2d at 835 (emphasis added).

In Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912), this court considered our state's previous Initiative and Referendum Amendment, which is comparable to our present-day Amendment 7, together with its enabling clause and determined that it was the duty of this court to determine the validity of a proposed amendment before such became law. The court concluded that it must determine whether the proposed measure is "subject to the initiative power of the people, and that the petition is legally sufficient[.]" Id. at 591, 149 S.W. at 659 (emphasis added).

More recently in Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992), this court declined to address the petitioners' substantive constitutional challenge as to whether a proposed measure conflicted with the Qualifications Clause of the United States Constitution. The majority opinion did, however, acknowledge that this court had previously addressed constitutional challenges to a proposal's validity, but limited such review to situations where the proposed measure was "clearly contrary to law" and, therefore, should not be submitted to the electorate. Id. at 660, 841 S.W.2d at 142. In addition to the consideration of whether a proposed measure is "clearly contrary to law," this court has indicated that in determining whether an issue is justiciable, factors to be weighed include whether the issue at hand is a matter of significant public interest and a matter of constitutional law. See U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994); Bryant v. English, 311 Ark. 187, 843 S.W.2d 308 (1992).

It has been said that the pertinent issue in cases such as this one "is not the hypothetical question whether the law, if passed, would be constitutionally defective; rather, it is the present and ripe question whether the measure's proponents are entitled to invoke the direct legislation process at all." James D. Gordon III & David B. Magleby, Pre-Election Judicial Review of Initiatives and Referendums, 64 Notre Dame L.Rev. 298, 314 (1989) (emphasis added). We agree, especially when considering our decisions in Czech, Hodges, and Plugge. We also agree that a case such as this one is ripe for the following reasons: (1) The case is concrete and the record will not be improved by waiting until after the election is held; (2) the factual controversy--whether procedural and subject-matter requirements have been met--exists before the election; (3) post-election events will not sharpen the issues, as no additional facts are necessary for decision and (4) the issue is not speculative nor hypothetical because the only constitutional issues involved are those that govern the proponents' right to invoke the direct-legislation process. Id.

Regarding justiciability in general, this court has previously stated that declaratory relief will lie where (1) there is a justiciable controversy; (2) it exists between parties with adverse interests; (3) those seeking relief have a legal interest in the controversy; and (4) the issues involved are ripe for decision. U.S. Term Limits, Inc., 316 Ark. 251, 872 S.W.2d 349. Here, there is clearly a case in controversy over the effect and...