Finn v. McCuen
| Decision Date | 26 October 1990 |
| Docket Number | No. 90-232,90-232 |
| Parties | John FINN, Don Elliott and Citizens Against Legalized Lottery, Petitioners, Marcus Halbrook, Intervenor, v. W.J. "Bill" McCUEN, Secretary of State, Respondent, Robert G. Walker, Winfred W. Batch, Clarence J. Rice, and Arkansans for Legalized Lottery, Intervenors. |
| Court | Arkansas Supreme Court |
Robert S. Shafer, William H. Sutton, Larry O. Page, Little Rock, for petitioners.
William R. Wilson, Little Rock, for intervenor, Halbrook.
Jeffrey A. Bell, Asst. Atty. Gen., Little Rock, for respondent.
John F. Stroud, Jr., Texarkana, for intervenor, respondent.
Scott C. Trotter, Little Rock, for amicus curiae.
The respondent, W.J. "Bill" McCuen, Secretary of State, certified a proposed constitutional amendment to be placed on the ballot in the coming general election. The petitioners, John Finn and Don Elliott, on behalf of themselves and others similarly situated, and an organization known as Citizens Against Legalized Lottery ask that we review Mr. McCuen's action in accordance with Ark. Const. amend. 7. They contend that the ballot title is insufficient and misleading and that certain signatures which were counted among those needed to place the initiated amendment on the ballot should not have been counted and thus the petition to have the proposed amendment placed on the ballot should not have been approved by Mr. McCuen. Mr. Marcus Halbrook has intervened on the side of these petitioners. These parties will be referred to collectively as "CALL."
The petition for review is opposed by Mr. McCuen and by Robert G. Walker, Winfred W. Batch, Clarence J. Rice, and an organization known as Arkansans for Legalized Lottery who have joined in Mr. McCuen's position by way of intervention. We also have received a brief joining the respondent's position from the Campaign Ethics Committee as amicus curiae.
Mr. McCuen has moved for the dismissal of the original action on the ground that it is untimely because it was not brought within a time prescribed by Ark.Code Ann. § 7-9-107(e)(1)(B)(i) and (ii) (Supp.1989). The motion is overruled because we find that the statute poses an unconstitutional bar to our hearing this case. On the merits of the challenge to the proposed amendment, we agree with CALL's contention that the ballot title is insufficient. The petition for review is thus granted, and we enjoin the secretary of state from placing the proposal on the ballot for the coming general election.
Walker, Batch, Rice, and a person named Simmons, who is now deceased, petitioned to have placed on the ballot an amendment to the Arkansas Constitution to authorize a state lottery and legalize bingo. They chose to follow the provisions of § 7-9-107(e) which gives the sponsor of a statewide initiative the choice of seeking an early approval by the attorney general of the popular name and ballot title of the proposed amendment. Subsection (e)(1)(A) requires the secretary of state to certify the popular name and ballot titles certified to him by the attorney general and to publish them in a newspaper with statewide circulation along with the entire proposed amendment. That same subsection requires the publication to include a notice informing the public of the certification "and the procedure herein identified to govern any party who may contest such certification before the Supreme Court."
Subsection (e)(1)(B) of the statute provides in part: "(i) Any legal action against such certification shall be filed with the Supreme Court within forty-five (45) days of the Secretary of State's publication; (ii) No such action filed later than forty-five (45) days following publication shall be heard by the Supreme Court."
The attorney general approved the popular name and ballot title on the proposed amendment after amending them, as is permissible in accordance with subsection (b) of the statute. The secretary of state, Mr. McCuen, published the proposal. CALL did not bring its challenge, however, until more than forty-five days had passed. It chose instead to wait until the secretary of state had certified the petition with respect to popular name, ballot title, and the number of signatures necessary to have it placed on the ballot.
If the statute requiring that a challenge to the certification of the popular name and ballot title be made within 45 days of publication governs, we must grant the motion to dismiss. CALL contends the statute is unconstitutional and thus should not govern. Mr. McCuen contends we have no authority to consider the constitutionality of the statute because we are limited by Amendment 7 to the issue of the sufficiency of the petition to have the proposed amendment on the ballot. It is argued that we are being asked to give a declaratory judgment on the question of the constitutionality of the statute and that we have no jurisdiction to do so.
We reject the argument that CALL is seeking declaratory judgment on the constitutionality of the statute. This is an original action to determine the sufficiency of a petition to have a matter placed on the ballot. The statute has been asserted as a bar to the action, and CALL has responded that the statute is not a bar as it is unconstitutional. The issue of the validity of the statute is thus before us in this original action which does not seek declaratory relief but rather seeks a direct remedy. See Boyett v. Boyett, 269 Ark. 36, 598 S.W.2d 86 (1980), in which we noted that declaratory relief may not be sought where the issue is pending in other litigation, and UHS of Arkansas, Inc. v. Charter Hospital of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988), where we contrasted seeking declaratory relief with "ordinary" litigation. See also Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988), in which, by mentioning that no constitutional challenge had been made to a statute facilitating the operation of Amendment 7 we implied that such a question could have been raised.
By providing that an action challenging an early determination of the sufficiency of the popular name and ballot title of a proposed amendment "shall be filed" here within 45 days of publication and that such a challenge may not be filed unless it is done within that 45 day period, the statute has the effect of permitting and, as in this case requiring, that the challenge occur prior to a determination that there are sufficient signatures to have the initiated amendment placed on the ballot. The validity of the statute is directly in issue.
Our jurisdiction to entertain this original action is granted by Ark. Const. amend. 7 which provides in pertinent part: "Sufficiency--The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes." The issue we must decide here is whether the words granting us the power to review the secretary of state's decision of the "sufficiency of all ... petitions" as used in the amendment means we may review a decision of the secretary of state that one aspect of a petition is sufficient without having all aspects of the petition in question before us. That is, may we review the popular name and ballot title certifications with respect to a petition which has not been certified as having a sufficient number of signatures to be placed on the ballot? We have clearly held that our authority under Amendment 7 is to review only petitions certified by the secretary of state as sufficient in all respects.
In Rambo v. Hall, 195 Ark. 502, 112 S.W.2d 951 (1938), a petitioner sought to restrain the secretary of state from certifying a petition because the ballot title of a proposed bill to be submitted to a vote of the people was insufficient. We treated the petition as one challenging the sufficiency of the proceedings under Amendment 7. We held that "[u]ntil the Secretary of State shall have acted upon the sufficiency of the petition" the challenge was premature.
In Bailey v. Hall, 198 Ark. 815, 131 S.W.2d 635 (1939), we reviewed the ballot title of a measure to be referred to the people. In the course of that decision, we noted that the signatures on the petition were not being challenged, and it was clear that the petition had been certified by the secretary of state in all respects.
Both the Rambo case and the Bailey case can be distinguished from the situation now before us. In the Rambo case, the secretary of state had taken no action whatever, and here he had certified the ballot title when Mr. McCuen contends the challenge should have been undertaken. In the Bailey case, we did not have before us the question whether we would have had jurisdiction if only one aspect of the petition had been certified.
In Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986), however, we were asked to consider an early certification of ballot title which was made prior to the certification of the signatures. We noted that the arguments there had to do with economy of the process of putting an initiated measure on the ballot. It was contended that, by allowing review of an early ballot title certification we could prevent the expense to the state of counting signatures to say nothing of the time and effort which would be expended by the parties in obtaining the signatures sufficient for certification. We held that the secretary of state had no authority to make any such partial certification and that we had no authority to review other than that granted in Amendment 7. We wrote: "Our jurisdiction attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures [emphasis in original]."
The only citation given for the quoted language was the Bailey case, and that...
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