May v. Daniels

• Decision Date: 07 October 2004
• Docket Number: No. 04-895.,04-895.
• Citation: 194 S.W.3d 771
• Parties: Ronald A. MAY, Susan E. May, and Gayle Bradford, Petitioners, v. Charlie DANIELS, in his Official Capacity as Secretary of State of the State of Arkansas, Respondent, Jerry Cox and Chris Stewart, Individually and on Behalf of the Arkansas Marriage Amendment Committee, Intervenors.
• Court: Arkansas Supreme Court

194 S.W.3d 771

Ronald A. MAY, Susan E. May, and Gayle Bradford, Petitioners, v. Charlie DANIELS, in his Official Capacity as Secretary of State of the State of Arkansas, Respondent, Jerry Cox and Chris Stewart, Individually and on Behalf of the Arkansas Marriage Amendment Committee, Intervenors.

No. 04-895.

Supreme Court of Arkansas.

October 7, 2004.

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N.M. Norton and Blake S. Rutherford, on behalf of the Arkansas Civil Liberties Union Foundation, Inc.; and Arkansas Civil Liberties Union Foundation, Inc., by: Griffin J. Stockley, Little Rock, for petitioners.

Mike Beebe, Att'y Gen., by: Timothy G. Gauger, Sr. Ass't Att'y Gen., Little Rock, for respondent.

Martha Adcock, Little Rock, for intervenors Arkansas Marriage Amendment Committee.

DONALD L. CORBIN, Justice.

Petitioners Ronald A. May, Susan E. May, and Gayle Bradford have filed 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 2, 2004 General Election. The proposed amendment is sponsored by Intervenors Jerry Cox and Chris Stewart, acting individually and on behalf of the Arkansas Marriage Amendment Committee. Our jurisdiction to determine this matter is pursuant to Amendment 7 to the Arkansas Constitution and Ark. Sup.Ct. R. 6-5(a). We deny the petition.

The text of Proposed Amendment 3 is as follows:

SECTION 1: Marriage

Marriage consists only of the union of one man and one woman.

SECTION 2: Marital Status

Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the Legislature may recognize a common law marriage from another state between a man and a woman.

SECTION 3: Capacity, rights, obligations, privileges, and immunities

The Legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges, and immunities of marriage.

The initiative's popular name is "AN AMENDMENT CONCERNING MARRIAGE." Its ballot title, which mirrors the text of the initiative, is as follows:

A PROPOSED AMENDMENT TO THE ARKANSAS CONSTITUTION PROVIDING THAT MARRIAGE CONSISTS ONLY OF THE UNION OF ONE MAN AND ONE WOMAN; THAT LEGAL STATUS FOR UNMARRIED PERSONS¹ WHICH IS IDENTICAL OR SUBSTANTIALLY SIMILAR TO MARITAL STATUS SHALL NOT BE VALID OR RECOGNIZED IN ARKANSAS, EXCEPT THAT THE LEGISLATURE MAY RECOGNIZE A COMMON LAW MARRIAGE FROM ANOTHER STATE BETWEEN A MAN AND A WOMAN; AND THAT THE LEGISLATURE HAS THE POWER TO DETERMINE THE CAPACITY OF PERSONS TO MARRY, SUBJECT TO THIS AMENDMENT, AND THE LEGAL RIGHTS, OBLIGATIONS, PRIVILEGES, AND IMMUNITIES OF MARRIAGE.

On March 12, 2004, the Attorney General issued an opinion approving the popular name and ballot title and concluding that they accurately and impartially summarize the provisions of the proposed amendment. That same date, Respondent also certified the sufficiency of the popular name and ballot title. Thereafter, Intervenors collected sufficient signatures to place the proposed amendment on the ballot. On July 22, Respondent announced that the signatures were sufficient and certified the proposed amendment to be placed on the ballot for the November 2 General Election. Petitioners filed this original action on August 26, and we heard oral argument on September 23.

Petitioners note at the outset that they are not challenging the wisdom or folly of the proposed amendment, as they concede that such a challenge is not proper at this time. Rather, they challenge the sufficiency of the information supplied to the voters in the measure's popular name and ballot title. They argue that the popular name is insufficient because it contains partisan language and misleads the voter into believing that the proposed amendment deals exclusively with marriage. As for the ballot title, Petitioners argue that it is vague and misleading and that it does not inform voters of the consequences of voting for the proposed amendment.

I. Popular Name

For their first point, Petitioners argue that the popular name, "An Amendment Concerning Marriage," is misleading because it deceptively and inaccurately declares that the amendment only addresses marriage, while it actually has a broader effect. They contend that although the popular name adequately describes Section 1 of the proposed amendment, it ignores Sections 2 and 3.

The standard for reviewing an initiative's popular name is well settled. The popular name is primarily a useful legislative device that need not contain the same detailed information or include exceptions that might be required of a ballot title. Parker v. Priest, 326 Ark. 123, 930 S.W.2d 322 (1996). Its purpose is to identify the proposal for discussion prior to the election. Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000); Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984). The popular name is not held to the same stringent standards and need not be as explicit as a ballot title; however, it cannot contain catch phrases or slogans that tend to mislead or give partisan coloring to a proposal. Id. Thus, the popular name must be intelligible, honest, and impartial. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988). This court considers the popular name along with the ballot title in determining its sufficiency. Roberts, 341 Ark. 813, 20 S.W.3d 376.

Petitioners argue that the popular name, "An Amendment Concerning Marriage," only describes Section 1 of the proposed amendment, which states that "Marriage consists only of the union of one man and one woman[.]" They argue that the popular name omits any information regarding the limitations that the amendment will impose on the rights of unmarried couples or single persons or of the impact that the amendment will have on the legal recognition of any future union or partnership. They also argue that the word "marriage" is an inviting catchword, and that its use in this popular name is misleading in that very few persons would vote against marriage, even though they may be in favor of other types of relationships.

Petitioners rely heavily on the holding in Arkansas Women's Political Caucus, 283 Ark. 463, 677 S.W.2d 846, wherein this court struck a proposed amendment from the ballot on the ground that its popular name, "The Unborn Child Amendment," was misleading, contained partisan language, and omitted pertinent information. This court explained:

More significantly, the enactment of the proposed amendment would do two things, equally far-reaching: it would immediately prohibit the use of public funds for abortion, including a female impregnated by rape or incest, unless the life of the mother were in danger; and two, it would empower the General Assembly to prohibit abortion under any circumstances to the extent permitted under the Constitution of the United States. Yet, the popular name makes no reference whatsoever to this emotionally charged subject. Instead, the ballot name contains only the inviting catch words "unborn child," which gives the voters only the impression the proponents of the amendment want them to have. Very few would vote against a child, born or unborn, even though they are for a woman's right to have an abortion or for the state paying for it. The popular name is a clear-cut example of the partisan coloring of ballots which we have uniformly condemned in our decisions holding that a ballot name must be fair and impartial.

Id. at 468, 677 S.W.2d at 849 (emphasis added).

Petitioners' reliance on Arkansas Women's Political Caucus, is misplaced. The popular name of Proposed Amendment 3, "An Amendment Concerning Marriage," clearly and concisely identifies the measure to the voters. It is intelligible, honest, and impartial and does not contain inflammatory language, political catchwords, or partisan coloring. It merely alerts the voters to the subject on which they will be voting, without attempting to influence them one way or the other. Contrary to Petitioners' urging, we do not believe that the term "marriage" evokes the same type of emotional reaction as the phrase "unborn child."

Moreover, there is no merit to Petitioners' suggestion that only Section 1 of the proposed amendment concerns the subject of marriage. Section 3 plainly concerns marriage by providing that the legislature has the power to determine the capacity of persons to marry and the rights, obligations, privileges, and immunities of marriage. Even Section 2 concerns marriage in that it prohibits recognition of marital status for unmarried persons, except that the legislature may recognize certain common law marriages. We thus reject Petitioners' argument on the sufficiency of the popular name.

II. Ballot Title

Petitioners next argue that the ballot title for Proposed Amendment 3 is vague and misleading and fails to inform the voters of the consequences of voting for the proposed amendment. They also argue that the title fails to disclose to the voters the full scope of the proposed amendment and its impact on current laws. 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. Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996); Parker, 326 Ark. 123, 930 S.W.2d 322. 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. While it is not required that the ballot title contain a synopsis...