Plugge v. McCuen
| Decision Date | 20 October 1992 |
| Docket Number | No. 92-1074,92-1074 |
| Citation | 841 S.W.2d 139,310 Ark. 654 |
| Parties | Richard PLUGGE, Individually, and on Behalf of Arkansas Farm Bureau, Arkansas for Representative Democracy, and All Others Similarly Situated, Petitioners, v. W.J. "Bill" McCUEN, Secretary of State, Arkansans For Governmental Reform, Inc., Respondents. |
| Court | Arkansas Supreme Court |
Jeffrey A. Bell, Asst. Atty. and Winston Bryant, Little Rock, for respondents.
Sam Hilburn, No. Little Rock, for intervenor.
ORIGINAL ACTION PETITION
Petitioners, the Arkansas Farm Bureau and a group known as Arkansas for Representative Democracy, filed this original action against the Secretary of State under Amendment 7 to the Arkansas Constitution, attacking the sufficiency of the ballot title of the proposed Arkansas Term Limitation Amendment. On July 3, 1992, the sponsors of this proposed amendment filed their initiative petitions with the Secretary of State's office to get their measure on the 1992 General Election ballot. The Secretary of State eventually approved the signatures and ballot title submitted by the sponsors as sufficient, and on September 16, 1992, he certified the proposed amendment to appear on the General Election ballot. Petitioners filed this action on September 22, 1992, and Arkansans for Governmental Reform, Inc. (AGR), supporters of the amendment, intervened in the case on September 24, 1992.
Petitioners contend the proposed amendment's ballot title is defective and misleading, and in doing so, argue significant parts and wording contained in the amendment are not, but should be, disclosed. The preamble reads as follows:
The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers. Therefore, the people of Arkansas, exercising their reserved powers, herein limit the terms of elected officials.
Citing several cases, petitioners complain the first sentence of the preamble changes Arkansas's settled law that presumes elected officials act honestly, impartially and in good faith in the performance of their official duties. Next, they disagree with the use of the terminology "entrenched incumbency" in the preamble, saying that such language carries a negative connotation that fails to reflect those other voters who favor term limitation because they believe, put in positive vernacular, that the limitation will offer greater opportunity for other citizens to be involved in government. Petitioners also take exception to the preamble language that refers to our electoral system now being less free, less competitive and less representative, again explaining others who support term limitations do so for loftier reasons than the ones expressed.
The rules of law governing sufficiency of the ballot title are well-settled. A ballot title must be (1) intelligible, (2) honest, and (3) impartial. Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960). It is not required that the ballot title contain a synopsis of the amendment or statute, but it should be complete enough to convey an intelligible idea of the scope and import of the proposed law. Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). The ballot title must be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and it must not be tinged with partisan coloring. The Attorney General's approval of a ballot title raises a presumption as to its sufficiency and only in a clear case should such an approval be held insufficient. See Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 698 (1968). Finally, it is settled law that, in determining the sufficiency of a ballot title, this court must be liberal in construing the tenets of Amendment 7. Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990).
In considering petitioners' arguments in view of the foregoing rules, we are also met with those cases indicating that a preamble or title simply is not a part of a measure. See McMahan v. Bd. of Trustees U. of A., 255 Ark. 108, 499 S.W.2d 56 (1973); Roscoe v. Water and Sewer Imp. Dist. No. 1, 216 Ark. 109, 224 S.W.2d 356 (1949); Oliver v. Southern Trust Co., 138 Ark. 381, 212 S.W. 77 (1919). A title or preamble of an act is in no sense controlling Here, petitioners' concerns regarding the proposed amendment's preamble are misplaced. In fact, if the preamble had been included, some of its language may have raised more questions in voters' minds than it resolved. Clearly, the preamble is not a part of the text of the proposed amendment and for this reason alone, we hold its verbiage should not have been included in the amendment's ballot title.
and is only properly considered if the act itself is ambiguous. McMahan, 255 Ark. at 110, 499 S.W.2d at 57.
Petitioners next claim the text of the proposed measure limits the state's executive officers to two four-year terms "in the same office," but the ballot title seems to limit an elected official to two four-year terms in the Executive Department. 1 In addition, they argue the voters will be misled by the ballot title language "limiting the number of terms that may be served by members of the House of Representatives to three (3) two-year terms and "by members of the Arkansas Senate to two (2) four-year terms." In this respect, they complain the title does not reveal these legislative officials might run for representative or senator from a different district so as to avoid the limitations intended for such offices.
We fail to see any merit in petitioners' arguments. Obviously, the ballot title conveys the clear message that the terms of these designated offices are limited, and we are unable to say the language describing those terms is misleading. The title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.
Petitioners' most serious contentions concern questions surrounding the constitutionality or validity of the proposed amendments. They say that if the proposed Term Limitation Amendment is unconstitutional and invalid, the proposal would be misleading to the voters and should be stricken from the ballot or the votes cast on the measure should not be counted.
Petitioners first charge that the proposed amendment unlawfully provides that a senator or congressman who has served the specified number of previous terms "shall not be eligible to have his/her name placed on the ballot for election...." Petitioners argue this language conflicts with the Standing Qualifications Clause of the Constitution of the United States. AGR responds stating, first, the measure is not a term limitation amendment, but if it is, second, Arkansas and its people acting as sovereign are within their right to enact such limitations. Third, AGR also claims this court should not reach this issue because, until the measure is passed, any opinion issued would be advisory in nature--a practice this court has steadfastly avoided. Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990); Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986). The Secretary of State joins in AGR's second and third arguments.
Another argument bearing on the proposed amendment's validity is raised belatedly by the petitioners when they amended their original petition one day before reply briefs were due in this matter. Petitioners alleged the proposed measure does not contain an enacting clause as required by Amendment 7, and for this additional reason, the proposal should not be initiated. They assert the lack of an enacting clause creates confusion and uncertainty with regard to the precise text that is being proposed.
Both AGR and the Secretary of State object to petitioners raising this enactment issue, saying petitioners are unduly late. Citing ARCP Rule 15(a), they contend they are prejudiced by such unjustified tardiness. AGR and the Secretary of State argue, too, that no enactment clause is required of initiative amendments under Amendment 7, but if such clause is required, the proposed amendment contains a sufficient one.
In trying to consider these constitutional challenges to the proposed amendment's validity, we are hampered by the fact that none of the parties have attached to or abstracted the amendment in their briefs. In original actions, the parties are required to file abstracts and briefs as in other cases. Ark.Sup.Ct.R. 17. We are aware by reading the parties' arguments that a copy of the amendment must have been attached as Exhibit A to the petitioners' original petition, but the petition or exhibit have not been abstracted. Even if the pleading and exhibit had been abstracted, apparently AGR in its answer denied such exhibit was an accurate copy of a part of the initiative petition, including the popular name, ballot title and the text of the amendment. Of course, AGR's answer also is not abstracted. Petitioners suggest the Secretary of State is competent to admit what petitioners alleged the proposed amendment provides, but for our purposes, to accept that suggestion does little to lay confusion to rest. The Secretary of State admits parts of petitioners' allegation, but denies that the proposed Term Limitation Amendment does not have a sufficient enacting clause. Also, as discussed above, both AGR and the Secretary of State argue Amendment 7 does not require an enacting clause for initiative amendments, and petitioners, considering time constraints, have been unable to respond to this argument. We simply decline to reach this issue at this time with the confused, abbreviated state of the record...
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... ... 44 For the "clearly-contrary-to-law" test for limiting pre-election challenges, see Plugge ... 44 For the "clearly-contrary-to-law" test for limiting pre-election challenges, see Plugge v. McCuen ... ...
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