Scott v. McCuen, 86-52
| Decision Date | 12 May 1986 |
| Docket Number | No. 86-52,86-52 |
| Citation | 709 S.W.2d 77,289 Ark. 41 |
| Parties | Bob SCOTT, Petitioner, v. The Honorable W.J. "Bill" McCUEN, et al., Respondents. |
| Court | Arkansas Supreme Court |
Sam Hilburn, N. Little Rock, for petitioner.
Steve Clark, Atty. Gen. by Mary B. Stallcup & Beth Walker, Asst. Atty. Gen., Little Rock, for respondents.
This action is filed as an original action under Amendment 7 to the Arkansas Constitution. Its admitted purpose is to seek an early ruling on the ballot title for Initiated Act 1 of 1985. The Secretary of State certified the ballot title before any petition was submitted to him. We have no authority to decide the issue until petitions are submitted to the Secretary of State and he declares them sufficient or insufficient according to the power vested in him by Amendment 7. The Secretary of State had no authority to act prematurely and neither do we. Therefore this action must be dismissed.
Generally, the initiated act would revoke the franchise of Arkansas Power and Light Company. It contains other important features, including provisions affecting electricity, gas and telephone companies. This action began when the Attorney General reviewed the ballot title and popular name, found that the phrases "closed door deal-making" and "influence peddling" amounted to partisan coloring, and changed the phrases. Cliff Jackson, the sponsor of the amendment, filed a petition for a writ of mandamus in this court to require the Attorney General to certify the title as originally proposed. We refused to issue the writ or bind ourselves on the question of whether the title was impartial or free of deception. Jackson v. Clark, 288 Ark. 192, 703 S.W.2d 454 (1986). 1
Jackson then sought and obtained a certification from the Secretary of State that the proposed title was, indeed, sufficient, although no petitions had been filed with that office. As a result, this "friendly" lawsuit was filed by Bob Scott, a taxpayer, as an original action against the Secretary of State claiming the ballot title deficient in 26 respects. Cliff Jackson intervened asking us to expedite our decision.
The Governor intervened asking us, in the name of justice and public interest, to rule on the ballot title in advance of certification of the sufficiency of the petition. The Attorney General, representing the Secretary of State, asks us to approve the title. We ordered Arkansas Power and Light Company joined as a necessary party because its franchise is directly in issue. Edward W. Davis, executive vice-president of the Arkansas Telephone Association, and the association itself intervened. Arkansas Power and Light Company, Davis, and the Arkansas Telephone Association have filed motions to dismiss, claiming lack of jurisdiction and lack of case or controversy; the motions must be granted.
The parties all concede that previously we have only reviewed the sufficiency of the ballot title after the petitions have been certified by the Secretary of State. We are asked to approve the title before certification for two reasons: it is legal to do so and it would prevent the expenditure of state money in counting the signatures when it might prove futile were we to declare the title deceptive and enjoin its submission to the voters, and it would be best to rule before proponents spend time and money securing thousands of signatures and publicizing the proposition.
There is no question but that cases questioning the sufficiency of ballot titles have been difficult. They are difficult for those who propose and oppose constitutional change, and they are difficult for us. In Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931), we exercised our right to decide if a ballot title was sufficient and set a standard for that review. We held that a title should be free from any misleading tendencies, whether by amplification, omission, or fallacy, and it must contain no partisan coloring. That has been the law ever since. See Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960). Our practice of reviewing ballot titles to prevent deception has proven to be sound. The reports are replete with cases where the voters were being deliberately deceived by ballot titles. See Johnson v. Hall, 229 Ark. 400, 316 S.W.2d 194 (1958); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958); Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936); Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952).
There are many cases that have sharply divided this court. See Ark. Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984); Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982); Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982). The proposals are often controversial and involve the passionate feelings of special groups. 2 The mere difficulty of the issue however or the likelihood of last minute problems with the title does not provide us with a basis for hearing this case or any case prematurely. Our power is derived from Amendment 7. This case is predicated on the argument that since Amendment 7 permits the Secretary of State to certify the sufficiency of the petition and since that determination includes the sufficiency of ballot title, the determination can be made at any time, even before the petitions are filed.
Amendment 7 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 sufficiency of all local petitions shall be decided in the first instance by the county clerk or the city clerk, as the case may be, subject to review by the Chancery Court.
We have repeatedly held that our original jurisdiction must be invoked pursuant to Amendment 7. See Berry v. Hall, supra ; Hargis v. Hall, 196 Ark. 878, 120 S.W.2d 335 (1938); Rambo v. Hall, 195 Ark. 502, 112 S.W.2d 951 (1938). 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. See Bailey v. Hall, 198 Ark. 815, 131 S.W.2d 635 (1939). The Secretary of State shall only determine the sufficiency of the petition after the petition is filed with the signatures, and not before. In Rambo v. Hall, supra, the petitioner filed an original action in this court seeking to enjoin the Secretary of State...
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