Steele v. Thurston

• Decision Date: 15 October 2020
• Docket Number: No. CV-20-546,CV-20-546
• Citation: 2020 Ark. 320,609 S.W.3d 357
• Parties: Tom STEELE, Appellant v. John THURSTON, in His Official Capacity as Secretary of State for the State of Arkansas, Appellee
• Court: Arkansas Supreme Court

2020 Ark. 320

609 S.W.3d 357

Tom STEELE, Appellant

v.John THURSTON, in His Official Capacity as Secretary of State for the State of Arkansas, Appellee

No. CV-20-546

Supreme Court of Arkansas.

Opinion Delivered: October 15, 2020

David A. Couch, for appellant.

Leslie Rutledge, Att'y Gen., by: Michael Mosley, Ass't Att'y Gen.; and Brittany Edwards, Att't Att'y Gen., for appellee.

JOHN DAN KEMP, Chief Justice

Appellant Tom Steele appeals an order of the Pulaski County Circuit Court granting a motion to dismiss filed by appellee John Thurston, Secretary of State for the State of Arkansas ("the Secretary"), thereby denying Steele's request to strike two proposed constitutional amendments, Issue 2 and Issue 3, from the general-election ballot on November 3, 2020. For reversal, Steele argues that the circuit court erred in ruling that (1) the ballot titles were sufficient, and (2) Issue 3 did not violate article 19, section 22 of the Arkansas Constitution. We affirm.

I. Facts

In 2019, the Arkansas General Assembly referred three proposed amendments to the Arkansas Constitution to be placed on the general-election ballot on November 3, 2020. Among those three proposed amendments, the Secretary designated Senate Joint Resolution 15 as Issue 2 and House Joint Resolution 1008 as Issue 3.

The Issue 2 ballot title states,

A Constitutional Amendment to be known as the "Arkansas Term Limits Amendment"; and amending the term limits applicable to members of the General Assembly.

Its popular name states,

A Constitutional Amendment to Amend the Term Limits Applicable to Members of the General Assembly, to be Known as the "Arkansas Term Limits Amendment."

The Issue 3 ballot title states,

An Amendment to the Arkansas Constitution to amend the process for the submission, challenge, and approval of proposed initiated acts, constitutional amendments, and referenda.

Its popular name states,

A Constitutional Amendment to Amend the Process for the Submission, Challenge, and Approval of Proposed Initiated Acts, Constitutional Amendments, and Referenda.

On June 29, 2020, Steele filed a complaint against the Secretary in his official capacity requesting a writ of mandamus, declaratory judgment, and injunctive relief and seeking to have Issue 2 and Issue 3 removed from the November 3 general-election ballot. He challenged the sufficiency of both ballot titles and alleged that, with the passage of Act 376 of 2019 ("Act 376"), all ballot-title challenges should be evaluated solely under amendment 7 to the Arkansas Constitution. Steele also filed a motion to expedite and a motion for preliminary injunction seeking to enjoin the Secretary from counting, canvassing, and certifying ballots or votes cast for Issue 2 and Issue 3.

The Secretary filed a motion to dismiss requesting that the circuit court dismiss the complaint with prejudice pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure for failure to state a claim. The Secretary responded to Steele's motion for preliminary injunction by arguing that Steele could not overcome a threshold question of irreparable harm and that, as a result, the motion must be denied.

On September 9, 2020, the circuit court entered an order granting the Secretary's motion to dismiss the complaint with prejudice, denying Steele's motion for preliminary injunction, and denying Steele's motion for a writ of mandamus or declaratory relief. Specifically, the circuit court ruled, inter alia , that "both Issue 2 and Issue 3 comply with the applicable governing procedures of Article 19, [section] 22 of the Arkansas Constitution." Steele timely filed his notice of appeal.

Because this case involves an amendment proposed by the Arkansas General Assembly, our jurisdiction is appellate only. See Forrester v. Daniels , 2010 Ark. 397, 373 S.W.3d 871 ; Becker v. McCuen , 303 Ark. 482, 798 S.W.2d 71 (1990) ; Berry v. Hall , 232 Ark. 648, 339 S.W.2d 433 (1960).

II. Sufficiency of the Ballot Titles

Steele argues on appeal that the circuit court erred in ruling that the ballot titles of Issue 2 and Issue 3 were sufficient because, with the passage of Act 376, all ballot titles should now be evaluated under amendment 7—instead of article 19, section 22—of the Arkansas Constitution.

When reviewing a circuit court's order granting a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Wade v. Ferguson , 2009 Ark. 618, at 2, 2009 WL 4723356. In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id. When a complaint is dismissed on a question of law, this court conducts a de novo review. State v. West , 2014 Ark. 174, 2014 WL 1515898 ; Fatpipe, Inc. v. State , 2012 Ark. 248, 410 S.W.3d 574.

Further, we review issues of statutory construction de novo, as it is for this court to interpret a statute. City of Rockport v. City of Malvern , 2012 Ark. 445, at 3, 424 S.W.3d 870, 873. This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Weeks v. Thurston , 2020 Ark. 64, at 5, 594 S.W.3d 23, 25.

A. Constitutional Framework

This court recognized the distinction between constitutional amendments proposed by the Arkansas General Assembly and those initiated by the people in Coulter v. Dodge , 197 Ark. 812, 125 S.W.2d 115 (1939). Those two methods are governed by entirely different procedures and requirements. Id. , 125 S.W.2d 115. The first method, which has been available in all five of our constitutions, is through the Arkansas General Assembly. Forrester v. Martin , 2011 Ark. 277, at 4, 383 S.W.3d 375, 378. The requirements for this first method are set forth in article 19, section 22 of the Arkansas Constitution. Id. , 383 S.W.3d at 378. The second method, adopted in 1920, is through an initiative-and-referendum power reserved for the people of Arkansas, and those requirements are set forth in amendment 7 of the Arkansas Constitution. Id. at 4, 383 S.W.3d at 378–79. This court has stated that amendment 7 does not govern constitutional amendments proposed by the Arkansas General Assembly. Id. , 383 S.W.3d at 379.

Article 19, section 22 provides,

Either branch of the General Assembly, at a regular session thereof, may propose amendments to this Constitution; and if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State, for approval or rejection; and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution. But no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.

Ark. Const. art. 19, § 22.

The article 19, section 22 standard is a different, and less demanding, one than that employed for amendment 7 initiatives. McCuen , 303 Ark. 482, 798 S.W.2d 71. This court has rejected the invitation to apply one uniform standard to all proposed amendments. See Kurrus v. Priest , 342 Ark. 434, 29 S.W.3d 669 (2000) ; Thiel v. Priest , 342 Ark. 292, 28 S.W.3d 296 (2000).

B. Act 376

Steele contends that the newly enacted Act 376 now governs our examination of ballot titles and that Act 376 has overruled our holdings in Becker v. Riviere , 277 Ark. 252, 641 S.W.2d 2 (1982) (distinguishing the constitutional standards in reviewing ballot titles), and its progeny. Steele asserts that, by enacting Act 376, the Arkansas General Assembly must have intended for ballot titles and popular names to be included on referred constitutional amendments.

Section 12 of Act 376 provides,

Arkansas Code Title 7, Chapter 9, Subchapter 2, is amended to add an additional section to read as follows:

7-9-205. Challenges to constitutional amendments proposed by the General Assembly.

If the General Assembly passes a joint resolution proposing an amendment to the Arkansas Constitution, a qualified elector may file an action in a court of competent jurisdiction at any time after the passage of the joint resolution challenging the sufficiency of the joint resolution, including without limitation the:

(1) Text of the proposed amendment;

(2) Ballot title of the proposed amendment; and

(3) Popular name of the proposed amendment.

Act of March 8, 2019, No. 376 § 12, 2019 Ark. Acts 2651.¹

C. Analysis

1. Act 376

In the present case, the circuit court ruled,

[T]here is nothing in Act 376 of 2019 that explicitly overrules prior decisions utilizing Article 19, § 22 of the Arkansas Constitution such as in the Becker case, the Thiel case[,] or the Forrester case.... Constitutional amendments referred by the General Assembly are not required to have a ballot title. Act 376 does not change that condition. Act 376 did create a private right of action by which a qualified elector could challenge the sufficiency of constitutional amendments proposed by the General Assembly. However, the case law did not change ... how the standards are applied.... Here, the Court finds that both Issue 2 and Issue 3 comply with the applicable governing procedures of Article 19, [section] 22 of the Arkansas Constitution.

We agree. The plain language of Act 376 allows for a "qualified elector" to "challeng[e] the sufficiency of" a proposed constitutional amendment in one of three ways—by challenging the text, ballot title, or popular name of the proposed constitutional amendment. Nowhere in Act 376 does it expressly state that this court must review a...