Stilley v Priest

• Decision Date: 18 May 2000
• Docket Number: 00-135
• Citation: 16 S.W.3d 251
• Parties: Oscar STILLEY, Petitioner v. Sharon PRIEST, In Her Official Capacity as Secretary of State of the State of Arkansas, Respondent; Arkansas Casino Corporation, Intervenor 00-135 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Oscar STILLEY, Petitioner v Sharon PRIEST, In Her Official Capacity as Secretary of State of the State of Arkansas, Respondent; Arkansas Casino Corporation, Intervenor

00-135 ___ S.W.3d ___

Opinion delivered May 18, 2000

Supreme Court of Arkansas

1. Elections -- initiative -- earlier review of text of popular name or ballot title not precluded by Ark. Const. amend. 7. -- Although Ark. Const. amend. 7 contemplates filing an initiative petition with the requisite signatures with the Secretary of State for a sufficiency determination, at no point does it preclude an earlier review of the text of the popular name and ballot title or the validity of the proposed amendment; on the contrary, Amendment 7 specifically provides that "laws may be enacted to facilitate its operation"; an early resolution of a contest to the content of a popular name and ballot title and the validity of the initiative would certainly facilitate the process for legislative enactments by the people.

2. Elections -- initiative -- early review of text would facilitate smoother operation of Ark. Const. amend. 7. -- An earlier review of the text of an initiative by the Secretary of State and the supreme court pursuant to Act 877 of 1999 would not impede a later certification of a petition with signatures by the Secretary of State; on the contrary, an early determination of the initiative's text would have the salutary effect of facilitating a smoother operation of Ark. Const. amend. 7, which has as its ultimate purpose the establishment of a procedure by which the people can adopt legislative measures; any impediment to that process caused by a late review of the initiative's text works against that laudable goal.

3. Elections -- initiative -- Act 877 of 1999 does not conflict with Ark. Const. amend. 7 -- inconsistent cases overruled. -- The supreme court concluded that Act 877 of 1999, which provides for a petition to the Secretary of State for a determination of the legal sufficiency of a proposed initiative, does not run afoul of the provisions of Amendment 7 to the Arkansas Constitution and overruled Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), and Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986), to the extent that they prevented a review of the text of a popular name and ballot title and the validity of the proposed measure prefatory to the gathering of signatures.

4. Elections -- ballot title -- requirements. -- A ballot title must be free from a misleading tendency; it must be intelligible, honest, and impartial so as to inform voters with such clarity that they can cast their ballots with a fair understanding of the issues presented; if information is omitted from the ballot title that is an essential fact that would give the voter serious ground for reflection, it must be disclosed.

5. Elections -- ballot title -- liberal review of sufficiency. -- The supreme court is liberal in construing Ark. Const. amend. 7 and in determining the sufficiency of a ballot title.

6. Elections -- ballot title -- sufficient to give voter intelligible idea. --Where the voter was put on notice that there might be one or more factors for determining eligibility for certain grants, the supreme court concluded that the ballot title at issue was sufficient to give the voter an intelligible idea of what was involved

7. Elections -- no merit to challenge to text of proposed amendment -- petition denied. -- Where petitioner mounted a bona fide challenge to the text of the proposed amendment under Act 877 of 1999, and the supreme court found no merit to the challenge, the court denied the petition in the original action.

8. Courts -- advisory opinions -- supreme court does not issue. -- The supreme court has been constant in its resolve against issuing advisory opinions. [wbj]

Original Action Petition; denied.

Petitioner, pro se.

Mark Pryor, Att'y Gen., by: Dennis R. Hansen, Ass't Att'y Gen.; Tim Humphries, Counsel, for respondent.

Buchholz & Sassin, P.L.L.C., by: Robert W. Buchholz, for intervenor.

Friday, Eldredge & Clark, by: Elizabeth Robben Murray and Robert S. Shafer, for amicus curiae Bobby Roberts, Individually and On Behalf of Arkansans to Protect Police, Libraries, Education & Services (APPLES).

Robert L. Brown, Justice.

This case involves an original action petition filed by petitioner Oscar Stilley pursuant to Amendment 7 of the Arkansas Constitution and Act 877 of 1999. The petition deals with a proposed amendment to the Arkansas Constitution to authorize lotteries, raffles, and bingo throughout the state as well as casino gambling at six sites in the state (hereinafter the"Gaming Amendment"). On August 30, 1999, the Attorney General issued an opinion approving, with minor corrections, the text of the popular name and ballot title for the amendment submitted by intervenor Arkansas Casino Corporation. On August 31, 1999, respondent Sharon Priest, as Secretary of State also approved and certified as sufficient the popular name and ballot title for the ballot.

On November 29, 1999, petitioner Oscar Stilley filed an original action petition in this court and requested a declaratory judgment on the legal sufficiency of the popular name and ballot title of the Gaming Amendment under Amendment 7 to the Arkansas Constitution and Act 877 of 1999, now codified at Ark. Code Ann. § 7-9-501 through 506 (Repl. 2000). This court dismissed Stilley's action in Stilley v. Priest, 340 Ark. 259, 12 S.W.3d 189 (2000) (per curiam), on the basis that Stilley did not follow the correct procedure as set out in Act 877. We pointed out that Stilley had never filed a petition with the Secretary of State, questioning the legal sufficiency of the initiative petition. We noted that under Act 877, only after the Secretary of State has made her determination following a petition questioning an initiative's legal sufficiency, can this court review that decision. In our per curiam opinion, we also pointed out that an issue exists concerning the constitutionality of Act 877 in light of Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990).

Following our dismissal of his petition, Stilley petitioned the Secretary of State and questioned the legal sufficiency of the initiative petition. On January 26, 2000, the Secretary of State issued a Declaration stating that she believed the popular name and ballot title were fair and accurate and that the measure, if subsequently approved by the electorate, would be facially valid. Stilley then filed his original action petition in this court pursuant to Amendment 7 and Act 877 for a review of the decision by the Secretary of State.

I. Constitutionality of Act 877

For his first point, Stilley asks this court to uphold the validity of Act 877 of 1999. Act 877 provides that any taxpayer and voter can petition the Secretary of State for a determination of the legal sufficiency of a proposed initiative. Ark. Code Ann. § 7-9-503(a)(1) (Repl. 2000). The Secretary of State shall then declare, after consulting with the Attorney General, whether the popular name or ballot title are fair and complete and the proposed measure is valid under the state and federal constitutions and state law. Ark. Code Ann. § 7-9-503(b) (Repl. 2000). If the Secretary of State declares the initiative to be legally insufficient, a time for curing by the sponsors is allowed. Ark. Code Ann. § 7-9-504 (Repl. 2000). A right of review of the Secretary of State's decision by this court is provided. Ark. Code Ann. § 7-9-505 (Repl. 2000).

Stilley initially asks this court to distinguish the instant case from the case of Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), where this court held that portions of Act 280 of 1989 were unconstitutional under Amendment 7. In Finn, an original action had been filed in this court to determine whether a proposed lottery initiative was insufficient due to misleading text in the ballot title and invalid signatures. The action was filed after certification of the initiative petition by the Secretary of State but more than forty-five days after publication of the proposed amendment. At issue in that case was Act 280 of 1989, which required in part that petitions contesting the terms of a ballot title must be filed within forty-five days of publication of the proposed amendment or they would be untimely. This court struck down the forty-five day requirement in Act 280 as a limit on the provisions of Amendment 7 and as an expansion of this court's jurisdiction to review proposed initiatives.

Stilley in his brief distinguishes the issues surrounding Act280 in Finn from the issues of Act 877 in the case at hand. He maintains that Act 280 cut off the rights of challengers after a certain time period, where Act 877 does not. In the alternative, Stilley argues that the Finn case was wrongly decided and should be overruled.

The respondent, Sharon Priest as Secretary of State, and the intervenor, Arkansas Casino Corporation, weigh in on this latter point and urge this court to overrule the Finn decision. Priest argues that Act 877 merely permits a challenge to the text of an initiative petition at an earlier stage, but that it does not curtail the right of a challenger to contest the initiative's signatures at a later date. Amendment 7 does not prohibit an early review, says Priest. She argues that instead Amendment 7 specifically contemplates laws by the General Assembly to facilitate its operation.

The Casino Corporation agrees with Priest and claims that the decision in Finn that an initiative petition must have signatures is based on one case -- Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986). The Casino Corporation points out that in Scott, 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." 289 Ark. at 45, 709 S.W.2d at79 (emphasis added). No case authority accompanied this statement in Scott,...