Ward v. Priest

• Decision Date: 24 October 2002
• Docket Number: No. 02-954.,02-954.
• Citation: 350 Ark. 345,86 S.W.3d 884
• Parties: Harry WARD, Individually and on Behalf of Arkansans to Protect Police, Libraries, Education & Services, Petitioner, v. Sharon PRIEST, Secretary of State, Respondent; Karl KIMBALL, Gerhard Langguth, and Jeff Cantwell, Individually and as Members of the Arkansas Libertarians Eliminating Regressive Taxes (ALERT) d/b/a Committee to Axe the Food Tax, Intervenors.
• Court: Arkansas Supreme Court

86 S.W.3d 884

350 Ark. 345

Harry WARD, Individually and on Behalf of Arkansans to Protect Police, Libraries, Education & Services, Petitioner, v. Sharon PRIEST, Secretary of State, Respondent Karl KIMBALL, Gerhard Langguth, and Jeff Cantwell, Individually and as Members of the Arkansas Libertarians Eliminating Regressive Taxes (ALERT) d/b/a Committee to Axe the Food Tax, Intervenors.

No. 02-954.

Supreme Court of Arkansas.

October 24, 2002.

Friday, Eldredge & Clark, by: Robert S. Shafer, Little Rock, for petitioner.

Tim Humphries, Gen. Counsel, Sec. of State; and Mark Pryor, Att'y Gen., by: Jeff R. Priebe, Ass't Att'y Gen., Little Rock, for respondent.

Williams & Anderson LLP, by: Jess Askew III, Beth M. Deere, and Sarah M. Priebe, Little Rock, for intervenors.

ANNABELLE CLINTON IMBER, Justice.

This case involves an original action petition filed pursuant to Amendment 7 to the Arkansas Constitution by petitioner Harry Ward, on behalf of himself and others similarly situated, and a ballot-question committee known as Arkansans to Protect Police, Libraries, Education, and Services (referred to collectively as "APPLES"). The petition deals with a proposed amendment to the Arkansas Constitution to abolish taxes on food and medicine. On May 7, 2001, the Attorney General issued an opinion certifying, with certain revisions, the text of the popular name and ballot title for the amendment submitted by a committee known as the Arkansas Libertarians Eliminating Regressive Taxes (ALERT). On May 10, 2001, the Secretary of State approved and certified as sufficient the proposed popular name and ballot title for the ballot and ALERT proceeded to gather the requisite number of signatures. ALERT then filed the initiative petition with the Secretary of State on July 5, 2002, asking to have placed on the ballot an amendment to the Arkansas Constitution entitled "Amendment Eliminating Taxes on Food and Medicine." On September 10, 2002, the Secretary of State certified that the petition submitted for the proposed amendment met the signature requirements and the requirements of Amendment 7 to the Arkansas Constitution in order to place the initiative on the election ballot for the November 5 general election.

APPLES filed its original action petition in this court on September 13, 2002, seeking a review of the Secretary of State's decision in accordance with Ark. Const. amend. 7. In its petition, APPLES asks this court to declare that the popular name and ballot title of the proposed amendment are inaccurate, incomplete, misleading, and invalid. Specifically, APPLES maintains that (1) the references to matters outside the ballot title are insufficient to inform the voters concerning the choice they are called upon to make, (2) the ballot title fails to inform the voters about the fiscal consequences of the proposed amendment, and (3) the definitions of the terms "food" and "medicine" as referenced on the ballot title are inaccurate and misleading. Based on these claims, APPLES asks that the Secretary of State be enjoined from placing the proposed amendment on the ballot, or alternatively that any votes cast on the proposed amendment not be counted or certified.

The petition for review is opposed by the respondent, Sharon Priest, Secretary of State, and by Karl Kimball, Gerhard Langguth, and Jeff Cantwell, on behalf of themselves and ALERT, the committee sponsoring the proposed amendment, who have joined in the respondent's position by way of intervention. The respondent also affirmatively pleads lack of subject-matter jurisdiction and failure to exhaust administrative remedies under Act 877 of 1999.

A majority of the court agrees that jurisdiction is proper; whereas, three of the seven justices would dismiss for lack of jurisdiction. On the merits of the challenge to the sufficiency of the popular name and ballot title, a majority of justices has been unable to agree on a single ground to grant the petition. Justices ARNOLD, IMBER, HANNAH, and Special Justice HOLT agree that jurisdiction is proper. Justices GLAZE, CORBIN, and BROWN would dismiss the petition for lack of jurisdiction and, therefore, do not address the merits. On the merits, Justices ARNOLD and IMBER would deny the petition, while Justice HANNAH and Special Justice HOLT would grant the petition. Accordingly, three justices would dismiss the petition, two justices would deny the petition, and two justices would grant the petition. Thus, because four justices do not agree to grant, the petition is effectively denied, and the opinions of this court on the merits of the ballot title have no precedential value.

I. Jurisdiction

Jurisdiction to review the sufficiency of statewide initiative petitions is conferred upon this court by way of Amendment 7 to the Arkansas Constitution. Amendment 7 states that "[t]he 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." Ark. Const. amend. 7. On September 10, 2002, the Secretary of State certified that the initiative petition met all the requirements of Amendment 7. Following such a certification by the Secretary of State, Amendment 7 clearly confers original and exclusive jurisdiction upon this court to review the Secretary of State's decision as to the sufficiency of the petition.

Nonetheless, the respondent argues that with the enactment of Act 877 in 1999, codified at Ark.Code Ann. § 7-9-501 et seq. (Repl.2000), the General Assembly has provided for a constitutional initiative and referendum procedure that effectively strips the court of jurisdiction until such a time as the Secretary of State makes a determination of legal sufficiency following a written request for such a determination pursuant to Act 877. By contending that Act 877 is mandatory, the respondent essentially suggests that the original jurisdiction conferred upon this court by Amendment 7 may be restricted by legislative enactment. In other words, the respondent submits that in order to invoke this court's jurisdiction after the Secretary of State has certified an initiative petition pursuant to Amendment 7, a taxpayer and voter must first submit a written petition to the Secretary of State under Act 877 requesting a determination of legal sufficiency before this court may review the sufficiency of any statewide initiative petition.

Under the respondent's interpretation of Act 877 and this court's decision in Stilley v. Priest, 341 Ark. 329, 16 S.W.3d 251(2000) (Stilley II), the General Assembly would be allowed to change the provisions of Amendment 7 to the Arkansas Constitution — clearly an impermissible exercise of legislative authority. We decline to construe Act 877 so as to render it unconstitutional. All doubts pertaining to a statute in question are resolved in favor of constitutionality. Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2 (1999); Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). Where a constitutional construction is possible, we are compelled to uphold the validity of the statute under attack. Skelton, supra. Thus, in upholding the constitutionality of Act 877 to the extent that it allows this court to take jurisdiction prior to the gathering of signatures, we stated in Stilley II:

We have come to the conclusion that both Scott v. McCuen, supra and Finn v. McCuen, supra, were wrongly decided with respect to the jurisdiction of this court. We first observe that while Amendment 7 does contemplate filing the 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.

Stilley II, 341 Ark. at 334, 16 S.W.3d at 254 (emphasis added). By holding that Amendment 7 does not preclude an earlier review of the Secretary of State's sufficiency determination, this court did not interpret Act 877 to restrict our original jurisdiction to the confines of the Act. Indeed, it is one thing to state that an earlier review is not precluded by the constitution and quite another to uphold the constitutionality of a legislative enactment requiring early review of the text of a popular name and ballot title.

Act 877's stated purpose is to provide for the timely and expeditious review of the legal sufficiency of initiative petitions by the Supreme Court. Ark.Code Ann § 7-9-501 (Repl.2000). In Stilley II, we held that the operation of Amendment 7 to the Arkansas Constitution was facilitated by Act 877 in that it allowed the court to review the legal sufficiency of an initiative petition prior to the gathering of signatures. Stilley II, supra. Act 877 also states that it is intended to provide "a process to timely review the legal sufficiency of a measure in a manner which avoids voter confusion and frustration which occur when measures are stricken from the ballot on the eve of an election on the measure." Ark.Code Ann. § 7-9-502 (Repl.2000). The respondent contends any holding that would only make the procedures in Act 877 mandatory for ballot-title review prior to the gathering of signatures would be inconsistent with our concerns about last-minute challenges. On the contrary, requiring a challenger to petition the Secretary of State for a legal-sufficiency determination under Act 877 after the initiative has been certified as meeting the requirements of Amendment 7 would in fact hinder expeditious review. Instead, it would promote review by this court in the final hour, the...