Opinion No. ( 1999 )

Mr. Barry Emigh 1720 Arrowhead, Apt. O North Little Rock, AR 72118

Dear Mr. Emigh:

This is in response to your request, pursuant to A.C.A. § 7-9-107 (Repl. 1993), for certification of the following popular name and ballot title for a proposed initiated act:

POPULAR NAME PROVIDE A WAGE ON JAIL INMATE LABOR FOR EDUCATIONAL TUITION BALLOT TITLE

ACT TO PROVIDE AN HOURLY WAGE PAID FOR THE LABOR OF AN INCARCERATED INMATE UNDER ACT 309 TO BE USED FOR EDUCATIONAL TUITION PAYMENTS; PROVIDE FOR THE REPEAL OF PRIOR CONSTITUTIONAL AND STATUTORY PROVISIONS INCONSISTENT WITH THIS AMENDMENT, AND TO PROVIDE SEVERABILITY

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to approve and certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition.

A.C.A. § 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. Consequently, this review has been limited to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the proposed popular name and ballot title accurately and impartially summarize the provisions of your proposed act.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed act. See Arkansas Women's Political Caucus v.Riviere, 282 Ark. 463, 466, 677 S.W.2d 846 (1984).

The popular name is primarily a useful legislative device. Pafford v.Hall, 217 Ark. 734, 233 S.W.2d 72 (1950). It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency. Id.

The ballot title must include an impartial summary of the proposed act that will give the voter a fair understanding of the issues presented.Hoban v. Hall, 229 Ark. 416, 417, 316 S.W.2d 185 (1958); Becker v.Riviere, 270 Ark. 219, 223, 226, 604 S.W.2d 555 (1980). According to the court, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938 (1994), citing Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990); Gaines v.McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988); Hoban v. Hall, supra; andWalton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936). At the same time, however, a ballot title must be brief and concise (see A.C.A. §7-9-107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522's five minute limit in voting booths when other voters are waiting in line.Bailey v. McCuen, supra. The ballot 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. Plugge v.McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring. Id. A ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law. Christian Civic Action Committee v. McCuen,318 Ark. 241, 884 S.W.2d 605 (1994). It has been stated that the ballot title must be: 1) intelligible, 2) honest, and 3) impartial. Becker v.McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990), citing Leigh v. Hall,232 Ark. 558, 339 S.W.2d 104 (1960).

Having analyzed your proposed act, as well as your proposed popular name and ballot title, under the above precepts, it is my conclusion that I must reject both your proposed popular name and ballot title due to several ambiguities in the text of your proposed measure. There are a number of additions or changes to your popular name and ballot title which in my view are necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of these ambiguities. I am therefore unable to substitute and certify a more suitable and correct ballot title and popular name under A.C.A. § 7-9-107 (b).

The following ambiguities must be clarified in your measure before I can perform my statutory duty:

1. It is unclear what, if any, effect this proposed act would have on Act 309, and specifically the allocation of inmate earnings thereunder. I assume that the act referred to in the text of your measure as "Act 309" is in fact Act 309 of 1983, which is codified at A.C.A. §§ 12-30-401 through 405 and 12-30-407 (Repl. 1995 and Supp. 1999). Section 12-30-406 requires that inmate earnings under any work-release program must be paid directly to the Department of Correction and allocated as specified therein. Your proposed act would require payment of the minimum federal hourly wage to a state fund for the accounted time an inmate is used for labor by a state and local agency. The state would then make "educational tuition payments" from the fund. It is unclear whether this minimum wage payment is to be made in addition to the direct payment currently required under § 12-30-406, or whether it is intended to replace this direct payment and earnings allocation requirement. I cannot determine the effect of your proposed measure on this point. Any changes in current law must, in my judgment, be clearly stated for proper reflection in the ballot title and popular name.

2. An ambiguity also arises from the language of Section 1(b) with regard to tuition payments being made "upon release from incarceration." I am uncertain what this language refers to. It is unclear whether this is limited to release upon completion of the inmate's term, or whether it also includes, for instance, release on parole. This may be an essential fact for the voters' consideration. It should, therefore, be clarified.

My uncertainty as to the precise operation of your proposed act in the above respects prevents me from interjecting my own interpretation into the ballot title and popular name. My office, in the certification of ballot titles and popular names, does not concern itself with the merits of proposed measures, nor do I have any constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in A.C.A. § 7-9-107 and my duty is to the electorate. I am not your counsel in this matter and cannot advise you as to the substance of your proposal. At the same time, however, the Arkansas Supreme Court, through its decisions, has placed a practical duty on the Attorney General, in exercising his statutory duty, to include language in a ballot title about the effects of a proposed measure on current law. See, e.g., Finnv. McCuen, 303 Ark. 418, 793 S.W.2d 34 (1990). Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without clarification of the ambiguities.

My statutory duty, under these circumstances, is to reject your proposed ballot title and/or popular name, stating my reasons therefor, and to instruct you to "redesign" the proposed measure and the ballot title and popular name. See A.C.A. § 7-9-107(c). You may, after clarification of the matters discussed above, resubmit your proposed initiated act, along with a proposed popular name and ballot title, at your convenience. I anticipate, as noted above, that some changes or additions to your submitted ballot title and popular name may be necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.

Sincerely,

MARK PRYOR Attorney General