Opinion No.

Mrs. Valtaree Boyd 3816 N. Olive North Little Rock, AR 72116

Dear Mrs. Boyd:

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

Popular Name REFERENDUM TO REPEAL ACT 411 AND ACT 419 Ballot Title

THE REPEAL OF THE SO CALLED CONCEALED WEAPONS LAW: ACT 411 AND ACT 419 OF THE STATE OF ARKANSAS. THE SECURING OF THE PEOPLE'S RIGHT TO KEEP AND BEAR ARMS, OPEN OR CONCEALED, UNDER THE SECOND ARTICLE OF THE BILL OF RIGHTS OF THE UNITED STATES OF AMERICA, TO WIT: THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED; THE SECURING OF THE PEOPLE'S RIGHT UNDER THE SECOND ARTICLE, SECTION FIVE OF THE ARKANSAS CONSTITUTION TO WIT: THE CITIZENS OF THIS STATE SHALL HAVE THE RIGHT TO KEEP AND BEAR ARMS FOR THEIR COMMON DEFENSE; PROVIDING THAT, UNDER MIRANDA V. ARIZONA, 384 U.S. 436, 491, TO WIT: WHERE RIGHTS SECURED BY THE CONSTITUTION ARE INVOLVED, THERE CAN BE NO RULE MAKING OR LEGISLATION WHICH WOULD ABROGATE THEM; PROVIDING THAT UNDER MILLER V. U.S., 230 F.2d 486, 489, TO WIT: THE CLAIM AND EXERCISE OF A CONSTITUTIONAL RIGHT CANNOT BE CONVERTED INTO A CRIME; PROVIDING THAT PENALTY SHALL BE BROUGHT TO BEAR ON THOSE USING FIREARMS FOR CRIMINAL ACTIVITY AFTER DUE PROCESS OF LAW.

The Attorney General is required, pursuant to Section 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, or if the proposed popular name and ballot title are sufficiently misleading, the entire petition may be rejected. It is my opinion that, for the following reasons, the popular name and ballot title proposed in this instance are sufficiently misleading as to compel their rejection.

First, the measure is characterized as a "referendum;" yet, the ballot title does not set forth the contents, or provide any information whatsoever, concerning Acts 411 and 419, the acts you propose to refer to the voters. Second, the text submitted with your proposed measure contains proposed substantive changes to Arkansas law which would impose various criminal penalties for offenses involving the use of firearms. None of these proposed changes are included in the popular name or ballot title. The popular name and ballot title must honestly, intelligently, and fairly set forth the purpose of the proposed measure. See ArkansasWomen's Political Caucus v. Riviere, 282 Ark. 463, 466, 677 S.W.2d 846 (1984). A ballot title must include an impartial summary of the proposed measure which will give the voter a fair understanding of the issues presented. Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958); Becker v.Riviere, 270 Ark. 219, 223, 604 S.W.2d 555 (1980). Finally, the proposed laws included in the text are more suited to an initiated act or amendment, but not to a petition for a referendum, the purpose of which is simply to refer a law, as passed by the legislature, to the voters for their approval or rejection. The nature of your submission more properly lends itself to two separate measures, to wit: one to refer Acts 411 and 419 to the voters for their approval or rejection (i.e., a referendum); and another to propose the substantive changes in existing law described in the text submitted (i.e., an initiative).

You may, pursuant to § 7-9-107(c), redesign and resubmit the proposed popular name and ballot title, or resubmit your measure as two separate measures with separate popular names and ballot titles to accomplish the goals you seek. I will then be pleased to review the submission in a timely manner, in accordance with A.C.A. § 7-9-107.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Sarah L. James.

Sincerely,

WINSTON BRYANT Attorney General

WB:SLJ/cyh