Judges: MIKE BEEBE, Attorney General
Filed Date: 1/23/2003
Status: Precedential
Modified Date: 7/5/2016
Mr. Barry L. Emigh 1104 7th Street Hot Springs, AR 71913-4225
Dear Mr. Emigh:
You have requested certification, pursuant to A.C.A. §
AN AMENDMENT AUTHORIZING BINGO AND RAFFLES BY NON PROFIT ORGANIZATIONS INCORPORATED IN THE STATE, AUTHORIZING BARRY LEE EMIGH AND HAROLD GLEN MARTIN OR THEIR TRANSFEREES TO OPERATE GAMBLING, EMPOWERING THE GENERAL ASSEMBLY TO OPERATE LOTTERIES, TO PASS LAWS, TAXES AND APPROPRIATIONS WITHOUT SESSION OR ASSEMBLY AND FURTHER EXTENDING THE POWER OF A REFERENDUM VOTE BY THE PEOPLE
AN AMENDMENT TO THE ARKANSAS CONSTITUTION AUTHORIZING BINGO AND RAFFLES BY NON PROFIT ORGANIZATIONS INCORPORATED IN THE STATE WITHOUT LICENSE, FEE OR PERMIT BY THE STATE, OR SUBDIVISION OR AGENCY THEREOF; EMPOWERING THE GENERAL ASSEMBLY TO FACILITATE THE STATE'S OPERATION OF A LOTTERY OR LOTTERIES WITH THE STATE-WIDE SALE OF LOTTERY TICKETS TO INCLUDE FACILITATING WITHIN THE STATE THE STATE'S OPERATION OF SUCH LOTTERIES IN COOPERATION WITH THE LOTTERIES OPERATED BY OTHER STATES AND LOTTERIES OPERATED IN COMBINATION BY OTHER STATES WHICH SIGNIFICANTLY CHANGES CURRENT LAWS UNDER ARKANSAS CONSTITUTION ARTICLE19 SECTION14 AFFECTING GAMBLING; AUTHORIZING BARRY LEE EMIGH TO OPERATE, EMPLOY AND SUBCONTRACT ANY INDEPENDENT CONTRACTOR(S) TO OPERATE GAMBLING ON ANY DAY FOR THE WHOLE OF A TWENTY-FOUR HOUR DAY WITHIN ONE STRUCTURE WITHIN EACH OF THE FOLLOWING COUNTIES OF BENTON, CRAWFORD, CRITTENDEN, GARLAND, MILLER, MISSISSIPPI AND PULASKI WITH SUCH STRUCTURE LOCATED WITHIN ANY CITY AND TOWN WITHIN THOSE COUNTIES WITH THE OPERATION OF GAMBLING WITHIN EACH COUNTY A SEPARATE GAMBLING OPERATION; AUTHORIZING HAROLD GLEN MARTIN TO OPERATE, EMPLOY AND SUBCONTRACT ANY INDEPENDENT CONTRACTOR(S) TO OPERATE GAMBLING ON ANY DAY FOR THE WHOLE OF A TWENTY-FOUR HOUR DAY WITHIN ONE STRUCTURE WITHIN EACH OF THE FOLLOWING COUNTIES OF BAXTER, CAROLL, CHICOT, JEFFERSON, MILLER, OUACHITA, PULASKI AND SEBASTIAN WITH SUCH STRUCTURE LOCATED WITHIN ANY CITY AND TOWN WITHIN THOSE COUNTIES WITH THE OPERATION OF GAMBLING WITHIN EACH COUNTY A SEPARATE GAMBLING OPERATION; AUTHORIZING THE GAMBLING OPERATORS(S), THOSE EMPLOYED AND SUBCONTRACTED TO OPERATE GAMBLING AS INDEPENDENT CONTRACTORS TO SELL AND SERVE COMPLIMENTARY ALCOHOLIC BEVERAGES ON ANY DAY FOR THE WHOLE OF A TWENTY-FOUR HOUR DAY WITHIN THE INTERIOR AREA OF THOSE STRUCTURES USED FOR THE PURPOSE OF GAMBLING (INCLUDING THOSE COUNTIES, CITIES AND TOWNS IN WHICH THE SALE OF ALCOHOLIC BEVERAGES IS OTHERWISE PROHIBITED); EXEMPTING THE TRANSFER OF EACH GAMBLING OPERATION FROM APPROVAL BY THE STATE, OR ANY SUBDIVISION OR AGENCY THEREOF; PROVIDING FOR THE SHIPMENT OF GAMBLING DEVICES; REQUIRING THE GAMBLING OPERATOR PAY 50% OF THE PROFIT FROM EACH GAMBLING OPERATION TO BE DIVIDED AND PAID TO THE CANVASSERS WITH SUCH PAYMENT BEING TRANSFERABLE TO ANY INDIVIDUAL, COMPANY, CORPORATION OR NON-PROFIT ORGANIZATION AND FROM THEM TO ANY INDIVIDUAL, COMPANY, CORPORATION OR NON-PROFIT ORGANIZATION AND SO ON; REQUIRING THE GAMBLING OPERATOR PAY 50% FROM THE SALE OF A GAMBLING OPERATION TO BE DIVIDED AND PAID TO THE CANVASSERS WITH NO FURTHER PAYMENTS OF ANY KIND PAID TO THE CANVASSERS FROM THE GAMBLING OPERATION SOLD; EMPOWERING THE GENERAL ASSEMBLY BY PETITION TO PASS ANY LAW, RULE, REGULATION, TAX AND APPROPRIATION WITHOUT SESSION OR ASSEMBLY WHICH SIGNIFICANTLY CHANGES CURRENT LAWS EFFECTING THE "CHECKS AND BALANCES" OF GOVERNMENTAL POWERS AND AUTHORITY OF THE GOVERNOR; AMENDING AMENDMENT7 OF THE ARKANSAS CONSTITUTION TO INCLUDE A REFERENDUM VOTE ON ANY LAW, RULE, REGULATION, TAX AND APPROPRIATION PASSED BY THE GENERAL ASSEMBLY BY PETITION WITHOUT SESSION OR ASSEMBLY; DEFINING "BINGO" AS THE RISKING OF MONEY ON A GAME PLAYED WITH NUMBERED CARDS CORRESPONDING TO NUMBERED BALLS DRAWN AT RANDOM TO WIN A PRIZE OR MONEY; DEFINING "RAFFLE" AS THE RISKING OF MONEY FOR THE DISTRIBUTION OF A PRIZE AMONG PERSONS WHO HAVE PAID FOR A CHANCE TO OBTAIN A PRIZE BUT SHALL EXCLUDE MONEY AS A PRIZE; DEFINING "LOTTERY" AS THE TYPICAL FORM OF A LOTTERY CHARACTERIZED BY THE ARKANSAS SUPREME COURT WHICH INVOLVES THE SALE OF A LARGE NUMBER OF CHANCES RELATIVE TO THE SELECTION OF A SMALL NUMBER OF WINNERS BY A DRAWING DETERMINED BY CHANCE ALONE; DEFINING "GAMBLING" AS THE RISKING OF MONEY BETWEEN PERSONS WHERE ONE IS LOSER AND OTHER GAINER WITH GAMES OF CHANCE, SKILL AND ANY COMBINATION THEREOF WHICH THE GENERAL ASSEMBLY SHALL REGULATE, BUT FOR THE PURPOSE OF THIS DEFINITION SHALL EXCLUDE THE OPERATION OF A LOTTERY, BINGO AND RAFFLES; DEFINING "STRUCTURE" AS ANY KIND AND SIZE OF BUILDING WITH ANY ATTACHED ADDITIONS CONSIDERED A SINGLE STRUCTURE TO INCLUDE ANY KIND AND SIZE OF ANCHORED WATER VESSEL WITH ANY ATTACHED ADDITIONS TO THAT WATER VESSEL CONSIDERED A SINGLE STRUCTURE; DEFINING "GAMBLING OPERATION" AS THE AUTHORITY OF THE GAMBLING OPERATOR TO OPERATE GAMBLING, EMPLOY AND SUBCONTRACT ANY INDEPENDENT CONTRACTOR(S) TO OPERATE GAMBLING WITH THE SALE AND COMPLIMENTARY SERVICE OF ALCOHOLIC BEVERAGES; DEFINING "GAMBLING OPERATOR" AS BARRY LEE EMIGH AND HAROLD GLEN MARTIN OR THOSE PERSONS, COMPANIES OR CORPORATIONS TO WHICH THE GAMBLING OPERATION IS TRANSFERRED; DEFINING "PROFIT" AS THE AMOUNT OF MONEY AFTER DEDUCTING TAXES, FEES AND OPERATIONAL COSTS FROM THE GROSS EARNINGS WHICH IS THE TOTAL AMOUNT OF MONEY EARNED AFTER DEDUCTING THE MONEY PAID AS A LOSS TO THOSE AS WINNERS; THE PROVISIONS OF THIS AMENDMENT SHALL TAKE EFFECT IMMEDIATELY UPON PASSAGE OF THIS AMENDMENT UNLESS OTHERWISE PROVIDED AND REQUIRING THE GENERAL ASSEMBLY TO MAKE ALL OTHER AND FURTHER LAWS, RULES AND REGULATIONS TO THE ENFORCEMENT OF THIS CONSTITUTIONAL AMENDMENT; MAKING THE PROVISIONS OF THIS AMENDMENT SEVERABLE; AND REPEALING ALL LAWS AND CONSTITUTIONAL AMENDMENTS IN CONFLICT WITH THIS AMENDMENT;
The Attorney General is required, pursuant to A.C.A. §
A.C.A. §
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 amendment or act. See Arkansas Women's PoliticalCaucus v. Riviere,
The popular name is primarily a useful legislative device. Pafford v.Hall,
The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. Hoban v. Hall,
Having analyzed your proposed amendment, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must reject your proposed popular name and ballot title due to remaining ambiguities in the text of your proposed measure. I cannot 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 matters. I am therefore unable to substitute and certify a more suitable and correct popular name or ballot title pursuant to A.C.A. §
I refer to the following ambiguities:
• You have now removed all references to state or local regulatory authority with respect to bingo and raffles, gambling, and the sale and service of alcoholic beverages in connection with gambling. You have also eliminated the provision that required the gambling operators' payment of taxes. (see former Section 3 (6)). Although you have changed the title of Section 9 (formerly Section 8) to remove the "self-executing" language, this section does not, in my view, establish the State's regulatory authority over the activities authorized by the amendment. Section 9 states that the General Assembly shall make "all other laws, rules and regulations to the enforcement of" the amendment. (Emphasis added). While I am somewhat uncertain what this language means, I do not construe it to establish regulatory authority over the various activities.
A question thus remains regarding the legislative or regulatory power of the General Assembly over bingo and raffles, gambling, and the sale and service of alcoholic beverages in connection with gambling, as authorized by the amendment. One possible interpretation would be to equate the amendment's silence with a denial of authority to the General Assembly to regulate in the area. It is generally held, however, as a canon of state constitutional construction, that a state constitution is not a grant of enumerated powers to a state general assembly, but is rather a limitation on the power of a general assembly to act. See, e.g., Wells v. Purcell,
267 Ark. 456 ,592 S.W.2d 100 (1979); Jones v. Mears,256 Ark. 825 ,510 S.W.2d 857 (1974); and Berry v. Gordon,237 Ark. 547 ,376 S.W.2d 279 (1964). That is, the legislature has absolute power to legislate in all fields unless it is expressly or by necessary implication denied that power by the Constitution. Id. A question therefore arises as to whether your proposed amendment by "necessary implication" denies the General Assembly the power to pass any laws pertaining to the proposed activities. If it does, this important fact must be reflected in the ballot title for your measure. Cf. Finn v. McCuen,303 Ark. 418 ,793 S.W.2d 34 (1990) (where proposed amendment authorizing a lottery and bingo was silent as to checks and balances of other branches of government, and Supreme Court interpreted proposed amendment as prohibiting such checks and balances, that fact must be disclosed in ballot title).• I must also reiterate my concern regarding the potential effect of including Section 6, and now Section 7 (the referendum provision) in your proposal. Section 6 is totally unrelated to the other gambling-related provisions, and it constitutes a dramatic departure from current law-making procedure. Even without Sections 6 and 7, your proposal is complex and far-reaching and as a consequence, in the event of a ballot title challenge, I believe the court will be particularly attentive to any problems of implementation or ambiguity. In my opinion, the court may well conclude that the scope and import of the amendment cannot adequately be conveyed to the voter in a ballot title. I urge you to evaluate the text in light of these concerns.
• Section 9 states that the provisions of the amendment" shall take effect immediately upon passage of the amendment unless otherwise provided." (Emphasis added). The purpose of this language is unclear. According to my review, the amendment includes no other effective date. Amendment 7 provides that measures are effective 30 days after approval at the election, "unless otherwise specified in the act." Ark. Const. amend.
7 (under "General Provisions"). I am uncertain how to apply Amendment 7 in this instance, however, because of the ambiguous language in Section 9.
My office, in the certification of ballot titles and popular names, does not concern itself with the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in A.C.A. §
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,
My statutory duty, under these circumstances, is to reject your proposed ballot title, stating my reasons therefor, and to instruct you to "redesign" the proposed measure and ballot title. See A.C.A. §
Sincerely,
MIKE BEEBE Attorney General
Pafford v. Hall , 217 Ark. 734 ( 1950 )
Gaines v. McCuen , 296 Ark. 513 ( 1988 )
Hoban v. Hall , 229 Ark. 416 ( 1958 )
Moore v. Hall , 229 Ark. 411 ( 1958 )
Jones v. Mears , 256 Ark. 825 ( 1974 )
Chaney v. Bryant , 259 Ark. 294 ( 1976 )
Bailey v. McCuen , 318 Ark. 277 ( 1994 )
Christian Civic Action Committee v. McCuen , 318 Ark. 241 ( 1994 )
Becker v. Riviere , 270 Ark. 219 ( 1980 )
Leigh v. Hall , 232 Ark. 558 ( 1960 )
Berry v. Gordon , 237 Ark. 547 ( 1964 )
Becker v. McCuen , 303 Ark. 482 ( 1990 )
Finn v. McCuen , 303 Ark. 418 ( 1990 )
Arkansas Women's Political Caucus v. Riviere , 283 Ark. 463 ( 1984 )
Plugge Ex Rel. Arkansas for Representative Democracy v. ... , 310 Ark. 654 ( 1992 )