Richardson v. Martin

Cite as 2014 Ark. 429

SUPREME COURT OF ARKANSAS
No. CV-14-753

BRIAN RICHARDSON AND MARY Opinion Delivered October 16, 2014
DILLARD, INDIVIDUALLY AND ON
BEHALF OF CITIZENS FOR LOCAL ORIGINAL ACTION
RIGHTS
PETITIONERS
PETITION DENIED.
V.

MARK MARTIN, IN HIS OFFICIAL
CAPACITY AS ARKANSAS
SECRETARY OF STATE
RESPONDENT

LINDA BOWLIN AND J. ROSS JONES,
INDIVIDUALLY AND ON BEHALF OF
LET ARKANSAS DECIDE

INTERVENORS

KAREN R. BAKER, Associate Justice

On September 5, 2014, Petitioners, Brian Richardson and Mary Dillard, acting

individually and on behalf of the ballot-question committee Citizens for Local Rights

(“Richardson”) filed this original action challenging the timeliness and sufficiency of an

initiative petition for a proposed constitutional amendment with the popular name of “The

Arkansas Alcoholic Beverage Amendment” also known as “Issue No. 4” certified by the

Respondent, Mark Martin, in his official capacity as Arkansas Secretary of State, for the

November 4, 2014 general-election ballot. The intervenors, Linda Bowlin and J. Ross Jones,

individually and on behalf of Let Arkansas Decide (“Bowlin”) are the members of a ballot-
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question committee and the sponsor of the proposed constitutional amendment.

The procedural history of this matter is as follows. On July 7, 2014, pursuant to

Amendment 7 of the Arkansas Constitution, Bowlin submitted an initiative petition with

Martin to place the measure on the November 4, 2014 general-election ballot. On July 18,

2014, Martin notified Bowlin that the petition did not meet the signature requirement of

article 5, § 1 of the Arkansas Constitution, and pursuant to art. 5, § 1, Bowlin was given an

additional thirty days for correction or amendment. On August 15, 2014, Bowlin filed

additional petitions with signatures and on August 21, 2014, pursuant to Ark. Code Ann. §

7-5-204 (Repl. 2011), Martin certified the amendment as Issue No. 4 to the County Boards

of Elections Commissioners. On August 29, 2014, Martin declared that the petition had met

the art. 5, § 1 signature requirements to be placed on the November 4, 2014 general-election

ballot.

On September 5, 2014, Richardson filed this original action and motions for expedited

scheduling order, consecutive briefing, and oral argument. On September 8, 2014, Bowlin

filed her motion to intervene. On September 9, 2014, Martin filed his response to the

original-action complaint and responses to the motions for expedited scheduling order,

expedited briefing, and oral argument. On September 10, 2014, we granted Bowlin’s motion

to intervene and also granted Richardson’s motion for expedited scheduling order,

consecutive briefing, and oral argument. Finally, on September 25, 2014, Martin filed a

motion to strike the affidavit of J. Kevin Watkins filed by Richardson. On October 2, 2014,

we granted Martin’s motion to strike the affidavit, and on October 8, 2014, we denied

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Richardson’s motion for reconsideration striking the affidavit. The parties timely filed

simultaneous briefs and replies, and the matter is properly now before this court.

This court has original jurisdiction of this case pursuant to Ark. Sup. Ct. R. 6-5(a)

(2014). Rule 6-5(a) provides that this court has original jurisdiction in “extraordinary actions

required by law, such as suits attacking the validity of statewide petitions filed under

Amendment 7 of the Arkansas Constitution.” Amendment 7 to the Constitution is codified

in article 5, § 1, of the Arkansas Constitution and is referred to as Amendment 7. Ark. Const.

art. 5, § 1, amended by amend. 7.

Richardson presents two issues for review: (1) the timeliness of the petition and (2) the

legal sufficiency of the ballot title of “The Arkansas Alcoholic Beverage Amendment.”

I. Timeliness of the Petition

The first issue before the court is whether the petition was timely filed. It is

undisputed that the petition was filed on July 7, 2014. Richardson asserts that the petition

did not meet the timeliness requirements of Amendment 7 because it was not filed within

four months of the election, more specifically by July 4, 2014, and therefore the petition was

untimely.

We review questions of constitutional construction de novo. See Wilson v. Weiss, 370

Ark. 205, 258 S.W.3d 351 (2007). When interpreting the constitution, our task is to read the

laws as they are written and interpret them in accordance with established principles of

constitutional construction. Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002). Language

of a constitutional provision that is plain and unambiguous must be given its obvious and

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common meaning. Proctor v. Daniels, 2010 Ark. 206, 392 S.W.3d 360. Neither rules of

construction nor rules of interpretation may be used to defeat the clear and certain meaning

of a constitutional provision. Id. Further, the Arkansas Constitution must be considered as

a whole, and every provision must be read in light of other provisions relating to the same

subject matter. Forrester v. Daniels, 2010 Ark. 397, 373 S.W.3d 871. Finally, Amendment 7

must be liberally construed in order to effectuate its purposes. Porter v. McCuen, 310 Ark. 674,

839 S.W.2d 521 (1992).

With these standards in mind, we turn to the applicable constitutional provisions.

Amendment 7 provides in pertinent part:

Amendment 7. Initiative and Referendum

The legislative power of the people of this State shall be vested in a General Assembly,
which shall consist of the Senate and House of Representatives, but the people reserve
to themselves the power to propose legislative measures, laws and amendments to the
Constitution, and to enact or reject the same at the polls independent of the General
Assembly; and also reserve the power, at their own option to approve or reject at the
polls any entire act or any item of an appropriation bill.

Initiative. The first power reserved by the people is the initiative. . . . Initiative petitions
for state-wide measures shall be filed with the Secretary of State not less than four months before
the election at which they are to be voted upon.

....

Self-Executing. This section shall be self-executing, and all its provisions shall be
treated as mandatory, but laws may be enacted to facilitate its operation. No legislation shall
be enacted to restrict, hamper or impair the exercise of the rights herein reserved to
the people.

Enacting Clause. . . . In submitting measures to the people, the Secretary of State and all other
officials shall be guided by the general election laws or municipal laws as the case may be until
additional legislation is provided therefor.

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Id. (emphasis added).

The plain language of Amendment 7 demonstrates that the petition shall be filed not

less than four months before the election, the requirements for filing are mandatory, and laws

may be enacted to facilitate the operation of Amendment 7. Further, the plain language of

Amendment 7 provides that no legislation shall be enacted to restrict, hamper or impair the

exercise of the rights reserved to the people. Finally, the plain language of Amendment 7

provides that the Secretary of State shall be guided by the general-election laws or municipal

laws, as the case may be, until additional legislation is provided therefor.

Next, Amendment 51, § 9(l), of the Arkansas Constitution instructs that “If an election

law deadline occurs on a Saturday, Sunday, or legal holiday, the deadline shall be the next day

which is not a Saturday, Sunday, or legal holiday.”

Pursuant to Amendment 7, we now turn to the laws that have been enacted to

facilitate Amendment 7 and general election laws. First, Ark. Code Ann. § 1-5-

101(a)(5)(Repl. 2008) declares July 4th, Independence Day, a state holiday. Second, Ark.

Code Ann. § 1-5-102(a) (Supp. 2013) provides in pertinent part:

(a) All state offices shall be closed on all days declared to be legal holidays under the
laws of this state, and all persons employed thereby shall not be required to work on
legal holidays.

Third, Ark. Code Ann. § 7-1-108, “Election Law Deadlines” (Repl. 2011), contains the

identical language discussed above from Amendment 51, § 9(l): “If an election law deadline

occurs on a Saturday, Sunday, or legal holiday, the deadline shall be the next day which is not

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a Saturday, Sunday, or legal holiday.”

In reviewing the plain language of the constitutional provision at issue, and the

constitution as a whole, and reading it in the light of other provisions relating to the same

subject matter, we may determine what “not less than four months” means pursuant to

Amendment 7 by considering Amendment 51 and the statutes enacted to facilitate its

operation, including Ark. Code Ann. § 1-5-101(a)(5), Ark. Code Ann. § 1-5-102(a), and Ark.

Code Ann. § 7-1-108.1 See Forrester, 2010 Ark. 397, 373 S.W.3d 871. From our review, it

is clear that the election deadline at issue occurred on a legal holiday, July 4, 2014. Therefore,

the election-law deadline must be the next day which is not a Saturday, Sunday, or legal

holiday. Here, the deadline was July 7th, 2014. To compute otherwise would restrict

Bowlin’s rights which is prohibited by our Constitution. Accordingly, we hold that the

petition was timely filed on July 7, 2014.

II. Legal Sufficiency of the Ballot Title

The second issue before the court is whether the ballot title at issue, “The Arkansas

Alcoholic Beverage Amendment,” is legally sufficient. Richardson asserts that the ballot title

fails to convey to the voters an intelligible scope and import of the proposed amendment.

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While the concurring opinion states that “Ark. Code Ann. § 7-1-108 (Repl. 2011)
. . . alone . . . controls, rather than Ark. Const. Amendment 51, § 9(l), that pertains to
voter registration,” we disagree. We have repeatedly held that “the Arkansas Constitution
must be considered as a whole, and every provision must be read in light of other provisions
relating to the same subject matter.” Forrester, 2010 Ark. 397, at 7, 373 S.W.3d 871, 875.
Here, the plain language of Amendment 51, § 9(l) specifically speaks to “election law
deadline[s].”

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The ballot title is as follows:

Ballot Title

A PROPOSED AMENDMENT TO THE ARKANSAS CONSTITUTION TO PROVIDE THAT,
EFFECTIVE JULY 1, 2015, THE MANUFACTURE, SALE, DISTRIBUTION AND
TRANSPORTATION OF INTOXICATING LIQUORS IS LAWFUL WITHIN THE ENTIRE
GEOGRAPHIC AREA OF EACH AND EVERY COUNTY OF THIS STATE; THAT
“INTOXICATING LIQUORS” IS DEFINED FOR PURPOSES OF THE AMENDMENT AS ANY
BEVERAGE CONTAINING MORE THAN ONE-HALF OF ONE PERCENT (0.5%) OF
ALCOHOL BY WEIGHT; THAT THE MANUFACTURE, SALE , DISTRIBUTION AND
TRANSPORTATION OF INTOXICATING LIQUORS MAY BE REGULATED , BUT NOT
PROHIBITED, BY THE GENERAL ASSEMBLY; AND THAT ALL LAWS WHICH CONFLICT
WITH THE AMENDMENT, INCLUDING LAWS PROVIDING FOR A LOCAL OPTION
ELECTION (WET-DRY ELECTION ) TO DETERMINE WHETHER INTOXICATING LIQUORS
MAY BE SOLD OR NOT SOLD, ARE REPEALED TO THE EXTENT THAT THEY CONFLICT
WITH THE AMENDMENT.

With regard to the legal sufficiency of ballot titles, we have explained,

Our decisions upon the sufficiency of ballot titles have been so numerous that the
governing principles are perfectly familiar. On the one hand, it is not required that the
ballot title contain a synopsis of the amendment or statute. It is sufficient for the title
to be complete enough to convey an intelligible idea of the scope and import of the
proposed law. We have recognized the impossibility of preparing a ballot title that
would suit every one. Yet, on the other hand, the ballot title must be free from any
misleading tendency, whether of amplification, of omission, or of fallacy, and it must
not be tinged with partisan coloring.

Bradley v. Hall, 220 Ark. 925, 927, 251 S.W.2d 470, 471 (1952) (internal citations omitted).

The applicable standard for review of ballot-title cases requires that “[b]allot titles must

include an impartial summary of the proposed amendment that will give voters a fair

understanding of the issues presented and of the scope and significance of the proposed

changes in the law.” Parker v. Priest, 326 Ark. 123, 129, 930 S.W.2d 322, 325 (1996). The

ballot title must be (1) intelligible, (2) honest, and (3) impartial. Ward v. Priest, 350 Ark. 345,

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359, 86 S.W.3d 884, 891 (2002). “However, this court is neither to interpret a proposed

amendment nor discuss its merits or faults.” Id. at 359, 86 S.W.3d at 891 (internal citations

omitted). The ballot title is sufficient if it “informs the voters with such clarity that they can

cast their ballot with a fair understanding of the issue presented.” Ferstl v. McCuen, 296 Ark.

504, 509, 758 S.W.2d 398, 400 (1988) (internal citations omitted).

In addition, when reviewing a challenge to the ballot title, the court recognizes that

Amendment 7 of article 5, § 1 “places the burden upon the party challenging the ballot title

to prove that it is misleading or insufficient.” Cox v. Daniels, 374 Ark. 437, 444, 288 S.W.3d

591, 595(2008) (internal citations omitted). Finally, we liberally construe Amendment 7 in

determining the sufficiency of ballot titles. Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555

(1980).

Applying these standards, we will review Richardson’s two challenges to the ballot

title.

A. Liquor Stores Located Within 1,000 Feet of Schools or Churches

First, Richardson asserts that the ballot title is insufficient and misleading because the

voters will not understand the impact of the amendment on the legality of liquor stores being

located within 1,000 feet of any church or school. Richardson contends that the title fails to

make clear to voters that the statutory prohibition on new liquor stores being located near

churches or schools will be abolished, specifically Arkansas Code Annotated § 3-4-206(b)

(Repl. 2008). Further, Richardson asserts that the disclosure in the ballot title, “will repeal

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inconsistent laws,” focuses on repealing wet-dry election laws and directs the voters’ attention

away from the subject singling out the wet-dry election. In sum, Richardson asserts that the

ballot title is legally insufficient because voters will not understand that the prohibition on new

liquor stores located within 1,000 feet of a school or a church will be repealed and location

alone will never be sufficient to prevent a liquor store from being opened near a church or

school.

The language of the ballot title states: “ALL LAWS WHICH CONFLICT WITH THE

AMENDMENT, INCLUDING LAWS PROVIDING FOR A LOCAL OPTION ELECTION (WET-DRY

ELECTION ) TO DETERMINE WHETHER INTOXICATING LIQUORS MAY BE SOLD OR NOT SOLD,

ARE REPEALED TO THE EXTENT THAT THEY CONFLICT WITH THE AMENDMENT.” Here, after

reviewing the ballot title, we conclude that it informs the voters in an intelligible, honest, and

impartial manner that all laws which are in conflict will be repealed. This court has held that

it is not necessary that a ballot title include every possible consequence or impact of a

proposed measure. In Ferstl, this court stated unequivocally: “Certainly not every detail of

an amendment or how it will work in every situation can be revealed in the name and title.

It is not possible to do so.” 296 Ark. 504, 510, 758 S.W.2d 398, 401; see also Cox v. Martin,

2012 Ark. 352, 423 S.W.3d 75.

With regard to location of where liquor may be sold, the ballot title states: “THE

MANUFACTURE, SALE, DISTRIBUTION AND TRANSPORTATION OF INTOXICATING LIQUORS

IS LAWFUL WITHIN THE ENTIRE GEOGRAPHIC AREA OF EACH AND EVERY COUNTY OF THIS

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STATE.” Here, the ballot title clearly instructs the voter on the location where the alcohol can

be sold: each and every county of the state of Arkansas. We hold that the ballot title is

sufficient under our law.

Finally, we note that the parties take issue with whether the existing laws regarding the

distance liquor may be sold from schools and churches are “regulations” or “prohibitions”

because the amendment will allow the General Assembly to regulate but not prohibit. We

need not address this argument because it does not address the sufficiency of the title of the

ballot before us; rather, it is directed at the implementation. See Ferstl, 296 Ark. at 510, 758

S.W.2d at 401 (“It is not our function in the present litigation to interpret the amendment

or explain how it is to be implemented. Neither is it our purpose in this opinion to discuss

the proposal’s merits or its faults. It is rather our function to see that the popular name and

ballot title are a fair and honest means of presenting this measure to the people for their

consideration. We must simply determine whether the sponsors of the proposed amendment

have complied with the law, and whether the popular name and ballot title fairly represent

the issue which will be presented to the electors.).

B. The Voters Will Not Understand that They Will Lose Their Right
to Vote On Whether to Allow the On-Premises Consumption of Mixed Drinks

Richardson also contends that the ballot title at issue is legally insufficient because it

fails to inform the voters that the right to a referendum election on the sale of mixed drinks

will be lost if the amendment is adopted. Richardson asserts that currently, a business located

in a wet county cannot necessarily sell mixed drinks. Rather, pursuant to Ark. Code Ann.

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§§ 3-9-203 and 221 (Supp. 2013), he contends that a separate referendum election is required

in order to approve on-premises consumption. Therefore, Richardson asserts that the failure

to inform the voters of this specific issue renders the ballot title legally insufficient.

Here, the ballot title states:

[T]HAT “INTOXICATING LIQUORS” IS DEFINED FOR PURPOSES OF THE AMENDMENT
AS ANY BEVERAGE CONTAINING MORE THAN ONE-HALF OF ONE PERCENT (0.5%) OF
ALCOHOL BY WEIGHT; THAT THE MANUFACTURE, SALE , DISTRIBUTION AND
TRANSPORTATION OF INTOXICATING LIQUORS MAY BE REGULATED , BUT NOT
PROHIBITED, BY THE GENERAL ASSEMBLY; AND THAT ALL LAWS WHICH CONFLICT
WITH THE AMENDMENT, INCLUDING LAWS PROVIDING FOR A LOCAL OPTION
ELECTION (WET-DRY ELECTION ) TO DETERMINE WHETHER INTOXICATING LIQUORS
MAY BE SOLD OR NOT SOLD, ARE REPEALED TO THE EXTENT THAT THEY CONFLICT
WITH THE AMENDMENT.

Again, the title need not include every detail from the Act. In May v. Daniels, 359

Ark. 100, 111, 194 S.W.3d 771, 780 (2004), we held that “it is not necessary that a ballot title

include every possible consequence or impact of a proposed measure.” “Certainly not every

detail of an amendment or how it will work in every situation can be revealed in the name

and title. It is not possible to do so.” Ferstl, 296 Ark. at 510, 758 S.W.2d at 401. More

recently, this court has reiterated: “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.” May, 359 Ark. at 111, 194 S.W.3d at 780 (internal citations omitted).

Here, the ballot title gives the voter a fair understanding of intoxicating liquors and specifically

defines the intoxicating liquors in a manner that is clear to encompass mixed drinks. Further,

the amendment makes clear to voters that alcohol may be sold anywhere in the State, laws

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in conflict are repealed, and regulations by the General Assembly are permitted. Thus,

Richardson has not met his burden of proving that the ballot title is insufficient.

We conclude that while inside the voting booth, the voters will be able to reach an

intelligent and informed decision for or against “The Arkansas Alcoholic Beverage

Amendment” and understand the consequences of his or her vote based on the ballot title.

Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000).

The mandate herein will issue immediately. No petition for rehearing will be

entertained by the court.

Petition denied.

CORBIN and DANIELSON, JJ., concur.

PAUL E. DANIELSON, Justice, concurring. I concur with the majority’s denial of

the instant petition. I do so, however, because my denial is based solely on the plain language

of article 5, section 1, as amended by Amendment 7, which provides that “laws may be

enacted to facilitate its operation.” Ark. Const. art. 5, § 1. The provisions for initiated acts

are part and parcel of Title 7 of the Arkansas Code Annotated, our Election Code. See Ark.

Code Ann. §§ 7-9-101 to -126 (Repl. 2011 & Supp. 2013). Within that Title are general

provisions for elections, including Ark. Code Ann. § 7-1-108, which states that “[i]f an

election law deadline occurs on a Saturday, Sunday, or legal holiday, the deadline shall be the

next day which is not a Saturday, Sunday, or legal holiday.” Ark. Code Ann. § 7-1-108

(Repl. 2011). I believe it is this section alone that controls, rather than Ark. Const.

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Amendment 51, § 9(l), that pertains to voter registration, and it is clear to me that this section

facilitates the operation of article 5, section 1, as amended by Amendment 7. Because I

believe that this section governs and permits the filing of the initiative petition on July 7, I too

deny the original-action petition and respectfully concur.

CORBIN, J., joins.

Law Offices of Shirley Jones, by: Shirley Jones; Stephen Engstrom Law Office, by: Stephen

Engstrom; and Friday, Eldredge & Clark, LLP, by: Elizabeth Robben Murray, Robert S. Shafer, and

John F. Griffee IV, for petitioners.

Martha Adcock, General Counsel, Arkansas Secretary of State, and L. Justin Tate,

Associate General Counsel, for respondent.

David A. Couch, PLLC, by: David A. Couch, for intevenors.

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