Mr. Barry L. Emigh 1104 7th Street Hot Springs, AR 71913-4225
Dear Mr. Emigh:
You have requested certification, pursuant to A.C.A. § 7-9-107, of a popular name and ballot title for a proposed constitutional amendment. You have previously submitted various similar measures, some of which I rejected due to ambiguities in the text of your proposed amendments. See Ops. Att'y Gen. Nos. 2002-242, 2002-227, 2002-208, 2002-118, 2002-102, 2002-077, 2002-042, 2002-026, 2002-001, 2001-380, 2001-358, 2001-341, 2001-173, 2001-110, 2001-095 and 2001-074. My office has revised and certified popular names and ballot titles for three similar measures, as evidenced by Ops. Att'y Gen. Nos. 2002-140; 2001-196; and 2001-129. You have since made additional changes to your measure and have submitted a revised popular name and ballot title for my certification. Your proposed popular name and ballot title state:
Popular Name
AN AMENDMENT AUTHORIZING BINGO AND RAFFLES BY NON PROFIT ORGANIZATIONS INCORPORATED IN THE STATE, EMPOWERING THE GENERAL ASSEMBLY TO OPERATE LOTTERIES, AUTHORIZING BARRY LEE EMIGH OR HIS TRANSFEREES TO OPERATE GAMBLING AND EMPOWERING THE GENERAL ASSEMBLY TO PASS LAWS AND APPROPRIATIONS OUT OF SESSION
Ballot Title
AN AMENDMENT TO THE ARKANSAS CONSTITUTION AUTHORIZING BINGO AND RAFFLES BY NON PROFIT ORGANIZATIONS INCORPORATED IN THE STATE WITHOUT COST BY THE STATE, OR ANY SUBDIVISION OR AGENCY THEREOF; EMPOWERING THE GENERAL ASSEMBLY WITHOUT VETO OF THE GOVERNOR TO OPERATE LOTTERIES AND COOPERATE TO OPERATE LOTTERIES WITH OTHER STATES WHICH SIGNIFICANTLY CHANGES CURRENT LAWS EFFECTING GAMBLING; AUTHORIZING BARRY LEE EMIGH TO OPERATE, HIRE 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 SEBASTIAN, CRAWFORD, JEFFERSON, PULASKI, GARLAND, MILLER, CRITTENDEN, MISSISSIPPI, BENTON, OUACHITA AND CHICOT WITH SUCH STRUCTURE LOCATED WITHIN ANY CITY AND TOWN WITHIN THOSE COUNTIES WITHOUT COST FOR A LICENSE OR PERMIT BY THE STATE, OR ANY SUBDIVISION OR AGENCY THEREOF; AUTHORIZING THE SALE AND COMPLIMENTARY SERVICE OF ALCOHOLIC BEVERAGES BY BARRY LEE EMIGH, THOSE HIRED AND SUBCONTRACTED AS INDEPENDENT CONTRACTORS TO OPERATE GAMBLING ON ANY DAY FOR THE WHOLE OF A TWENTY-FOUR HOUR DAY ONLY WITHIN THE INTERIOR AREA OF THOSE STRUCTURES USED FOR THE PURPOSE OF GAMBLING WITHOUT COST FOR A LICENSE OR PERMIT BY THE STATE, OR ANY SUBDIVISION OR AGENCY THEREOF (INCLUDING THOSE COUNTIES, CITIES AND TOWNS IN WHICH THE SALE OF ALCOHOLIC BEVERAGES IS OTHERWISE PROHIBITED); EXEMPTING THE TRANSFER OF ANY PART, OR WHOLE, OF THE GAMBLING OPERATION FROM COST OR APPROVAL BY THE STATE, OR ANY SUBDIVISION OR AGENCY THEREOF; REQUIRING THE GAMBLING OPERATOR(S) TO ABIDE BY THE LAWS, RULES AND REGULATIONS OF THE STATE, AND ANY SUBDIVISION OR AGENCY THEREOF, EFFECTING GAMBLING NOT PROVIDED FOR DIFFERENTLY WITHIN THE PROVISIONS OF THIS AMENDMENT; REQUIRING THE GAMBLING OPERATOR(S) PAY THE STATE AND LOCAL TAXES AS APPLICABLE AND OBTAIN AND PAY FOR ANY LICENSES OR PERMITS REQUIRED BY THE STATE, OR ANY SUBDIVISION OR AGENCY THEREOF, NOT PROVIDED FOR DIFFERENTLY WITHIN THE PROVISIONS OF THIS AMENDMENT; PROVIDING FOR THE SHIPMENT OF GAMBLING DEVICES; EMPOWERING THE GENERAL ASSEMBLY BY A 3/4 MAJORITY CONSENT OF BOTH HOUSES TO PASS ANY LAW OR APPROPRIATION WITHOUT SESSION, ASSEMBLY OR VETO BY THE GOVERNOR WHICH SIGNIFICANTLY CHANGES CURRENT LAWS EFFECTING THE "CHECKS AND BALANCES" OF GOVERNMENTAL POWERS AND AUTHORITY OF THE GOVERNOR; 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 "PART" AS THE GAMBLING OPERATION WITHIN EACH COUNTY; DEFINING "WHOLE" AS ALL THE GAMBLING OPERATIONS WITHIN THE STATE; DEFINING "GAMBLING OPERATION" AS THE AUTHORITY OF THE GAMBLING OPERATOR(S) TO OPERATE GAMBLING, HIRE PERSONS AND SUBCONTRACT ANY INDEPENDENT CONTRACTOR(S) TO OPERATE GAMBLING WITH THE SALE AND COMPLIMENTARY SERVICE OF ALCOHOLIC BEVERAGES; DEFINING "GAMBLING OPERATOR(S)" AS BARRY LEE EMIGH OR THOSE PERSONS, COMPANIES OR CORPORATIONS TO WHICH ANY PART, OR WHOLE, OF THE GAMBLING OPERATION IS TRANSFERRED; THE PROVISIONS OF THIS AMENDMENT SHALL TAKE EFFECT IMMEDIATELY UPON PASSAGE OF THIS AMENDMENT EXCEPT AS OTHERWISE PROVIDED AND REQUIRING THE GENERAL ASSEMBLY AND ANY AND ALL STATE OR LOCAL RULE MAKING AUTHORITIES TO MAKE ALL OTHER AND FURTHER LAWS 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. § 7-9-107, to 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 amendment or 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 amendment or act. See Arkansas Women's PoliticalCaucus 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 amendment or 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; and Walton 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 CivicAction 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 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 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 the ambiguities. I am therefore unable to substitute and certify a more suitable and correct popular name or ballot title pursuant to A.C.A. §7-9-107(b).
I refer to the following ambiguities:
• Section Three, Paragraph 1, authorizes gambling "without cost of any kind for a license or permit. . . ." The same language appears in Paragraph 2 of this Section with respect to the sale and complimentary service of alcoholic beverages. I am uncertain whether this is intended to prohibit any licensing or permitting requirement, or whether there simply can be no cost associated with any license or permit that the State or subdivision thereof may require.
• An ambiguity in connection with licenses or permits for gambling also arises under Paragraph 5 of Section Three, wherein it states that the gambling operator" shall obtain and pay . . . for any, and all, licenses and permits required by the state, and any subdivision or agency of the state. . . ." This would appear to be in direct conflict with Paragraphs 1 and 2, discussed above. This internal conflict must be corrected or clarified for proper reflection in the ballot title.
• Section Three, Paragraph 3, states that the transfer of any part of the gambling operation shall be "without cost of any kind or approval by the state . . . or any subdivision. . . ." While it thus seems clear that transfer is not subject to any cost or approval, it is unclear whether, after the transfer, the transferee may be required to obtain any licenses or permits. Compare Paragraphs 1 and 2, discussed above, regarding gambling operations and alcoholic beverage sales and service by Barry Lee Emigh and those hired and subcontracted by Barry Emigh. See also Paragraph 5, noted above.
• Section Three, Paragraph 4, requires the gambling operator to "abide by all the laws, rules and regulations of the state, and or any subdivision or agency of the state thereof effecting [sic] gambling. . . ." (Emphasis added). An initial ambiguity arises under the emphasized language: "and or any subdivision." With the state and the counties and cities all exercising regulatory authority over gambling under your amendment, questions will undoubtedly arise in the event of a conflict between or among the regulations. The primacy of the state's regulatory authority over gambling is clear under current law. See A.C.A. §§ 14-14-806 (requiring a specific delegation of authority by the state in order for counties to regulate gambling) and 14-43-601 (a) (1) (K) and (a) (2) (making gambling a "state affair" subject to the general laws of the state, and providing that any exercise of authority by a city with respect to gambling cannot conflict with state law). Your proposed amendment thus signals a significant change in current law regarding the regulatory authority of counties and cities over gambling. While the supremacy of the state's authority over gambling is obviously changed by your proposal, the resolution of any conflicting regulations is uncertain. Accordingly, your ballot title fails to convey an intelligible idea of the scope and significance of the proposed change in the law, and I am unable to substitute language as a result of the ambiguity in the text.
• Section 4, Paragraph 1, states that "[o]nce each year after any, and all taxes are paid . . . the gambling operator(s) shall be required within a year to pay fifty (50%) percent of the profit earned each year . . . to be divided by and paid to each canvasser. . . ." (Emphasis added). This language is subject to several interpretations and should be corrected to clearly state when the payment must be made.
• Section 6, Paragraph 2, requires "3/4 of the signatures from all the elected members from each house of the General Assembly" for a circulated bill to become law under your proposed amendment. This might be interpreted as requiring signatures from ½ of the total membership, as opposed to ½ from the House of Representatives and ½ from the Senate.
• Section 8 is entitled "Amendment Self Executing." The text, however, states that the General Assembly and rule making authorities shall "make any and all other laws and regulations to the enforcement of this Constitutional Amendment." Although the title would suggest otherwise, it thus seems that the amendment is not, in fact, self-executing. This should be clarified for the ballot title.
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. § 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). Furthermore, the Court has recently confirmed that a proposed amendment cannot be approved if "[t]he text of the proposed amendment itself contribute[s] to the confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure." Roberts v. Priest,341 Ark. 813, 20 S.W.3d 376 (2000). The Court concluded: "[I]nternal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." Id. 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, stating my reasons therefor, and to instruct you to "redesign" the proposed measure and ballot title. See A.C.A. §7-9-107(c). You may, after clarification of the matter discussed above, resubmit your proposed amendment, 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 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