McMillan v. Live Nation Entertainment, Inc.

HANNAH, C.J.,

dissenting.

|7I respectfully dissent. The majority declares that Arkansas Code Annotated section 5-63-201 (Repl.2005) is “so plain and unambiguous that judicial construction is limited to what was said” although three justices of this court find that the statute is ambiguous. Both McMillan and Ticketmaster argue that the statute is unambiguous, yet each offers a different and conflicting reasonable interpretation. A statute is ambiguous when it is open to two or more reasonable constructions. See Wickham v. State, 2009 Ark. 357, at 5, 324 S.W.3d 344, 347. McMillan argues that the statute applies to Ticketmaster because (1) it is a corporation selling tickets, and (2) it may not sell tickets at a price greater then the “price printed on the ticket or the box office price.” Ticketmaster argues that the statute does not apply to Ticketmaster because the “price printed on the ticket or box office price” refers to a sale of the tickets setting the price that may not be exceeded; in other words, Ticketmaster contends that the statute applies only to resale of the tickets.1 _j^Under this construction, as Ticketmaster is the seller in the first instance, the statute does not apply to its activities. Section 5-63-201 can be read to provide as McMillan argues, but it can also be read to provide as Ticketmaster argues. Both constructions are reasonable. Section 5-63-201 is ambiguous.

When a statute is ambiguous, it is interpreted according to legislative intent, and the court’s review looks to the entire act. See Roberson v. State, 2010 Ark. 433, at 1, 2010 WL 4524561. Further, as a penal statute, section 5-63-201 is strictly construed, and all doubts are resolved in favor of the defendant. Magness v. State, 2012 Ark. 16, at 4, 386 S.W.3d 390, 393. A penal statute must be construed to avoid, as opposed to create, criminal liability. “The courts cannot and should not, by construction or intendment, create offenses under statutes that are not in express terms created by the legislature.” Williams v. State, 347 Ark. 728, 742, 67 S.W.3d 548, 556 (2002). This court is without authority to declare an act to come within the criminal laws of this state by implication and nothing is taken as intended which is not clearly expressed. Heikkila v. State, 352 Ark. 87, 90, 98 S.W.3d 805, 807 (2003).

The court also looks to the title of the statute to determine legislative intent where the statute’s meaning is in doubt. See Baker Refrigeration Sys., Inc. v. Weiss, 360 Ark. 388, 400-01, 201 S.W.3d 900, 907 (2005). The title to the statute indicates that it concerns sales “in excess |9of regular price.” The term “regular price” implies, consistent with Ticketmaster’s argument and this court’s duty to construe the statute in its favor, that the tickets must first be sold to establish the “regular price,” the price above which the statute prohibits their sale.

Further, section 5-63-201(a)(1)(B), relied on by McMillan to create criminal liability, was added by 1993 Arkansas Act 565 and titled, “AN ACT to Amend Arkansas Code Annotated § 5-63-201 to Prohibit Scalping of Tickets to Athletic and Other Events Held for the Benefit of Charity; and for Other Purposes.” Therefore, the title to Act 565 indicates that the language the majority finds “so plain and unambiguous that judicial construction is limited to what was said” was never intended to apply to an exclusive agent of a public facility that sells tickets in the first instance; it is intended to control “ticket scalping.”

“Ticket scalping” is the common name given to the practice of selling tickets to popular entertainment events at prices which greatly exceed the established price for those tickets. The purpose of an anti-scalping law is to enforce the public policy of protecting against the sale at exorbitant prices of tickets being sold by unscrupulous promoters and others who make enormous profits on ticket resales. The public welfare is advanced by having all tickets freely available for sale to the general public either at face value directly from the event sponsor, or at somewhat higher than face value from a ticket distributor acting with permission of the event sponsor.

30A C.J.S. Entertainment and Amusement § 155 (2007). McMillan asserts that Ticketmaster acts with permission of the sponsor, stating that Ticketmaster “has the exclusive right to sell all tickets for any Verizon attraction which is made available to the public.” Consistent with the language from Corpus Juris Secundum, at issue are tickets sold at “somewhat higher than face value from a ticket distributor acting with permission of the event sponsor,” which excludes Ticketmaster from being a ticket scalper subject to the statute. Finally, resale of tickets is not |10at issue in the present case.

Strictly construing the statute, resolving every doubt in favor of Ticketmaster, and taking into account the language and the specific reference to “ticket scalping” in the title to the 1993 act adding section 5-63 — 201(a) (1) (B), the court must conclude that section 5-63-201 is not applicable in this case. The certified question of law should be answered in the negative. Section 5-63-201 is not applicable to an exclusive agent of a public facility that sells music entertainment tickets in the first instance.

I also note that the majority asserts that it does not decide the question of whether charging the fees at issue constitutes a violation of section 5-63-201. However, by wholly ignoring precedent on statutory interpretation and improperly concluding that Ticketmaster falls within the parties prohibited by the statute from charging the very fees at issue, the majority firmly establishes Ticketmaster’s criminal liability. McMillan asserts in his brief that “Ticketmaster’s practices are in violation of the ADTPA and A.C.A. § 5-63-201.”

The majority has abandoned its judicial role as the interpreter of the statute and by ignoring the clear legislative intent has assumed the legislative role of declaring an act criminal. Legislative intent makes it clear that section 5-63-201 was never intended to apply to an exclusive agent selling tickets in the first instance. “The public policy of the State of Arkansas is declared by the General Assembly, not its courts.” State v. Lester, 343 Ark. 662, 669, 38 S.W.3d 313, 317 (2001). As it legislates, the majority hides behind the trappings of the judiciary by declaring an ambiguous statute unambiguous, and by that declaration conveniently avoids the fact that the title to the act containing the very language at issue limits | ^criminal liability to ticket scalpers. The majority ignores this court’s precedent and the longstanding principle that all penal statutes must be strictly construed.

The instant case calls on us to interpret section 5-4-205. This court reviews issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation.

Brown v. State, 375 Ark. 499, 502, 292 S.W.3d 288, 290 (2009) (citations omitted) (emphasis added). The rule of strict construction is long standing:

It is a rule, never to be departed from, that criminal statutes must be strictly construed. This rule is founded alike upon policy as well as humanity, designed for the protection of the citizen, unless he is clearly charged, and proven guilty, ■ of a violation of a positive enactment of law.

Hughes v. State, 6 Ark. 131, 134 (1845). By any analysis, Ticketmaster is not scalping tickets; it is the seller in the first instance. The statute is inapplicable to Ticketmaster. Therefore, I dissent.

BROWN and GOODSON, JJ., join.

. The majority asserts that this dissent adds words to the statute in order to reach the conclusion that the statute is ambiguous. Simple reference to the discussion above reveals that this dissent relies on quoted language from the statute, "price printed on the ticket or the box office price” and "price printed on the ticket or box office price.” The majority’s assertion is inaccurate.

The majority also asserts that this dissent attempts to impermissibly limit or expand the construction of section 5-63-201 by resorting to the titles and descriptive headings, and cites Arkansas Code Annotated section 1-2-115(b) (Repl.2008); R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001). Section 1-2-115(b) and R.N., refer to the principle that titles and descriptive headings do not constitute part of the law. See R.N., 347 Ark. at 210, 61 S.W.3d at 153. Neither the title nor the descriptive headings are cited to limit or expand the law. The majority ignores elementary principles of statutory interpretation and confuses the law. Where a statute is ambiguous, titles are examined to shed light “on the intent” of the General Assembly. Baker Refrigeration Sys., Inc. v. Weiss, 360 Ark. 388, 400, 201 S.W.3d 900, 907 (2005); Henderson v. Russell, 267 Ark. 140, 145, 589 S.W.2d 565, 568 (1979); Lyerley v. Manila Sch. Dist. No. 15, 214 Ark. 245, 250, 215 S.W.2d 733, 736 (1948). The title and descriptive headings are cited to reveal the intent of the General Assembly.