Walker v. Priest

Robert L. Brown, Justice,

concurring. I agree with the majority opinion that Initiated Act No. 1 should remain on the ballot and that it is not impermissibly long or complex. However, I also agree that Amendment 7 to the Arkansas Constitution does not authorize open-ended and unlimited ballot titles with the length and complexity of War and Peace to be submitted to a vote of the people. That is what the proponents of the initiated act claim, but in my judgment they are wrong.

My purpose in writing is to emphasize that the majority opinion does not reach the issue of whether the authority of the General Assembly to appropriate and budget state funds has been usurped by the Executive Branch in the proposed initiated act. Stated differently, we do not address whether the separation-of-powers doctrine as established by the Arkansas Constitution has been trumped by this proposal. Certainly, that allegation was made in the original action petition by the Walker proponents, but the point was not developed in either the Walker brief or in the brief of the intervenor. The failure to develop and argue this issue constitutes an abandonment of it. Stilley v. Priest, 341 Ark. 329, 16 S.W.3d 251 (2000).

But even had the separation-of-powers issue been developed before this court, we could not address it at this stage. Prior to the amendment’s enactment, any opinion rendered by this court on this constitutional issue would be advisory in nature, and we have refrained in the past from issuing advisory opinions on constitutional issues before an initiative’s adoption. See, e.g., Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992); see also Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996). In the event that the people of this state enact the proposed initiated act by majority vote on November 7, 2000, then the issue of whether the powers of the General Assembly have been unlawfully usurped will be ripe for our consideration.