concurring on Point I; dissenting on Point II. I agree with the majority that the ballot title and the proposed amendment are misleading in the extreme. Nothing less is at stake here than the total restructuring of how all revenue is raised in this state for spending at all levels of government. That point, however, is obfuscated by the drafting of the proposal. The ballot title and the amendment speak throughout in terms of taxes. However, an “increase in taxes” is defined so broadly that any revenue increase falls within that definition. Witness the language from the ballot title: “Providing that...the changing of any law or rule which results in the collection of additional revenue from some or all taxpayers, shall be deemed a tax increase to the extent that said law results in increased tax or exaction.” Thus, collection of additional revenue defines an “increased tax.” So while the voting public believes it is approving a mechanism, first, to remove the sales tax on used goods, and, second, for voter approval of sales, income, and property taxes, in actuality school millages, special improvement district assessments, hunting fees, park fees, zoo fees, and any other revenue increase would be subject to voter approval. In short, all revenue increases, regardless of how big or small, will not be able to go into effect until the people approve them every two years at a General Election. This measure, as a result, completely revamps the revenue-raising component of government, especially at the local level. The intervenor, Oscar Stilley, denies this, but at the very least the full ramifications of the proposed initiative are obscure and murky.
This court has repeatedly held that the central question in resolving ballot title issues is whether the voter is able to reach an intelligent and informed decision and to understand the consequences of his or her vote. See, e.g., Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 371 (2000); Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). At the same time, we have held that it is not this court’s function to interpret a proposed amendment or discuss its merits or faults. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1998). And we have made it clear that the voters of this state, within constitutional limits, have the right to change any law or provision of our state constitution. Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982). But in Dust, we also said:
If the voter knows the extent and import of such a proposal, it is the voter’s decision, not ours, as to the wisdom of the proposal. But at the same time the voters have placed on this court the duty and responsibility to see that when they vote that change, or decline to vote that change...they are allowed to make an intelligent choice, fully aware of the consequences of their vote.
Dust v. Riviere, 277 Ark. at 4, 638 S.W.2d at 665 (emphasis added).
The dissent concludes that a ballot title cannot be misleading if it accurately reflects a misleading amendment. Hence, according to the dissent’s reasoning, if a ballot title correctly describes a misleading or even fraudulent proposed amendment, we should disregard that and let the measure go to a vote of the people. I could not disagree more.
Again, the central role of this court is to assure that the voters are fully aware of the consequences of their vote. How can we perform our duty if the amendment itself deceives or misleads the people about what is at issue? The answer is obvious. We cannot. This is not a question of taking a position on the merits of the proposed amendment or interpreting how it will be implemented. It is a question of being forthright with the voters and assuring them that they are not in danger of buying a “pig in a poke.” This is especially true when the primary focus of Amendment 4 initially is on the abolishment of taxes on used goods and not on restructuring our entire system of raising revenue. While it is not the role of this court to delve into the wisdom of the proposal, it is certainly our role to analyze whether the drafters of the measure have employed subtleties and sugarcoated language to sway the voters. See Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952).
Accordingly, I agree to strike this proposal from the ballot. It would have been any easy matter to provide an amendment that allowed for voter approval of sales, income, and property taxes. Amendment 4 does not speak with such clarity.
At the same time, I cannot agree with the majority that the question under the Arkansas Constitution and U.S. Constitution of whether bonds will be impaired due to the repeal of the sales and use tax on used goods is ripe for our review. We do not know at this stage whether Amendment 4 will be adopted. Any opinion by this court prior to adoption would be purely advisory in nature. We so held in Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 137 (1992), and declined to reach the issue of whether the proposed term limits law violated the Qualifications Clause of the U.S. Constitution prior to the amendment’s adoption. We reiterated this principle in Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996), but held that we would address the issue of whether candidates who “disregarded voter instruction on term limits” could be identified as such on the ballot. In Donovan, the issue we addressed was whether the proposed measure came within the scope of Amendment 7, not a substantive constitutional challenge to the proposal. We said:
In so holding, we do not conclude that we will entertain substantive constitutional challenges to a proposed measure, such as whether it violates the free speech provision of the First Amendment, before an election has been held. We distinguish such substantive constitutional challenges from procedural challenges in that the former necessarily involve fact-specific issues and thus are not ripe for review until the proposed measure becomes law and a case in controversy arises. Given that the review we are asked to conduct in this case is not one of direct review of the proposed amendment’s validity, but rather one of whether the proposed amendment’s advocates are entided to invoke our initiative process in the first place, we will address the merits of Petitioner’s challenge.
Donovan, 326 Ark. at 360-361, 931 S.W.2d at 122. In short, the Donovan case is not authority for considering a constitutional challenge before election. It is just the opposite.
Contrary to the majority protestations on this point, we are changing the law significantly. That is what the complainant asked us to do - to overrule Plugge v. McCuen, supra, and begin addressing constitutional issues before elections. I would not change our law regarding constitutional challenges before an election.
There are other reasons why we should not address the impairment-of-contracts issue before the election. All we have before us at this time is one bond from the City of Brinkley secured by the sales and use tax levied by the city. Based on what this court presently has before it, we can only speculate on the impact of Amendment 4 on this bond, should it pass.
Second, striking Amendment 4 on feared impairment-of-contract grounds at this time would be dangerous precedent. Henceforth, all an opponent to a proposed reduction in taxes would have to do is present a bond secured in part by those taxes, and we would feel constrained to strike the measure from the ballot. I am not willing to go that far before an election.
Third, if we begin deciding constitutional issues regarding a proposed initiative before election, does this mean failure to raise those issues at that time forecloses a challenge after the election? Or can a complainant raise constitutional challenges both before and after the election? If we hold that constitutional challenges must be mounted before an election or lost, we foreclose our ability to consider the separation-of-powers issue that might be raised in the future regarding Proposed Initiated Act No. 1 (Tobacco Settlement Proceeds Act). See Walker v. Priest, 342 Ark. 410, 29 S.W.3d 657 (2000) (Brown, J., concurring).
I would not change our law about advisory opinions for this case. But, again, I agree to strike the measure from the ballot because of misleading tendencies.