dissenting. For the first time in this court’s history, a proposed constitutional amendment is being struck from the ballot because a majority believes the proposed amendment itself does not speak clearly. I must respectfully dissent.
As we have stated frequently and consistently, our function in reviewing the sufficiency of the popular name and ballot title for a proposed constitutional amendment is 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.” Ferstl v. McCuen, 296 Ark. 504, 510, 758 S.W.2d 398, 401 (1988). It is not our function to interpret the amendment or to discuss the proposal’s merits or its faults. Id. A ballot title is sufficient if it recites the general purposes of the proposed amendment and contains enough information to sufficiently advise electors of the true contents of the proposed amendment. Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364 (1938); Lewis v. Hall, 196 Ark. 45, 116 S.W.2d 353 (1938). Under these controlling principles, we simply determine whether the popular name and ballot title fairly and accurately reflect the contents of the proposed amendment. When these principles are faithfully applied in the present litigation, I believe that the popular name and ballot title of proposed Amendment 4 are sufficient and I would deny the injunction.
In concluding that the ballot title is “misleading, both by amplification and omission,” and “also fails to convey to the voter the scope and import of the proposed measure,” the majority opinion with respect to Point I actually takes issue with the proposed amendment itself. For example, the majority opinion questions what is meant by the phrase “regularly scheduled statewide election” that appears in the text of the amendment and in the ballot title. The majority opinion also questions the amendment’s definition of what will constitute a “tax increase” for purposes of triggering the provision requiring voter approval at regularly scheduled statewide elections. In short, the majority simply believes that the language contained in this measure is unclear. Indeed, I may agree with the majority and exercise my right to vote against the measure. However, our function in reviewing the sufficiency of the popular name and ballot title is not to find fault with the text of the proposed amendment; rather, our function is to determine whether the content of the proposed amendment is accurately reflected in the popular name and ballot title. Once again, I cannot find this ballot title to be clearly deficient under the well-established principles that have governed this court’s decisions regarding the sufficiency of ballot titles since Amendment 7 was adopted in 1920.
The majority opinion with respect to Point II addresses the constitutional validity of the proposed amendment prior to the amendment’s adoption. In doing so, the majority ignores, and subsilentio overrules, this court’s recent holding in Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996), in which we clarified our precedent on the issue of whether we will entertain a challenge to the legal validity of a proposed measure prior to an election:
It has been said that the pertinent issue in cases such as this one “is not the hypothetical question of whether the law, if passed, would be constitutionally defective; rather, it is the present and ripe question whether the measure’s proponents are entitled to invoke the direct legislation process at all.”
Id., 326 Ark. at 359, 931 S.W.2d at 121.
In Donovan v. Priest, supra, we noted that this court had previously reviewed and decided the validity of proposed local initiatives in two cases: Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984) and Hodges v. Dowdy, 104 Ark. 583, 149 S.W. 656 (1912). In both of those cases, this court determined whether a proposed local initiative was subject to the initiative power of the people. Specifically, we held in Hodges v. Dowdy, supra, that a prior initiative and referendum provision of the Arkansas Constitution did not confer power on the voters of a municipality or county, apart from the other people of the State, to initiate any kind of legislation. Furthermore, we held that the powers conferred by the legislature in an Enabling Act was to initiate local measures which “are not inconsistent with the general laws of the State.” Id., 104 Ark. at 599, 149 S.W at 661. Similarly, in Czech v. Baer, supra, we noted that the Initiative and Referendum Amendment itself provides that “no local legislation shall be enacted contrary to the Constitution or any general law of the State.” Id., 283 Ark. at 461, 677 S.W.2d at 835. We have just recently invalidated a proposed local initiative because it was contrary to specific enactment procedures mandated by the legislature for levying or repealing a countywide sales and use tax. Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000). In doing so, we concluded that we could entertain a challenge to the legal validity of the proposed local initiative prior to the election pursuant to the rules laid down in Donovan v. Priest, supra. The issue in Stilley v. Henson was whether the measure’s proponents were entitled to invoke the direct initiative process. Id.
The complainant here contends that the proposed amendment, if enacted by the voters, will violate the constitutional protection against any “law impairing the obligation of contracts,” as provided in Article 1, section 10, of the United States Constitution and Article 2, section 17, of the Arkansas Constitution. This challenge to the proposal is a question of substantive constitutional law that is not yet ripe for review. As we said in Donovan v. Priest, supra, we will not entertain substantive constitutional challenges to a proposed measure before an election is held:
Based on the aforementioned decisions of this court as well as other courts, we hold that our review of the sufficiency of a proposed measure, as provided for in Amendment 7, includes a review of whether the measure’s proponents are entitled to invoke the direct initiative process when such issue is properly presented. 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.
Id., 326 Ark. at 360, 931 S.W.2d at 122. (Emphasis added.)
Here, we are not asked to determine whether a proposed amendment directly contravenes the amendment process provided in Article V of the United States Constitution, as we were asked to do in Donovan v. Priest, supra; nor are we asked to determine whether a proposed local initiative contravenes Amendment 7’s provision that “no local legislation shall be enacted contrary to the Constitution or any general law of the State,” as we were asked to do in Stilley v. Henson, supra. The complainant’s constitutional challenge in this original action is substantive and necessarily requires this court to resolve the following fact-specific issues that arise in an impairment-of-contract claim:
• whether the proposed amendment will, in fact, operate as a substantial impairment of a contractual relationship;
• whether there is a sufficient and legitimate public purpose behind the proposed amendment; and
• whether the adjustment of the rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the amendment’s adoption.
Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 410-13 (1983). These fact-specific issues are clearly not ripe for review. We should therefore decline to conduct a preelection review of this proposed amendment’s constitutional validity.
For these reasons, I respectfully dissent.
Smith, J., joins in this dissent. BROWN, J., joins in this dissent with respect to Point II.