dissenting. I dissent. My strong disagreement begins with the majority’s inability to follow the long-settled standard of review which this court has applied to ballot title cases for years. In Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 698 (1968), this court thoroughly discussed the significance to be given the fact that the Attorney General approved the ballot title of a proposed measure. This court reviewed other states’ ballot title procedures, and determined that the courts in those states spoke in terms of presumptions arising from the approval of ballot titles by those charged with that responsibility. After considerable thought, the Fletcher court adopted the rationale employed by courts in those other states and concluded as follows:
There is a clear implication that the General Assembly intended that presumptions as to sufficiency of a ballot title approved by the Attorney General favor the sponsors of a referendum petition inasmuch as the act (Ark. Stat. Ann. § 2-208, adopted in 1943) specifically provides for relief to them, but not to opponents, by petition of this court.
For more than twenty-six years, this court has steadfastly adhered to the above standard of review in ballot title cases. Mason & Lamb v. Jernigan, Sec’y of State, 260 Ark. 385, 540 S.W.2d 851 (1976); Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). Why this court chooses to abandon this settled rule is beyond my reasoning.
The majority opinion sets out some language in Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988), and concludes the Gaines case is at odds with the cases decided following Fletcher. If you shepardize Fletcher and Gaines, no suggestion appears that Fletcher and its progeny has been affected by Gaines. Nor does the Gaines case indicate as much. All Gaines does is emphasize the fact that, while our case law gives deference to the Attorney General’s ballot title approval, the supreme court must make the ultimate or final decision as to whether the ballot title is sufficient.
Obviously, the sponsors of a measure, as well as the Attorney General, must first sort through the various provisions and details of a measure, and attempt to determine what must be included in the ballot title. They must then phrase or word the ballot title. In this process, the sponsors and the Attorney General must make choices and discretionary calls, and in doing so, they could unintentionally err by placing or omitting something which might later be said to be misleading to the reader.
In these special ballot title cases, this court wisely decided that, when the state’s Attorney General’s office has approved the title, a presumption of sufficiency arises and only in a clear case, should a title so prepared be held insufficient. Quite candidly, the majority court today, with little thought and no real study, has set aside a rule of law that was carefully researched and adopted twenty-six years ago and that rule has sustained the trial of time.
If this court is going to change this established ballot title law, it should first forewarn the voters so they can know the rules they must follow when submitting measures and ballot titles to the Attorney General. Obviously, if the sponsors of the measure in this case had known the Attorney General’s approval meant nothing, then they may well have objected to the modifications the Attorney General made to the ballot title they submitted. A great inequity is especially present here since the majority concedes that one of the reasons it is striking the proposed amendment from the ballot is because the Attorney General made a mistake by changing the sponsor’s proposed ballot title.1
Next, I turn to the majority opinion and what it states are the deficiencies in the ballot title. Summarized, they are as follows:
1. The ballot title fails to reveal that legal fees payable on appeals are limited under existing law, but will not be under the proposed measure.
2. The ballot title omits a description of a provision contained in the measure which provides that the Workers’ Compensation laws shall be liberally construed and fails to show present law provides that reviewing courts must construe workers’ compensation laws strictly.
In analyzing the majority’s two points, I would first point to the popular name — An Amendment to the Arkansas Constitution to Restructure the Workers’ Compensation Commission and Revise Workers’ Compensation Law. (Emphasis added.) The popular name plainly announces to the reader that not only revisions are being proposed to existing workers’ compensation law, but an entire restructuring of the Commission will be made, as well. In sum, anyone reading this caption is well aware that major changes in existing workers’ compensation law are part and parcel of the proposed amendment.
The majority opinion calls for more ballot title detail than the law requires. The general rule that a ballot title is sufficient if it identifies the proposed act and fairly alleges its general purpose. Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248 (1934). Also, not every detail of an amendment or how it will work in every situation need be revealed in the ballot title. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988). Nor does this court require a ballot title to cover or anticipate every possible legal argument that might arise as a result of the proposed amendment. Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).
First, the majority court argues that, contrary to petitioners’ contention, the proposed measure’s ballot title is sufficient where it provides legal fees for the representations of injured employees are restricted to 25% of all sums paid on a claim decided at the trial or commission level. I agree with the majority’s holding in this respect. But the majority further concludes the ballot title should have revealed that present statutory caps on legal fees awarded on appeal would be removed by the proposed amendment. See Ark. Code Ann. § 7-9-715 (1987). What the majority opinion fails to mention is that, under the proposed amendment, attorney fees are awarded only when a claimant prevails on appeal, and even then, any fee or fee amount is contingent upon the appellate court’s considering the nature, length, and complexity of the services performed, and the benefits result to the claimant. Clearly, legal fees under the proposed measure are not unlimited and remain subject to the review and scrutiny of the courts.
As a practical matter, appellate legal fees pale in comparison with those fees awarded at trials and hearings. Also, the number of appeals from the Commission’s decisions in workers’ compensation cases fall significantly short of those settled or tried at the trial or commission levels. The majority’s attempt to attach materiality to appellate fee awards on workers’ compensation cases stretches the imagination.
Considering the length of the proposed amendment and the major changes it calls for, it is unreasonable to expect every detail to be covered by the ballot title. Appellate fees are relatively insignificant, and as is commonly treated in appeals, remain subject to the review of the court. This is hardly the kind of matter that would mislead a voter in the approval or rejection of an amendment especially when the measure openly announces it is intended to restructure and revise existing workers’ compensation law.
In my view, the majority court’s second point is even less a problem than the one just discussed. The settled law is that, in determining the sufficiency of a ballot title, this court must be liberal in construing the tenets of Amendment 7. Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).
As stated in the majority opinion, the sponsors of the proposed amendment submitted a ballot title which included a clause, stating that workers’ compensation laws shall be liberally construed in accordance with the remedial purposes of a workers’ compensation system. The Attorney General removed this clause from the ballot title and understandably so. The clause contains a legal standard of construction employed by courts and that standard would mean little to the average voter.
The proposed amendment is comprised of sixteen sections that make many major substantive changes in restructuring and revising present workers’ compensation law. Amendment 7 does not require every detail or procedural matter to be placed in the ballot title. This court has stated repeatedly over the years that it is difficult to prepare a perfect ballot title — it is sufficient if it informs the voters with such clarity that they can cast their ballot with a fair understanding of the issue presented. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988); Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982); and Hoban v. Hall, Secretary of State, 229 Ark. 416, 316 S.W.2d 185 (1958).
In rendering the proposed amendment invalid, this court requires the ballot title to meet a much higher standard than that called for by the Arkansas Constitution. This court’s rigid standard applied in this case portends the difficulty Arkansas voters will have in placing initiatives on the ballot so the people will have a voice in their government and an opportunity to change it if they feel aggrieved.
Hays, J., joins this dissent.To make matters worse, the sponsors of any proposed measure have absolutely no recourse to or review by this court of a ballot title, rejected or modified by the Attorney General, until after their petitions with ballot title are circulated, signed and then filed with the Secretary of State’s office. See Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), (a 4-3 decision, where the court decided that this court’s jurisdiction attached only after the petitions are declared sufficient and that determination must be of the sufficiency on both the title and the signatures.