dissenting. In this original action petitioners seek to prohibit the Secretary of State from certifying the November 1994 general election results of the proposed constitutional amendment named “An Amendment to Authorize One Casino in Crittenden County, to Create the Arkansas Casino Gaming Commission, and to Levy Casino Taxes to Fund Crime Prevention and Law Enforcement.” The majority of the court votes to grant the petition and enjoin the Secretary of State from certifying the results of the election on the proposal. I respectfully dissent.
I.
THE HOLDINGS OF THE MAJORITY OPINION
The majority opinion grants the petition for four reasons: (a) the location of the proposed casino as described in the ballot title is misleading; (b) important provisions about the powers of the Gaming Casino Commission are omitted from the ballot title; (c) the ballot title fails to disclose that the proposal would allow gaming statewide; and (d) the text of the proposal is so expansive that an intelligible ballot title cannot be written.
A.
The majority opinion correctly states that the text of the proposed amendment provides that a casino would be located on a particular tract of land in Crittenden County and correctly states that the ballot title provides that the casino would be located at a designated site. The majority opinion then concludes that the ballot title is somehow inconsistent with the text of the proposal, and the ballot title is therefore misleading. The conclusion is fallacious.
The text of the proposal states that there is to be one casino, and it is to be located on a described tract of land in Crittenden County. The ballot title provides that it is “AN AMENDMENT TO THE ARKANSAS CONSTITUTION AUTHORIZING THE ESTABLISHMENT OF THE ONE CASINO AT A DESIGNATED SITE IN CRITTENDEN COUNTY TO BE OPERATED UNDER A RENEWABLE THREE YEAR LICENSE BY A QUALIFIED, BONDED CASINO GAMING LICENSEE WHO CAN DEMONSTRATE OWNERSHIP OF THE DESIGNATED LAND.” The ballot title plainly states that one casino would be authorized at a designated site. The text of the proposal and the ballot title are consistent. There is nothing misleading about this provision in the ballot title.
The petitioners do not even argue that this part of the ballot title is misleading. In fact, the petitioners tacitly admit that this part of the ballot title is clear because they contend that the misleading provision in this part of the ballot title is that it does not disclose the fact that the sponsor of the proposal, Mike Wilson, has acquired an option on the only site where the casino would be located.
The ballot title is not misleading because it provides that the casino will be located “at a designated site in Crittenden County.”
B.
The majority opinion next holds that the ballot title omits full disclosure of important powers of the Casino Gaming Commission. Again, I cannot agree.
The powers of the Casino Gaming Commission are disclosed in the ballot title. The part of the ballot title relating to the powers of the Commission is as follows:
CREATING THE ARKANSAS CASINO GAMING COMMISSION WHICH SHALL CONSIST OF FIVE (5) MEMBERS TO BE APPOINTED BY THE GOVERNOR, TO SERVE FIVE (5) YEAR TERMS; PROVIDING FOR REAPPOINTMENT OF THE COMMISSIONERS ONLY ONCE; PROVIDING FOR REMOVAL OF COMMISSIONERS DURING THEIR TERM BY THE GOVERNOR WITH A CONCURRENCE OF THE GENERAL ASSEMBLY; PROVIDING FOR STATE POLICE BACKGROUND CHECKS ON PROSPECTIVE COMMISSIONERS AND OTHERWISE ESTABLISHING QUALIFICATIONS FOR THE OFFICE; PROVIDING THAT THE COMMISSION SHALL BE FUNDED INITIALLY BY A LOAN OF STATE FUNDS TO BE REPAID WITHIN TWO (2) YEARS OF THE LOAN, AND THEREAFTER EXCLUSIVELY BY A ONE PERCENT ASSESSMENT ON GROSS REVENUES OF THE CASINO AND FEES PAID BY PROSPECTIVE LICENSEES; EMPOWERING THE COMMISSION TO SUPERVISE THE CASINO GAMING AUTHORIZED BY THIS AMENDMENT, INCLUDING THE POWER TO REQUIRE LICENSES AND STATE POLICE BACKGROUND CHECKS ON PERSONS SEEKING TO CONDUCT CASINO GAMING, SUPPLY EQUIPMENT TO AN ARKANSAS CASINO, OR BE EMPLOYED BY SUCH SUPPLIERS, OR AT THE CASINO IN CASINO GAMING ACTIVITY, AND THE POWER TO SUBJECT LICENSED GAMING EMPLOYEES TO ALCOHOL AND DRUG TESTING; EMPOWERING THE COMMISSION TO AUDIT ALL BOOKS AND FISCAL RECORDS OF THE CASINO.
The majority opinion holds that the foregoing part of the ballot title contains a material omission since it does not specify that the Commission would have the power to subpoena witnesses and compel them to attend meetings and investigations of the Commission. Such reasoning ignores the fact that the ballot title clearly provides that the Commission would have the authority to supervise all casino gaming authorized by the amendment, would have the authority to conduct investigations into persons, books and records associated with the proposed casino, and would have the authority to examine for violations of the amendment and the Commission’s regulations. A voter reasonably would be expected to view the Commissioners’ powers in such context and surely would expect the Commission to have the power of subpoena to carry out its specified duties. Contrary to the suggestion in the majority opinion, the text of the proposal would not give the Commission the authority to compel witnesses to testify regarding any matter that might be of interest to them, but rather they could be subpoenaed only on matters relating to casino gaming. When one reads the ballot title provisions about the powers of the Commission, it is difficult to believe that a voter would be given “serious ground for reflection” because the power of subpoena is not mentioned. See Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958).
Further, two of our cardinal rules in deciding this issue are: (1) 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); (2) not every detail of an amendment or how it will work in every situation need be revealed in the ballot title. Fertsl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988). We should follow our established rules.
C.
The third reason stated in the majority opinion for granting the petition is that the ballot title is misleading because it does not inform the voters that it would authorize statewide gambling. Again, I cannot agree because the proposal simply does not authorize gambling statewide. It authorizes gambling at one location, and it separately authorizes training programs for gaming employees, which could be conducted throughout the State. The two provisions are separate and distinct.
1.
Gambling is authorized at only one location. Section one of text of the proposed amendment provides, “Casino gaming is hereby permitted at a single site in the State of Arkansas as specified in Section 12.” A “casino gaming establishment” is defined under section 2(C) as “the facility operating at the site described in Section 12.” Section 12(A) provides, “Casino gaming shall be lawful and casino/resort development shall be considered appropriate land use in Crittenden County at a location described as: [metes and bounds description], all of which is situated in Crittenden County, Arkansas.” Part (C) of section 12 states that “[n]o more than one (1) casino gaming establishment shall be permitted to operate at the location described in Section 12(A).” Section three of the proposed amendment provides that “[g]aming may only be conducted by the licensed owner of a casino or a manager designated by the licensed owner and approved by the Casino Gaming Commission.” Section 13 (D)(1)(d) states that the Casino Gaming Commission shall issue a casino gaming license to an applicant who demonstrates “by clear and convincing evidence that the applicant currently owns land at the single site that has been approved for casino gaming by this Amendment, as set forth in Section 12.” These express provisions authorize only one casino, and its location is fixed.
2.
The majority opinion disregards the clear language of the proposal and focuses on a provision for training programs and concludes that these provisions, taken together, would allow gambling statewide.
The proposal makes it very clear that there would be only one casino, and it is to be located at a particular site in Crittenden County. Section 9 then provides that the Casino Gaming Commission shall require the holder of the license for the casino to work with the Commission to provide training programs for employees. It further provides that those training programs may be conducted at vocational schools, colleges, and universities currently existing in the State. Section 1 l.C. 14 provides that the commission shall:
Adopt rules and regulations necessary to regulate all schools or training institutions that teach or train gaming employees. The gaming activities of schools or training institutions regulated by the Casino Gaming Commission shall be deemed to be legal under the laws of the State of Arkansas. Any person desiring to operate a school or training institution must be licensed by the Casino Gaming Commission.
Without the provision deeming the “training programs” for “gaming activities” of the schools to be legal, the schools would be in violation of the provisions of the criminal code, which make it criminal to set up, keep or exhibit gaming tables and gaming devices. See Ark. Code Ann. §§ 5-66-103 — 104 (Repl. 1993). Without the provision there would be no exemption from the Johnson Act, 15 U.S.C. §§ 1171 & 1172 (1988 & Supp. 1993). The Johnson Act’s main purpose is to aid states in local enforcement of antigambling laws by prohibiting interstate and certain intrastate transportation of gambling devices. Section 1172(a) provides that it shall not be unlawful to transport in interstate commerce any gambling device into any state in which the transported gambling device is specifically enumerated as lawful in that state. If Arkansas law did not contain the above training provision in the proposed amendment, it would be illegal under both federal and state law for a school in Jonesboro, Little Rock, or some other city outside Crittenden County, to train mechanics on the repair of a gambling device.
In summary, section one of the text provides that casino gaming would be permitted at only one site and that is the site specified in Section 12. Section 2(c) defines a casino as the facility operating at the described site. Section 2(d) defines gaming as a game of chance located exclusively within a casino. Since gaming is defined as a game located exclusively within a casino and since a casino is defined as the facility at the single site, casino gambling would be permitted only at the single site and nowhere else. The “teaching programs” of “gambling activities” at the school sites simply does not authorize gambling statewide as the majority opinion holds. “Gambling” occurs when one plays a game of chance for money or other stakes. See Portman v. State, 204 Ark. 349, 162 S.W.2d 67 (1942). The teaching of “gambling activities” does not authorize the winning or losing of money or other stakes at the training schools.
D.
In its most far-reaching holding the majority opinion takes from the people of Arkansas a constitutional right by requiring a proposed measure to be short so that the ballot title can be simple. The holding has some appeal for all of us, but it is clearly in violation of the provisions of Amendment 7 to the Arkansas Constitution. The first paragraph of Amendment 7 provides:
The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option, to approve or reject at the polls any entire act or any item of an appropriation bill. [Emphasis added.]
A subsequent paragraph provides:
No limitation shall be placed upon the number of constitutional amendments, laws, or other measures which may be proposed and submitted to the people by either initiative or referendum petition as provided in this section.
Under the plain language of the amendment the people have reserved unto themselves the power to propose any legislative or constitutional measure, regardless how wise or ill-advised, and regardless how long or short. The duty of this court under the amendment is not to judge the merits of the proposal, but rather to see that the ballot title is intelligible, honest, and impartial. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988).
The constitutional right of the people to initiate any measure they chose should not be abridged. The first reason is obvious and needs no discussion: the constitution should be followed. However, there are other reasons for dissenting from the holding. Amendment 7 refers to initiated acts, as well as constitutional proposals. Many acts are long and, at times, cover even hundreds of pages. The holding apparently means that the people have lost the right to initiate a long complex act, such as a probate code or a criminal code. The people have lost the right to bypass the general assembly. The people have lost the right to put items in the constitution that, in the mind of the court, do not belong there. Such a holding is the antithesis of the intent of Amendment 7.
II.
THE HOLDING OF THE CONCURRING OPINION
The concurring opinion joins in the result of the majority opinion. The basis of the concurring opinion is that the text of the proposed amendment is so long and so detailed that it is like legislation. While I can clearly understand the proposition and have some sympathy for it, I cannot agree with it.
The opinion should not be followed for a number of reasons. First, the petitioners have not made such an argument. The issue has not been briefed by either of the parties. Neither party discussed the length of the text. Our judicial system is based on the adversarial process, and judges are dependent in a great part on attorneys developing each side of an issue. Because of this American tradition, courts do not usually strike off on their own and decide cases on grounds not argued. Without question, an important issue such as this should not be decided without arguments on both sides.
Second, the reasoning of the concurring opinion, as well as the majority opinion, will bring about a paradoxical result. Ballot titles are required for measures initiated by the public, but they are not required for measures submitted to the public by the general assembly. Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982). Under the reasoning employed in both the concurring majority opinions, the public cannot propose lengthy and complex matters for adoption, while the general assembly can so do. Such a result is directly in conflict with the purposes of Amendment 7, which reserves to the people the power to enact any proposal that the general assembly might enact.
Arguments can be made that Amendment 7 was rashly adopted by the people. The fact that the Constitution of the United States contains no such provision supports the argument that such a process could allow the majority to become a tyranny over the minority. But those arguments are immaterial to the issue before us. The people have in fact adopted Amendment 7, and it gives the people an unlimited right to the initiative process. That right should be taken away only by a vote of the people.
III.
CONCLUSION
The three holdings of the majority opinion that the proposed amendment contains misleading statements and omits material issues are important to the people involved, but at least those holdings affect only this case. To the contrary, the holding that the text of an initiated proposal must be comparatively short affects all future initiated proposals, whether they be initiated acts or initiated constitutional amendments, and it clearly takes away a right assured to the people under the Initiative and Referendum Amendment to the constitution. There is nothing in Amendment 7 that can be fairly construed as placing any limit upon the length, complexity, or subject matter of an initiated proposal. The issue has not been briefed. It has not been argued. This case has been expedited for immediate decision. The result is that an expedited edict of this court takes away a constitutional right.
Enfield, Special Justice, joins in this dissent.