dissenting. In my view, the majority court’s decision to declare Act 280 of 1989 unconstitutional is a serious error. A major purpose of that Act is to facilitate the peoples’ right to initiate measures, under Amendment 7 to the Arkansas Constitution, when they believe their governing bodies or officials have either failed to act on some issue, or having acted, the people disagree with their public officials’ actions. Act 280 is designed to ensure that the citizens, who initiate such measures, do so correctly and forthrightly before they circulate their initiative petitions to the voters for their signatures. It also provides confidence to the registered voters that the petitions they sign will actually place the measure on the next General Election ballot if the sponsors of that proposed measure successfully obtain the necessary number of signatures.
Under the Act, after the Attorney General approves a measure’s ballot title and popular name and the Secretary of State publishes the proposed initiative measure, opponents of the measure have forty-five days to contest the ballot title’s validity. The Act provides a reasonable time table for all questions concerning a ballot title or popular name to be resolved. Accordingly, those issues can be decided both well in advance of the General Election at which the people will vote on the initiative measure, and, as already mentioned, before the voters are asked to sign the petitions necessary to place the issue on the ballot.
Until Act 280 was enacted, the people and their organizations, supporting a proposed measure, were always placed in the position of expending their time, money and energies to circulate initiative petitions, even though they chanced having their entire efforts set aside at the last moment before the election. In other words, prior to Act 280, the Attorney General would approve a sponsor’s measure’s ballot title and popular name, and the opponents of the proposed measure would lie in wait to bring litigation immediately before the election, asking this court to knock the proposal off the ballot because they believed the Attorney General’s approval of the ballot title was wrong. This system fostered and encouraged last minute attacks on proposed initiative measures. In turn, it thwarted the peoples’ power to initiate laws and to vote on those laws, thus preventing them an independent voice in their government. Act 280 eradicated these obstacles to the placement of citizens’ proposals on the ballot. It also served, timewise, to remove this court’s important decision making process, involving ballot title issues, from the emotional and political atmosphere of a General Election.
Contrary to the majority’s position, Act 280 in no way negates or curtails this court’s power under Amendment 7 to decide ballot title or popular name issues. Instead, it merely provides a reasonable time in which those issues should be presented. Amendment 7, in fact, provides that laws may be enacted to facilitate its operation.
Our court, in Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956), specifically considered a law, Act 195 of 1943, (now codified as Ark. Code Ann. § 7-9-107 (Supp. 1989)), which we clearly stated did not restrict Amendment 7, although that law provided for this court to hear grievances of sponsors of an initiative petition concerning the actions taken by the Attorney General after he reviewed the proposed measure’s ballot title and popular name. Significantly, Act 195, like Act 280, provided for this court to decide such ballot title grievances before any petition is circulated for signatures. The court in Washburn said as follows:
Act No. 195 of 1943, Ark. Stats. § 2-208, is no unwarranted restriction on Amendment No. 7. Obviously, the Legislature considered that in signing a referendum or initiative petition the signer should have the benefit of a popular name and ballot title that would give as much information about the proposed act as is possible to give by such means. It is apparent that the Legislature considered that the safer method would be to first submit the proposed popular name and ballot title to the Attorney General of the State for his approval and, if he did not approve that which was submitted, he should substitute and certify more suitable ones. This statute in no way curtails the operation of Amendment No. 7 but is in aid of the amendment and insures the giving to the signer of the petition as much information as is possible and practicable with regard to what he is being asked to sign. (Emphasis added.)
In the present case, Act 280 provided a safe method by which the sponsors and opponents of the proposed lottery and bingo amendment could resolve any differences they had over the proposal’s ballot title or popular name. Once that was done, the voters signing the sponsors’ petitions would have been given as much information as possible and practicable with regard to what he or she was being asked to sign. See Washburn, 225 Ark. at 871-872, 286 S.W.2d at 497. These procedures under the Act not only facilitated the peoples’ right to initiate and to understand the proposed measures to be voted on at the next General Election, but at the same time, it allowed this court adequate time to deliberate and decide any ballot title or popular name issues.
The majority seems to rely almost entirely upon a sentence set out in the opinion in Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986), which stated that this court’s jurisdiction in Amendment 7 cases attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures. From that language, the majority reasons that Act 280 cannot provide for this court to resolve ballot title issues before the petitions are circulated for signatures. Such a conclusion is wrong.
First, when Scott was decided, Act 280 was not law, therefore, at the time Scott was decided, the court was correct — this court, by law, considered both ballot title and signature issues only after the petitions were circulated. Since the Scott decision, Act 280 was enacted to provide a procedure whereby ballot title questions could be decided before the circulation of petitions. Second, the majority’s conclusion as to what Scott says begs the question. While the majority opinion speaks in terms of Act 280 unlawfully expanding the court’s jurisdiction, the pertinent constitutional issue, in my view, is whether Act 280 curtails this court’s power, granted under Amendment 7, to decide either ballot title or signature questions? As I have discussed earlier, the Act actually enhances rather than restricts everyone’s rights, duties and privileges granted under Amendment 7 — the sponsors, opponents, courts and voters. In any event, whether you view Act 280 as being too expansive or too restrictive, the majority fails to explain how Act 280 affects this court’s powers under Amendment 7.
In conclusion, I agree the ballot title of the ill-fated lottery and bingo amendment is misleading. However, assuming Act 280’s validity, the ballot title issue should not have been reached by the majority because the proposed measure’s opponents failed to challenge the ballot title in timely fashion. While the majority’s decision to remove this controversial lottery and bingo measure from the ballot will eventually dissolve into a dim memory, the decision in striking down Act 280 as unconstitutional does nothing for good government in the future. In fact, it ensures this court, in years to come, will continue to decide these important constitutional cases in a political atmosphere without having the deliberative time to do them justice.
In my opinion, Act 280 is constitutional and is thoroughly designed to promote and facilitate the interests of the peoples’ right to initiate laws under Amendment 7. While Act 280’s constitutionality is raised in the context of a controversial lottery and bingo proposal* and the opponents of that proposal failed to challenge it in a timely manner under the Act, I have every confidence in the voters of this State to decide the fate of this proposed amendment on its merits. Therefore, I would declare Act 280 constitutional, permit the people to vote on the amendment and deny the request for injunction in this cause.
Hays, J., joins this dissent.