author:
David Newbern, Justice. Dale Price, Justice,
      Robert H. Dudley, Justice, Steele Hays, Justice,
      Tom Glaze, Justice,

text:
    John FINN, Don Elliott and Citizens Against Legalized Lottery, Petitioners; and Marcus Halbrook, Intervenor v. W.J. “Bill” McCUEN, Secretary of State, Respondent; and Robert G. Walker, Winfred W. Batch, Clarence J. Rice, and Arkansans for Legalized Lottery, Intervenors
    90-232
    798 S.W.2d 34
    Supreme Court of Arkansas
    Opinion delivered October 26, 1990

      Larry L. Page and William H. Sutton, by: Robert S. Shafer, for petitioners.

      Wm. R. Wilson, Jr., for intervenor Marcus Halbrook.

      Steve Clark, Att’y Gen., by: Jeffery A. Bell, Deputy Att’y Gen., for respondent.

      Smith, Stroud, McClerkin, Dunn & Nutter, by: John F. Stroud, Jr., for intervenor/respondent.

      Youngdahl, Trotter, McGowan & Farris, by: Scott C. Trotter, for amicus curiae Campaign Ethics Committee.
   David Newbern, Justice.

The respondent, W.J. “Bill” McCuen, Secretary of State, certified a proposed constitutional amendment to be placed on the ballot in the coming general election. The petitioners, John Finn and Don Elliott, on behalf of themselves and others similarly situated, and an organization known as Citizens Against Legalized Lottery ask that we review Mr. McCuen’s action in accordance with Ark. Const, amend. 7. They contend that the ballot title is insufficient and misleading and that certain signatures which were counted among those needed to place the initiated amendment on the ballot should not have been counted and thus the petition to have the proposed amendment placed on the ballot should not have been approved by Mr. McCuen. Mr. Marcus Halbrook has intervened on the side of these petitioners. These parties will be referred to collectively as “CALL.”

The petition for review is opposed by Mr. McCuen and by Robert G. Walker, Winfred W. Batch, Clarence J. Rice, and an organization known as Arkansans for Legalized Lottery who have joined in Mr. McCuen’s position by way of intervention. We also have received a brief joining the respondent’s position from the Campaign Ethics Committee as amicus curiae.

Mr. McCuen has moved for the dismissal of the original action on the ground that it is untimely because it was not brought within a time prescribed by Ark. Code Ann. § 7-9-107(e)(B)(i) and (ii) (Supp. 1989). The motion is overruled because we find that the statute poses an unconstitutional bar to our hearing this case. On the merits of the challenge to the proposed amendment, we agree with CALL’S contention that the ballot title is insufficient. The petition for review is thus granted, and we enjoin the secretary of state from placing the proposal on the ballot for the coming general election.

Walker, Batch, Rice, and a person named Simmons, who is now deceased, petitioned to have placed on the ballot an amendment to the Arkansas Constitution to authorize a state lottery and legalize bingo. They chose to follow the provisions of § 7-9-107 (e) which gives the sponsor of a statewide initiative the choice of seeking an early approval by the attorney general of the popular name and ballot title of the proposed amendment. Subsection (e)(1)(A) requires the secretary of state to certify the popular name and ballot titles certified to him by the attorney general and to publish them in a newspaper with statewide circulation along with the entire proposed amendment. That same subsection requires the publication to include a notice informing the public of the certification “and the procedure herein identified to govern any party who may contest such certification before the Supreme Court.”

Subsection (e)(1)(B) of the statute provides in part: “(i) Any legal action against such certification shall be filed with the Supreme Court within forty-five (45) days of the Secretary of State’s publication; (ii) No such action filed later than forty-five (45) days following publication shall be heard by the Supreme Court.”

The attorney general approved the popular name and ballot title on the proposed amendment after amending them, as is permissible in accordance with subsection (b) of the statute. The secretary of state, Mr. McCuen, published the proposal. CALL did not bring its challenge, however, until more than forty-five days had passed. It chose instead to wait until the secretary of state had certified the petition with respect to popular name, ballot title, and the number of signatures necessary to have it placed on the ballot.

1. The motion to dismiss

a. Declaratory or direct relief

If the statute requiring that a challenge to the certification of the popular name and ballot title be made within 45 days of publication governs, we must grant the motion to dismiss. CALL contends the statute is unconstitutional and thus should not govern. Mr. McCuen contends we have no authority to consider the constitutionality of the statute because we are limited by Amendment 7 to the issue of the sufficiency of the petition to have the proposed amendment on the ballot. It is argued that we are being asked to give a declaratory judgment on the question of the constitutionality of the statute and that we have no jurisdiction to do so.

We reject the argument that CALL is seeking declaratory judgment on the constitutionality of the statute. This is an original action to determine the sufficiency of a petition to have a matter placed on the ballot. The statute has been asserted as a bar to the action, and CALL has responded that the statute is not a bar as it is unconstitutional. The issue of the validity of the statute is thus before us in this original action which does not seek declaratory relief but rather seeks a direct remedy. See Boyett v. Boyett, 269 Ark. 36, 598 S.W.2d 86 (1980), in which we noted that declaratory relief may not be sought where the issue is pending in other litigation, and UHS of Arkansas, Inc. v. Charter Hospital of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988), where we contrasted seeking declaratory relief with “ordinary” litigation. See also Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988), in which, by mentioning that no constitutional challenge had been made to a statute facilitating the operation of Amendment 7 we implied that such a question could have been raised.

By providing that an action challenging an early determination of the sufficiency of the popular name and ballot title of a proposed amendment “shall be filed” here within 45 days of publication and that such a challenge may not be filed unless it is done within that 45 day period, the statute has the effect of permitting and, as in this case requiring, that the challenge occur prior to a determination that there are sufficient signatures to have the initiated amendment placed on the ballot. The validity of the statute is directly in issue.

b. Amendment 7

Our jurisdiction to entertain this original action is granted by Ark. Const, amend. 7 which provides in pertinent part: “Sufficiency—The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.” The issue we must decide here is whether the words granting us the power to review the secretary of state’s decision of the “sufficiency of all . . . petitions” as used in the amendment means we may review a decision of the secretary of state that one aspect of a petition is sufficient without having all aspects of the petition in question before us. That is, may we review the popular name and ballot title certifications with respect to a petition which has not been certified as having a sufficient number of signatures to be placed on the ballot? We have clearly held that our authority under Amendment 7 is to review only petitions certified by the secretary of state as sufficient in all respects.

c. The cases

In Rambo v. Hall, 195 Ark. 502, 112 S.W.2d 952 (1938), a petitioner sought to restrain the secretary of state from certifying a petition because the ballot title of a proposed bill to be submitted to a vote of the people was insufficient. We treated the petition as one challenging the sufficiency of the proceedings under Amendment 7. We held that “[u]ntil the Secretary of State shall have acted upon the sufficiency of the petition” the challenge was premature.

In Bailey v. Hall, 198 Ark. 815, 131 S.W.2d 635 (1939), we reviewed the ballot title of a measure to be referred to the people. In the course of that decision, we noted that the signatures on the petition were not being challenged, and it was clear that the petition had been certified by the secretary of state in all respects.

Both the Rambo case and the Bailey case can be distinguished from the situation now before us. In the Rambo case, the secretary of state had taken no action whatever, and here he had certified the ballot title when Mr. McCuen contends the challenge should have been undertaken. In the Bailey case, we did not have before us the question whether we would have had jurisdiction if only one aspect of the petition had been certified.

In Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986), however, we were asked to consider an early certification of ballot title which was made prior to the certification of the signatures. We noted that the arguments there had to do with economy of the process of putting an initiated measure on the ballot. It was contended that, by allowing review of an early ballot title certification we could prevent the expense to the state of counting signatures to say nothing of the time and effort which would be expended by the parties in obtaining the signatures sufficient for certification. We held that the secretary of state had no authority to make any such partial certification and that we had no authority to review other than that granted in Amendment 7. We wrote: “Our jurisdiction attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures [emphasis in original].”

The only citation given for the quoted language was the Bailey case, and that was with a “See” prefix. The remainder of the opinion, however, was devoted to an explanation of the logic behind the decision:

The argument for an early decision, primarily to savé the sponsors’ time and money has another side. Should we devote the time, effort and financial resources of this court and the parties to decide an issue that may never be presented to the voters? What if the Secretary of State refuses to cooperate with a sponsor? Would we alter Amendment 7 and order him to do something clearly not required? Would a premature decision by us be binding for four, six or eight years? . . . Our existing procedure does have a distinct advantage: it keeps us all honest. Sponsors know it is to their advantage to present an honest title so it will not be stricken at the last minute and we know that we are not rendering merely an advisory opinion which may become moot. We know our decision counts and we will be accountable for it. Any other course would discourage both honesty and responsibility; sponsors would be inclined to offer a misleading ballot title that might pass unnoticed and we would be deciding the case in the abstract [289 Ark. at 45, 709 S.W.2d at 79.]

While our judgment may have been short on citation of precedent, it clearly was not solely based on the Bailey citation but was a considered, reasoned decision of the six justices participating. It was a principled interpretation of Amendment 7 which we are unwilling to overturn.

The only meaningful distinction between the case before us now and the Scott case is, of course, the statute authorizing the secretary of state to make the early certification of the ballot title and providing for our review of it prior to the certification of the signatures. Given our very explicit statement of the limits on our jurisdiction under Amendment 7 in the Scott case, we must hold that any statute which purports to confer on us the power to review an initiative petition which has not been certified as to the popular name, ballot title, and signatures constitutes an unlawful and unconstitutional expansion of our jurisdiction.

The main case cited by Mr. McCuen and the intervenors supporting his position is Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956). That case involved Act 195 of 1943 which was the precursor of Act 280 of 1989. Act 195 apparently was the general assembly’s first attempt at economizing in the initiative and referendum area. It required that the sponsors obtain an attorney general opinion as to the sufficiency of ballot title prior to circulating an initiative referendum petition for signatures. Act 280, which apparently was passed in response to our decision in the Scott case, was an addition containing the statutory subsections in question in this case, that is, the ones purporting to permit the early certification by the secretary of state and review by this court of ballot title and popular name. Act 195 provided for determination by the attorney general of the sufficiency of the ballot title and provided for relief in this court if the attorney general refused to act. We approved Act 195, holding that it was not an unwarranted restriction on Amendment 7.

The issue in the Washburn case was whether the refusal of the secretary of state to certify a referendum was proper in view of the fact that it had no popular name or ballot title. We were not concerned with the provision in Act 195 for relief in this court in the event the attorney general refused to act. We only held that the secretary of state’s refusal to certify the petition was proper and that the provisions of Act 195 for involving the attorney general in the secretary of state’s decision as to the sufficiency of the petition was not a violation of Amendment 7. The case presents no help in the resolution of the case before us now. It certainly does not run contrary to our strong language and holding in the Scott case.

We hold that § 7-9-107(e)(B)(i) and (ii) are unconstitutional because they purport to permit this court to review a decision of the secretary of state with respect to the ballot title portion of a petition, and the only authority given this court by Amendment 7 is the authority to review the secretary of state’s certification of a “petition” which includes both the ballot title and the signatures. In this case, the certification of the secretary of state may be reviewed because it is complete.

2. The ballot title

Having concluded that we are not barred from reviewing the merits of the secretary of state’s decision with respect to the ballot title, we proceed to do so, and we find the ballot title which has been approved by both the attorney general and the secretary of state is insufficient.

We are liberal in construing Amendment 7 and determining sufficiency of a ballot title. Dust v. Reviere, 277 Ark. 1, 638 S.W.2d 663 (1982). However, if information not given by a ballot title would “give the elector ‘serious ground for reflection’ it must be disclosed.” Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).

We have no quarrel with the popular name of the proposed amendment which is “STATE LOTTERY, BINGO AND STATE LOTTERY COMMISSION AMENDMENT.” The ballot title is as follows:

An Amendment to Article 19, Section 14 of the Arkansas Constitution of 1874; to authorize a state lottery and legalize bingo; to form the State Lottery Commission which shall develop, implement and operate the lottery; to provide net revenues to benefit public education (including higher education); to develop a mechanism to grant or reject requests to operate bingo in the State of Arkansas.

In Dust v. Reviere, supra, we enjoined the secretary of state from placing on the ballot a proposed constitutional amendment which would have created a “new government entity, the Ratepayers Utility Board.” We found the ballot title misleading in two respects. First, it provided the purpose of the act was to “represent and advocate the interests of residential and small business utility customers.” The proposed act provided for appointments of persons by various state officials from various fields of endeavor. For example, the lieutenant governor was to appoint one from “at least three nonprofit consumer organizations having statewide membership.” We decided the ballot title was insufficient because it did not inform the voter of “the interests of the seven people who will direct that Board and this is an important fact since their interests may not necessarily coincide with those of the majority of the residential and small business customer.”

Here, the ballot title does not reveal the fact that the proposed amendment actually names the persons to occupy the initial board positions. The proposed amendment provides that Walker, Batch, Rice, and the now-deceased Simmons are to be four of the five members of the board. To say the least, it is remarkable, if not unique, in our experience to find initial board members, either the quick or the dead, named in a proposal for a constitutional amendment creating a powerful arm of state government. We cannot resist analogizing to elections to public office. The electors are being asked to elect at least three people to important positions without being informed of that fact in the ballot title. Not only are the voters not to be informed in the ballot title of the names or interests of these prospective board members, they are not even being told that named persons will become the board.

The second reason given in the Dust case for holding the ballot title there insufficient was that the new proposed Ratepayers Utility Board was to be a new government entity subject to no check or control by any existing branch of government, and the voters were not being informed of that fact. We held that such a title tended to be misleading and not free from partisan coloring.

The proposed amendment in this case makes no mention whatever of any legislative, judicial, or executive department. The board to be created is to run the lottery operation without any known check from any other branch of government. In the Dust case, we wrote: “the voter has a right to know when a new entity or department of government is created that will not be subject to existing constitutional controls granted to [the legislature].”

In Hobson v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958), we were presented with a similar, although more troublesome, proposed amendment and ballot title. The ballot title referred to “states’ rights” which, we wrote, was an appealing phrase, much like helping education in this case and helping the “aged and blind” in Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936). The ballot title, however, did not address the portions of the proposed amendment which would have made a “State’s Rights Commission” totally independent of the other branches of government. We wrote:

The Commission, created by Article I of the measure, consists of twelve members. Sections 5 and 6 of this article destroy the system of checks and balances that has characterized our government since its birth. Section 5 provides that no court shall be empowered to enjoin the Commission from performing the duties set out in the amendment. Those duties, however, are not clearly defined. By § 7 the Commission is invested with the duty and the power to “perform any and all things deemed necessary and proper” to protect the sovereignty of the several states and to resist the usurpation of the rights reserved to the states. Within the vague limits of this clause it is difficult to conceive of any power — legislative, executive, or judicial — that the Commission might not lay claim to. The ballot title, it may be observed, does not even mention the powers of the commission, much less does it give a hint of their unlimited scope [229 Ark. at 418-419, 316 S.W.2d at 187].

While the proposed lottery amendment does not contain provisions, like the ill fated states’ right proposal, setting the commission free of all checks and balances, it contains nothing on the subject. It provides for the administration of the lottery and bingo by the proposed commission, period. The proponents have submitted an affidavit to the effect that they will seek an implementing legislative package, but that is not in the proposed amendment and, as far as we know, would not bind the proponents if the voters passed the proposed amendment. Again, if there were disclosure of these facts in the ballot title, voters would be given ample cause to pause and reflect before approving or disapproving the proposal.

Clearly, if the voters were made aware not only that, by voting for the proposed amendment they were creating an ostensibly autonomous board to handle what could become huge amounts of state money and naming persons to that board, they would have cause to pause and reflect. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988). The ballot title is insufficient.

In view of our decision on the merits of the ballot title, we need not consider the question raised about the validity of signatures counted after Mr. Simmons’s death.

The secretary of state is enjoined from placing the proposed State Lottery, Bingo and State Lottery Commission Amendment on the election ballot for the November 6,1990, general election. The mandate implementing the opinion shall issue immediately. Any votes cast in the general election of 1990 on the proposed amendment which is the subject of this opinion will not be counted.

.Price, J., concurs.

Dudley, Hays, and Glaze, JJ., dissent.

Dale Price, Justice,

concurring. I concur with the majority opinion in all respects except for the issue of the validity of signatures counted after Mr. Ray F. Simmons’ death and the further insufficiency of the ballot title. Simmons died on December 25,1989, and no showing has been made as to how many, if any, of the signatures had been obtained after his death.

On July 6,1990, petitions were presented to the secretary of state for determination of sufficient signatures. On that date, it was determined there were insufficient signatures to place the issue.on the ballot, and the secretary of state gave the proponents an additional 30 days to make up the deficiency. Inasmuch as the petitions circulated after July 6,1990, still contained the name of Simmons, all signers would have of necessity been led to believe that Simmons was to be a commissioner.

The subsequently circulated petitions were defective. Since a dead man is incapable of performing duties as a commissioner, this fatally flawed any signatures obtained after July 6,1990. The signers of the petitions were misled.

The signers were further misled when the proponents of the amendment sought to have themselves elected to a constitutional office without having signed a Political Practices Pledge as required by Ark. Code Ann. § 7-6-102(b) (1987). The required pledge reads, “I certify that I have never been convicted of a felony in Arkansas or in any other jurisdiction outside Arkansas.” The ballot title did not inform the signers that the pledge was dispensed with or that a convicted felon might be elected commissioner.

I concur.

Robert H. Dudley, Justice,

dissenting. For many years, proposed statewide initiated measures have been subject to last minute attacks filed in this court. See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984). At such a late hour, there has not been any way to amend the popular name or correct the ballot title. The result has been a waste of human resources in gathering signatures, a waste of money in campaign advertising and promotion, and, most of all, a defeat of the initiative process. See T. Kennedy, Initiated Constitutional Amendments in Arkansas: Strolling Through The Mine Field, 9 UALR L.J. 1, 52-53 (1986-87).

In order to make the initiative process more workable the General Assembly passed Act 280 in 1989 which is codified at Ark. Code Ann. § 7-9-107(e). The statute may be summarized as follows: The sponsor of a proposed statewide initiative may elect to submit the popular name and ballot title to the Attorney General before September. 30 of the year before the election; the Attorney General must then accept or reject the proposed popular name and ballot title; if he approves the name and title he must deliver his certification to the Secretary of State who, in turn, certifies and approves the name and title, and publishes them in a newspaper with statewide circulation. Any legal action against the certification of the popular name and ballot title must be filed within 45 days of the publication. “No such action filed later than forty-five (45) days following publication shall be heard by the Supreme Court.” Ark. Code Ann. § 7-9-107(e)(B)(ii) (Supp. 1989). If the sponsor filed the petition before September 30, and is successful in court or if no contest is filed, the sponsor may then proceed to collect signatures on the petitions.

In this case it is undisputed that the sponsors of the “Lottery Amendment” fully performed all of the statutory steps for obtaining early review of the popular name and ballot title under Ark. Code Ann. § 7-9-107(e). The proposed amendment was published on June 26 and 27,1989. No objections were filed until September 10,1990, which was much longer than forty-five (45) days following publication. The respondents subsequently obtained the required number of signatures. Thus, in spite of the statute, the petitioners waited until the eleventh hour to file this suit to bar the placing of the proposed “Lottery Amendment” on the ballot. The majority opinion holds that the statute is impermissibly in conflict with Amendment 7 to the Arkansas Constitution and, accordingly, is invalid. It is my view that the statute does not conflict with the amendment.

Amendment 7 to the Constitution of Arkansas reserves to the people the power to initiate legislation and constitutional amendments. Ten percent of the voters “may propose a Constitutional Amendment by initiative petition. . . .’’The sufficiency of all statewide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such cases. This Amendmemt “shall be self-executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation.” “No legislation shall be enacted, however, to restrict, hamper, or impair the exercise of the rights herein reserved to the people.”

In their brief, the petitioners contend that the 1989 statute, Ark. Code Ann. §7-9-107 (e), is unconstitutional because it limits jurisdiction in the Supreme Court to forty-five (45) days while Amendment 7 contains no such limitation. The majority opinion ignores that argument and, therefore, impliedly rejects it. The signers of the majority opinion are correct in that regard. We have frequently upheld statutes of limitation against allegations of constitutional infirmity. See, e.g., Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984). In Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931) we indicated, without so holding, that a statute of limitation on Amendment 7 actions might be valid. More recently we have upheld a limitation statute which is specifically applicable to Amendment 7. Committee for Utility Trimming, Inc. v. Hamilton, 290 Ark. 283, 718 S.W.2d 933(1986). The reason we uphold such statutes is that they do not deprive this court of jurisdiction; they merely place a reasonable limitation upon the time in which jurisdiction is to be exercised. Thus, the reason the majority opinion is not based on the limitation period is clear.

Instead, it is based on the premise that Ark. Code Ann. § 7-9-107(e) violates Amendment 7 by expanding this Court’s jurisdiction to allow review of the popular name and ballot title on a petition prior to obtaining signatures. I do not share that view. The pertinent part of Amendment 7 provides: “The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court. . . .” The language of the amendment simply does not prohibit a review by this court of the popular name and ballot title before the petitions are signed. The procedure under the 1989 statute does not expand this Court’s jurisdiction. It does not require this court to review any more, or any less, than has been reviewed previously. It only provides the option for a bifurcated review. Accordingly, the statute is not in violation of Amendment 7. Such a conclusion seems unconditionally mandated when two other factors are considered. The first of these factors is that the amendment provides that “laws may be enacted to facilitate its operation.” The 1989 statute undoubtedly facilitates the operation of Amendment 7. The second factor is that an act of the legislature is presumptively constitutional, and all doubt as to its validity must be resolved in favor of the act unless it is clearly incompatible with our constitution. Curry v. State, 279 Ark. 153, 649 S.W.2d 833 (1983).

The majority opinion does not explain how the statute fails to facilitate the operation of Amendment 7, or how it restricts, hampers, or impairs the exercise of the initiative, power, or how it is incompatible with the amendment. Instead, the majority opinion claims to be bound by the holdings in three of our cases, Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986); Bailey v. Hall, 198 Ark. 815, 131 S.W.2d 635 (1939); and Rambo v. Hall, 195 Ark. 502, 112 S.W.2d 951 (1938). Yet, the majority opinion admits:

Both the Rambo case and the Bailey case can be distinguished from the situation now before us. In the Rambo case, the secretary of state had taken no action whatever, and here he had certified the ballot title when Mr. McCuen contends the challenge should have been undertaken. In the Bailey case, we did not have before us the question whether we would have had jurisdiction if only one aspect of the petition had been certified.

That admission leaves the majority opinion with only one thread of authority, a sentence from the Scott case. That sentence is: “Our jurisdiction attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures.” See Bailey v. Hall, 198 Ark. 815, 131 S.W.2d 635 (1939).” The “see” prefix is fair warning that the Bailey case does not precisely stand for the position asserted in the sentence, and, in fact, it does not. The sentence is much broader than the holding in the Bailey case.

Accordingly, the majority’s one thread of authority is clearly weak, at best. It breaks completely when one compares the sentence from Scott with the language of Amendment 7. Further, at the time Scott was decided there was no enabling act, passed pursuant to Amendment 7, which supplied the authority for early review of the ballot title. That authority was supplied by the 1989 act, after Scott was decided. In sum, the one sentence in the Scott case should not now be used to hold that the statute is repugnant to the amendment when, in fact, it is not.

The majority opinion also quotes from Scott at length concerning the reasons an early review of the popular name and ballot title is not wise. Those are political reasons why the 1989 act may be unwise, but they are not legal reasons why the statute is unconstitutional. The wisdom of legislation should be left to the General Assembly.

A case more in point is Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956). The background of the case is as follows: Amendment 7 provides that “[t]he sufficiency of all statewide petitions shall be decided in the first instance by the Secretary of State. . . .” The legislature passed an act, codified at Ark. Code Ann. § 7-9-107 (a) — (d), which requires that the popular name and ballot title must first be submitted to the Attorney General. The review of the name and title by the Attorney General is not mentioned in Amendment 7. Still, we approved the act because:

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 hut is in aid of the amendment and insures the giving to the signer of the petition as much information as is possible and practical with regard to what he is being asked to sign.

(Emphasis added.)

Similarly, in 1989, the Legislature thought that the sponsors of an initiative or referendum should have the benefit of an early decision on the validity of the popular name and ballot title. The statute enacted “in no way curtails the operation of Amendment 7, but is in aid of the amendment. . . .’’As a result of the statute, sponsors would no longer be required to speculate on whether the name and title are sufficient before they obtain the required number of signatures. The statute would neither restrict, nor hamper, nor impair the right of the people to exercise the power of initiative; rather, it would facilitate the exercise of that power in accordance with the very terms of Amendment 7. Accordingly, I dissent.

Hays, J., joins in this dissent.

Steele Hays, Justice,

dissenting. I hold no brief for the proposed lottery amendment, but I believe its approval or rejection must rest with the public rather than with this court. I earnestly disagree that the provisions of Act 280 of 1989 are unconstitutional. Amendment 7, quite sensibly, makes express provision that laws may be enacted to facilitate the operation of the initiative and referendum process and that, I believe, is answer enough. We have said it is for the legislature, rather than the courts, to decide how Amendment 7 is to be implemented. Czech v. Munson, 280 Ark. 219, 656 S.W.2d 696 (1983).

Today’s holding, at the very least, denies to the general public the power to initiate law, provident or otherwise, so plainly reserved under Amendment 7. It is clear this court has departed from the rule of liberal construction in favor of a strict and ad hoc interpretation of Amendment 7 issues. That does not bode well for initiated reform in Arkansas.

I share the views of Justices Dudley and Glaze expressed in their dissenting opinions, in which I join.

Tom Glaze, Justice,

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.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    George MARKHAM v. STATE of Arkansas
    90-95
    798 S.W.2d 58
    Supreme Court of Arkansas
    Opinion delivered October 29, 1990

      George Markham, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, George Markham, is an employee of the University of Arkansas Medical Sciences (UAMS) and received two parking tickets for overtime meter parking on the campus. The tickets were issued on January 27, 1989, and February 25, 1989, by UAMS campus police.

Markham initially appealed to the Traffic Appeal Committee at UAMS, which appeal was denied as untimely. He then appealed to the Municipal Court of Little Rock, Traffic Division, and was found guilty of the two parking violations. Markham subsequently appealed to the Circuit Court of Pulaski County, which appeal was dismissed and remanded to the municipal court for imposition of sentence. It is from this decision that Markham now appeals pro se and alleges six points of error: 1) that the trial court erred in refusing to dismiss the charges based on the process issued to him by officers of the UAMS Department of Public Safety (DPS), 2) that UAMS lacked authority to charge him under Ark. Code Ann. § 25-17-307(6)(e)(l) (1987), 3) that he is not estopped from objecting to the charges contained in the citations on the basis of improper venue or lack of jurisdiction, 4) that the system of de novo review violates the double jeopardy clause, 5) that it was error to uphold administrative determinations of UAMS where the procedures consisted of an ex parte consideration of a written form, and 6) that it was error to deny his request for a writ of prohibition on the basis that UAMS did not have jurisdiction.

In McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989), we reiterated that the burden of obtaining a ruling is on the movant and objections and questions left unresolved are waived and may not be relied upon on appeal.

In this case, the transcript contains a document entitled “Register of Actions” from the Office of the Circuit Clerk of Pulaski County that shows two pertinent notations: “10/27/89 Defendant in person and represents himself. Stipulation on facts of case - judgment. . . . 12/8/89 Defendant in person, represents himself; stipulation read - appeal dismissed and remanded for execution of judgment of lower court.” Thus, on two separate occasions, Markham appeared in court with the opportunity to specifically ask the trial court for a ruling on his arguments presented for appeal and failed to do so.

Furthermore, in his notice of appeal and designation of the record, Markham also stated that “[t]he record in this case will consist only of documents filed of record in the above styled case by State and Defendant, as all facts were stipulated, and judgment was rendered on the basis of the pleadings alone. Appellant will therefore have no reason to order a transcript of the proceedings.”

However, and as a direct result of Markham’s failure to provide a complete transcript, see Ark. R. App. P. 3(e) and 3(g), we have no way of determining from the record that the trial court did in fact make a ruling on any of Markham’s points of error, nor, assuming any were made, the nature or extent of the rulings.

Additionally, in Trout v. Mathis, 289 Ark. 24, 708 S.W.2d 629 (1986), where none of the orders forming the basis of the appeal were abstracted, and there was no means of evaluating the actions of the courts in the context of the appellant’s contentions, we affirmed because of the flagrantly deficient abstract, pursuant to Ark. Sup. Ct. R. 9(e)(2), and noted that the abstracting requirement is the same for parties who appeal pro se as it is for those who are represented by attorneys.

Consequently, as there is no ruling before this court which serves as the basis for the points argued, there is nothing before us on which to rule.

Affirmed.


author: Steele Hays, Justice.

text:
    James Daniel TOWE v. STATE of Arkansas
    CR 90-136
    798 S.W.2d 56
    Supreme Court of Arkansas
    Opinion delivered October 29, 1990

      Person & Hughes, by: R. Paul Hughes III, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Petitioner petitions for a writ of prohibition, pursuant to A.R.Cr.P. Rule 28.1(d), challenging the trial court’s ruling on a speedy trial motion.

On January 19, 1989, the petitioner, James Towe, was arrested and charged with two separate counts of delivery and possession of methamphetamine, #CR89-61 and #CR89-62. Towe was tried and convicted on the first charge, #CR89-61, on March 21, 1990, and sentenced to forty years in the Arkansas Department of Corrections. The second charge, #CR89-62, was set for trial for May 16, 1990. On the basis of our speedy trial rules requiring trial within twelve months, A.R.Cr.P. Rule 28.1, appellant filed a motion to dismiss the second charge, claiming his trial date of May 16,1990, was untimely. The motion was denied by the trial court and from that denial, appellant brings this petition.

The state agrees that time began running on January 19, 1989, the date of arrest [see A.R.Cr.P. Rule 28.2(a)] and further agrees the applicable speedy trial period under Rule 28.1 is twelve months. Therefore, Towe was entitled to be tried by January 19, 1990, unless there were authorized excludable periods under Rule 28.3 that would extend that date. Excludable periods would have to exceed 117 days, the length of time between January 19,1990, and May 16,1990. As it is undisputed that the speedy trial limit has passed, the burden is on the state to show good cause for an untimely delay in the trial. Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985).

The petitioner has conceded three excludable periods. The first runs from February 24 through April 7,1989, caused by the petitioner’s motion to be examined by a local psychiatrist. The second is from February 12,1990 until March 21,1990, due to a request by petitioner’s new attorney to prepare for trial. Two more days are conceded by petitioner for time spent in a jury trial. These periods total eight-one days, thirty-six days short of the time needed to bring the trial date within the speedy trial limit.

The state claims the thirty-six days is more than cured by the events of November 17, 1989 through February 12, 1990, involving plea negotiations, but we disagree. The state’s explanation is: The petitioner was to be tried on #CR89-61 on November 17,1989, but instead reached an agreement with the prosecutor on that date that he would plead guilty to #CR89-61 and would give a truthful statement to the police regarding an older and unrelated murder case. The petitioner’s lawyer at the time, James Marchewski, testified at the speedy trial hearing and stated that the prosecution’s plan was to hold back on the prosecution of #CR89-62, in case petitioner’s statement to the police was untruthful or incomplete. If the statement was satisfactory, the state would offer petitioner the same plea on #CR89-62 as he had on #CR89-61, but would run the sentences concurrently.

The police and prosecution apparently did not like what the petitioner had to say, as the agreement did not materialize and on November 20,1989, petitioner moved to withdraw his plea in case #CR89-61. By letter to the trial court on November 24,1989, the state did not oppose the petitioner’s motion and requested that both cases be set for trial as soon as possible. On December 18, 1989, the trial court granted petitioner’s request to withdraw his guilty plea. As of that same date, December 18, only case #CR8961, was reset for February 12,1990. The first indication we can locate in record as to the resetting of #CR89-62, the one we are concerned with, was on January 8,1990, when trial was also reset for February 12, 1990.

The state argues that either under Rule 28.3(a), “proceedings concerning the defendant,” or Rule 28.3(h), “other just cause,” the period from the time negotiations started, November 17,1989, until trial could be reset for February 12,1990, should all be counted as an excludable period.

We might agree that some of this time is excludable, but we cannot agree that all of it should be. The longest period attributable to plea negotiations that could be excluded ended, we believe, on December 18,1989, when the trial court formally accepted the petitioner’s withdrawal of the guilty plea. This view still leaves the state short of the thirty-six days necessary to come within the speedy trial limit.

While the state contends the excludable period should run up to the new trial date on February 12, 1990, it offers no basis or authority for this argument. There is nothing in Rule 28.3 on computing excludable periods that extends any of the described periods in the manner the state suggests. In fact, Rule 28.3(b) clearly states the policy of the speedy trial rules, i.e., that periods of delay resulting from congestion of the trial docket are allowed only in exceptional circumstances, and when so stated by the court.

The state has failed in this case to carry its burden to show that the delay in bringing the petitioner to trial was legally justified. Williams v. State, 290 Ark. 286 718 S.W.2d 935 (1986), cert. denied, 481 U.S. 1068 (1987).

The writ is granted.


author: David Newbern, Justice.

text:
    LEE’S TRUCKING, INC., Appellant and Cross-Appellee v. TRANSPORT COMPANY, Inc. and Jarrell Transport, Inc., Appellees and Miller Transporters, Inc., Appellee and Cross-Appellant
    90-93
    798 S.W.2d 59
    Supreme Court of Arkansas
    Opinion delivered October 29, 1990

      Janis A. Richardson, for appellant.

      Harper, Young, Smith & Maurras; Kemp, Duckett, Hopkins & Spradley, and Kay L. Matthews, for appellee and cross-appellant Miller Transporters, Inc.
   David Newbern, Justice.

Lee’s Trucking, Inc., (Lee’s) sought a certificate of public convenience and necessity, amounting to an intrastate route approval, to serve transportation needs of the Georgia Pacific Company (GP) and International Paper Company (IP). The application was heard by the Transportation Regulatory Board which has since been abolished. Its functions have been assigned to the Arkansas Highway and Transportation Department (AHTD) and the Arkansas Highway Commission. Lee’s application was opposed by Jarrell Transport, Inc., (Jarrell) which had been servicing GP. It was opposed also by Transport Company, Inc., (Transport) which is authorized to transport petro-chemicals but which had not serviced either GP or IP, and by Miller Transporters, Inc., (Miller) which was authorized to service GP and IP. The board granted Lee’s requests. The circuit court reversed the decision allowing Lee’s to service GP but affirmed the decision to allow Lee’s to service IP. Lee’s appeals the court’s decision with respect to its request to service GP. Miller appeals from the circuit court’s affirmance of the board’s decision to allow Lee’s to service IP. We affirm the circuit court’s decision allowing Lee’s application with respect to IP, but we reverse the circuit court’s decision with respect to Lee’s servicing of GP.

1. Service for GP

We review these cases de novo, and the standard to be applied is whether, (a) present service is inadequate; or (b) additional service would benefit the general public; or (c) that the existing carrier has been given an opportunity to furnish additional service as may be required. Batesville Truck Line v. Arkansas Freightways, Inc., 286 Ark. 116, 689 S.W.2d 553 (1985); Santee v. Brady, 209 Ark. 224,189 S.W.2d 907 (1945). In the Batesville Truck Line case we noted that if any one of these criteria were met, approval of the certificate of public convenience and necessity was warranted.

We have no trouble concluding, contrary to the trial court, that the evidence supports the conclusion that allowing Lee’s to service GP would serve the public interest. The preponderance of the evidence is that GP seeks to expand its operation. The expansion will include an increase in the shipping of the petrochemicals of the sort handled by Lee’s.

A Mr. Riehle, GP’s national transportation director, submitted a verified statement for the board’s consideration, and he testified at the hearing before the board. While we agree with the trial court’s criticism that Mr. Riehle’s live testimony contradicted his verified statement in some other respects, nothing rebuts his statements about the expansion of business GP is undertaking and the need for additional transporters as a result. We find that testimony to be adequate and to constitute a preponderance of the evidence on the matter of benefit to the public in that it will facilitate the expansion of an industry and bring substantial economic benefits.

2. Service for IP

In the case of IP, the board found that the service offered presently was inadequate. Mr. Laffey, an IP employee testified that IP was having real problems with transportation and had created his job position just to deal with it. He said the IP Pine Bluff plant was often unable to operate at full capacity because it could not obtain needed chemicals due to transport problems.

Miller contradicted Laffey’s testimony, but it was the board’s job to determine the credibility of the witnesses. Batesville Truck Line v. Arkansas Freightways, Inc., supra. See also Fisher v. Branscum Moving and Storage Co., 243 Ark. 516, 420 S.W.2d 882 (1967).

Miller also attacks the trial court’s and the board’s rulings on the ground that the testimony was not “correlated” to the findings. While Ark. Code Ann. § 23-13-306(2) (1987) requires “findings. . .in sufficient detail to enable any court. . . to determine the controverted questions presented by the proceeding,” there is no requirement of a “correlation.” The findings need only detail and discuss the testimony of the witnesses. Jones Truck Lines, Inc. v. Camden-El Dorado Express Co., 282 Ark. 50, 665 S.W.2d 867 (1984).

Miller also contends that some of the testimony before the board was “undocumented” and hearsay. The board was not bound by rules of evidence and procedure which apply in the courts. See Ark. Code Ann. § 23-2-403 (1987); Transport Co. v. Arkansas Transportation Commission, 255 Ark. 919, 504 S.W.2d 366 (1974).

We agree, on the basis of the criteria cited above, with the court and the board that the preponderance of the evidence supported Lee’s application to serve IP.

Affirmed in part and reversed in part.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    STATE of Arkansas v. Daniel SHEPHERD and Michael Torok
    CR 90-67
    798 S.W.2d 45
    Supreme Court of Arkansas
    Opinion delivered October 29, 1990

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellant.

      Mashburn & Taylor, by: W.H. Taylor, and Vowell & Atchley, P.A., by: Steven E, Vowell, for appellee Daniel Shepherd.
   David Newbern, Justice.

This is an appeal by the state of an order in which the court suppressed the use of evidence. The appeal is interlocutory. See Rules of the Arkansas Supreme Court and Court of Appeals 29(l)(k); Ark. R. Crim. P. 36.10(a). The evidence in question was to have been used in the trial of the appellants, Daniel Shepherd and Michael Torok, for manufacture and possession of controlled substances with intent to deliver. We hold the trial court properly concluded that the prosecutor’s subpoena power was improperly used to obtain the evidence, and we agree with the court’s ruling that the evidence should be excluded.

On Nov. 10, 1988, State Police Sergeant Rodney Combs received information that an illegal drug operation was going on at #5 Avo in Eureka Springs. Sergeant Combs discussed the information with the deputy prosecutor, and it was decided they did not have enough information for search or arrest.

Four days later Sergeant Combs received another call about #5 Avo. He went to the prosecutor’s office and while there he called an informant, Mr. Sparks, who lived near #5 Avo. Mr. Sparks told Combs that several people had been at #5 Avo that morning, that he smelled what he believed was marijuana in the area, and that the police had better hurry up and do something as it looked like the drug operation was moving or closing down.

Sergeant Combs discussed the situation with the deputy prosecutor, and it was decided they still did not have probable cause for a search warrant. Combs testified that at that point they had three options. The option of doing nothing and waiting to see what happened was rejected as he felt there was a large scale drug operation going on and something “needed to be done about it quickly.” The option of just walking on the premises was rejected because Combs thought Shepherd, whose rental property it was, might just refuse to talk to him. Combs testified the third option was chosen, and that was to “set up a situation whereby we could observe what was going on at #5 Avo in the hopes of getting enough probable cause to get a search warrant . . . what we wanted to do was to get some actual observations to see if—well, to kick the hornet’s nest, so to speak.”

Sergeant Combs, apparently in conjunction with the deputy prosecutor, decided that a prosecutor’s subpoena was the “way to do it,” and apparently at Combs’s request, one was issued. Combs testified this was chosen as the way to “kick the hornet’s nest” because, “I wanted to have — well, a little more legality as to what I was doing. We do a lot of ruses and that sort of thing, but in this case I wanted to be as legal as I could possibly be.” It was, however, also decided that Combs would not serve the subpoena himself; rather the chief deputy of the sheriffs department, Lonnie Nichols, was called in on his day off to do so. Also, State Trooper Chuck Medford was called in to go with Nichols. Finally, two other officers were called in to go along and observe what transpired. One of the officers carried along a video-tape camera.

The five officers met at a steakhouse in Eureka Springs to organize, what Officer Combs termed, the “raid.” Combs was in charge of the operation. The officers intended to serve the subpoena at Shepherd’s residence at #1 Emporium. Trooper Medford was present, as he was the only one who knew where either of these houses were. Two of the officers set up an observation post so they could see what happened at both houses after the subpoena was served. The houses are fairly close to one another.

While the officers were on their way to #1 Emporium to serve the subpoena, Mr. Sparks, the informant, flagged down officers Medford, Nichols, and Combs. Sparks told the officers “they’re over at #5 Avo.” Combs then got out of the car and entered Spark’s house to watch from Spark’s rear window what transpired at the Avo Street address. Nichols and Medford went on up the street and parked approximately 50 feet from the house.

The officers testified they could smell marijuana when they got out of the car and the smell got stronger as they approached the house. As they were walking up the drive to the house, Shepherd came out and met them. Nichols testified that they were met approximately 100 to 150 feet from the house. Medford stated it was much closer than that. While Nichols served the subpoena on Shepherd, Medford looked around. When Medford looked into the garage through the door, which was either partially or fully open (testimony is conflicting on the point), he could see bright light coming through an open door in back of the garage and also what he believed to be “stripped” marijuana plant stalks and green leafy matter. The “stalks” turned out to be tomato stakes and not the stripped marijuana stalks the officers imagined them to be.

When Nichols told Shepherd that they could smell marijuana, Medford stated “well there it is.” About this time, Torok came out of the garage. Nichols looked at what Medford was indicating he believed to be marijuana plant remains and then placed both defendants under arrest.

Medford went back to get Combs who met him just down the street from the house. Medford told Combs that they “had them” and that they “could see it.” Both defendants signed forms acknowledging their Miranda rights, and Shepherd consented to a search of the property. A search of the house at #5 Avo turned up a large quantity of fresh marijuana. Based on the results of this search, a warrant to search the house at #1 Emporium was obtained. In that search more growing marijuana was found as well as a safe which upon opening was found to contain 120 grams of cocaine.

Further testimony at the suppression hearing indicated that earlier in the day the Eureka Springs Police Department had called the city water department and told them they needed to go out to #5 Avo to check on a water leak. The people who went out determined there was no leak. The head of the water department testified it was unusual for the police to call and report a water leak and request they go check it out during the water department’s normal office hours. He also felt it was unusual that the police indicated they wanted it checked because several cars were at the house. Finally, he stated the police told him that they were keeping an eye on the place and that something was going on up there.

Officer Nichols also testified that the serving of the subpoena had a dual purpose. The first was to enable the police to talk with Shepherd. The second was to enable them to get on the property to “look around.” Combs said it was to “kick the hornet’s nest” and see what would happen. Further testimony indicated that the normal method of serving a subpoena was to call the person on the phone or just to send out any available deputy. It was unusual to call in Nichols on his day off. However, Nichols felt that he was called in so they would have the most experienced person in the department to serve the subpoena on the “dope grower.” Finally it was indicated in the suppression hearing that it was very unusual to use five (5) officers to serve a subpoena.

Based on the testimony, and after viewing the scene where the action occurred, the trial judge ordered the evidence suppressed. The judge found that the subpoena had been issued to further a police investigation and as a pretext to allow officers onto the property and was hence invalid. In his letter opinion, which we regard as sound, the court held there had been an abuse of the prosecutor’s subpoena power and that, as the subpoena was issued illegally, all the evidence discovered as a result of the service of the illegal subpoena was tainted and should be suppressed.

The contention of the state is that no Fourth or Fourteenth Amendment right of Shepherd and Torok was violated because the actions of the police officers taken pursuant to the prosecutor’s subpoena did not constitute a search, and they had a right to be on Shepherd’s premises in areas by which any member of the public might have approached the house. While we need not engage in a constitutional analysis in this case, we point out that a constitutional basis for upholding the suppression does exist. The state, in making the constitutional argument here, asserts that the officers entered the premises and found the evidence in “plain view.” In considering the “plain view” doctrine the Supreme Court has consistently held that in order to justify a seizure of evidence found in “plain view” the officers must be legitimately on the premises. Horton v. California, 110 S.Ct. 2310 (1990). The effect of the trial court’s ruling in this case, which we uphold, is to say the officers were not legitimately on the premises of #5 Avo. Rather, they were there on the pretext of serving an illegal subpoena. The Supreme Court has made it quite clear that if the officer’s presence is not legitimate, evidence found in “plain view” must be suppressed. See also Coolidge v. New Hampshire, 403 U.S. 443 (1971). Presumably based on the finding the officers were not legitimately on the premises to begin with, the trial court did not mention the Constitution in his opinion. It was simply held that the prosecutor’s subpoena was an illegal pretext for the seizing and retrieval of the information sought to be suppressed. The judge wrote, in part:

Pretext exists when the stated objective is one thing and the real objective is something else. Folly v. State, 28 Ark. App. 98, 771 S.W.2d 306 (1989); and Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). It would be naive to believe the real objective of the subpoena was to compel the appearance of Shepherd at a prosecutor’s hearing three days hence. If that were the case, it could have been served by telephone or in person by any deputy sheriff, but instead, the sheriff’s most experienced investigator was called in from his day off. Nichols received his instructions from Combs and testified that he understood, even though it was not stated, that Combs wanted him to serve the subpoena so he would be in a position to look for evidence. Combs and Nichols had worked together before. To make matters worse, the “hornet’s nest” had already been kicked that day when the Eureka Springs Police Department sent the water department to #5 Avo to check on a nonexistent water leak. The subpoena’s real objective was to gather evidence for a search warrant or an arrest on November 14. Combs wanted something done that day.

While we and our court of appeals have addressed problems arising from misuse of the prosecutor’s subpoena power, we have no definitive ruling whether evidence seized as a result is to be excluded. The problem is a troublesome one. We agree with the state’s point that the prosecutor and the police must work hand-in-hand in the law enforcement effort; however, we cannot allow the power of the office of prosecutor to be used in a manner not intended by the general assembly or in a way which can easily abuse citizens who may be witnesses in or objects of police investigations.

In Duckett v. State, 268 Ark. 363, 687 S.W.2d 829 (Ark. App. 1980), the court of appeals discussed the problem at length in an opinion which condemned use of the prosecutor’s subpoena for purposes of a police investigation. The opinion suggested that the problem was not a common one and surely would not reoccur. The violation did not cause reversal of the conviction because the illegal questioning of a witness did not produce any evidence which upon which the conviction was based. The point of the court of appeals’ obiter dictum was that the prosecutor’s subpoena power should not be allowed to be used by the police as a means of subverting Ark. R. Crim. P. 2.2 and 2.3 which prohibit the police from coercing the appearance of a witness at a police investigation of a crime.

In Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), four police officers went to the home of the appellant, Foster, and told her the prosecutor wanted to see her. She accompanied them to the police station where she was questioned by the police. Although no prosecutor’s subpoena was issued in that case, we cited the Duckett case and noted that it was “illegal to use a prosecutor’s subpoena power ‘to obtain the presence of a witness for questioning by a police officer, absent the prosecutor.’ ” We held that, as in the Duckett case, the authority of a prosecutor had been unlawfully used to obtain the presence of a witness in violation of Rules 2.2 and 2.3. Because it played a substantial part in her conviction, we held Mrs. Foster’s statement, taken in the illegal interview, was to be suppressed. Officer Combs’ testimony “if I got a prosecutor’s subpoena... we would get to talk to him. Otherwise he could say ‘Hey, I don’t want to talk to you, leave.’ ” which clearly indicates the subpoena here was issued contrary to the obiter dictum in the Duckett case and the holding of the Foster case as they pertain to Ark. R. Crim. P. 2.2 and 2.3.

In Hamzy v. State, 288 Ark. 561, 709 S.W.2d 397 (1986), we again cited the Duckett case for the proposition that the prosecutor’s subpoena power must be used only for a prosecutor’s investigation. There, the police used a subpoena signed by a prosecutor to obtain information from a telephone company. We declared that the information had been “unlawfully seized,” but we then concluded the defendants had not suffered a Fourth Amendment violation because they had no standing to claim it. The unlawful seizure had been from the telephone company rather than from them. Thus we held evidence obtained in a subsequent search based on a warrant which was obtained as a result of the seizure of the telephone company information had been improperly suppressed. Again, the misuse of the subpoena power was condemned but the conviction was affirmed because the accused had no standing to claim a constitutional violation.

It is clear that there was an abuse of the prosecutor’s subpoena power in this case. It was used to give the officers a means not only of getting on Shepherd’s property but to force Shepherd to talk to police officers. The abuse resulted in unlawful seizure of evidence which the trial court properly excluded.

The purpose of the exclusionary rule, first expounded by the Supreme Court in Weeks v. United States, 232 U.S. 383 (1914), is to force government officials to respect the rights of citizens. The Supreme Court wrote, “unlawful seizures . . . should find no sanction in the judgments of the courts. . . Id. at 391. As we pointed out in the Hamzy case, the price we pay for that protection is that prosecutions where violations have occurred become more difficult and some of the guilty remain unpunished. While we have heretofore been concerned mostly with cases involving violations of rights guaranteed by the United States Constitution, our conclusion here is that there are independent and adequate grounds in the law of Arkansas to exclude evidence seized as the result of a pretextual and unlawful use of a prosecutor’s subpoena power.

Our law on the subject of unlawful pretext has developed in cases involving an arrest on one ground when the purpose was something else. See Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986), citing Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986), where we stated that evidence resulting from an arrest should be excluded if the arrest would not have occurred but for the ulterior motive of the police. See also Guzman v. State, 283 Ark. 112, 672 S.W.2d 656 (1984), where we found a pretextual arrest when officers, suspecting illegal drug activity, went to the defendant’s property on a pretext of searching for illegal aliens.

In this case, it is undisputed that the officers went to Shepherd’s property under the pretext of serving a prosecutor’s subpoena. The subpoena would not have been issued or served but for the perceived need of the police to have some “legitimacy” in their approach of Shepherd and their presence on his property. While we cannot say the evidence sought to be used against Shepherd and Torok would not have eventually been obtained by legal means, perhaps even involving some sort of ruse or charade, we can say the evidence in this instance was obtained as a result of an illegal approach, and it was properly excluded. The violation may not have been as dramatic as a pretextual arrest, but it was an even more egregious disregard of the law.

Affirmed.

Hays, Glaze and Turner, JJ., dissent.

Tom Glaze, Justice,

dissenting. I dissent. The majority court claims Officer Lonnie Nichols’s service of a prosecutor’s subpoena on the appellee Daniel Shepherd was an egregious disregard of the law and is reason to suppress a substantial amount of fresh marijuana found in Shepherd’s house. Even if one agreed that the officer’s subpoena was invalid, that fact had nothing to do with whether Officers Nichols and Medford were legitimately on Shepherd’s premises and positioned where they could see and smell the marijuana Shepherd and appellee Torok were manufacturing inside the house.

Shepherd and Torok were operating an elaborate and sophisticated marijuana operation. They would have gotten away with the operation except, due to a mental lapse on their part, they foolishly left their garage door open. As a consequence, anyone who stood in the driveway outside the Shepherd home could easily see and smell the marijuana leaves that were on the floor of a room immediately off and in back of the garage. This room was brilliantly lighted by three quartz Halide growing lights. The room’s walls were painted white, the ceiling had a shiny metallic substance and the room contained timers, transformers and air circulating equipment. In immediate view and located in the garage, appellees had a large quantity of fertilizer and farming equipment.

The trial court never addressed or questioned the officers’ testimony concerning what they saw or smelled. However, because I believe what the officers could see in open view while standing on the driveway is important, I mention the details of appellees’ elaborate operation merely to show that evidence was introduced which substantiated or verified the officers’ testimony that they could actually smell the pungent odor of marijuana that emanated from the garage. Also, I have appended to my dissent a color photograph of what the officers could see from the outside driveway when they looked into Shepherd’s garage and saw a brightly lighted room with marijuana leaves strewn on the floor. The evidence also reflects that it was Torok’s furtive moves inside the garage that directed the officers’ attention to the open garage door and that it was only after the officer saw the marijuana-growing room that Shepherd consented to the search of his house.

In repeatedly mentioning that the officers were not legitimately on Shepherd’s property, the majority opinion avoids mentioning an entire body of Fourth Amendment case law that requires a finding to the contrary. In Katz v. United States, 389 U.S. 347 (1967), the Court said:

(T)he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

The majority court fails to address the relevant issue as to whether the officers unlawfully intruded upon Shepherd’s reasonable expectation of privacy. In expectation of privacy terms, quite clearly it is not objectionable that an officer has come upon the land in the same way that any member of the public could be expected to do, as by taking the normal route of access along a walkway or driveway or onto a porch. See W. LaFave, Criminal Procedure § 3.2(c) (1984); State v. Corbett, 516 P.2d 487 (Or. Ct. App. 1973). In the case of United States v. Smith, 783 F.2d 648 (6th Cir. 1986), a police officer, acting on an informant’s tip, drove into the defendant’s driveway and after reaching the defendant’s house, he observed a large marijuana plant growing next to it. No signs or obstacles limited the officer’s access to the house and no effort had been made to screen off or enclose the area where the marijuana plants were growing. The court held the officer did not violate the defendant’s right to privacy by entering the driveway and proceeding to the defendant’s residence where he viewed the marijuana. See also United States v. Vent\ling, 678 F.2d 63 (8th Cir. 1982) (the court, finding an officer’s conduct of driving into defendant’s driveway where he observed tire tracks and equipment which could have been used in an unlawful activity the officer was investigating was lawful, held the defendant’s asserted expectation of privacy was unreasonable).

In the present case, no evidence exists to support the proposition that Shepherd had any expectation of privacy in his driveway; therefore, when the officers made an open-view observation of the marijuana-growing room without intruding into a constitutionally protected area, there was no search and thus no violation of the fourth amendment. If Shepherd and Torok had thought to close their garage door, the officers, when positioned in Shepherd’s driveway, would never have seen the marijuana and growing room inside the house and the fourth amendment would have protected Shepherd from the officers’ intruding inside his house. Because Shepherd’s driveway was not constitutionally protected curtilage, the officers’ stated reason for going to Shepherd’s house, viz., to serve a subpoena, is unimportant. In fact, the officers, with or without a subpoena, could have lawfully driven or walked up Shepherd’s driveway to ask him some questions. See also A.R.Cr.P. Rule 2.2. Contrary to the appellee’s argument, the subpoena’s validity or invalidity, under these circumstances, only becomes important as to whether Shepherd was required to appear before the deputy prosecutor who issued it. While I might agree the subpoena was illegally issued, that point of law has nothing to do with whether Officers Nichols and Medlock were lawfully on Shepherd’s driveway. That is the point at which the trial judge and the majority court stray from the law.

In conclusion, I mention briefly the majority’s cases and reference to the plain view doctrine. Horton v. California, 110 S.Ct. 2301 (1990), and Coolidge v. New Hampshire, 403 U.S. 443 (1971). Those case involve situations in which the police had a warrant to search a given area for specified objects and in the course of the search came across some article of incriminating character. In the situation now before us, no warrant was issued and the open view involved here involved no prior intrusion covered by the fourth amendment. See W. LaFave, Search & Seizure, § 2.2(a), at 322-78 (1987), for a full discussion concerning the difference and significance between the Coolidge plain view doctrine and that open view doctrine involved here, where an officer discovers an object which has been left in a “nonprotected area” or while standing in a “nonprotected area” sees an object within the defendant’s premises. This latter situation (or open view observation as I have labeled it) is simply distinguished by Professor LaFave, but one major distinction is covered by his quoting Judge Moylan as follows:

[T]he condition of inadvertence is certainly not operational. In surveying sidewalks, streets and gutters and in roaming the “open fields” (even as technical trespassers), the police would seem to be free to go on fishing expeditions or to go on planned reconnaissances ... in such nonprotected places, whether the viewing be inadvertent or not.

W. LaFave, Search & Seizure, § 2.2(a), at 323.

In sum, the majority court, in citing Horton and Coolidge, merely compounds its error when suggesting these holdings in some way make unlawful the officers’ presence on Shepherd’s premises. The officers were legally on a “nonprotected area,” the driveway, and their view of the appellees’ marijuana was proper under the circumstances. Therefore, there was no seizure, and thus no violation of the fourth amendment. I submit that this court should reverse the trial court’s ruling to the contrary and remand this case for trial.

Hays and Turner, JJ., join this dissent.

       Undisputedly, the garage door was open. The only conflict in the officers’ and appellees’ testimonies was whether it was fully or partially open.

       Hopefully, the photograph I have appended to this dissent can be reproduced by the printer so as to show the brightly lighted growing room located at the back of the garage. As has been said, a picture is worth a thousand words, especially when trying to describe this elaborate marijuana farming operation. The officers also produced a video tape to reflect what they could see from the outside driveway.


author: Otis H. Turner, Justice. Tom Glaze, Justice,

text:
    Eloise BAKER, et al. v. Phillip JACOBS, et al.
    90-287
    798 S.W.2d 63
    Supreme Court of Arkansas
    Opinion delivered October 29, 1990

      Skinner Law Firm, by: Barbara L. Robertson, for appellants.

      Woolsey & Wilson, by: Bruce R. Wilson, for appellees.
   Otis H. Turner, Justice.

The appellants, Eloise Baker, Mary Louise Pearson, Beryl B. Wolfson, and Loren Lax, “individually and on behalf of the State of Arkansas,” commenced this action in the Circuit Court of Johnson County on September 25, 1990. A writ of mandamus was sought to compel the Johnson County Election Commission to remove from the 1990 general election ballot certain of the Democratic Party nominees for Johnson County offices. The appellants contended that the nominees’ failure prior to the party primaries to file Democratic Party loyalty oaths, referred to in Ark. Code Ann. § 7-7-203 (Supp. 1989) and § 7-7-301 (1987) and required by the rules of the Democratic party of Arkansas, renders their party nomination invalid.

The petitioners and respondent Johnson County Election Commission filed cross motions for summary judgment. This appeal is taken from a denial of the relief sought; we find it to be without merit and affirm.

The Democratic Party nominees whose nominations are challenged timely filed their political practices pledge as required by Ark. Code Ann. § 7-7-203 (c) and filed with the county clerk the required “affidavit of eligibility” executed by the candidates and acknowledged by the Johnson County Democratic Committee’s secretary. The candidates’ names were then placed on the ballot for the party primary and, after a canvass of the votes, were certified by the Johnson County Committee to the state Democratic Party committee as the Democratic nominees for their respective offices. Thereafter, the nominees were certified to the Secretary of State as required by Ark. Code Ann. § 7-7-203(/)(l), as the Democratic Party nominees for their respective offices. All of this was accomplished without objection by any other candidate or member or official of the Democratic Party.

The appellants rely upon three points for reversal. It is, however, necessary that we consider only one issue — the standing of the appellants (petitioners below) to.bring this action.

A careful search of the appellants’ abstract and original record fails to reveal the identity of the appellants other than as “citizens and residents, and electors registered to vote in Johnson County, Arkansas.” The statutory provisions relied upon by the appellants provide, in pertinent part: “[A] 11 candidates at primary elections held by political parties shall file any pledge required by such party.” Ark. Code Ann. § 7-7-301 (a). (Emphasis added.) Further, “Party pledges, if any, and political practice pledges for primary elections shall be filed before the preferential primary election.” Ark. Code Ann. § 7-7-203(c). (Emphasis added.) Clearly, the legislation leaves it up to the political party to determine whether or not a party loyalty oath is required.

Whether the party’s rules dictate a loyalty oath, whether the loyalty oath requirement may or may not be waived, and whether certification or decertification results from a nominee’s failure to execute a loyalty oath are matters generally left to the political party. An exception is provided for in Ark. Code Ann. § 7-5-801 (1987), which confers a right of action “on any candidate to contest the certification of nomination . . . within twenty (20) days of the certification complained of.”

We know of no authority — and the appellants cite none — granting the electorate in general a right to challenge the candidacy of a party nominee for failure of the nominating party to enforce a party rule. The party, in its discretion, may elect to require a loyalty pledge and in its discretion may waive such requirement subject only to a timely challenge by a candidate or a person with such a relationship with the political party so as to confer standing to challenge the party’s action or inaction.

Finding no error, we affirm.

Hays, J., not participating.

Glaze, J., concurring.

Tom Glaze, Justice,

concurring. I concur. Even assuming the appellants had standing to bring this litigation, they were required to do so before the Democratic Primary Election in May 1990. This court has repeatedly recognized that the provisions of elections laws are mandatory if enforcement is sought before the election and directory if not raised until after the election. Donn v. McCuen, 303 Ark. 415, 797 S.W.2d 455 (1990); Stillinger v. Rector, 253 Ark. 982, 490 S.W.2d 109 (1973); Wright v. Sullivan, 229 Ark. 378, 314 S.W.2d 700 (1958). Here, appellants failed to commence their action until September 1990, more than three months after the primary election (and more than five months after the filing deadline for candidates). Accordingly, any filing requirements for party candidates became directory rather than mandatory after the primary election. At this late date, those candidates having failed to file a party loyalty oath (or political practice pledges) cannot be removed as a party nominee in the forthcoming General Election.