author: Donald L. Corbin, Justice.

text:
    Gerald J. CROCHET, Jr., Petitioner v. Sharon PRIEST, In Her Official Capacity as Secretary of State of the State of Arkansas, Respondent; Bill Walmsley, Individually and as President and on Behalf of the Arkansas Horsemen’s Benevolent and Protective Association, Inc., an Arkansas Corporation, Petitioners v. Sharon Priest, In Her Official Capacity as Secretary of State of the State of Arkansas, Respondent; The Committee for Lottery, Charitable Bingo and Raffles, and Video Games, Intervenor
    96-1013, 96-1021
    931 S.W.2d 128
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996

      Petitioner Gerald J. Crochet, Jr., pro se.

      Winston Bryant, Att’y Gen., by: Melissa K. Rust, Asst. Att’y Gen., for respondent.

      Tom Thompson, for petitioner Bill Walmsley.

      Arnold, Grobmyer & Haley, by: Robert R. Ross, for intervenor.
   Donald L. Corbin, Justice.

Two original action petitions filed pursuant to Amendment 7 to the Arkansas Constitution of 1874 were consolidated in this case. Both petitions seek injunctions restraining Respondent, Secretary of State Sharon Priest, from placing proposed Amendment 5 to the Arkansas Constitution, which bears the popular name “AN AMENDMENT TO AUTHORIZE LOTTERY TICKET GAMES, CHARITABLE BINGO, RAFFLES, AND VIDEO TERMINAL GAMES” on the ballot for the general election to be held November 5, 1996. Alternatively, they request Respondent be enjoined from canvassing and declaring the results of proposed Amendment 5.

Petitioners are Bill Walmsley, individually and on behalf of the Arkansas Horsemen’s Benevolent and Protective Association, Incorporated, and Gerald J. Crochet, Jr., a citizen, resident, taxpayer, and registered voter of this state. We allowed the intervention of The Committee For Lottery, Charitable Bingo and Raffles, and Video Terminal Games, a ballot question committee as defined in Ark. Code Ann. § 7-9-402(2) (Repl. 1993). Petitioners challenge both the popular name and ballot tide of the proposed amendment. The text of the ballot title is appended to this opinion. We find merit to their claim that the popular name and ballot title are insufficient and therefore grant the petition requesting injunctive relief.

Procedural History

The following facts are taken from the petitions and responses filed in this case. The sponsors of the proposed amendment submitted a proposed popular name and ballot title to the Attorney General of this state on February 9, 1996. Approximately six to ten days later, the Attorney General expressed concern over the length of the proposed ballot tide and its susceptibility to challenge, but nevertheless certified the popular name as submitted and a substituted ballot tide. On August 9, 1996, Respondent certified the proposed amendment to be placed on the ballot for the November 5, 1996, general election.

Petitioners Crochet and Walmsley filed separate original-action petitions on August 29 and 30, 1996, respectively. On September 23, 1996, we granted three motions concerning these petitions: Intervenor’s motion to intervene in Petitioner Walmsley’s case, Petitioner Crochet’s motion to consolidate the two cases, and Petitioner Crochet’s motion to expedite the cases for our consideration.

Standard of Review Sufficiency of Popular Name and Ballot Title

We recently summarized the applicable standard for our review of ballot-tide cases:

The popular name is primarily a useful legislative device that need not contain the same detailed information or include exceptions that might be required of a ballot tide. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976) (citing Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)). Ballot titles must include an impartial summary of the proposed amendment that will give voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law; they cannot omit material information that would give the voter serious ground for reflection; they must be free from misleading tendencies that, whether by amplification, omission, or fallacy thwart a fair understanding of the issues presented. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994).

Parker v. Priest, 326 Ark. 123, 129, 930 S.W.2d 322, 325.

Amendment 7 places the burden of proof in legal challenges to initiative matters upon those who challenge the proposed measure. Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). When determining the sufficiency of ballot titles, we construe the requirements of Amendment 7 liberally in order to secure its purposes to reserve to the people the right to adopt or reject legislation; however, that liberality is not without limits or common sense. Id.; Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988). The question is not how the members of this court feel concerning the wisdom of the proposed amendment, but rather whether Amendment 7’s requirements for submission of the proposal to the voters have been satisfied. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988). Amendment 7 vests original and exclusive jurisdiction over the sufficiency of statewide petitions to this court. Thus, while we consider the fact that the Attorney General certified this ballot title, we do not defer to the Attorney General’s opinion or give it presumptive effect. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994).

Length and Complexity of Ballot Title

Petitioners contend that the proposed amendment, with its 11 definitions, 17 sections, and 127 subsections, is so all-encompassing and expansive that it precludes an acceptable ballot tide. As a result, argue Petitioners, the approximate 1,000 words in the ballot tide do not adequately inform the voter in sufficient detail of the content of the proposed amendment. Both Respondent and Intervenor view this argument as one coming out of both sides of Petitioners’ mouths, i.e., the ballot tide is too long but also omits material information.

To the contrary, we view this argument as an attempt to align the present case with this court’s statements in Page v. McCuen, 318 Ark. 342, 347, 884 S.W.2d 951, 954 (1994):

The Amendment 5 sponsors’ choice or insistence in covering the establishment and operation of casino gaming in so much detail can be said to have sounded the proposal’s own death knell. Here, proposed Amendment 5 is so all-encompassing that to include every important factor of the proposal in the ballot tide would cause the ballot title to be so complex, detailed and lengthy that the Arkansas voter could not intelligendy make a choice on the tide within the five minutes allowed in the voting booth. Cf. Dust v. Riviere, Secretary of State, 277 Ark. 1, 638 S.W.2d 663 (1977); see also Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988); Ark. Code Ann. § 7-5-522(d) (Repl. 1993). Although Amendment 7 to the Arkansas Constitution does not specify a limit on the length of a proposal, the proposed measure must be of a size capable of having a ballot title which will not only convey the scope and import of the measure, but also impart a description of the proposal so voters can cast their votes intelligendy and with a fair understanding on the issue. In sum, proposed Amendment 5 is so expansive that it precludes the writing of an acceptable ballot tide.

Indeed, Petitioners cite Page in support of this argument. However, they also acknowledge that length alone does not render a ballot title insufficient and argue that when the length is combined with the omissions and misleading language, this ballot title is insufficient.

Petitioners are correct that while length is a consideration, it is by no means the determining factor on the question of the sufficiency of a ballot title. Parker, 326 Ark. 123, 930 S.W.2d 322. Likewise, there is no restriction on the length of a proposed amendment. Page, 318 Ark. 342, 884 S.W.2d 951 (citing Amendment 7). As this court intimated in the foregoing quotation from Page, however, there is in effect a practical constraint on the length of both a proposed amendment and its ballot title that stems from the requirements that a ballot title convey the scope and import of the proposal while also imparting a fair description of the proposal to allow voters to vote intelligently in the limited time allotted them in a voting booth. In the words of the Attorney General’s opinion certifying the ballot title at issue here, “with any proposed initiative similar in length to the one submitted in this instance, the sponsor runs the risk of an unacceptable ballot title.”

The present proposed amendment and ballot tide are, in relative terms, at least as long and detailed as most that have been considered by this court. See, e.g, Page, 318 Ark. 342, 884 S.W.2d 951. Nevertheless, we decline to hold the ballot tide insufficient because of its length alone. Rather, the length is but one consideration for us as we determine the sufficiency of the ballot tide.

Omission of Material Information Expansive Powers of Commission

Petitioners contend that the proposed amendment creates an Arkansas Lottery Commission and grants sweeping and comprehensive powers to the Commission that will have enormous consequences without disclosing these powers in the popular name or ballot tide. We agree.

We find particularly disturbing the following language from Section 8(d)(6) of the proposed amendment:

The Arkansas Lottery Commission shall prescribe such other rules and regulations as it deems necessary for the conduct and regulation of Bingo and Raffles and shall retain full authority to change any and all provisions of this amendment pertaining to charitable bingo and raffle games at its sole discretion as times and conditions may dictate. [Emphasis added.]

The proposed amendment thus clearly gives the Commission the power to amend the terms of the amendment as it relates to bingo and raffles. This power of the Commission to amend a constitutional amendment is not disclosed in the ballot title. Respondent and Intervenors argue that the ballot title’s disclosure of the Commission’s authority to adopt rules and regulations includes a disclosure that the Commission has authority to amend the proposed amendment. We disagree.

Under present law, the Arkansas Constitution may only be amended by two methods. The General Assembly may draft amendments and submit them to the voters pursuant to Article 19, Section 22, and the people may propose amendments through the initiative process pursuant to Amendment 7, as was done in this case. The marked departure from existing law created by Section 8(d)(6) of the proposed amendment should have been disclosed in the ballot title. Before casting their votes, citizens no doubt would pause for reflection if they were aware that they might be giving the Commission authority to amend, or even completely rewrite, parts of the very amendment upon which they were voting. Thus, we conclude that the omission in the ballot tide of the Commission’s power to amend the terms of this amendment is a material omission that renders this ballot title insufficient. We note that this is but one example of material omissions in the ballot tide concerning the Commission’s powers. The Commission’s power to raise the price of wagers is discussed later herein. There are others we could discuss, but find it unnecessary to do so.

Use of the Term “Video Terminal Game”

According to the text of the proposed amendment, ballot tide, and popular name, the proposed amendment authorizes “video terminal games.” The popular name does not give a definition for the term “video terminal games.” The ballot tide, however, defines “video terminal gaming” as follows: “AN ELECTRONIC VIDEO GAME THAT, UPON INSERTION OF TWENTY-FIVE CENT COINS, PROVIDES CREDITS TO PLAY OR SIMULATE THE PLAY OF AUTHORIZED GAMES AND THAT ISSUES A PAY SLIP TO A WINNING PLAYER THAT MAY BE REDEEMED FOR CASH[.]” Prior to this definition, the ballot tide states that “THE GAMES OF BINGO, KENO AND POKER ARE INITIALLY AUTHORIZED TO BE PLAYED ON THE VIDEO TERMINALS [.]” Petitioners contend that to the extent the term “video terminal games” refers to what are more commonly known as slot machines, the language of the term is misleading. Petitioners argue that the voters will not realize that “video terminal games” are slot machines.

Respondent and Intervenor neither admit nor deny that the term “video terminal games” includes slot machines. Rather, they rely on the definition in the ballot tide to clear up any misleading tendencies, and Intervenor argues further that Petitioners have not explained how slot machines differ from bingo, keno, and poker. Intervenor thus ignores the problem. We are not concerned with the difference here. Quite to the contrary, we are concerned with the similarity and whether voters will be able to recognize that similarity. Specifically, our concern is whether voters will be able to determine that the term “video terminal games” describes what are more commonly known as slot machines.

Petitioners rely on Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605, where this court held that the term “additional racetrack wagering” was a euphemism for “casino-style gambling” that rendered the ballot tide misleading and insufficient. Here, Petitioner argues, in essence, that the less offensive term “video terminal games” is a euphemism for the more distasteful term “slot machines.”

The term “video terminal games” is misleading and tinged with partisan coloring because it does not evoke images or thoughts of gambling in any respect. Any possible enlightenment from the ballot tide’s definition is diluted by the strategic placement of the definition midway through the lengthy ballot tide. Quite simply, the term “video terminal games” summons absolutely no connotation of currently illegal gambling, while the term “slot machine” does. To include the term “video terminal games” in an amendment that uses words such as “lottery,” “bingo,” and “raffles,” the latter three of which connote games of chance or gambling, while the first does not, is to tinge the term “video terminal games” with partisan coloring.

While voters may be able to discern that the term “video terminal games” means slot machines, they should not be forced to guess the meaning of a proposed amendment to their state’s constitution. The very purpose of the ballot title is to convey a fair and impartial understanding of the proposal. To call slot machines “video terminal games,” which connotes a present-day video game such as Nintendo or Sega Genesis, is anything but fair and impartial. Consequently, we conclude that the use of the term “video terminal games” creates a fatally misleading tendency in the popular name and ballot title and tinges them with partisan coloring.

Minimum Wager on “Video Terminal Games”

The very first five lines of the ballot title state: “AN AMENDMENT TO THE ARKANSAS CONSTITUTION AUTHORIZING LOTTERY TICKET GAMES, CHARITABLE BINGO, RAFFLES, AND TWENTY-FIVE CENT VIDEO TERMINAL GAMES” (emphasis added). Petitioners contend that this deceptively implies that the “video terminal games” authorized by the proposed amendment will allow only twenty-five-cent wagers.

We agree that the ballot title is misleading on this point because Section 9(c)(3)(B) of the text of the proposed amendment provides that “a Video Terminal Game may be played for a minimum 25 cent coin deposit. The maximum single play that may be placed on a Video Terminal games is [sic] $2.00 during the first five (5) years of operation, but thereafter may be increased by the Arkansas Lottery Commission.” Thus, it is clear that while the “video terminal games” accept a twenty-five-cent coin, twenty-five cents is not a limitation on the amount of the total wager. Rather, the text of the proposal clearly provides a two-dollar limit on the amount of the total wager for a single play. Moreover, in addition to the authority to raise that initial limit of two dollars on the maximum wager, Section 4(c) (14) gives the Commission additional authority, after the expiration of the approximate five-year start-up period, to “change the amount of money required for a single play on video terminal games from 25¡z! to an amount higher or lower, that more accurately reflects the times and conditions at hand.”

Respondent and Intervenor rely on the following language, which occurs midway through the ballot tide: “VIDEO TERMINAL GAMING MEANS AN ELECTRONIC VIDEO GAME THAT, UPON INSERTION OF TWENTY-FIVE CENT COINS . . . .” Respondent and Intervenor argue that the use of the plural “coins” reveals that twenty-five cents is not the minimum wager. While we have the utmost confidence in the voters’ abilities to distinguish the plural from the singular form of a word, we cannot conclude that a single letter “s” cures the misleading tendency created by the use of the term “twenty-five cent video terminal games” in the first five lines of the ballot title, especially when that single letter “s” occurs some seventy lines later. In short, the use of the plural “coins” does not disclose that the proposed amendment actually authorizes a two-dollar wager. Voters would no doubt pause for reflection if they knew that by voting for a ballot tide that authorizes “twenty-five cent video terminal games,” they were in fact voting for an amendment that authorizes two-dollar video terminal games. We conclude the appearance of numerous references to the amount of twenty-five cents is misleading, especially when coupled with the omission of the two-dollar maximum wager on a single play.

Other misleading tendencies and omissions could be illustrated, but the aforementioned examples suffice to demonstrate that the popular name and ballot title are insufficient. The length of this ballot tide complicates these insufficiencies. Accordingly, we hold the proposed amendment’s popular name and ballot tide insufficient to satisfy the requirements of Amendment 7. Petitioners’ request for injunctive relief is granted. Respondent is enjoined from placing proposed Amendment 5 on the ballot for the November 5, 1996, general election. Alternatively, Respondent is enjoined from canvassing and declaring the results on proposed Amendment 5.

The mandate is ordered issued on Friday, October 25, 1996, unless a petition for rehearing is filed. If a petition for rehearing is filed, briefing will be on an expedited basis to be set by the clerk.

Petition granted.

Special Justice Doddridge M. Daggett joins in this opinion.

DUDLEY, J., not participating.

ADDENDUM

(Ballot Tide)

AN AMENDMENT TO THE ARKANSAS CONSTITUTION AUTHORIZING LOTTERY TICKET GAMES, CHARITABLE BINGO, RAFFLES, AND TWENTY-FIVE CENT VIDEO TERMINAL GAMES; CREATING A SEVEN-MEMBER ARKANSAS LOTTERY COMMISSION TO BE APPOINTED BY THE GOVERNOR, SUBJECT TO CONFIRMATION BY THE SENATE, TO ESTABLISH AND CONDUCT THE LOTTERY TICKET GAMES AND TO REGULATE CHARITABLE BINGO, RAFFLES AND VIDEO TERMINAL GAMES AUTHORIZED BY THE AMENDMENT; PROVIDING THAT THE COMMISSION SHALL APPOINT A DIRECTOR TO DIRECT THE OPERATIONS OF THE LOTTERY TICKET GAMES; AUTHORIZING THE COMMISSION TO SPECIFY WHAT LOTTERY TICKET GAMES MAY BE CONDUCTED AND TO REGULATE THE SELECTION OF RETAIL ORGANIZATIONS AUTHORIZED TO SELL LOTTERY TICKETS; PROHIBITING LOTTERY TICKET SALES TO ANYONE UNDER 21 YEARS OF AGE OR THROUGH ANY PURCHASER OPERATED SYSTEM; PROVIDED THAT THE REVENUES FROM THE STATE LOTTERY WILL BE ALLOCATED AS FOLLOWS: AN AVERAGE OF 50 PERCENT IN PRIZES TO PLAYERS; 32 PERCENT TO FUND THE ARKANSAS LOTTERY PHARMACEUTICAL ASSISTANCE PROGRAM FOR MATURE ARKANSANS TO ASSIST WITH THE COST OF PRESCRIPTION MEDICINES FOR THOSE WHO MEET THE AGE, INCOME AND HARDSHIP QUALIFICATION; 10 PERCENT TO THE ARKANSAS LOTTERY COMMISSION TO COVER COSTS OF ADMINISTERING THE ARKANSAS LOTTERY AND REPAYMENT OF START-UP FINANCING WITH ANY REMAINING BALANCE TO BE APPLIED TO THE ARKANSAS LOTTERY PHARMACEUTICAL ASSISTANCE PROGRAM FOR MATURE ARKANSANS; AND 8 PERCENT TO ARKANSAS LOTTERY RETAILERS IN PROPORTION TO THE RETAILER’S SALE OF LOTTERY TICKETS; PROVIDING THAT CHARITABLE BINGO GAMES AND RAFFLES MAY BE CONDUCTED BY ANY NON-PROFIT, TAX-EXEMPT RELIGIOUS, EDUCATION, VETERANS’, FRATERNAL, SERVICE, CIVIC, MEDICAL, VOLUNTEER RESCUE SERVICE, FIREFIGHTERS’, VOLUNTEER POLICE ORGANIZATION OR OTHER ORGANIZATION WHICH HAS BEEN IN EXISTENCE IN THIS STATE FOR NOT LESS THAN THREE (3) YEARS AND WHICH HAS BEEN ISSUED A CURRENT LICENSE TO CONDUCT THE GAMES; RESTRICTING THE HOURS THAT BINGO GAMES AUTHORIZED BY THIS AMENDMENT MAY BE CONDUCTED; REQUIRING ALL NET RECEIPTS EXCEEDING THE ACTUAL COST OF CONDUCTING A BINGO GAME OR RAFFLES TO BE USED ONLY FOR CHARITABLE, RELIGIOUS OR PHILANTHROPIC PURPOSES; PROVIDING THAT THE ARKANSAS LOTTERY COMMISSION SHALL PROMULGATE RULES AND REGULATIONS FOR LICENSING, MONITORING AND ENFORCEMENT FOR THE PLACEMENT AND OPERATION OF VIDEO TERMINALS IN ARKANSAS; PROVIDING THAT THE GAMES OF BINGO, KENO AND POKER ARE INITIALLY AUTHORIZED TO BE PLAYED ON THE VIDEO TERMINALS AUTHORIZED BY THE AMENDMENT; PROHIBITING PLAY OF VIDEO TERMINAL GAMES BY ANYONE UNDER 21 YEARS OF AGE; PROVIDING THAT VIDEO TERMINAL GAMING MEANS AN ELECTRONIC VIDEO GAME THAT, UPON INSERTION OF TWENTY-FIVE CENT COINS, PROVIDES CREDITS TO PLAY OR SIMULATE THE PLAY OF AUTHORIZED GAMES AND THAT ISSUES A PAY SLIP TO A WINNING PLAYER THAT MAY BE REDEEMED FOR CASH; RESTRICTING THE PLACEMENT OF SUCH VIDEO TERMINALS TO PARIMUTUEL FRANCHISEES AUTHORIZED TO CONDUCT HORSE RACING OR GREYHOUND RACING AND TO CERTAIN PREMISES WHICH MEET PERMIT REQUIREMENTS OF THE ARKANSAS ALCOHOLIC BEVERAGE CONTROL BOARD’S RULES AND REGULATIONS; LIMITING THE NUMBER OF VIDEO TERMINALS THAT MAY BE LOCATED AT THE AUTHORIZED LOCATIONS; PROVIDING THAT THE ARKANSAS LOTTERY COMMISSION AND THE ARKANSAS STATE POLICE LOTTERY DIVISION TO BE CREATED WILL ADMINISTER THE LICENSING PROGRAM CONNECTED WITH VIDEO TERMINAL GAMES; PROVIDING THAT THE ARKANSAS STATE POLICE LOTTERY DIVISION WILL MONITOR VIDEO TERMINAL GAMES ACCORDING TO GUIDELINES ESTABLISHED BY THE ARKANSAS LOTTERY COMMISSION; PROVIDING THAT LOTTERY SYSTEMS, INC., A PRIVATE ARKANSAS CORPORATION, SHALL SERVE AS THE SOLE AND EXCLUSIVE OPERATOR FOR ALL VIDEO TERMINAL GAMES IN THE STATE AND AS SUCH SHALL OWN, PLACE, INSTALL, SERVICE AND MAINTAIN THE VIDEO TERMINALS; PROVIDING THAT LOTTERY SYSTEMS, INC., WILL SUPPLY THE START-UP FINANCING FOR THE ARKANSAS LOTTERY COMMISSION, THE ARKANSAS LOTTERY TICKET GAMES, THE ARKANSAS STATE POLICE DIVISION, AND THE VIDEO TERMINAL GAMES, SUBJECT TO LOTTERY SYSTEMS, INC. BEING REPAID, EXCEPT FOR COST OF VIDEO TERMINAL GAMES, WITH INTEREST BY THE ARKANSAS LOTTERY COMMISSION WITHIN FIVE (5) YEARS FROM THE DATE OF INITIAL FINANCING FROM LOTTERY GROSS REVENUES AND LICENSING FEES; REQUIRING THAT LOTTERY SYSTEMS, INC. NOT BE REQUIRED TO PROVIDE MORE THAN $65,000,000 FOR THE COMBINED COSTS OF START-UP FINANCING; AND FOR PROCUREMENT, LICENSING AND INSTALLATION OF VIDEO TERMINAL MACHINES; REQUIRING LOTTERY-SYSTEMS, INC., BETWEEN START-UP AND SIX MONTHS AFTER THE CONCLUSION OF THE FIVE-YEAR START-UP PERIOD TO CAUSE ALL OF ITS STOCKHOLDERS TO MAKE A PUBLIC OFFERING OF ALL OF THEIR OWNERSHIP TO THE PUBLIC THROUGH LICENSED ARKANSAS SECURITY DEALERS; PROVIDING THAT IF LOTTERY SYSTEMS, INC. FAILS TO PROVIDE THE START-UP FINANCING, THE ARKANSAS LOTTERY COMMISSION SHALL DETERMINE A SUBSTITUTE METHOD FOR IMPLEMENTING THE PROVISIONS OF THIS AMENDMENT; PROVIDING THAT THE VIDEO TERMINAL LICENSING FEES BE FIRST ALLOCATED TO FUND 100 PERCENT (100%) OF THE BUDGET OF THE ARKANSAS STATE POLICE LOTTERY DIVISION WITH THE BALANCE NEXT APPLIED TO FUNDING ONE-HALF OF THE ARKANSAS LOTTERY COMMISSION BUDGET; PROVIDING THAT THE VIDEO TERMINAL GROSS REVENUES SHALL BE ALLOCATED AS FOLLOWS: AN AVERAGE OF 88 PERCENT TO PLAYERS; 3 PERCENT THE FIRST YEAR, 3.6 PERCENT THE SECOND YEAR, AND 4.2 PERCENT THE THIRD YEAR AND 4.8 PERCENT THE FOURTH AND SUBSEQUENT YEARS TO LOCAL POLICE AND SHERIFFS’ DEPARTMENTS, STATE GENERAL EDUCATION FUND AND HIGHER EDUCATION FUND AND TO NON-GOVERNMENTAL DIRECT SERVICE SHELTER ORGANIZATIONS TO COMBAT DOMESTIC VIOLENCE; 4.2 PERCENT THE FIRST YEAR, 3.72 PERCENT THE SECOND YEAR, 3.84 PERCENT THE THIRD YEAR AND 3.6 PERCENT THE FOURTH AND SUBSEQUENT YEARS TO THOSE ESTABLISHMENTS LICENSED AND AUTHORIZED TO PLACE VIDEO TERMINAL GAMES ON THEIR PREMISES; AND 4.8 PERCENT THE FIRST YEAR, 4.68 PERCENT THE SECOND YEAR AND 3.96 PERCENT THE THIRD YEAR AND 3.6 PERCENT THE FOURTH AND SUBSEQUENT YEARS TO LOTTERY SYSTEMS, INC.; PROHIBITING THE IMPOSITION OF ANY STATE OR LOCAL INCOME AND SALES TAX UPON ANY PRIZE WINNINGS FROM GAMES AUTHORIZED BY THE AMENDMENT; PROHIBITING ANY STATE OR LOCAL TAX OF ANY KIND UPON THE FEES OR REVENUES GENERATED PURSUANT TO THIS AMENDMENT OR UPON ANY ASPECT OF THE LOTTERY GAMES AUTHORIZED BY THE AMENDMENT; MAKING THE AMENDMENT EFFECTIVE UPON PASSAGE, RENDERING ITS PROVISIONS SEVERABLE, AND REPEALING ALL EXISTING LAWS AND CONSTITUTIONAL PROVISIONS TO THE EXTENT THEY CONFLICT WITH THIS AMENDMENT; PROVIDING THAT THIS AMENDMENT IS SELF-EXECUTING; AND FOR OTHER PURPOSES.


source: Caselaw Access Project

author: DONALD L. Corbin, Justice.

license: Public Domain

text:
    Eugenia T. DONOVAN, Individually, and On Behalf of All Others Similarly Situated, Petitioner v. Sharon PRIEST, Secretary of State of the State of Arkansas, Respondent; Arkansas Term Limits, Frank Gilbert, and Spencer G. Plumley, Intervenors
    96-1120
    931 S.W.2d 119
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996

      Friday, Eldredge & Clark, by: Paul B. Benham III, Elizabeth Robben Marray, and Robert S. Shafer, for petitioner.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Deputy Att’y Gen., and William E Knight, Ass’t Att’y Gen., for respondent.

      Kelly Law Firm, PLC, by: A.J. Kelly, for intervenors.
   DONALD L. Corbin, Justice.

Petitioner, Eugenia T. Donovan, citizen and taxpayer, asks this court to enjoin Respondent, Secretary of State Sharon Priest, from placing the proposed Amendment 9 to the Arkansas Constitution on the ballot for the general election on November 5, 1996. Petitioner also requests that any votes that may have already been cast for the proposed Amendment 9 not be counted. We allowed the intervention of three additional parties in this original action, which was filed pursuant to Amendment 7 to the Arkansas Constitution of 1874: “Arkansas Term Limits,” the unincorporated sponsor of the proposed Amendment 9; Frank Gilbert, Executive Director of “Arkansas Term Limits”; and Spencer G. Plumley, Chairman of “Arkansas Term Limits.”

Petitioner asserts that the proposed Amendment 9 exceeds the legislative powers reserved to the people of this state by our Amendment 7 in that it directly contravenes the amendment process provided for in Article V of the United States Constitution. Respondent and Intervenors contend that the proposed Amendment 9 does not exceed the powers of the people reserved in Amendment 7 and that, even if it did, Petitioner’s challenge to the proposal is a question of substantive constitutional law that is not yet ripe for our review. Our jurisdiction to hear this case is original and exclusive pursuant to Amendment 7 of the Arkansas Constitution.

I. Justiciability

Respondent and Intervenors urge us to decline review of Petitioner’s constitutional challenge to the proposed Amendment 9 because the issue is not ripe for adjudication and, as such, any opinion issued by this court on the matter would be purely advisory. Petitioner asserts that our review of the sufficiency of the petition for this proposed amendment, as provided in Amendment 7, necessarily encompasses the issue of whether the proposal is within the powers reserved to the people in Amendment 7. Petitioner argues that the people of this state do not have the right to propose such a measure as the proposed Amendment 9, which instructs the legislators of this state, along with the Arkansas delegation to Congress, to use all the powers of their respective offices in proposing and securing an amendment to the United States Constitution limiting the number of terms members of Congress may serve. Petitioner asserts that the procedures for proposing amendments to the United States Constitution are specifically and exclusively provided for in Article V of that Constitution. Respondent and Intervenors counter that Petitioner’s argument is nothing more than a substantive constitutional challenge to the proposal, and as such, our review of the issue is not proper unless and until the measure has become law.

Our reading of the proposed Amendment 9 indicates that it is procedural in nature, purporting to empower the electorate with an indirect and prohibited means to propose an amendment to the United States Constitution. Hence, we agree that the threshold issue presented requires an analysis of whether such a procedure is encompassed within the powers reserved to the people of this state in Amendment 7.

Amendment 7 to the Arkansas Constitution of 1874 provides in part:

The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly[.] [Emphasis added.]

Amendment 7 further provides that the sufficiency of statewide petitions for initiatives shall be decided in the first instance by the Secretary of State, subject to the review of the supreme court which has original and exclusive jurisdiction over such causes. Upon legal challenges to initiative matters, Amendment 7 places the burden of proof “upon the person or persons attacking the validity of the petition.” As to the scope of Amendment 7 and its incorporation of the reserved rights of the people, this court has previously observed that “[t]he voters of this state essentially have, ivithin constitutional limits, a right to change any law or any provision of our Constitution they deem appropriate through Amendment 7 to the Constitution.” Dust v. Riviere, 277 Ark. 1, 4, 638 S.W.2d 663, 665 (1982) (emphasis added). Clearly those constitutional limitations derive from both the United States Constitution and this state’s constitution. On the federal level, the rights reserved to the states and to the people of the states originate from the Tenth Amendment to the United States Constitution, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, our Amendment 7 cannot empower the people of this state to initiate any measure, law, or amendment which falls outside the powers reserved to the states and their citizens by the United States Constitution. We understand this to be the essence of Petitioner’s challenge.

This court has previously decided cases in which it reviewed the validity of the people’s reserved powers of initiative and referendum. In Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984), this court was presented with a challenge to the validity of a proposed local initiative. In determining that such a review of the initiative could be conducted by this court prior to the election, the majority opinion stated:

At the outset the appellees argue that we should permit the measures to be placed on the ballot without first determining their validity. Certainly it is true that a party who resists an initiated petition on grounds such as insufficiency of signatures or improper ballot tide is not required to question the validity of the proposed measure. On the other hand, that question may be considered and decided when it is properly raised, even before the election. Proctor v. Hammans, 277 Ark. 247, 640 S.W.2d 800 (1982); Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912).

Id. at 459, 677 S.W.2d at 835 (emphasis added).

In Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912), this court considered our state’s previous Initiative and Referendum Amendment, which is comparable to our present-day Amendment 7, together with its enabling clause and determined that it was the duty of this court to determine the validity of a proposed amendment before such became law. The court concluded that it must determine whether the proposed measure is “subject to the initiative power of the people, and that the petition is legally sufficient^]” Id. at 591, 149 S.W. at 659 (emphasis added).

More recendy in Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992), this court declined to address the petitioners’ substantive constitutional challenge as to whether a proposed measure conflicted with the Qualifications Clause of the United States Constitution. The majority opinion did, however, acknowledge that this court had previously addressed constitutional challenges to a proposal’s validity, but limited such review to situations where the proposed measure was “clearly contrary to law” and, therefore, should not be submitted to the electorate. Id. at 660, 841 S.W.2d at 142. In addition to the consideration of whether a proposed measure is “clearly contrary to law,” this court has indicated that in determining whether an issue is justiciable, factors to be weighed include whether the issue at hand is a matter of significant public interest and a matter of constitutional law. See U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994); Bryant v. English, 311 Ark. 187, 843 S.W.2d 308 (1992).

It has been said that the pertinent issue in cases such as this one “is not the hypothetical question whether the law, if passed, would be constitutionally defective; rather, it is the present and ripe question whether the measure’s proponents are entitled to invoke the direct legislation process at all.” James D. Gordon III & David B. Magleby, Pre-Election Judicial Review of Initiatives and Referendums, 64 Notre Dame L. Rev. 298, 314 (1989) (emphasis added). We agree, especially when considering our decisions in Czech, Hodges, and Plugge. We also agree that a case such as this one is ripe for the following reasons: (1) The case is concrete and the record will not be improved by waiting until after the election is held; (2) the factual controversy — whether procedural and subject-matter requirements have been met — exists before the election; (3) post-election events will not sharpen the issues, as no additional facts are necessary for decision; and (4) the issue is not speculative nor hypothetical because the only constitutional issues involved are those that govern the proponents’ right to invoke the direct-legislation process. Id.

Regarding justiciability in general, this court has previously stated that declaratory relief will lie where (1) there is a justiciable controversy; (2) it exists between parties with adverse interests; (3) those seeking relief have a legal interest in the controversy; and (4) the issues involved are ripe for decision. US. Term Limits, Inc., 316 Ark. 251, 872 S.W.2d 349. Here, there is clearly a case in controversy over the effect and application of the proposed Amendment 9 between parties with adverse interests. Certainly Petitioner as a citizen, resident, taxpayer, and registered voter has a legal interest in the controversy. As to the issue of ripeness, the federal courts have viewed it as largely a matter of timing. Thorsted v. Gregoire, 841 F. Supp. 1068 (W.D. Wash. 1994). In Thorsted, the district court pointed out that the United States Supreme Court has recognized the importance in deciding challenges to the constitutionality of election laws when it held that “[jjusticiability in such cases depends not so much on the fact of the past injury but on the prospect of its occurrence in an impending or future election.” Id. at 1075 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 300, n. 12 (1979)).

Other courts have conducted preelection reviews of a proposed measure’s validity. In Hawke v. Smith, No. 1, 253 U.S. 221 (1920), the United States Supreme Court considered the issue of whether a proposed measure was constitutional under Article V of the United States Constitution before it had been enacted into law. The Supreme Court of California has interpreted Hawke as direct authority for the proposition that a state court can remove a proposed amendment from a state election ballot on the ground that it does not conform to Article V, and by implication, that a state court has authority to adjudicate that preelection question. See, e.g., AFL-CIO v. Eu, 686 P.2d 609 (Cal. 1984).

Based on the aforementioned decisions of this court as well as other courts, we hold that our review of the sufficiency of a proposed measure, as provided for in Amendment 7, includes a review of whether the measure’s proponents are entitled to invoke the direct initiative process when such issue is properly presented. In so holding, we do not conclude that we will entertain substantive constitutional challenges to a proposed measure, such as whether it violates the free speech provision of the First Amendment, before an election has been held. We distinguish such substantive constitutional challenges from procedural challenges in that the former necessarily involve fact-specific issues and thus are not ripe for review until the proposed measure becomes law and a case in controversy arises. Given that the review we are asked to conduct in this case is not one of direct review of the proposed amendment’s validity, but rather one of whether the proposed amendment’s advocates are entitled to invoke our initiative process in the first place, we will address the merits of Petitioner’s challenge. Our discussion of this issue necessitates our review of the powers authorized by Article V of the United States Constitution and the case law that has interpreted those powers.

II. Constitutional Challenge

Article V of the United States Constitution provides in pertinent part:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress [.]

The pertinent sections of the proposed Amendment 9 provide as follows:

(e) It is the will of the people of the State of Arkansas that the following amendment be added to the United States Constitution:
Congressional Term Limits Amendment
Section a. No person shall serve in the office of United States Representative for more than three terms, but upon ratification of this amendment no person who has held the office of United States Representative or who then holds the office shall serve for more than two additional terms.
Section b. No person shall serve in the office of United States Senator for more than two terms, but upon ratification of this amendment no person who has . held the office of United States Senator or who then holds the office shall serve more than one additional term.
Section c. This article shall have no time limit within which it must be ratified by the legislatures of three-fourths of the several states.
(g) Each member of the Arkansas delegation to the United States Congress is hereby instructed to use all of the powers of the Congressional office to pass the Congressional Term Limits Amendment set forth in subsection (e) above.
(h) All primary, general, and special election ballots shall have the information “DISREGARDED VOTER INSTRUCTION ON TERM LIMITS” printed adjacent to the name of any United States Representative or United States Senator who:
(1) Failed to vote in favor of the Congressional Term Limits Amendment proposed in subsection (e) when brought to any vote;
(2) Failed to second the Congressional Term Limits Amendment proposed in subsection (e) if it lacked for a second before any proceeding of the legislative body;
(3) Failed to propose or otherwise bring to a vote of the full legislative body the Congressional Term Limits Amendment proposed in subsection (e) above if it otherwise lacked a legislator who so proposed or brought to a vote of the full legislative body the Congressional Term Limits Amendment proposed in subsection (e) above; or
(4) Failed to vote in favor of discharging the Congressional Term Limits Amendment proposed in subsection (e) before any committee or subcommittee upon which the legislator served in the respective legislative body; or
(5) Failed to vote against or reject any attempt to delay, table, or otherwise prevent a vote by the full legislative body on the Congressional Term Limits Amendment set forth in subsection (e); or
(6) Failed to vote against any term limits proposal with terms longer than those set forth in the Congressional Term Limits Amendment proposed in subsection (e); or
(7) Sponsored or co-sponsored any proposed constitutional amendment or law that proposes term limits longer than those in the Congressional Term Limits Amendment set forth in subsection (e); or
(8) Failed to ensure that all legislative votes on congressional term limits were recorded and made available to the public.
(k) The House of Representatives of the State of Arkansas, and the Arkansas Senate, due to the desire of the people of the State of Arkansas to establish term limits for the Congress of the United States, are hereby instructed to make the following application to the United States Congress, pursuant to their powers under Article V of the United States Constitution, to wit:
“We, the people and legislature of the State of Arkansas, due to our desire to establish term limits on the members of the Congress of the United States, hereby make application to the United States Congress, pursuant to our power under Article V of the United States Constitution, to call a convention for proposing amendments to the Constitution.”
(1) All primary, general, and special election ballots shall have the information “DISREGARDED VOTER INSTRUCTION ON TERM LIMITS” printed adjacent to the name of any state senator or state representative who:
(a) Failed to vote in favor of the application set forth in subsection (k) above when brought to a vote; or
(b) Failed to second the application set forth in subsection (k) above if it lacked a second; or
(c) Failed to vote in favor of all votes bringing the application set forth in subsection (k) above before any committee or subcommittee upon which the legislator served; or
(d) Failed to propose or otherwise bring to a vote of the full legislative body the application set forth in subsection (k) if it otherwise lacked a legislator who so proposed or brought to a vote of the full legislative body the application set forth above; or
(e) Failed to vote against any attempt to delay, table, or otherwise prevent a vote by the full legislative body on the application set forth in subsection (k) above; or
(f) Failed to ensure that all votes on the application set forth in subsection (k) were recorded and made available to the public; or
(g) Failed to vote against any change, addition, or modification to the application set forth in subsection (k) above; or
(h) Failed to attend a hearing, session, or vote of the legislative body concerning any aspect of consideration of the proposals in subsection (e) and subsection (k) above, where such failure to attend resulted in any failure to obtain a quorum sufficient to conduct business; or
(i) Failed to move for, second, or vote in favor of a roll-call vote on any aspect of consideration of the proposals in subsection (e) and subsection (k) above, where such failure resulted in the defeat of any aspect of subsection (e) and subsection (k) above, without recording the votes of individual legislators to be held accountable at a later time.
0 Failed to vote against any effort to rescind the application.
(k) Failed to vote in favor of the amendment set forth in subsection (e) above, when the amendment was sent to the states for ratification; or
0 Failed to vote against any term limits amendment with terms longer than the limits set forth in the proposed amendment in subsection (e) above, when such an amendment is sent to the states for ratification.
(n)(l) The Secretary of State of the State of Arkansas shall be responsible for making an accurate determination as to whether a candidate for state or federal legislative office shall have placed next to the candidate’s name on the election ballot the information “DISREGARDED VOTER INSTRUCTION ON TERM LIMITS” or the information “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS” and for certifying the appropriate indication to the appropriate county clerks and other appropriate voting officials. [Emphasis added.]

It is clear from the aforementioned provisions that the proposed Amendment 9, which bears the popular name “THE CONGRESSIONAL TERM LIMITS AMENDMENT OF 1996,” directs both state and federal legislators to use the power of their respective offices to advance the cause of adopting a proposed amendment to the United States Constitution that would limit the number of terms of United States Representatives and Senators. The proposed Amendment 9 also directs the General Assembly to use the power specifically granted to the state legislatures in Article V to ask the United States Congress to call a constitutional convention. The proposed Amendment 9 essentially provides for a vote of the people to initiate the application process for a constitutional convention and, likewise, it provides for a vote of the people to propose to Congress an amendment to the United States Constitution. In the event any individual legislator, state or federal, fails to do as instructed, the proposed Amendment 9 states that the words “DISREGARDED VOTER INSTRUCTION ON TERM LIMITS” shall be placed adjacent to their names on any ballots in future elections.

Respondent and Intervenors assert that the proposed Amendment 9 does not contravene Article V because it neither prevents nor compels any action by any legislator, state or federal; it merely puts the legislators on notice of the desire of the people to have term limits on members of Congress. Further, Respondents and Intervenors assert that the main focus of this proposed amendment is its provision for additional ministerial duties of the Secretary of State, and that there is no binding effect on any legislative power nor any penalty assessed to legislators. As discussed earlier, we limit our review to the only justiciable issue — whether Amendment 7 reserves to the people of the State of Arkansas the power to propose amendments to the United States Constitution and to make application to Congress for a constitutional convention. In order to resolve this issue, it is helpful to review the case law interpreting the provisions of Article V.

In Hawke, 253 U.S. 221, the Supreme Court determined that a provision of the Ohio constitution extending the referendum to the ratification process of proposed amendments to the United States Constitution was in conflict with Article V. The Court stated that Article V provides for the proposal of constitutional amendments only by votes of two-thirds of both houses of Congress or upon application of the legislatures of two-thirds of the states, “thus securing deliberation and consideration before any change can be proposed.” Id. at 226. The Court further stated that “[t]he language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.” Id. at 227. The Court defined the term “legislatures” as the representative body which makes the laws of the people — not the people themselves. Id. In concluding that the power to ratify a proposed amendment to the United States Constitution is derived from that Constitution, the Court wrote:

It is true that the power to legislate in the enactment of the laws of a State is derived from the people of the State. But the power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification by the State derives its authority from the Federal Constitution to which the State and its people have alike assented.

Id. at 230 (emphasis added). Ultimately, the Court held that Article V only authorized state legislatures (i.e. the law-making bodies themselves) to ratify amendments to the United States Constitution. The Court thus concluded that the people, through the process of initiative and referendum, did not have the same power.

Two years after the decision in Hawke, the Supreme Court had another occasion to address the ability, or lack thereof, of the people of the states to ratify a proposed amendment to the United States Constitution. In Leser v. Garnett, 258 U.S. 130 (1922), the Court held that any measure which purports to place the power to ratify proposed amendments to the United States Constitution in the hands of the people of the states, and which takes such power away from the state legislatures is unconstitutional because it conflicts with Article V The Court held:

[T]he function of a state legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State.

Id. at 137 (citations omitted) (emphasis added).

Respondent and Intervenors argue that neither Hawke nor Leser is applicable to the situation presented in this case because both cases pertain only to the ratification clause of Article V. Instead, they assert that Kimble v. Swackhamer, 439 U.S. 1385 (Rehnquist, Circuit Justice 1978) is controlling. Their reliance on Kimble is misplaced, however, as the factual scenario presented in Kimble is opposite to that in the instant case. In Kimble, the Nevada state legislature had requested an advisory referendum from the people as to their positions on the proposed Equal Rights Amendment to the United States Constitution, ostensibly for the purpose of polling their constituents. Justice Rehnquist, acting in his capacity as Circuit Justice, concluded that the citizen participation in the amenda-tory process in that particular instance was not unconstitutional because of the nonbinding character of the referendum. While acknowledging the soundness of the previous holdings in Hawke and Leser, Justice Rehnquist concluded that neither of those cases ruled out “communication” between legislators and their constituents. Id. at 1387-88. That is not the case with proposed Amendment 9, which we conclude goes beyond a mere advisory referendum or a nonbinding communication between legislators and citizens.

In State ex rel. Harper v. Waltermire, 691 P.2d 826 (1984), the Supreme Court of Montana considered the issue of whether the people of that state could dictate to the state legislature that an application be made to Congress to call a constitutional convention. Specifically, the proposed ballot measure, not unlike the one at hand, directed the Montana Legislature to submit application to Congress for a constitutional convention in order to propose a balanced-budget amendment to the United States Constitution. The measure further provided that if the state legislature failed to make such application within ninety days, it had to remain in session, with only three days of permissible recess and without pay to the legislators until such application was made.

Relying on the holdings of Hawke and Leser, the Montana court held that the word “legislatures,” as used in both the ratification clause and the proposal clause of Article V, referred to the legislative bodies of the states. The court reasoned that the framers of the United States Constitution would not have ascribed different meanings to the two instances in Article V where the word “legislatures” is found. The court further echoed the framers’ sentiments that the amendatory process should be deliberate, holding that “whenever a state legislature acts to amend the United States Constitution under Article V powers, the body must be a deliberative representative assemblage acting in the absence of any external restrictions or limitations.” State ex rel. Harper, 691 P.2d at 830.

The sponsors of the Montana measure argued, just as Respondent and Intervenors do in this case, that the initiative was merely a nonbinding recommendation to the legislature. In rejecting that argument, the Montana court pointed to the express language directing the actions of the legislature as well as the consequences for not following those directions, namely that the legislature would be kept in “perpetual session” and, after a period of ninety days, legislators would no longer receive compensation. Id. The court determined that such restrictions violated the spirit of Article V as interpreted in Hawke and Leser. Finally, the court concluded that “[[legislative deliberation cannot exist where the outcome is a predetermined specific action. . . . The people through initiative cannot affect the deliberative process.” State ex rel. Harper, 691 P.2d at 830-31.

In Eu, 686 P.2d 609, the Supreme Court of California considered the constitutionality of a similar proposed ballot measure. The proposed measure at issue there would have compelled the California Legislature, on penalty of loss of salary, to apply to Congress to call a constitutional convention for the purpose of proposing a balanced-budget amendment. In concluding that the proposed measure did not conform to Article V of the United States Constitution, the court stated:

Article V provides for application by the “Legislatures of two-thirds of the several States,” not by the people through the initiative; it envisions legislators free to vote their best judgment, responsible to their constituents through the electoral process, not puppet legislators coerced or compelled by loss of salary or otherwise to vote in favor of a proposal they may believe unwise.

Id. at 613.

The California court reasoned that the purpose of that state’s initiative process is to allow a means of enacting legislation, not a means of conducting public opinion polls. The court stated that the voters were not without remedy, as they had ample opportunity to make their views known to the various candidates through the campaign process. The court acknowledged that the United States Supreme Court had not yet addressed this particular issue involving Article V’s proposal clause, but it found the Court’s previous interpretations of Article V’s ratification clause to be persuasive. Furthermore, the court cited with approval an earlier determination by the Supreme Judicial Court of Massachusetts that the reference to “legislatures” in the proposal clause, like that in the ratification clause, meant the legislative body of a state, not the whole legislative process. Eu, 686 P.2d at 620 (citing Opinion of the Justices to the Senate, 366 N.E.2d 1226 (Mass. 1977)).

The California court further submitted that the framers of the United States Constitution knew exactly what distinction they were making in providing that only “Legislatures” were able to make application to Congress to convene a constitutional convention. Relying on the constitutional analysis in Hawke, 253 U.S. 221, and Barlotti v. Lyons, 189 P. 282 (Cal. 1920), the court wrote:

The framers were, of course, aware of the difference between a representative body and the electorate as a whole; they knew that a legislature is a deliberative body, empowered to conduct hearings, examine evidence, and debate propositions. Its members may be assumed generally to hold views reflecting the popular will, but no one expects legislators to agree with their constituents on every measure coming before that body. Yet, although undoubtedly aware that the views of a deliberative body concerning a proposed amendment might depart from those of a majority of the voters, the framers of the Constitution chose to give the voters no direct role in the amending process; legislatures alone received the power to apply for a national convention, and legislatures or conventions, as Congress chose, the power to ratify amendments.
The only conclusion we can draw from this fact is that the drafters wanted the amending process in the hands of a body with the power to deliberate upon a proposed amendment and, after considering not only the views of the people but the merits of the proposition, to render a considered judgment. A rubber stamp legislature could not fulfill its function under article V of the Constitution.

Eu, 686 P.2d at 621 (footnote omitted) (emphasis added).

Most recently, the Supreme Judicial Court of Maine was asked by its house of representatives for an opinion on a proposed initiative measure comparable to the proposed Amendment 9. In Opinion of the Justices, 673 A.2d 693 (1996), the Maine court stated that neither the electors of that state nor the state’s legislature may control the delegates to Congress in the performance of their duties, because “[s]uch an exercise of control would violate the essence of federalism.” Id. at 696. The court recognized that once elected by the people of the state, Congressional representatives act on behalf of the nation as a whole. Id. In reviewing the proposed initiative under the provisions of Article V, the court held that “it is not within the power of the electors to propose a constitutional amendment. The proposed initiative, if enacted by a referendum vote, would allow the electors to do indirectly that which they are forbidden to do direcdy.” Id. at 697.

These three cases from Montana, California, and Maine, along with the Supreme Court cases interpreting Article V’s ratification clause, are persuasive authority for Petitioner’s proposition that Article V prohibits the action proposed by the measure at hand. Clearly, the proposed Amendment 9 is nothing more than a coercive attempt to compel the Arkansas General Assembly to do as the alleged majority of the people wish, without any intellectual debate, deliberation, or consideration of whether such action is in the best interest of all the people of this state. This intent is clear from the language of the proposed Amendment 9 that the legislators are hereby instructed to do as told. Although the proposed Amendment 9 does not compel such action by the legislature on threat of loss of salary, it is nonetheless binding on the legislators in an extortive manner as failure to heed the amendment’s instructions will result in their threatened potential political deaths. Contrary to what Respondent and Intervenors contend, the proposed duties to be given to the Secretary of State by Amendment 9 are not merely ministerial; rather, they amount to substantive penalties that are equivalent to an officially sanctioned recommendation by the State of Arkansas not to vote for such candidates because they disregarded the instructions and wishes of the voters. If, as Respondent and Intervenors assert, the proposed measure is merely a nonbinding attempt to communicate the desire of the people for term limits, then their remedy is to voice their desires at the polls by voting for candidates who share these beliefs.

The proposed Amendment 9 is clearly violative of the provision in Article V of the United States Constitution that all proposals of amendments to that Constitution must come either from Congress or state legislatures — not from the people. It is an indirect attempt to propose an amendment to the United States Constitution, and as such violates the narrow, specific grants of authority provided in Article V. The proposed Amendment 9 would virtually tie the hands of the individual members of the General Assembly such that they would no longer be part of a deliberative body acting independently in exercising their individual best judgments on every issue. Consequendy, the measure is an impermissible use of the initiative power reserved to the people of this state in Amendment 7 to the Arkansas Constitution and is clearly contrary to law. See Plugge, 310 Ark. 654, 841 S.W.2d 139.

Intervenors raise the issue in their reply brief that placing the information “DISREGARDED VOTERS INSTRUCTION ON TERM LIMITS” adjacent to candidates’ names on election ballots is constitutionally permissible as a time, place, and manner regulation under the Elections Clause of Article 1, Section 4, of the United States Constitution. Because we conclude that the proposed Amendment 9 exceeds the scope of the powers reserved to the people in Amendment 7, we need not address this issue. We thus enjoin Respondent from placing the proposed Amendment 9 on the ballot, or alternatively from declaring the results. The mandate is ordered issued on Friday, October 25, 1996, unless a petition for rehearing is filed. If a petition for rehearing is filed, briefing will be on an expedited basis to be set by the clerk.

Petition granted.

Glaze, J., concurs in the result reached.


text:
    Ralph DOUTHITT, Appellant v. Tammy DOUTHITT, Appellee; Misty Wilson, Appellee-Intervenor
    96-421
    930 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996

      Tiner & Hunter, by: Kenneth W. Haynes, for appellant.

      Leroy Blankenship, for appellees.
   DONALD L. Corbin, Justice.

Appellant Ralph Douthitt appeals the judgment of the Independence County Chancery Court providing for distribution of marital property between himself and his former wife, Appellee Tammy Douthitt, and awarding $75,000.00 compensatory damages to his stepdaughter, Appellee-intervenor Misty Wilson, pursuant to her tort claim of outrage. Because this case presents us with a question on the law of torts, jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(15). Appellant raises two points on appeal: (1) The trial court erred in making a disproportionate division of the marital property; and (2) the trial court erred in granting monetary damages to his stepdaughter on her intervening tort complaint. For separate reasons detailed below, we do not reach the merits of either point.

I. Disproportionate Division of Marital Property

For his first point on appeal, Appellant argues that the trial court erred in awarding a disproportionately large amount of the marital property to Appellee Tammy Douthitt. In response, Appel-lee asserts that because Appellant did not raise this issue below in the trial court, he is now procedurally barred from doing so on appeal. We agree.

Our review of the proceedings below reveals that no objection was made by Appellant and that this issue was not brought to the attention of the chancellor. This court has repeatedly stated that an argument which is raised for the first time on appeal is not properly preserved for appellate review and will not be addressed. Sebastian Lake Pub. Util. Co., Inc. v. Sebastian Lake Realty, 325 Ark. 85, 923 S.W.2d 860 (1996); Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995). Hence, we decline to address the merits on appeal, and we affirm the trial court’s ruling.

II. Intervenor’s Tort Claim

For his second point, Appellant argues that the trial court erred in denying his motion for a directed verdict on Appellee-Intervenor’s tort claim of outrage, as there was insufficient proof as to any type of damages. Again, we do not reach the merits of his claims because we conclude that the chancery court lacked subject-matter jurisdiction to hear the tort claim. This court has previously stated that parties may not consent to a court’s subject-matter jurisdiction where no such jurisdiction lies, nor may the jurisdiction be waived. Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995). A court must determine if it has subject-matter jurisdiction of the case before it. Id. Similarly, the question of subject-matter jurisdiction is one that this court is obligated to raise on its own, due to the fact that if the trial court lacked subject-matter jurisdiction, the appellate court also lacks jurisdiction. Id. A court of chancery or equity may, however, obtain jurisdiction over matters not normally within its purview pursuant to the clean-up doctrine, our long-recognized rule that once a chancery court acquires jurisdiction for one purpose, it may decide all other issues. Pryor v. Hot Spring County Chancery Court, 303 Ark. 630, 799 S.W.2d 524 (1990). We have determined that the clean-up doctrine does not apply in this instance.

In Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), this court established a test for determining when a chancery court’s jurisdiction over a legal claim pursuant to the clean-up doctrine is proper. The court wrote:

[W]e have come to the position that unless the chancery court has no tenable nexus whatever to the claim in question we will consider the matter of whether the claim should have been heard there to be one of propriety rather than one of subject matter jurisdiction.

Id. at 175-76, 711 S.W.2d at 456 (emphasis added). Also in Liles, this court stated that “when the court of equity is ‘wholly incompetent’ to consider the matter before it we will permit the issue of competency to be raised for the first time on appeal.” Id. at 175, 711 S.W.2d at 456. Similarly, in Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992), the court of appeals observed:

Generally, the chancery court, having acquired jurisdiction for equitable purposes, may retain all claims in an action and grant all relief, legal or equitable, to which the parties in the lawsuit are entitled. Unless equity is wholly incompetent to grant the relief sought, objection to its jurisdiction is waived if no motion to transfer to law is made.

Id. at 80, 831 S.W.2d at 155 (citations omitted).

According to the record below, the chancery court permitted the stepdaughter to intervene, and both Appellant and Appellee agreed to the intervention. By that time, however, the court had already granted the divorce decree and the only remaining issues to be decided were the support and visitation of the parties’ minor child, and the distribution of the marital property. There was no “tenable nexus” between what was left of the divorce proceeding and the third-party tort claim filed by the eighteen-year-old stepdaughter. It simply cannot be said that the outcome of either cause of action was dependent upon or had any bearing on the outcome of the other. We may have reached a different result had the Intervenor been a minor child, as her interests would have been direcdy affected by the chancellor’s decisions as to custody, visitation, and support in the divorce action.

Because we conclude that the trial court was wholly incompetent to grant the relief sought by the Intervenor, and that the issue was not merely a matter of the chancery court’s propriety, the issue of subject-matter jurisdiction must be addressed by this court on appeal even though it was not raised below. We hold that the trial court lacked subject-matter jurisdiction over the tort claim. We thus reverse and remand on Appellant’s second point with directions to the trial court to transfer Intervenor’s tort claim to circuit court.

Affirmed in part; reversed and remanded in part.


author: ROBERT L. Brown, Justice.

text:
    Byron Lamont WALLACE and Rodney Fitzgerald Bledsoe v. STATE of Arkansas
    CR 96-367
    931 S.W.2d 113
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996
    [Petition for rehearing denied November 18, 1996].

      Jeff Rosenzweig, for appellant Byron Lamont Wallace.

      Bailey Law Firm, by: Rita F. Bailey, for appellant Rodney Fitzgerald Bledsoe.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

This is a consolidated appeal by appellants Byron Lamont Wallace and Rodney Fitzgerald Bledsoe. Wallace was convicted of residential burglary, four counts of aggravated robbery, and two counts of theft. He was sentenced to 27 years in prison. A probationary sentence pertaining to Wallace was also revoked and a six-year sentence to run concurrently was assessed. Bledsoe was convicted of the same crimes as Wallace and was sentenced, as a habitual offender, to 45 years in prison. We find the points raised by Wallace and Bledsoe on appeal to be without merit, and we affirm.

On the evening of December 7, 1993, Marcus Sanders, Steven Campbell, Anthony Hatchett, Marvin Weathersby, and Juan Boy-kins were in Sanders’s Little Rock home playing Nintendo and working on music for their rap band. At approximately 6:50 p.m., a man later identified as Wallace knocked on the door and asked if Joe was there. After Sanders went to the door and answered that no such person was present, Wallace forced his way into the house with two other men, pulled out a handgun, and announced that it was a robbery. One of the men, later identified as Bledsoe, brandished a pipe bomb. The third robber was never identified and was not tried with Wallace and Bledsoe.

Once inside, Wallace led Sanders at gunpoint into the bedroom, where Sanders gave him $500 in cash. Sanders was then taken back into the living room, where he and the other men were forced to remove their clothes and lie down on the floor. Wallace and the third man then proceeded to go through the victims’ pockets and take jewelry and $300 or $400 in additional cash. According to Marcus Sanders, Bledsoe stood by the front door, yelled, and punched holes in the wall with the pipe bomb.

After the money and jewelry were taken, the robbers began to leave, but on the way out, Bledsoe lit the pipe bomb and threw it on the floor between Sanders and Juan Boykins. Campbell testified that Wallace then fired two shots back into the house as the five victims scattered for cover. The pipe bomb detonated. Although none of the men was seriously injured, windows were broken, furniture was destroyed, and the ceiling and walls buckled from the explosion.

Wallace and Bledsoe were charged with counts of residential burglary, aggravated robbery, and theft. Bledsoe was further charged as a habitual offender. The men were convicted and sentenced as set out above.

Í. Appellant Wallace

Wallace first contends that the trial court abused its discretion in allowing testimony of his flight and arrest. At trial, the State called Officer David Smith of the Little Rock Police Department to describe the events surrounding Wallace’s arrest. Officer Smith stated that he was working with the Street Crimes Unit, a squad of five patrolmen and one sergeant that operated in plain clothes and unmarked cars to assist in the service of arrest warrants. On December 9, 1993, at 11:00 p.m., he testified that he received information that detectives were attempting to serve a warrant on Wallace. At this point, Wallace’s defense counsel objected to Officer Smith’s testimony based on relevance and unfair prejudice. The objection was overruled.

Officer Smith continued that he and his partner first made contact with Wallace at 11:20 p.m. in the College Station area of Little Rock. He stated that he pulled up beside an unknown car, and a young man, whom the police officer identified as Wallace, stepped half-way out of his car. The police officer stated that Wallace asked them where Stout Street was, which was the street they were on. Officer Smith testified that he told Wallace that he was lost. He did not identify himself as a police officer. Wallace then got in his car and proceeded along Stout Street ahead of Officer Smith’s car. Officer Smith called for assistance. Sergeant Wilson, also of the Little Rock Police Department, arrived in an unmarked car and attempted to stop Wallace’s car as he turned from Stout Street to Avant Street by turning on his blue lights. Officer Smith testified that Wallace spun his tires and “took off.” The police officer followed down the three-block road whereupon Wallace and a passenger left his car and fled on foot. Officer Smith testified that he and other police officers identified themselves as police officers. They followed Wallace and his companion into a wooded area. Officer Smith stated that he apprehended Wallace, and in the course of doing so, Wallace lunged at him and attempted to grab his gun.

Wallace argues that this testimony was admitted in violation of Rule 403 of the Arkansas Rules of Evidence. Wallace also requests that we reverse the trial court because Officer Smith’s testimony was evidence of “other crimes, wrongs, or acts” under Ark. R. Evid. 404(b). We do not address this latter issue because it was not raised before the trial court. It is blackletter law that issues may not be raised for the first time on appeal. See, e.g., Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

A determination by the trial court of no unfair prejudice under Arkansas Rule of Evidence 403 will not be reversed absent a manifest abuse of discretion. See Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992); Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989). Wallace argues that the evidence should have been excluded because the apprehension occurred two days after the crime at Sanders’s home, that he denied his guilt in those events based on an alibi, that the police officers never identified themselves to him, that the police officers were in unmarked cars, and that the chase occurred late at night on an unlit, dead-end street. The crux of his argument is that a reasonable person might not have believed the officers to be authentic policemen.

This court has held that flight to avoid arrest or trial is admissible as a circumstance in corroboration of evidence tending to establish guilt. See Hill v. State, supra; Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994); Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994); Killcrease v. State, supra. Wallace asks us to rule differently based, in part, on the fact that he was arrested approximately two days after the events at Marcus Sanders’s house as opposed to being caught immediately fleeing the scene. This court, however, has previously rejected this argument. See Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973) (holding evidence of flight after the commission of a crime was admissible even though it did not occur immediately after the crime). See also Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990) (allowing evidence in an aggravated-assault and theft-by-receiving trial that the defendant fled from officers in a car that had been stolen two days earlier). Furthermore, the credibility of Wallace’s alibi defense and belief that the officers were not authentic was a matter to be weighed by the trier of fact. See Cooper v. State, supra; Killcrease v. State, supra. There was no abuse of discretion.

For his second point, Wallace asserts that the trial court erred in failing to instruct the jury on the lesser-included offense of robbery. The trial court refused to instruct on robbery because it found that there was no rational basis for that instruction in the evidence. We do not reach this argument because neither the record nor the abstract contains the robbery instruction requested by Wallace. This court’s position on proposed jury instructions was stated succinctly in Stewart v. State, 316 Ark. 153, 157-58, 870 S.W.2d 752, 755 (1994):

The instruction in question was not proffered into the record, and we do not have it before us for our review. This court has stated that it is the appellant’s duty to bring up a record sufficient to show that the trial court erred. Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993). In order to preserve an objection to an instruction for appeal, the appellant must make a proffer of the instruction to the judge. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). That proffered instruction must then be included in the record and abstract to enable the appellate court to consider it. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986). An instruction that is not contained in the record is not preserved and will not be addressed on appeal. Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989).

See also Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994); Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990).

For his third point, Wallace complains that a one-year probationary sentence relating to a previous misdemeanor conviction for one count of battery in the third degree was revoked as if the conviction had been for two counts of battery in the second degree, a felony. The judgment reflects that Wallace was sentenced to six years in prison for one count of second-degree battery on the revocation of the probationary sentence though the trial court in its ruling referred to two counts.

The circumstances surrounding this issue are confused, and we, therefore, decline to reach the point. The abstracted docket sheet for the battery charge reflects a misdemeanor conviction. Wallace also abstracts the judgment relating to the revocation itself which refers to second-degree battery and imprisonment of six years. However, he fails to abstract the judgment for the underlying battery conviction for which Wallace received a probationary sentence. Moreover, we note that the judgment contained in the record which relates to the previous battery conviction is virtually illegible. We cannot decide this issue without an abstract of the material evidence, and we deem the abstract on this point to be flagrantly deficient. Ark. Sup. Ct. R. 4-2(b).

II. Appellant Bledsoe

Bledsoe’s sole point on appeal is that two victims’ identification of him from a photo lineup should have been suppressed because the lineup did not include the photograph of Anthony Bledsoe, a man named by Marcus Sanders as one of the offenders. We also decline to reach this argument because Bledsoe’s abstract is fatally deficient. The abstract not only lacks a motion to suppress the lineup predicated on this point, but there is no ruling from the trial court in the abstract concerning this issue. In short, we cannot tell from the abstract whether this precise point was raised to and considered by the trial court. We have held similarly in other cases. See, e.g., Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). We affirm the trial court on this point.

Affirmed.


author: Andree Layton Roaf, Justice.

text:
    Arthur DABNEY, Jr. v. STATE of Arkansas
    CR 96-598
    930 S.W.2d 360
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996
    [Petition for rehearing denied November 18, 1996.]

      John H. Bradley, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Neuman, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

The Appellant, Arthur Dab-ney, was convicted in a bench trial of the attempted rape of a patient at a nursing home in Osceola, Arkansas. He was sentenced as an habitual offender to forty years’ imprisonment. Dabney asserts on appeal that there was insufficient evidence to support the judge’s finding that the victim was incapable of consent because she was physically helpless. We affirm.

At the time of the incident, Dabney was working as a laundry attendant at the nursing home in Osceola. On July 14, 1995, a nurse’s aide spotted Dabney’s laundry cart outside the room of a fifty-three-year-old patient who was blind, mentally impaired, partially handicapped, and unable to speak. The aide peeked behind a closed curtain in the patient’s room and saw Dabney standing by the patient’s bed with his pants down around his knees and his penis exposed and in an aroused state. The victim’s vest restraint and gown had been removed, and she had been pulled sideways on the hospital bed so that her opened legs hung over the lowered bedrail. Dabney was standing between the victim’s legs and was about to penetrate her when he saw that he was being observed by the aide. The aide called to another employee, who entered the room and witnessed Dabney pulling his pants up while standing next to the nude victim. The aide called Dabney out of the room and told him that she was going to notify the supervisor. Dabney responded: “I’m sorry. I said I’m sorry. It’s just a white woman anyway.”

Dabney waived his right to be tried by a jury; the case was tried before Judge Fogleman of the Mississippi County Circuit Court. The judge found Dabney guilty of attempted rape. Because Dabney had previously been convicted of rape, possession of a controlled substance, and burglary, he was sentenced as an habitual offender to forty years in prison.

Dabney was convicted of violating Ark. Code Ann. § 5-14-103(a)(1) (1995), which provides that:

A person commits a rape if he engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he is physically helpless.

A person is “physically helpless” when he or she is “unconscious or is physically unable to communicate lack of consent.” Ark. Code Ann. § 5-14-101(5) (1995). For his sole argument on appeal, Dab-ney asserts that there was insufficient evidence to support the judge’s finding that the victim was “physically helpless” because the evidence indicated that she was not “physically unable to communicate lack of consent” as required by the statute.

When reviewing the sufficiency of the evidence, this court does not weigh the evidence presented at trial; this is a matter for the factfinder. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Instead, we will review the evidence in the fight most favorable to the State, and we consider only the evidence which supports the guilty verdict. Id. The conviction will be affirmed if the evidence “is forceful enough to compel a conclusion one way or the other and pass beyond mere suspicion and conjecture.” Id.

At trial, it was established that the victim was fifty-three years old, blind, and unable to speak. One witness described her as a “tiny” woman under five feet tall. The victim was confined to her bed or a wheelchair and was placed in a restraining vest twenty-four hours a day to prevent her from climbing out of bed and hurting herself. She was able to walk and relieve herself only when assisted by the staff, and she had to be fed and bathed daily.

As to her ability to communicate, the victim could only grunt, raise her hand, and shake her head from side to side. She was unable to write. In addition, witnesses testified that the victim’s ability to perceive and comprehend her surroundings was very limited. A police detective who attempted to interview the victim after the incident testified that she was unable to understand or respond to most of her questions. The officer testified that: “I think the only time I felt she really understood what I said is when I said, ‘Shirley do you want to go back to bed.’ ” In addition, a nurse testified that the victim’s ability to communicate was less than that of a five or six-year-old child; indeed, the appellant admitted at trial that the victim was “helpless.”

There was clearly sufficient evidence from which the trial judge could have concluded that a blind, helpless woman who is unable to see, speak or move about freely was physically unable to communicate the lack of consent to engage in a sexual act as required by the statute. Granted, the victim was not completely physically incapacitated, but this is not what the statute requires; it only requires physical helplessness, not total incapacity. Ark. Code Ann. § 5-14-103(a)(l).

Furthermore, the comments to Section 5-14-101 indicate that “physically helpless” includes the situation where “the victim is aware of what is taking place but is unable to indicate lack of consent because of paralysis or other physical disability.” (Emphasis added.) Here, the facts suggest that the victim’s physical condition made it impossible for her to be “aware” of Dabney’s intentions before he actually commenced the rape. Consequendy, it is likely that the victim was unaware of what was about to occur and of her need to indicate her lack of consent. Under these circumstances, there was sufficient evidence to support the judge’s finding that the victim was unable to consent due to her “physical helplessness.”

Dabney argues on appeal that the facts support a charge of attempted carnal abuse in the second degree, a misdemeanor, rather than attempted rape. Specifically, Dabney asserts that it was the victim’s mental, not physical, disability which prevented her from consenting. However, there is more than sufficient evidence, that without regard to her mental infirmities, the victim was so physically impaired that she was unable to communicate consent.

Affirmed.