author: Donald L. Corbin, Justice, Robert L. Brown, Justice, Annabelle Clinton Imber, justice, Lavenski R. Smith, Justice,

text:
    H. Baker KURRUS, Individually, and On Behalf of Arkansans to Protect Police, Libraries, Education, and Services (APPLES), Petitioner v. Sharon PRIEST, Secretary of State, Respondent; Oscar Stilley, Individually, and On Behalf of Arkansas Taxpayers Rights Committee, Intervenor

    00-1071
    29 S.W.3d 669
    Supreme Court of Arkansas
    Opinion delivered October 24, 2000
    [Petition for rehearing denied November 2, 2000.]

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray, R. Christopher Lawson, and Tamara G. Ward, for petitioner.

      Tim Humphries, General Counsel; and Mark Pryor, Att’y Gen., by: Dennis R. Hansen, Ass’t Att’y Gen., for respondent.

      Oscar Stilley, for intervenor.
   Donald L. Corbin, Justice,

delivered the opinion of the court with respect to Point I, in which ARNOLD, C.J., and Thornton, J., joined. Brown, J., concurs. Glaze, J., dissents, and IMBER and SMITH, JJ., dissent separately.

TOM GLAZE, Justice, delivered the opinion of the court with respect to Point II, in which ARNOLD, C.J., CORBIN and Thornton, JJ., joined. Brown, Imber, and Smith, JJ., dissent.

This is an original action petition, filed pursuant to Amendment 7 of the Arkansas Constitution and Ark. Sup. Ct. R. 6-5(a), challenging the sufficiency of a proposed constitutional amendment. Petitioner, H. Baker Kurrus, individually, and on behalf of Arkansans to Protect Police, Libraries, Education, and Services (APPLES), asks this court to declare that the popular name and ballot title of proposed Amendment 4 are insufficient and that, if enacted by the voters, the amendment would be constitutionally invalid. Petitioner also seeks an injunction restraining Respondent, Arkansas Secretary of State Sharon Priest, from placing the proposed amendment on the ballot for the November 7, 2000 general election. We allowed the intervention of Oscar Stilley, individually, and on behalf of Arkansas Taxpayers Eights Committee, the sponsor of proposed Amendment 4.

On September 1, 2000, Respondent certified as sufficient the popular name and ballot title of proposed Amendment 4. As certified by Respondent and the Arkansas Attorney General, the popular name of the proposed amendment is as follows:

AN AMENDMENT TO ABOLISH THE STATE AND LOCAL SALES AND USE TAX ON USED GOODS, TO PROHIBIT THE INCREASE OF TAXES WITHOUT VOTER APPROVAL AT A GENERAL ELECTION, TO PROVIDE FOR A THREE YEAR STATUTE OF LIMITATIONS FOR ACTIONS TO RECOVER TAXES, BY THE TAXING AUTHORITY OR BY AN AGGRIEVED TAXPAYER, TO PROVIDE PROCEDURAL SAFEGUARDS FOR TAXPAYERS, AND FOR OTHER PURPOSES

The complete text of the ballot title, as certified by Respondent and the Arkansas Attorney General, is appended to this opinion. Relevant portions of the ballot title are reproduced as needed in our discussion below. Petitioner filed this original action September 18, 2000. We granted Petitioner’s motion to expedite the case on September 21, 2000, and heard oral argument on October 12, 2000.

Petitioner raises the following challenges to proposed Amendment 4: (1) the ballot title is too long and complex and organized in a way that misleads voters; (2) the ballot title and popular name are misleading and do not reveal to the voters the scope and import of the changes proposed by the measure; and (3) the ballot title and the popular name are impermissibly tinged with partisan coloring. Additionally, Petitioner contends that the proposed amendment, if approved by a majority of the voters, would violate the United States and Arkansas Constitutions by impairing the obligation of contracts. See Ark. Const, art. 2, § 17, and U.S. Const, art. 1, § 10. We find merit to Petitioner’s arguments and therefore grant the petition.

Before we discuss the meritorious claims, we must address Intervenor’s argument that we should review the ballot title and popular name of this proposed amendment under the “manifest fraud” standard set out in Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982). That standard is used to review proposed constitutional amendments submitted by the General Assembly under Article 19, § 22. This standard is admittedly different than that used to review proposed amendments submitted by the people under Amendment 7. This court recently rejected the invitation to apply one uniform standard to all proposed amendments. See Thiel v Priest, 342 Ark. 292, 28 S.W.3d 296 (2000). Accordingly, for the reasons stated in Thiel, we reject Intervenor’s argument on this point.

I. Sufficiency of the Ballot Title and Popular Name

The standard for reviewing the ballot title and popular name of proposed initiatives under Amendment 7 is well settled. A ballot title 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. Parker v. Priest, 326 Ark. 123, 930 S.W.2d 322 (1996). It must be free from misleading tendencies that, whether by amplification, omission, or fallacy, thwart a fair understanding of the issues presented. Id. It cannot omit material information that would give the voter serious ground for reflection. Id. While it is not required that the ballot title contain a synopsis of the amendment, it is required that the title be complete enough to convey an intelligible idea of the scope and import of the proposed law. Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (citing Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952)). This court has recognized the impossibility of preparing a ballot title that would please everyone. Id. Thus, the ultimate issue is whether the voter, while inside the voting booth, is able to reach an intelligent and informed decision for or against the proposal and understands the consequences of his or her vote based on the ballot title. Id. The party challenging the ballot title has the burden of proving that it is misleading or insufficient. Parker v. Priest, 326 Ark. 386, 931 S.W.2d 108 (1996).

Unlike the ballot title, the popular name of a proposed constitutional amendment is primarily a useful legislative device that need not contain the same detailed information or include exceptions that might be required of a ballot title. Parker, 326 Ark. 123, 930 S.W.2d 322. Its purpose is to identify the proposal for discussion prior to the election. Roberts, 341 Ark. 813, 20 S.W.3d 376; Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984). The popular name is not held to the same stringent standards and need not be as explicit as a ballot title; however, it cannot contain catch phrases or slogans that tend to mislead or give partisan coloring to a proposal. Id. We consider the popular name along with the ballot title in determining its sufficiency. Parker, 326 Ark. 123, 930 S.W.2d 322. With these standards in mind, we consider Petitioner’s challenges to the proposed amendment’s ballot tide and popular name.

Petitioner argues that the ballot title, which contains 592 words, is too long and complex and is organized in such a way that it misleads the voters. Petitioner acknowledges that the length of the ballot title is not, in itself, a determinative factor. See, e.g., Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996); Parker, 326 Ark. 123, 930 S.W.2d 322; Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). He argues, however, that the length of this ballot title combined with the way in which it is organized effectively results in the concealment of the more controversial aspects of the proposal. He argues that the ballot title focuses the voter’s attention on the more-popular initial provision, which would abolish the sales and use tax on used goods, while hiding the more controversial and less publicized issues in the middle and near the end of the ballot title. According to Petitioner, the more controversial issues are (1) the provision prohibiting any increase or imposition of tax without the approval of a majority of the electorate in a statewide general election; (2) an expanded and confusing legal definition of “tax increase”; (3) a restricted definition of “illegal exaction”; (4) the abolition of the common-law rule against recovery back of voluntary payment of taxes; (5) the creation of a three-year statute of limitations in tax recovery actions brought by citizens or taxing authorities; and (6) the removal of some traditional defenses afforded the state in tax actions.

The first part of the ballot title reflects:

AN AMENDMENT TO THE ARKANSAS CONSTITUTION ABOLISHING THE STATE AND LOCAL SALES AND USE TAX ON USED GOODS; AUTHORIZING THE COLLECTION OF SALES AND USE TAX ON GOODS USED TO MAKE REMANUFACTURED GOODS, BUT NOT ON THE SALE PRICE OR MARKET VALUE OF THE REMANUFACTURED GOODS; PROVIDING THAT THIS AMENDMENT SHALL NOT BE CONSTRUED TO PREVENT THE IMPOSITION OF SALES AND USE TAX UPON OTHERWISE TAXABLE GOODS, OR THE SALE OR USE OF SAME, WHICH HAVE NOT BEEN PREVIOUSLY SUBJECT TO ANY SALES OR USE TAX BY ANY GOVERNMENT ENTITY; PROVIDING THAT THIS AMENDMENT SHALL NOT BE CONSTRUED TO PROHIBIT THE COLLECTION OF TAXES FOR WHICH LIABILITY ACCRUED PRIOR TO THE EFFECTIVE DATE OF THIS AMENDMENT; PROHIBITING THE IMPOSITION OR INCREASE OF ANY TAX, OR THE DIVERSION OF ANY FUEL TAXES OR OTHER REVENUE SOURCES PRESENTLY USED FOR ROAD OR BRIDGE CONSTRUCTION OR MAINTENANCE TO OTHER PURPOSES, WITHOUT THE APPROVAL OF A MAJORITY OF THE QUALIFIED ELECTORS, OF THE STATE OR THE AFFECTED LOCAL GOVERNMENTAL ENTITY, FREELY VOTING AT THEIR ABSOLUTE UNFETTERED DISCRETION UPON THE ISSUE AT A REGULARLY SCHEDULED STATEWIDE ELECTION; PROVIDING THAT THE REDUCTION OR ELIMINATION OF EXEMPTIONS OR CREDITS, OR THE CHANGING OF ANY LAW OR RULE WHICH RESULTS IN THE COLLECTION OF ADDITIONAL REVENUE FROM SOME OR ALL TAXPAYERS, SHALL BE DEEMED A TAX INCREASE TO THE EXTENT THAT SAID LAW RESULTS IN INCREASED TAX OR EXACTION^]

Petitioner contends that the ballot title does not convey to the voter the scope or import of the proposed measure, namely that it would completely change the means of generating revenue currently used by the state and local government entities. The voter must sift through 113 words before this change is mentioned. Even then, Petitioner, argues, the ballot title fails to inform the voter of the gravity and significance of this change.

Respondent and Intervenor do not contest the fact that the proposed amendment would affect sweeping changes beyond the abolishment of the sales and use tax on used goods. They argue, however, that this larger impact is clearly revealed to the voters in the ballot title. We disagree.

The ballot title does not inform the voter of the far-reaching consequences of voting for this measure. For example, the voter is not sufficiently informed that immediately upon the amendment’s approval, all revenues collected from sales and use tax on used goods will cease, and the government entities that depend on those revenues will not be able to make up for the losses until the next “regularly scheduled statewide election.” Likewise, the voter is not informed as to what “regularly scheduled statewide election” means. Does it mean a statewide election called in a regularly scheduled manner, or does it refer to the general elections held every other November? This uncertainty is compounded by the fact that the popular name does not use this term at all, but rather, it reflects the term “general election.” If the term used in the popular name is accurate, then those government entities that are adversely affected by the loss of revenues from the abolished sales and use tax on used goods will not be able to attempt to recoup those losses fdr two full years. The voter should be informed that by approving this measure, he or she may risk losing valuable government services during that time. This information is so significant and material that it would give the voter serious ground for reflection. See Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994). Its omission thus renders the ballot title insufficient. This court has long recognized that the “ballot title must accurately reflect the general purposes and fundamental provisions of the proposed initiative, so that an elector does not vote for a proposal based on its description in the ballot title, when, in fact, the vote is for a position he might oppose.” Gaines v. McCuen, 296 Ark. 513, 519, 758 S.W.2d 403, 406 (1988) (emphasis added) (citing Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248 (1934)).

Similarly, the ballot tide does not sufficiently inform the voter as to what constitutes a “tax increase” and thus triggers the provision requiring voter approval at a regularly scheduled statewide election. The ballot tide provides that “the reduction or elimination of exemptions or credits, or the changing of any law or rule which results in the collection of additional revenue from some or all taxpayers, shall be deemed a tax increase to the extent that said law results in increased tax or exaction[.]” This definition appears to cover any law or rule that results in the collection of additional revenue from some or all taxpayers. Thus, fees that are ordinarily thought of as revenues, such as those collected for drivers’ licenses, hunting permits, and vehicle tags, would be encompassed within that definition. Accordingly, the proposed amendment would prohibit any increase in those fees without the approval of a majority of the voters in the affected area.

Intervenor contends that such fees would not require such a popular vote before they could be increased, because the ballot title provides that only the collection of additional revenue that results in increased tax shall be deemed a tax increase. He asserts that there are legal differences between the terms “tax” and “fee.” Thus, according to Intervenor, only a law or rule that results in increased tax will be deemed a tax increase. That notion, however, is not clearly conveyed in the ballot title or in the text of the amendment itself. In this respect, both the ballot title and the amendment are misleading. The voter should not have to be well versed in legal interpretation in order to decipher what is meant in a proposed constitutional amendment. Placing the voter in a position of either having to be an expert in the subject of taxation or having to guess as to the effect his or her vote would have is impermissible. See Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982). This is precisely the dire straits in which the voter is placed "by the uncertain language contained in this measure.

Furthermore, not only is the ballot title unclear as to whether fees and other types of revenue are encompassed by the proposed amendment, it is equally unclear whether the amendment pertains to all types of taxes and taxing authorities. The ballot title prohibits “the imposition or increase of any tax ... without the approval of a majority of the qualified electors, of the state or the affected local governmental entity[.]” This provision would appear to encompass the imposition or increase of any tax levied by any taxing authority. The amendment, however, only purports to prohibit the General Assembly or “any city, county, or town” from imposing or increasing any tax without the approval of a majority of the qualified electors therein. It is thus not clear that the amendment’s prohibition would extend, for example, to taxes imposed by school districts, whereas the ballot tide would cover those taxing entities. We are not persuaded by Respondent’s and Intervenor’s contention that school districts are implicitly covered by the amendment’s reference to taxes imposed by counties. The voter should not have to resort to legal rules of statutory construction to determine what is meant by a proposed measure. The voters are entided to a ballot tide that is honest, impartial, and intelligible and will give them a fair understanding of the issues presented. Parker, 326 Ark. 123, 930 S.W.2d 322. It is axiomatic that the majority of voters will derive their information about a proposed measure from an inspection of the ballot title immediately before casting their votes. Christian Civic Action Comm., 318 Ark. 241, 884 S.W.2d 605. The ballot title in this case does not honesdy and accurately reflect what is contained in the proposed amendment.

In sum, we conclude that the ballot title of proposed Amendment 4, considered along with its popular name, is insufficient. It is misleading, both by amplification and omission, and thwarts a fair understanding of the issues presented. It also fails to convey to the voter the scope and import of the proposed measure.

II. Impairment of Contracts

Petitioner’s remaining argument is that the proposed amendment will violate the constitutional guarantee against impairment of contracts, and for that reason, should be struck from the ballot. Our court has held that it would review a proposal’s validity if the measure is “clearly contrary to law.” Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996), cert. denied, 117 S. Ct. 1081 (1997) (quoting Plugge v. McCuen, 310 Ark. 654, 660, 841 S.W.2d 139, 142 (1992)). Here, the crucial threshold issue is whether the proposed amendment as written clearly conflicts with Article 2, § 17, of the Arkansas Constitution and Article 1, § 10, of the United States Constitution, both of which prohibit the passage of any “law impairing the obligation of contracts.” If it does, the proposal should not be submitted to the electorate, because the present and ripe question to decide is whether the measure’s proponents are entitled to invoke the direct legislation process at all. Donovan, 326 Ark 353, 931 S.W.2d 119.

It is stipulated by the parties that Petitioner is the holder of a City of Brinkley Sales and Use Tax Bond, which is secured by collections of the sales and use tax levied by the city. The bond is one of a Series 2000 Bonds, and matures on March 1, 2017. The City of Brinkley has covenanted that the sales and use tax will be levied and collected until the 2000 bonds are paid in full, and it further covenanted that excess collections of the sales and use tax will be used to redeem the 2000 bonds prior to maturity.

After stipulating to the foregoing facts, the proponent of the proposed measure, Intervenor Oscar Stilley, offered no stipulations or proof of his own. Instead, he merely argues in his brief that Petitioner did not attempt to show a bona fide impairment of the obligation of contracts. Intervenor further claims Petitioner has failed to show that his bond will not be paid off well ahead of time, with or without the passage of the proposal; nor, he says, did Petitioner explain how the bondholders might be prejudiced by a reduction in the tax base.

Intervenor is seriously mistaken. Section 5 of the amendment provides it will take effect immediately upon passage. When that occurs, that portion of the revenues from the sales and use taxes on used goods indisputably will no longer be available for the payment of the City of Brinkley bonds. Thus, under the terms of the proposed amendment, an impairment clearly arises under the stipulated facts in this case because the City of Brinkley covenanted that its bonds would be payable from and secured by a pledge of sales and use taxes upon all goods. Significantly, the proposed amendment’s terms fail to provide a substituted source of revenue that would replace these abolished sales and use taxes on used goods. If the proposal had contained such a provision and assurance, any impairment caused by the loss of sales and use taxes could have been precluded. See Beaumont v. Faubus, 239 Ark. 801, 394 S.W.2d 478 (1965) (holding that bondholders’ payment does not always have to be made from particular fund or source and real obligation, from standpoint of impairment of contractual considerations in case of bond issue; change involving substitution of security which does not diminish prospects of, or adversely interfere with, expected payment does not constitute impairment of contract). Besides the proposed measure not having provided for a substituted revenue or security source to replace the taxes lost from used goods, there is no existing statutory procedure in place by which the bond payments could be made. Our court has also held that, where collateral which has been pledged to secure the repayment of bonds is removed, then the obligation of the contract between the bondholder and the bond issuer has been impaired. See Bacon v. Road Imp. Dist. No. 1, 157 Ark. 309, 248 S.W. 267 (1923). As decided in Donovan, 326 Ark. 353, 931 S.W.2d 119, where there is a justiciable issue that reflects that the proposed measure is clearly contrary to law, the measure’s proponents are not entitled to invoke the direct legislation process at all.

Utilizing Petitioner’s Official Statement pertaining to the City of Brinkley Sales and Use Tax Bonds Series 2000, Intervenor relies on the following language from the section pertaining to Debt Service Coverage:

Actual Tax receipts collected by the City will depend upon, among other things, the level of retail activity within the City, the economic health of the City and surrounding trade area, possible future actions by the people of the State or General Assembly of the State defining transactions subject to the Tax and granting exemptions from the Tax, such as exemptions for food sales. The figure set forth below is only an estimate and there can be no assurance that actual Tax receipts will equal the estimate shown below. See THE TAX, Future Tax Receipts.
Based upon the pledge of 100% of estimated Tax receipts, debt service coverage is as follows:
Estimated Tax Receipts Available for Debt Service $584,284
Maximum Annual Debt Service 369,525
Debt Service 1.58 x

Intervenor contends that the foregoing information shows that the purchasers of the Brinkley bonds were made aware that there may be a possibility of a reduction in the tax base. While that is true, the above language speaks in terms of the people of the State or the General Assembly defining transactions or granting exemptions that might reduce tax revenues. There is no suggestion in the above statement which indicates an entire source of the sales and use tax revenues might be abolished and no longer available to secure the bond indebtedness. As mentioned above, the proposed measure abolishes a portion of Arkansas’s sales and use tax which can no longer be used, as the City of Brinkley covenanted, to secure and to pay its bonds. This is an impermissible impairment of contract clearly contrary to the Arkansas and United States Constitutions. Thus, in our view, the proposed measure should be removed from the November 7, 2000 ballot or the votes cast for or against it should not be counted.

In conclusion, we note that in conference the justices thoroughly addressed the point regarding whether this court could reach the impairment-of-contract issue. Citing, Plugge, 310 Ark. 654, 841 S.W.2d 139, Justice Robert L. Brown now opines in his dissent that any ruling on the impairment question would be advisory in nature until the proposed measure is adopted. He asserts that this is the reason that the Plugge court declined to reach the constitutionality of the proposal in issue there. He also cites Donovan, 326 Ark. 353, 931 S.W.2d 119, and submits that neither Plugge nor Donovan provides authority for this court to consider a substantive constitutional challenge to the proposal. This is simply not true.

In our recent decision in Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000), we addressed this issue. There we said the following:

Before we can reach the merits of Mr. Stilley’s point on appeal, we must first determine whether this pre-election challenge to the validity of the proposed ordinance presents an issue that is ripe for adjudication. In Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992), we declined to decide a constitutional challenge to a proposed constitutional amendment before the election had occurred on the ground that this court cannot issue advisory opinions. We distinguished our earlier holding in Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984), that the legal validity of a proposed measure may be considered and decided even before the election, by noting that the proposed measure in Czech v. Baer was "clearly contrary to law and should not have been submitted to the electorate, ” whereas the proposed measure in Plugge v. McCuen was not so clear. Plugge v. McCuen, 310 Ark. at 660, 841 S.W.2d at 142. More recently, in Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996), we clarified our precedent on the issue of whether we will entertain a challenge to the legal validity of such measures prior to an election. We stated:
It has been said that the pertinent issue in cases such as this one “is not the hypothetical question of 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.”
Id., 326 Ark. at 359, 931 S.W.2d at 121. Thus, we held that we could review the question of whether a measure’s proponents are entitled to invoke the direct initiative process in the first place.

Id. at 351, 28 S.W.3d at 277 (emphasis added).

If we took the position, as suggested by some, that we could never consider the constitutional validity of an Amendment 7 initiative proposal prior to an election, this court would have to overrule precedent nearly ninety years old, see Hodges v. Dowdy, 104 Ark. 583, 149 S.W 656 (1912), and as recent as October 12, 2000 — Stilley, 342 Ark. 346, 28 S.W.3d 274. This court in Plugge, 310 Ark. 654, 841 S.W.2d 139, fully recognized the controlling case law that authorizes this court to review the constitutional validity of a proposed amendment under Amendment 7, but chose not to rule on the constitutional issue there because it could not say the proposal clearly contravened the Qualification Clauses of the United States Constitution. Moreover, the Plugge court specifically declined to reach the proposal’s constitutionality because the record before the court was corfusing and because the parties had failed to provide a complete, understandable abstract of record. In fact, the parties even failed to include a copy of the proposed amendment.

Again, for the reasons already discussed above on this point, we hold the proposed amendment is clearly in conflict with both the Arkansas and United States Constitutions. Unlike the situation in Plugge, the parties, including the Attorney General and counsel for the proponents of the proposed measure, have submitted sufficient stipulations, exhibits, and a record, along with citations of legal authority they argue in support of the constitutional issue of impairment of contract before us. We have no basis to decline reaching the proposed measure’s constitutionality, and only additional problems are certain to ensue if the court side-steps deciding this issue now.

Accordingly, we grant the petition and enjoin Respondent from placing proposed Amendment 4 on the ballot. Alternatively, we order that any votes cast on such proposal not be counted or certified. We further shorten the time for issuance of the mandate and direct that any petition for rehearing must be filed within five days from the date that this opinion is issued.

ADDENDUM

BALLOT TITLE

AN AMENDMENT TO THE ARKANSAS CONSTITUTION ABOLISHING THE STATE AND LOCAL SALES AND USE TAX ON USED GOODS; AUTHORIZING THE COLLECTION OF SALES AND USE TAX ON GOODS USED TO MAKE REMANUFACTURED GOODS, BUT NOT ON THE SALE PRICE OR MARKET VALUE OF THE REMANUFACTURED GOODS; PROVIDING THAT THIS AMENDMENT SHALL NOT BE CONSTRUED TO PREVENT THE IMPOSITION OF SALES AND USE TAX UPON OTHERWISE TAXABLE GOODS, OR THE SALE OR USE OF SAME, WHICH HAVE NOT BEEN PREVIOUSLY SUBJECT TO ANY SALES OR USE TAX BY ANY GOVERNMENT ENTITY; PROVIDING THAT THIS AMENDMENT SHALL NOT BE CONSTRUED TO PROHIBIT THE COLLECTION OF TAXES FOR WHICH LIABILITY ACCRUED PRIOR TO THE EFFECTIVE DATE OF THIS AMENDMENT; PROHIBITING THE IMPOSITION OR INCREASE OF ANY TAX, OR THE DIVERSION OF ANY FUEL TAXES OR OTHER REVENUE SOURCES PRESENTLY USED FOR ROAD OR BRIDGE CONSTRUCTION OR MAINTENANCE TO OTHER PURPOSES, WITHOUT THE APPROVAL OF A MAJORITY OF THE QUALIFIED ELECTORS, OF THE STATE OR THE AFFECTED LOCAL GOVERNMENTAL ENTITY, FREELY VOTING AT THEIR ABSOLUTE UNFETTERED DISCRETION UPON THE ISSUE AT A REGULARLY SCHEDULED STATEWIDE ELECTION; PROVIDING THAT THE REDUCTION OR ELIMINATION OF EXEMPTIONS OR CREDITS, OR THE CHANGING OF ANY LAW OR RULE WHICH RESULTS IN THE COLLECTION OF ADDITIONAL REVENUE FROM SOME OR ALL TAXPAYERS, SHALL BE DEEMED A TAX INCREASE TO THE EXTENT THAT SAID LAW RESULTS IN INCREASED TAX OR EXACTION; PROVIDING THAT THE TERM “MAJORITY OF THE QUALIFIED ELECTORS,” AS USED IN THIS AMENDMENT, MEANS A MAJORITY OF THE QUALIFIED ELECTORS WHO ACTUALLY APPEAR AND VOTE UPON THE PERTINENT QUESTION; ABOLISHING THE RULE AGAINST RECOVERY BACK OF VOLUNTARY PAYMENTS, AS APPLIED TO ILLEGAL EXACTIONS; PROVIDING FOR A THREE (3) YEAR STATUTE OF LIMITATIONS FOR THE CITIZENS’ RECOVERY BACK OF ILLEGAL EXACTIONS, AND FOR A THREE (3) YEAR STATUTE OF LIMITATIONS ON ALL CIVIL, CRIMINAL, OR OTHER ACTIONS BY ANY STATE OR LOCAL GOVERNMENT TO COLLECT DELINQUENT TAXES; PROVIDING THAT IN ANY ILLEGAL EXACTION LAWSUIT, ALL PERSONS SIMILARLY SITUATED TO THE NAMED PLAINTIFF SHALL BE ENTITLED TO RECOVER BACK ANY SUMS FOUND TO HAVE BEEN ILLEGALLY EXACTED, LESS COSTS AND REASONABLE ATTORNEY’S FEES, UPON SUCH CONDITIONS AS THE COURT MAY FIND JUST; EXPANDING THE DEFINITION OF ILLEGAL EXACTION TO INCLUDE NOT ONLY ILLEGAL IMPOSITION, LEVYING, ASSESSMENT, OR COLLECTION OF TAX OR ENFORCED GOVERNMENTAL OR QUASI GOVERNMENTAL EXAC-TIONS, BUT ALSO ERRONEOUS OR EXCESSIVE IMPOSITION, LEVYING, ASSESSMENT, OR COLLECTION OF TAX OR ENFORCED GOVERNMENTAL OR QUASI GOVERNMENTAL EXACTIONS OF ANY KIND WHATSOEVER, PROVIDED, HOWEVER, THAT SUCH SHALL NOT INCLUDE ANY LEGAL TAX IF THE TAXING AUTHORITY REASONABLY ATTEMPTED TO COMPLY WITH ALL LAWS, REGULATIONS, AND REQUIREMENTS FOR THE ASSESSMENT OR COLLECTION OF TAX, AND THE CIRCUMSTANCES ARE SUCH THAT THE TAXPAYERS IN FAIRNESS AND EQUITY OUGHT NOT TO ESCAPE LIABILITY FOR THE TAX; PROVIDING THAT SOVEREIGN IMMUNITY, FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, FAILURE TO APPROPRIATE MONEY FOR REPAYMENT, OR PAYMENT OVER TO ANOTHER ENTITY, CONSTITUTE NO DEFENSES TO AN ACTION FOR ILLEGAL EXACTION; PROVIDING FOR LIBERAL CONSTRUCTION IN FAVOR OF THE TAXPAYER, SEVERABILITY, AND GENERAL REPEALER OF CONFLICTING PROVISIONS; PROVIDING THAT THE AMENDMENT IS SELF-EXECUTING AND SHALL TAKE EFFECT IMMEDIATELY, EXCEPT AS OTHERWISE PROVIDED; PROVIDING THAT ALL PROTECTIONS FOR THE TAXPAYER, RELATED TO LITIGATION, SHALL APPLY TO ALL ACTIONS BROUGHT TO JUDGMENT AFTER THE DATE OF PASSAGE OF THIS AMENDMENT, EXCEPT AS TO ACTIONS IN WHICH A NEW TRIAL WOULD BE REQUIRED IN ORDER TO DETERMINE FACTS ESSENTIAL TO THE JUDGMENT, OR ACTIONS IN WHICH THE JUDGMENT WAS ALREADY FINAL ON THE DATE OF THE PASSAGE OF THIS AMENDMENT; AND FOR OTHER PURPOSES.

Robert L. Brown, Justice,

concurring on Point I; dissenting on Point II. I agree with the majority that the ballot title and the proposed amendment are misleading in the extreme. Nothing less is at stake here than the total restructuring of how all revenue is raised in this state for spending at all levels of government. That point, however, is obfuscated by the drafting of the proposal. The ballot title and the amendment speak throughout in terms of taxes. However, an “increase in taxes” is defined so broadly that any revenue increase falls within that definition. Witness the language from the ballot title: “Providing that...the changing of any law or rule which results in the collection of additional revenue from some or all taxpayers, shall be deemed a tax increase to the extent that said law results in increased tax or exaction.” Thus, collection of additional revenue defines an “increased tax.” So while the voting public believes it is approving a mechanism, first, to remove the sales tax on used goods, and, second, for voter approval of sales, income, and property taxes, in actuality school millages, special improvement district assessments, hunting fees, park fees, zoo fees, and any other revenue increase would be subject to voter approval. In short, all revenue increases, regardless of how big or small, will not be able to go into effect until the people approve them every two years at a General Election. This measure, as a result, completely revamps the revenue-raising component of government, especially at the local level. The intervenor, Oscar Stilley, denies this, but at the very least the full ramifications of the proposed initiative are obscure and murky.

This court has repeatedly held that the central question in resolving ballot title issues is whether the voter is able to reach an intelligent and informed decision and to understand the consequences of his or her vote. See, e.g., Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 371 (2000); Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). At the same time, we have held that it is not this court’s function to interpret a proposed amendment or discuss its merits or faults. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1998). And we have made it clear that the voters of this state, within constitutional limits, have the right to change any law or provision of our state constitution. Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982). But in Dust, we also said:

If the voter knows the extent and import of such a proposal, it is the voter’s decision, not ours, as to the wisdom of the proposal. But at the same time the voters have placed on this court the duty and responsibility to see that when they vote that change, or decline to vote that change...they are allowed to make an intelligent choice, fully aware of the consequences of their vote.

Dust v. Riviere, 277 Ark. at 4, 638 S.W.2d at 665 (emphasis added).

The dissent concludes that a ballot title cannot be misleading if it accurately reflects a misleading amendment. Hence, according to the dissent’s reasoning, if a ballot title correctly describes a misleading or even fraudulent proposed amendment, we should disregard that and let the measure go to a vote of the people. I could not disagree more.

Again, the central role of this court is to assure that the voters are fully aware of the consequences of their vote. How can we perform our duty if the amendment itself deceives or misleads the people about what is at issue? The answer is obvious. We cannot. This is not a question of taking a position on the merits of the proposed amendment or interpreting how it will be implemented. It is a question of being forthright with the voters and assuring them that they are not in danger of buying a “pig in a poke.” This is especially true when the primary focus of Amendment 4 initially is on the abolishment of taxes on used goods and not on restructuring our entire system of raising revenue. While it is not the role of this court to delve into the wisdom of the proposal, it is certainly our role to analyze whether the drafters of the measure have employed subtleties and sugarcoated language to sway the voters. See Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952).

Accordingly, I agree to strike this proposal from the ballot. It would have been any easy matter to provide an amendment that allowed for voter approval of sales, income, and property taxes. Amendment 4 does not speak with such clarity.

At the same time, I cannot agree with the majority that the question under the Arkansas Constitution and U.S. Constitution of whether bonds will be impaired due to the repeal of the sales and use tax on used goods is ripe for our review. We do not know at this stage whether Amendment 4 will be adopted. Any opinion by this court prior to adoption would be purely advisory in nature. We so held in Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 137 (1992), and declined to reach the issue of whether the proposed term limits law violated the Qualifications Clause of the U.S. Constitution prior to the amendment’s adoption. We reiterated this principle in Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996), but held that we would address the issue of whether candidates who “disregarded voter instruction on term limits” could be identified as such on the ballot. In Donovan, the issue we addressed was whether the proposed measure came within the scope of Amendment 7, not a substantive constitutional challenge to the proposal. We said:

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 entided to invoke our initiative process in the first place, we will address the merits of Petitioner’s challenge.

Donovan, 326 Ark. at 360-361, 931 S.W.2d at 122. In short, the Donovan case is not authority for considering a constitutional challenge before election. It is just the opposite.

Contrary to the majority protestations on this point, we are changing the law significantly. That is what the complainant asked us to do - to overrule Plugge v. McCuen, supra, and begin addressing constitutional issues before elections. I would not change our law regarding constitutional challenges before an election.

There are other reasons why we should not address the impairment-of-contracts issue before the election. All we have before us at this time is one bond from the City of Brinkley secured by the sales and use tax levied by the city. Based on what this court presently has before it, we can only speculate on the impact of Amendment 4 on this bond, should it pass.

Second, striking Amendment 4 on feared impairment-of-contract grounds at this time would be dangerous precedent. Henceforth, all an opponent to a proposed reduction in taxes would have to do is present a bond secured in part by those taxes, and we would feel constrained to strike the measure from the ballot. I am not willing to go that far before an election.

Third, if we begin deciding constitutional issues regarding a proposed initiative before election, does this mean failure to raise those issues at that time forecloses a challenge after the election? Or can a complainant raise constitutional challenges both before and after the election? If we hold that constitutional challenges must be mounted before an election or lost, we foreclose our ability to consider the separation-of-powers issue that might be raised in the future regarding Proposed Initiated Act No. 1 (Tobacco Settlement Proceeds Act). See Walker v. Priest, 342 Ark. 410, 29 S.W.3d 657 (2000) (Brown, J., concurring).

I would not change our law about advisory opinions for this case. But, again, I agree to strike the measure from the ballot because of misleading tendencies.

Annabelle Clinton Imber, justice,

dissenting. For the first time in this court’s history, a proposed constitutional amendment is being struck from the ballot because a majority believes the proposed amendment itself does not speak clearly. I must respectfully dissent.

As we have stated frequently and consistently, our function in reviewing the sufficiency of the popular name and ballot title for a proposed constitutional amendment is to “see that the popular name and ballot title are a fair and honest means of presenting this measure to the people for their consideration.” Ferstl v. McCuen, 296 Ark. 504, 510, 758 S.W.2d 398, 401 (1988). It is not our function to interpret the amendment or to discuss the proposal’s merits or its faults. Id. A ballot title is sufficient if it recites the general purposes of the proposed amendment and contains enough information to sufficiently advise electors of the true contents of the proposed amendment. Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364 (1938); Lewis v. Hall, 196 Ark. 45, 116 S.W.2d 353 (1938). Under these controlling principles, we simply determine whether the popular name and ballot title fairly and accurately reflect the contents of the proposed amendment. When these principles are faithfully applied in the present litigation, I believe that the popular name and ballot title of proposed Amendment 4 are sufficient and I would deny the injunction.

In concluding that the ballot title is “misleading, both by amplification and omission,” and “also fails to convey to the voter the scope and import of the proposed measure,” the majority opinion with respect to Point I actually takes issue with the proposed amendment itself. For example, the majority opinion questions what is meant by the phrase “regularly scheduled statewide election” that appears in the text of the amendment and in the ballot title. The majority opinion also questions the amendment’s definition of what will constitute a “tax increase” for purposes of triggering the provision requiring voter approval at regularly scheduled statewide elections. In short, the majority simply believes that the language contained in this measure is unclear. Indeed, I may agree with the majority and exercise my right to vote against the measure. However, our function in reviewing the sufficiency of the popular name and ballot title is not to find fault with the text of the proposed amendment; rather, our function is to determine whether the content of the proposed amendment is accurately reflected in the popular name and ballot title. Once again, I cannot find this ballot title to be clearly deficient under the well-established principles that have governed this court’s decisions regarding the sufficiency of ballot titles since Amendment 7 was adopted in 1920.

The majority opinion with respect to Point II addresses the constitutional validity of the proposed amendment prior to the amendment’s adoption. In doing so, the majority ignores, and subsilentio overrules, this court’s recent holding in Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996), in which we clarified our precedent on the issue of whether we will entertain a challenge to the legal validity of a proposed measure prior to an election:

It has been said that the pertinent issue in cases such as this one “is not the hypothetical question of 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.”

Id., 326 Ark. at 359, 931 S.W.2d at 121.

In Donovan v. Priest, supra, we noted that this court had previously reviewed and decided the validity of proposed local initiatives in two cases: Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984) and Hodges v. Dowdy, 104 Ark. 583, 149 S.W. 656 (1912). In both of those cases, this court determined whether a proposed local initiative was subject to the initiative power of the people. Specifically, we held in Hodges v. Dowdy, supra, that a prior initiative and referendum provision of the Arkansas Constitution did not confer power on the voters of a municipality or county, apart from the other people of the State, to initiate any kind of legislation. Furthermore, we held that the powers conferred by the legislature in an Enabling Act was to initiate local measures which “are not inconsistent with the general laws of the State.” Id., 104 Ark. at 599, 149 S.W at 661. Similarly, in Czech v. Baer, supra, we noted that the Initiative and Referendum Amendment itself provides that “no local legislation shall be enacted contrary to the Constitution or any general law of the State.” Id., 283 Ark. at 461, 677 S.W.2d at 835. We have just recently invalidated a proposed local initiative because it was contrary to specific enactment procedures mandated by the legislature for levying or repealing a countywide sales and use tax. Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000). In doing so, we concluded that we could entertain a challenge to the legal validity of the proposed local initiative prior to the election pursuant to the rules laid down in Donovan v. Priest, supra. The issue in Stilley v. Henson was whether the measure’s proponents were entitled to invoke the direct initiative process. Id.

The complainant here contends that the proposed amendment, if enacted by the voters, will violate the constitutional protection against any “law impairing the obligation of contracts,” as provided in Article 1, section 10, of the United States Constitution and Article 2, section 17, of the Arkansas Constitution. This challenge to the proposal is a question of substantive constitutional law that is not yet ripe for review. As we said in Donovan v. Priest, supra, we will not entertain substantive constitutional challenges to a proposed measure before an election is held:

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.

Id., 326 Ark. at 360, 931 S.W.2d at 122. (Emphasis added.)

Here, we are not asked to determine whether a proposed amendment directly contravenes the amendment process provided in Article V of the United States Constitution, as we were asked to do in Donovan v. Priest, supra; nor are we asked to determine whether a proposed local initiative contravenes Amendment 7’s provision that “no local legislation shall be enacted contrary to the Constitution or any general law of the State,” as we were asked to do in Stilley v. Henson, supra. The complainant’s constitutional challenge in this original action is substantive and necessarily requires this court to resolve the following fact-specific issues that arise in an impairment-of-contract claim:

• whether the proposed amendment will, in fact, operate as a substantial impairment of a contractual relationship;
• whether there is a sufficient and legitimate public purpose behind the proposed amendment; and
• whether the adjustment of the rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the amendment’s adoption.

Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 410-13 (1983). These fact-specific issues are clearly not ripe for review. We should therefore decline to conduct a preelection review of this proposed amendment’s constitutional validity.

For these reasons, I respectfully dissent.

Smith, J., joins in this dissent.

BROWN, J., joins in this dissent with respect to Point II.

Lavenski R. Smith, Justice,

dissenting. I join the dissent of Justice IMBER. The majority and concurring opinions state several sound, persuasive reasons for the people not to vote for proposed amendment 4. However, I am unconvinced that either states one compelling reason under our precedents for the people not to be able to vote on the amendment. As the majority points out, the amendment would make substantial changes in the operation of Arkansas’s government. But it does not hide nor misstate those changes. They are evident in the extensive ballot title and in the amendment’s text. A reader of average intelligence can readily discern that amendment 4 does much more than eliminate sales tax on used cars and other used goods. The discretion to accept or reject these changes should lie with the people and not with this court.

Dissent.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    Carolyn ROBINSON v. Jerry TAYLOR, Mayor of Pine Bluff
    99-1428
    29 S.W.3d 691
    Supreme Court of Arkansas
    Opinion delivered October 26, 2000
    [Petition for rehearing denied November 30, 2000.]

      Virginia “Ginger” Atkinson, for appellant.

      Thomas N. Kieklak, for appellee.
   Annabelle Clinton Imber, Justice.

This is an appeal from the trial court’s denial of a petition for a writ of mandamus to compel the mayor of the City of Pine Bluff to pay a retirement benefit to a former mayor of that city pursuant to Ark. Code Ann. § 24-12-123 (Supp. 1999). We affirm the trial court’s denial of the writ of mandamus.

On January 15, 1999, the appellant, Carolyn Robinson, a former alderman and mayor of the City of Pine Bluff, filed a motion for a writ of mandamus in the Jefferson County Circuit Court. She asked the court to issue a writ of mandamus directing Jerry Taylor, the current mayor of the city, to pay her a retirement benefit from the general funds of the city pursuant to Ark. Code Ann. § 24-12-123. Specifically, Ms. Robinson alleged that she was entitled to the retirement benefit because she had served the city for a period of no less than ten years and had reached the statutory retirement age of sixty years on August 6, 1997. She also alleged that Mayor Taylor arbitrarily relied on Ark. Code Ann. § 14-42-117 (Repl. 1998) when he deleted her retirement pay from the city budget, and thereby violated her constitutional right to receive the benefit. In another count, Ms. Robinson alleged gender discrimination under the Arkansas Civil Rights Act of 1993, Ark. Code Ann. §§ 16-123-101 et seq. (Supp. 1999), and sought compensatory and punitive damages against Mayor Taylor personally. Mayor Taylor contested these allegations and cited Ark. Code Ann. § 14-42-117 in support of his argument that Ms. Robinson forfeited her right to receive the retirement benefit provided by law in Ark. Code Ann. § 24-12-123 when she elected to receive a lump-sum payment from a plan offered by the City of Pine Bluff. The trial court denied Ms. Robinson’s motion for a writ of mandamus and dismissed her complaint for gender discrimination.

Ms. Robinson’s sole argument on appeal is that the trial court erred in failing to find that her right to the retirement benefit provided by Ark. Code Ann. § 24-12-123 vested prior to the enactment of Ark. Code Ann. § 14-42-117. We disagree. Arkansas Code Annotated section 24-12-123 provides, in relevant part, as follows:

(a)(1) In all cities of the first class in this state, any person who shall serve as mayor of the city for a period of not less than ten (10) years, upon reaching age sixty (60) years ... shall be entitled to retire at an annual retirement benefit during the remainder of his natural life, payable at the rate of one-half (1/2) of the salary payable to the mayor at the time of his retirement.
(2) The retirement payment shall be paid monthly and shall be paid from the city general fund.
(3) However, mayors who have served as an elected official or employee of that city prior to or after their service shall count their service as an elected official or employee of that city at the rate of one (1) year for mayor’s retirement for each two (2) years served as an elected official or an employee of that city with a maximum of an additional two (two) years’ credit towards mayor’s retirement.

It is undisputed that Ms. Robinson served six years as alderman of the first class City of Pine Bluff, thereby entitling her to the maximum two years’ credit toward her mayor’s retirement pursuant to section 24-12-123(a)(3). It is also undisputed that she served the City of Pine Bluff as mayor for two four-year terms. Therefore, Ms. Robinson accumulated the ten years of service required to receive her annual retirement benefit as provided in section 24-12-123. However, she did not complete her ten years of service until December 31, 1992, the end of her second term as mayor. Prior to that date, by Act 604 of 1991 (codified at Ark. Code Ann. § 14-42-117), the General Assembly adopted the following provision, which became effective on July 15, 1991

[n]o elected official may withdraw in a lump sum or roll over into a private account any accumulated benefits established by the municipality for which the official was employed and at the same time receive a pension as provided for under an act of the General Assembly.

Ms. Robinson concedes that at the end of her second term as mayor, she received a lump-sum payment from the city’s local pension program. Mayor Taylor argued, and the trial court found, that pursuant to Act 604 of 1991, her election to receive such a lump-sum payment from the City of Pine Bluff prohibits her from also receiving an annual retirement benefit under section 24-12-123. Ms. Robinson, on the other hand, argues that Act 604 of 1991 did not take effect until July of 1991. Specifically, she contends that her right to retirement benefits under section 24-12-123 vested when she was elected to a second term as mayor and took office on January 1, 1989, “subject only to her living long enough to complete her second term and reach the age of sixty....” From this premise, she asserts that any attempt by the General Assembly in July of 1991 to divest her of that right would violate Article 2, section 17, of the Arkansas Constitution and Article 1, section 10, of the United States Constitution.

The critical question to be decided in this appeal is whether Ms. Robinson’s rights to retirement benefits under section 24-12-123 became vested prior to the enactment of Act 604 of 1991. Ms. Robinson relies on the case of Jones v. Cheney, 253 Ark. 926, 489 S.W.2d 785 (1973). In that case, a former state official petitioned for a writ of mandamus directing the State Auditor to pay him his statutory retirement benefits. The official had met all of the requirements of Act 148 of 1965, which established the pension plan at issue, with the exception of being age sixty-five. However, before the official reached the age of sixty-five, the General Assembly passed Act 167 of 1967, which amended the 1965 law to require service in any one of several named State offices for at least ten years. The official did not meet this new requirement because, while he had served the State for ten years, he had not served ten years in any one position. Thus, the State Auditor denied the official his retirement benefits, and the official sued for a writ of mandamus. The trial court granted the official’s petition and entered a mandamus order directing the State Auditor to pay the official his retirement benefits under Act 148 of 1965, because his rights to the benefits had become vested prior to the change in the law. We affirmed the trial court’s issuance of a writ of mandamus against the State and held that the official’s rights vested in him prior to the change in the law, and that he had a constitutional right to have his vested right remain unimpaired. Id.

Jones v. Cheney is clearly distinguishable from the present case for two reasons. First, in Jones v. Cheney, the former state official’s rights in the retirement benefits vested only after he had met all of the requirements established in the statute, with the exception of being age sixty-five. When the law was amended by the General Assembly, the former state official had already served the required ten years. In the instant case, when Act 604 of 1991 was adopted by the General Assembly, Ms. Robinson had not yet served the City of Pine Bluff for the required minimum period of ten years. In order for the right to vest, the required time must be served. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986); Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000). Second, the retirement plan at issue in Jones v. Cheney was based on voluntary contributions from member employees. We held that such a system represents delayed compensation for services rendered in the past due under a contractual obligation inuring to the employee’s benefit and is not a gratuitous allowance in which the pensioner has no vested right. Id. The retirement benefit at issue in this case, on the other hand, is to be paid entirely from the city’s general fund. Ark. Code Ann. § 24-12-123. As Ms. Robinson contributed no funds, the retirement benefit was merely a gratuitous allowance. Arkansas Tech University v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). A pensioner has no vested right in a mere gratuitous allowance. Jones v. Cheney, supra. We therefore hold that Ms. Robinson’s rights to retirement benefits under section 24-12-123 had not become vested at the time the General Assembly adopted Act 604 of 1991. Thus, as to any retirement benefits claimed by Ms. Robinson under Ark. Code Ann. § 24-12-123, the General Assembly was free to alter or abolish those retirement benefits without violating Article 2, section 17, of the Arkansas Constitution or Article 1, section 10, of the United States Constitution prohibiting ex post facto laws or impairment of contracts.

Finally, Ms. Robinson argues in the alternative that the language of Act 604 of 1991 does not prevent her from receiving retirement benefits because she did not receive the lump-sum payment and “at the same time receive a pension as provided for under an act of the General Assembly.” Essentially, she suggests that the prohibition against “double dipping” in Act 604 of 1991 would not apply to her due to the fact that the lump-sum payment and the payments made pursuant to section 24-12-123 would not be received by her “at the same time.” Ms. Robinson, however, misinterprets the language of that provision.

The basic rule of statutory construction is to give effect to the intent of the legislature. Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995). The legislative intent is gathered from the plain meaning of the language used. Id. Also, a particular provision in a statute must be construed with reference to the statute as a whole. Flowers v. Norman Oaks Constr. Co., 341 Ark. 474, 17 S.W.3d 472 (2000). When we consider the entire statutory provision in section 14-42-117, including those provisions established by Act 723 of 1989, it is clear that the legislature intended the statute to operate to prohibit a former elected official or employee of a city from receiving retirement benefits or pension payments from both the city’s retirement plan and a plan established by the General Assembly “for the same period of service.” The statute prohibits duplicative payments for “the same period of service” without reference to when the payments are actually received:

[A]ny elected official of a first-class city ... who is entitled by an act of the General Assembly to retirement benefits for service as such ... elected official and who also participates in another retirement plan established by the city for the same period of service shall be entitled to only one (1) retirement benefit for the same period of service to the municipality ... and the ... elected official may choose whether to receive the retirement benefit provided by law or provided by the plan offered by the municipality.

Ark. Code Ann. § 14-42-117. (Emphasis added.) Therefore, the language of section 14-42-117 is clearly applicable to Ms. Robinson. Because she elected to receive a lump-sum retirement benefit from the City of Pine Bluff, she forfeited her right to receive a retirement benefit pursuant to section 24-12-123 for the same period of service. We affirm the trial court’s denial of the writ of mandamus.

Affirmed.

       Op. Att’y Gen. #91-119.


author: Annabelle Clinton Imber, Justice. Robert L. Brown, Justice,

text:
    Lowell TAYLOR v. ZANONE PROPERTIES, et al.; STATE of Arkansas, et al. v. ZANONE PROPERTIES, et al.

    99-1515
    30 S.W.3d 74
    Supreme Court of Arkansas
    Opinion delivered October 26, 2000

      Sloan-Rubens, by: Kent J. Rubens, for appellant Lowell Taylor.

      Mark Pryor, Att’y Gen., by: Charles L. Moulton and Warren Readnour, Ass’t Att’ys Gen., for appellants State of Arkansas and Arkansas Soil & Water Conservation Commission.

      James F. Goodhart and James B. Watson, for appellant Arkansas Game & Fish Commission.

      Nance & Nance, PA., by: Boone Nance-, and The Bogatin Law Firm, PLC, by: G. Patrick Arnoult, for appellee Zanone Properties.
   Annabelle Clinton Imber, Justice.

The case before us consists of two appeals arising from the same cause of action in the Chancery Court of Crittenden County that have been consolidated for our review. First, the appeal of Lowell Taylor v. Zanone Properties, et al., presents the issue of whether the chancery court erred by modifying its findings of fact more than ninety days after the entry of the final judgment. Second, the appeal of the State of Arkansas, et al. v. Zanone Properties, et al., raises issues of proper joinder, sovereign immunity, the statutory duties of various state agencies, and the jurisdiction of chancery court to issue mandamus, as well as the modification of an order after ninety days.

On October 7, 1994, several lawsuits were filed against Mr. Lowell Taylor and Ms. Rebecca Hemenway in the Chancery and Circuit Courts of Crittenden County. Plaintiffs were members of the Zanone family and the Zanone family businesses. Plaintiffs and defendants were all owners or tenants of real property bordering on Horseshoe Lake. Plaintiffs, whose properties were located upstream from the defendants’ property, alleged that defendants operated their privately constructed water control structure on Beck’s Bayou in such a manner as to cause the flooding of their property. They alleged that the high water level maintained by the structure resulted in flooding to their farmland because Beck’s Bayou is the only natural drainage for the runoff waters from Horseshoe Lake. Plaintiffs sought both monetary and injunctive relief.

As of July 31, 1997, several of the cases against Mr. Taylor and Ms. Hemenway had been voluntarily dismissed. The four remaining circuit court cases were consolidated into one case and transferred to the chancery court to be tried simultaneously with the claims pending there. Ms. Marilyn M. Wilkinson and Ms. Rebecca M. Crowell were joined as necessary party defendants, representing the estate of Ms. Hemenway. The State of Arkansas was joined as a necessary party upon the motion of the plaintiff, Zanone Properties. Finally, other owners and lessees of property on Horseshoe Lake intervened in the action.

On July 2, 1997, the State of Arkansas filed a motion for partial summary judgment, asserting that Horseshoe Lake is a navigable body of water owned by the State and held in trust for the citizens of Arkansas. Based upon that assertion, the State claimed to be the only party in interest with the legal right to change or manipulate the National Geoditic Vertical Datum (“NGVD”), or normal level, of Horseshoe Lake. On July 31, 1997, the chancery court filed an agreed order declaring Horseshoe Lake to be navigable. Following a six-day trial on the merits, the claims for monetary damages against the estate of Ms. Hemenway, and against her daughters Ms. Wilkinson and Ms. Crowell, were dismissed. The chancery court also ruled in favor of Mr. Taylor on the issue of liability, awarding no monetary damages, but issued the injunctive relief sought by the Zanone plaintiffs against Mr. Taylor.

In a decree filed on September 29, 1998, the chancery court ordered Mr. Taylor and his agents to operate the water control structure on Beck’s Bayou in such a manner that the maximum level of his structure would be limited to 194. feet from December 1 of each year to the following first of May, and to 193.2 feet from May 1 to December 1 each year.2 The chancery court also reaffirmed that Horseshoe Lake is the property of the State, held in trust for the public. After noting that “it is the responsibility of the State of Arkansas to regulate the level of Horseshoe and not that of Taylor,” the chancery court ordered the State “to monitor Horseshoe and to see that the lake levels decreed herein are followed by Taylor.” No appeal was taken from this order.

On March 31, 1999, the Zanone plaintiffs filed a petition to show cause, seeking to hold the State of Arkansas in contempt for failing to implement the September 29, 1998, decree. The chancery court ordered the State of Arkansas to appear and show cause why it should not be held in contempt. The Zanone plaintiffs alleged that the State had made no attempt to monitor the lake and that obstructions, including a beaver dam, in Beck’s Bayou threatened to cause flooding on their property during the rainy season if the State did not act. At the conclusion of a hearing on April 28, 1999, at which no evidence was presented, the chancery court held that the State was not in contempt, and ordered the State to take lake-level readings on Horseshoe Lake twice each month and report to the court and counsel any deviations from the levels previously decreed by the court. This instruction was incorporated into the chancery court’s order entered on July 2, 1999. The chancery court further held that it would not decide at that time whether or not the State had any obligation to remove beaver dams from Beck’s Bayou as a cause of flooding because there had “been no proof of damages attributable to any such cause at either of the previous hearings or at these hearings.” Mr. Taylor objected to this characterization of the previous proceedings in a motion filed on July 12, 1999, and at hearings that took place on July 7 and July 28, 1999.

On June 28, 1999, the State filed a motion for reconsideration or alternatively motion for new trial, arguing that the State of Arkansas, appearing ex rel through the office of the Attorney General, has no authority to command or force other state agencies to implement the orders of the court when those agencies are not parties to the lawsuit. Because there had been no findings of fact at the previous trial concerning which state agency was responsible for monitoring Horseshoe Lake, the State requested a new trial on that sole issue. The State further requested that the court join at the new trial any agencies it might deem responsible for implementation of its decree.

By order signed on July 15, 1999, and filed on July 28, 1999, the chancery court directed officials from both the Arkansas Game and Fish Commission and the Arkansas Soil and Water Conservation Commission to appear before the Court on July 28, 1999, and present evidence and testimony as to why their respective agencies should not be held responsible for “monitoring the water levels of Horseshoe Lake.” Counsel for the commissions appeared on the specified date for the limited purpose of answering the chancery court’s directive. Again, no evidence was presented, and the hearing consisted entirely of legal argument by counsel. Both commissions asserted that the court had no jurisdiction over them because neither agency had ever been made a party to the lawsuit; nor had either agency waived its right to sovereign immunity under Article 5, section 20, of the Arkansas Constitution. The commissions also asserted that they lacked the statutory authority or obligation to monitor the level of the water at Horseshoe Lake.

In a letter opinion dated July 30, 1999, the chancery court rejected all of these arguments and ordered both commissions to monitor water levels on Horseshoe Lake and to fully comply with the court’s prior order. The court’s letter opinion specifically directed that the water level on the lake be read “at least two times per month; that a written record be kept of the readings; and that such records be made available on request.” On August 4, 1999, the chancery court sent a letter to all parties requesting briefs on the issue of the court’s subject-matter jurisdiction. Specifically, the chancery court expressed concern that “what the court is in effect doing, is issuing a writ of mandatum,” which is outside the jurisdiction of a chancery court.

On August 13, 1999, the chancery court denied Mr. Taylor’s motion to strike the modified findings of fact in the July 2, 1999 order regarding the cause of flooding on the Zanone properties. From this denial, Mr. Taylor appeals, arguing that the trial court did not have the authority to modify its order more than ninety days after the entry of judgment.

On September 10, 1999, the trial court issued an order rejecting the defenses of sovereign immunity and insufficient service of process asserted by the commissions. The chancery court held that both agencies were not only authorized, but were obligated, by statute to perform the monitoring duties required by the chancery court in this matter. The court further held that its order was not a mandamus, but merely an injunction, which could be issued against the State because “the State’s neglect of Horseshoe Lake was arbitrary and capricious.”

The State of Arkansas, the Arkansas Game and Fish Commission, and the Arkansas Soil and Water Conservation Commission now appeal from the orders entered by the chancery court on July 2, 1999, and September 10, 1999. The commissions also appeal from the order entered by the chancery court on July 28, 1999. The appeals by the State and the commissions have been consolidated with Mr. Taylor’s appeal.

I. Joinder

In their first point on appeal, the commissions argue that the chancery court had no authority to order them to, among other things, monitor the level of Horseshoe Lake because they were not properly joined as parties to the lawsuit.

“All judgments, orders, sentences, and decrees made, rendered, or pronounced by any of the courts of the state against anyone without notice, actual or constructive, and all proceedings had under judgments, orders, sentences, or decrees shall be absolutely null and void.” Ark. Code Ann. § 16-65-108 (1987); see also Sides v. Kirchoff, 316 Ark. 680, 874 S.W.2d 373 (1994) (stating that “when there has been no proper service and, therefore, no personal jurisdiction over the defendants in a case, any judgment is void ab initio”).

It is undisputed that the State of Arkansas, represented by the Office of the Attorney General, was a party to the proceedings and bound by the judgment of the chancery court in this matter. However, the commissions were never served with a summons in this matter. No complaint or allegation was ever made against either commission, and neither commission entered a general appearance. Furthermore, the chancery court did not properly join the commissions pursuant to Rule 19 of the Arkansas Rules of Civil Procedure. It is axiomatic from the plain language of Rule 19 that, because joinder is proper only as to a person subject to service of process, then service of process must be made for joinder to be proper. Ark. R. Civ. P. 19. See also Wright, Miller, Federal Practice and Procedure, § 1604, at 41 (2d ed. 1986) (difficulties arise if absentee cannot be effectively joined because he is not subject to service of process). There is no evidence to indicate that the commissions were ever served with process. The chancery court instead held that the commissions were already parties to the action because the Attorney General is required to represent all state agencies pursuant to Arkansas Code Annotated section 25-16-702 (Repl. 1996). According to the court’s reasoning, because the State of Arkansas was already a party to the action and was represented by the Attorney General, it would necessarily follow that the two commissions were also parties to the action and subject to the jurisdiction of the court. We disagree.

Although the State of Arkansas was indeed a party to the litigation between Zanone Properties and Lowell Taylor, the Arkansas Game and Fish Commission and the Arkansas Soil and Water Conservation Commission were not parties to the litigation. The State of Arkansas appeared ex rel before the chancery court. In other words, the Attorney General entered an appearance in this action in the name of the State of Arkansas, but at the request of the plaintiffs in furtherance of the Zanone plaintiffs’ own private interests. See Black’s Law Dictionary 582 (6th ed. 1990). The commissions were never served with process, they did not enter an appearance, and they were never joined as necessary parties. Governmental agencies are independent entities who must be joined as parties even if the governmental entity is a party to the action. See Pulaski County v. Jacuzzi Bros. Div., 317 Ark. 10, 875 S.W.2d 496 (1994) (holding that, although the county itself was a proper party to the suit, the official who would be charged with carrying out the order of the court should have been joined as a necessary party to the action); IBM Credit Corp. v. Pulaski County, 316 Ark. 580, 873 S.W.2d 161 (1994) (noting that failure to join either assessor or board of equalization left void in ability to effect the courts order). The fact that the State of Arkansas was a party to the action was insufficient to extend the jurisdiction of the court over the two independent state commissions.

Nor is it sufficient that the Attorney General, who is counsel for all state agencies, was already involved in the action. The office of the Attorney General is a separate constitutional office, not merely an arm of the executive branch. Ark. Const, art. 6, § 1. The Attorney General represents the agencies and departments of the State only when his services are needed and the request for services has been certified by the agency to the Attorney General. Ark. Code Ann. § 25-16-702(a) (Repl. 1996); see Parker v. Murry, 221 Ark. 554, 254 S.W.2d 468 (1953) (stating that it is “apparent to us that the Attorney General may intervene in a suit prosecuted by the Commissioner of Revenues, as here, when and only when, the Commissioner of Revenues needs his services and so certifies this need to the Attorney General, and that such was the intent of the Legislature”). As noted above, the Attorney General represented the State ex rel in this action at the behest of the Zanone plaintiffs. At no time did the Attorney General appear in this action at the request of the commissions. Consequently, the chancery court erred by assuming jurisdiction over the agencies merely because the State of Arkansas was a party to the action. We hold that the orders of the chancery court directed toward the Arkansas Game and Fish Commission and the Arkansas Soil and Water Conservation Commission are null and void.

In light of this holding that the chancery court erred by assuming jurisdiction over the Arkansas Game and Fish Commission and the Arkansas Soil and Water Conservation Commission, we need not address the commissions’ remaining arguments for reversal.

II. Rule 60 Modification

Both the State of Arkansas and Mr. Taylor argue that the chancery court had no authority to modify its decree more than ninety days after the entry of a final judgment. Mr. Taylor challenges the order entered on July 2, 1999. The State challenges both the July 2, 1999 order as well as the order entered on September 10, 1999. The Zanone appellees maintain that the language in the July 2 order challenged by Mr. Taylor accurately reflects the court’s findings of fact in the original decree, and that the more specific details in the orders challenged by the State are merely clarifications of the chancery court’s previous decree. Thus, the Zanone appellees contend there has been no improper modification.

In its original decree of September 29, 1998, from which no appeal was taken, the chancery court held that:

40. The court finds for Taylor on the question of liability.
41. In 1997 Zanone ran his pumps in May and suffered no damage. In other years, when he suffered damages, he waited until June, and by his own admission, did nothing to mitigate his damages. The court’s granting of injunctive relief is not inconsistent with its denial of damage.
43. Like the Solomon decision, the damages suffered by Zanone seem related more to the acts of nature than Taylor’s dam. Zanone needed to pump before the dam was built. The area is poorly drained with beaver dams, fallen trees, drift, silt and accumulated limbs and leaves. Taylor’s experts, which the court credits, estimate the dam contributed little to Zanone’s damages.

Based upon these findings of fact, the chancery court denied monetary damages against Mr. Taylor, but awarded injunctive relief, requiring Mr. Taylor to operate his water control structure in a specified manner. The chancery court further issued the following decree to the State of Arkansas:

It is the responsibility of the State of Arkansas to regulate the level of Horseshoe and not that of Taylor. Thus this court’s order is directed not only to Taylor but also to the State of Arkansas, and the State of Arkansas is also ordered to monitor Horseshoe and to see that the lake levels decreed herein are followed by Taylor.

As has been noted, no appeal was taken from that decree entered on September 29, 1998. Several months later, on March 31, 1999, the Zanone plaintiffs filed a petition to show cause seeking to hold the State of Arkansas in contempt. On April 28, 1999, the chancery court heard argument on the petition to show cause and noted that the court saw no reason why the State of Arkansas would find it difficult “to go out and monitor, maybe six or eight times a year” to insure compliance with the court’s decree. The chancery court subsequently issued an order on July 2, 1999, that stated:

4. The Court is not deciding at this time the issue of whether or not the State of Arkansas has any obligation to remove beaver dams from Beck Bayou or Beck Ditch as a cause of flood conditions since there has been no proof of damages attributable to any such cause at either the previous hearings or at these hearings related to the Petition to Show cause. The Court reserves the right to rule on the State of Arkansas’ responsibility if and when there is a showing of a legitimate problem of flooding caused by beaver dams.
5. There has not been a showing of contempt by the State of Arkansas of this Court’s previous Decree of September 29, 1998 and the Petition for Contempt is therefore dismissed.

However, the chancery court did order the State to “take lake level readings on Horseshoe Lake at least twice each month with two weeks in between readings” and “to report to this Court, with copies of the reports to the attorneys of record in this cause, any deviations above the levels prescribed by the Court’s previous decree. ...” The chancery court further ordered the State to make the reports available to the attorneys of record in this action and to provide copies of the reports to the parties or their attorneys upon request. In its September 10, 1999 order, the chancery court extended these obligations to include not only the State of Arkansas, but also the commissions. Also, in the September 10 order, the chancery court found that the State had acted arbitrarily and capriciously in its neglect of Horseshoe Lake. As set forth above, we have already held that the order as it is applicable to the commissions is null and void. We must now address the validity of these orders as to Mr. Taylor and the State of Arkansas.

A. Mr. Taylor

Mr. Taylor argues that the chancery court had no authority to modify its findings of fact more than ninety days after entry of the decree absent an evidentiary hearing. Specifically, he objects to the language in the order dated July 2, 1999, wherein the chancery court stated that there had been no finding that beaver dams were the cause of any flooding.

A trial court may modify a judgment at any time to correct a purely clerical error. Ark. R. Civ. P. 60(a). After the expiration of ninety days, however, the trial court may modify its orders for reasons other than to correct a clerical error only under the following conditions: (1) granting a new trial based upon newly discovered evidence; (2) granting a motion for new trial in proceedings against a constructively summoned defendant; (3) for misprisions of the clerk; (4) for misrepresentation or fraud; (5) for erroneous proceedings against an infant or incompetent; (6) for the death of a party prior to judgment; or (7) for errors in judgment shown by an infant within twelve months of reaching majority. Ark. R. Civ. P. 60(c). Furthermore, although the time restraints placed upon trial courts in modifying other orders are not applicable to the modification of injunctions, the trial court must find that the circumstances underlying the injunction have changed before it is authorized to modify an injunction. West v. Belin, 314 Ark. 40, 858 S.W.2d 97 (1993) (stating that a trial court retains jurisdiction to modify an injunction beyond the time limit placed on other types of orders or decrees); Ozark Bi-Products, Inc. v. Bohannon, 224 Ark. 17, 271 S.W.2d 354 (1954) (holding that trial court may modify injunction where the circumstances of the parties are shown to have so changed that it is just and equitable to do so); see also Haberman v. Van Zandvoord, 1 Ark. App. 203, 614 S.W.2d 242 (1981) (holding that, upon proper notice and following a hearing wherein the evidence was fully litigated, modification was not an abuse of discretion).

There is no finding in the record of any change in circumstances supporting modification, and the Zanone appellees do not argue that circumstances have changed. Neither does the record reflect that the change was authorized pursuant to Rule 60 and the Zanone appellees do not argue as such. Therefore, if the change in the language of the court is indeed a modification of the prior order, the chancery court acted outside of its authority and the order is a nullity. Hayden v. Hayden, 291 Ark. 582, 726 S.W.2d 287 (1987).

In its original 1998 decree, the chancery court found as a matter of fact that the damages to the Zanone property seemed to be related more to Zanone’s failure to mitigate damages and to acts of nature, such as beaver dams and debris, than to the Taylor water control structure. In fact, the chancery court found credible the evidence that the Taylor structure contributed little to the plaintiffs’ damages; and yet, in its July 2, 1999 order, the chancery court noted that there had been no evidence of damages attributable to beaver dams. On its face, this appears to be a minor change in the court’s language. Certainly, the chancery court had never specifically found that beaver dams had caused damage to the Zanone property. However, the court had found that the damages suffered by Zanone were related more to acts of nature, which included beaver dams, than to Mr. Taylor’s water control structure. This minor alteration in the decree’s language might not merit further scrutiny were it not for the findings that the chancery court issued orally from the bench: “My memory of this case was not the beaver dams causing the flooding. It was the earthen dam [Mr. Taylor] built and this . . . elaborate dam.”

In its September 29, 1998 decree, the chancery court specifically held that Mr. Taylor was not liable for any damage to the Zanone property. However, following the chancery court’s July 2, 1999 order, viewed in light of the court’s pronouncements from the bench, the chancery court’s findings of fact could be called into question. In effect, the findings of fact in the September 29, 1998 decree have been modified, possibly subjecting Mr. Taylor to future claims for damages where previously he had been found not liable.

It is evident from the record before us that the trial court was not intentionally exercising its authority to modify the decree. It appears that the trial court was merely stating its memory of what its previous findings of fact had been. The difficulty arises because, in so doing, the court altered those findings sufficiently to create confusion as to its previous findings regarding liability. Because no evidence was presented to demonstrate changed circumstances and none of the Rule 60(c) conditions have been shown to support the actions of the court, the modification to the findings of fact, as stated by the trial court in its order of July 2, 1999, is null and void. See Hayden v. Hayden, supra.

B. The State

The State argues that the trial court modified its September 29, 1998 final judgment in violation of Rule 60 by imposing additional obligations upon them that were not included in the final judgment and by sua sponte declaring the State’s actions arbitrary and capricious. The Zanone appellees contend that the changes were mere clarifications, not modifications, and were therefore within the court’s authority.

In its original decree, the trial court held that it was the responsibility of the State to regulate the level of Horseshoe Lake and then ordered the State to “monitor Horseshoe and to see that the lake levels decreed herein are followed by Taylor.” However, in subsequent orders, the trial court imposed more detañed and specific duties upon the State. In the July 2, 1999 order, the chancery court directed the State to “take lake level readings on Horseshoe Lake at least twice each month with two weeks in between readings. ... to report to this Court, with copies of the reports to the attorneys of record in this cause, any deviations above the levels prescribed by the Court’s previous decree” and to provide periodic access to the record of the lake level readings to the attorneys for the parties and to furnish copies of such records upon reasonable request by the parties or their attorneys.

Again, the trial court made no findings regarding the existence of any grounds for modification under Rule 60(c), or the existence of any changed circumstances since entry of the final judgment on September 29, 1998. Moreover, the record does not disclose the existence of any changed circumstances or Riñe 60(c) grounds for modification. The Zanone appefiees argue that the changes in the order are merely “clarifications” of the court’s intentions in the September 29, 1998 decree. We disagree.

“A trial court’s power to correct mistakes or errors is to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.” Lord v. Mazzanati, 339 Ark. 25, 29, 2 S.W.3d 76, 78-79 (1999). The record reveals that, as of April 1999, the trial court believed that its order required the State to merely check the level of the lake six to eight times a year. There is no mention of records to be kept, notice to be given to the court, copies to be sent to counsel, or of bi-monthly water level readings. These orders were added to the trial court’s decree as of July 2, 1999, and reaffirmed in the order dated September 10, 1999. Clearly, the chancery court changed the terms of the relief afforded in the original decree. It did not merely clarify its original decree. The changes were made with no findings of changed circumstances or Rule 60(c) conditions. Similarly, the trial court modified its decree by finding that the State had acted arbitrarily and capriciously in its actions when no new evidence had been presented to the court upon which to base this conclusion. See Lord v. Mazzanati, supra; Ozark Bi-Products, Inc. v. Bohannon, supra. Consequently, we hold that the orders of July 2, 1999, and September 10, 1999, are null and void. Hayden v. Hayden, supra; see also Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997). In light of this holding, we need not address the State’s remaining arguments for reversal.

Reversed.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. On September 29, 1998, the chancery court ordered the State of Arkansas to monitor Horseshoe Lake to make sure that the decreed lake levels were followed by Lowell Taylor. On July 2, 1999, the chancery court ordered the State of Arkansas to take lake level readings on Horseshoe Lake at least twice a month and report to the court and to the attorneys of record. On July 28, 1999, the chancery court directed officials from Arkansas Game and Fish Commission and Arkansas Soil and Water Commission, neither of which was a party to the action, to appear and tell the court why the two commissions should not be responsible for monitoring the lake levels. On September 10, 1999, the chancery court held that the two Commissions were obligated by law to oversee water levels and found that the State of Arkansas’s failure to monitor Horseshoe Lake constituted arbitrary and capricious conduct.

The majority opinion correctly concludes that the two state commissions were never joined as parties to the action and, thus, could not be held accountable for failure to act. Having the State of Arkansas as a party was simply not enough to bring specific state commissions before the court.

By the same token, I cannot condone the argument made by counsel from the Attorney General’s office at oral argument that he took the chancery court’s orders to mean that counsel himself and the Attorney General’s staff were to travel to Horseshoe Lake in Crittenden County to gauge the lake levels. That is an unreasonable interpretation of the court’s orders. Clearly, the chancery court did not have counsel from the Attorney General’s office in mind when he ordered the State to check lake levels. Though the proper commissions to perform the task at hand were not before the court, it strains credulity for counsel for the Attorney General’s office to argue that he believed he was the enforcement mechanism for the State.

       The plaintiff ultimately remaining in this matter were the Zanone Brothers Partnership; George Zanone, Jr., and Philip R.. Zanone, Jr.; Zanone Properties; and Zanone Plantation Joint Venture.

       The court’s findings with respect to elevations above median sea level are based upon the Sorrell gauge.

       The chancery court’s memorandum opinion dated May 13, 1998 specifically provided that its order was directed to the Arkansas Game and Fish Commission. Before the decree was entered, counsel for the State of Arkansas advised the court that he had been notified by the Commission that it could not legally accept responsibility for carrying out the court’s order. Ultimately, the court’s decree entered on September 29; 1998, was directed to the State of Arkansas and not to the Arkansas Game and Fish Commission.

       Although the court’s order on the petition to show cause entered on July 2, 1999, reflects that the hearing began on April 15, 1999, and continued to April 28, 1999, the record contains no transcript of a hearing on April 15, 1999. The State’s motion for reconsideration filed on June 28, 1999, makes the following reference to a hearing on April 15, 1999:
      On April 15, 1999, the Court conducted a hearing on the Plaintiff’s Motion to Show Cause. At this hearing, the Court was informed that, at that time, a state agency had not volunteered to implement the Court’s decree entered on September 29, 1998. But if the Court intended in its Decree to have state personnel monitor the Defendant’s water control structure to insure that its operation complied with the Court’s Decree, then personnel from Soil and Water Conservation Commission would be willing to achieve that directive.
      Furthermore, the State’s motion for reconsideration states that personnel from the Arkansas Soil and Water Conservation Commission visited Mr. Taylor’s water control structure on April 27, 1999, and determined that it was being operated consistently with the court’s September 29, 1998 decree, which information was reported to the court at the hearing on April 28, 1999. The transcript of that hearing, however, does not reflect the introduction of any such evidence.

       At the hearing on April 28, 1999, the chancellor also said: . . my memory of this case was not the beaver dams causing the flooding. It was the earthen dam he [Taylor] built and this elaborate dam.” Mr. Taylor objected at the hearing and in subsequent correspondence with the court. The statement was not included in the order entered on July 2, 1999.