author: W.h. "Dub"Arnold, Chief Justice.

text:
    Melvin F. ROMINE and Anita J. Romine, d/b/a American Ideal Trash v. ARKANSAS DEPARTMENT of ENVIRONMENTAL QUALITY
    00-22
    40 S.W.3d 731
    Supreme Court of Arkansas
    Opinion delivered October 18, 2000

      Jones, Jones & Lushbaugh, EL.C, by: Lewis D. Jones, for appellant.

      Ellen Rouch; and Mark Pryor, Att’y Gen., by: Charles Moulton, Ass’t Att’y Gen., for appellee.
   W.h. "Dub"Arnold, Chief Justice.

Appellants, Melvin F. Romine and Anita J. Romine, operate American Ideal Trash, a sole proprietorship engaged in the business of hauling waste generated in-state to out-of-state disposal sites. Appellee Arkansas Department of Environmental Quality (ADEQ) filed a complaint in the Washington County Chancery Court against the Romines seeking enforcement of a Default Administrative Order finding the Romines in violation of Ark. Code Ann. section 8-6-606 for failure to pay fees assessed against solid-waste transporters who transport solid waste generated within the state but to be disposed of outside the state.

In response to the ADEQ’s chancery enforcement action, the Romines admitted their failure to comply with the statute requiring payment of landfill disposal fees but argued in defense that section 8-6-606 violated provisions of the United States Constitution. They also sought and received removal to federal court. In federal court, appellants filed a counterclaim against ADEQ seeking class certification and alleging that section 8-6-606 violated the Commerce Clause, the Equal Protection Clause, 42 U.S.C. § 1983, and Arkansas prohibitions against illegal exactions. ADEQ filed a motion to dismiss the counterclaim or, alternatively, a motion to remand the case back to state court. The district court granted ADEQ’s motion to remand and proceedings resumed in the Washington County Chancery Court. ADEQ then renewed its motion to dismiss appellants’ counterclaim.

On September 2, 1999, the chancery court granted appellee’s motion to dismiss and determined that ADEQ was immune from suit pursuant to Ark. Const, art. 5, § 20, that appellants failed to exhaust their administrative remedies, and that section 8-6-606 was not unconstitutional because it did not distinguish between in-state and out-of-state waste haulers. Following a hearing on September 9, 2000, the chancery court also entered an order enforcing the terms of ADEQ’s default order and requiring the Romines to pay the fees due under section 8-6-606 as well as related penalties and costs.

The Romines bring the instant appeal challenging the chancery court’s September 2, 1999 order dismissing their counterclaim against ADEQ and its September 20, 1999 order enforcing the terms of the default order. Specifically, appellants claim that section 8-6-606 violates the Commerce and Equal Protection Clauses of the United States Constitution, that ADEQ is not entided to sovereign immunity, and that the doctrine of exhaustion of administrative remedies is inapplicable. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. l-2(a)(l) (2000) because the appeal raises a question of the constitutionality of Ark. Code Ann. section 8-6-606 (Repl. 2000). However, we decline to reach the merits of the constitutional challenge in light of the Romines’ failure to exhaust their administrative remedies. Accordingly, we affirm the chancery court’s orders dismissing appellants’ counterclaim and enforcing ADEQ’s default order.

Exhaustion of administrative remedies

Pursuant to the authority of Clinton v. Rehab. Hosp. Servs. Corp., 285 Ark. 393, 688 S.W.2d 272 (1985), and Ark. Code Ann. sections 8-4-211 and 8-6-208, the chancery court determined that appellants’ counterclaim should be dismissed for failure to exhaust available administrative remedies. Specifically, the chancery court acknowledged that appellants, “although invited to do so, failed to present a defense to the State’s claim ... before the agency designated by the General Assembly of the State of Arkansas to hear such a claim.” Consequently, the Romines’ failure to exhaust administrative remedies barred their pursuit of a counterclaim against ADEQ.

In support of their position, appellants cite case law from the Eighth Circuit Court of Appeals suggesting that the exhaustion-of-remedies doctrine is not inflexible and may be relaxed where the administrative agency has a “hostile” attitude. See Glover v. United States, 286 F.2d 84 (8th Cir. 1961); see also Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d 347 (8th Cir. 1984). Notably, the Eighth Circuit’s decisions are not binding precedent on this court’s application of the doctrine. Moreover, the cases are factually distinguishable. For example, the defendant in Glover attempted to participate in the administrative process. Glover, 286 F.2d at 89-90. In Arkla Exploration, relief was highly improbable and an administrative appeal would have been pointless because the end result was already achieved. Arkla Exploration Co., 734 F.2d at 355.

Further, appellants point to no evidence in the record to support their bare allegation that ADEQ is hostile toward them. In fact, the record reveals that ADEQ instituted the chancery proceeding only after the Romines failed to respond at the administrative level to a notice of violation and to the default order. The Romines admit that they failed to submit solid-waste quarterly reporting forms to the ADEQ and to pay the statutory fees. Following receipt of the notice of violation, appellants had twenty days within which to respond and failed to do so. The Romines responded by filing a counterclaim seeking removal to federal court only after ADEQ commenced the enforcement action.

This court has repeatedly held that the failure to exhaust administrative remedies is grounds for dismissal. City of Dover v. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999). In light of the appellants’ repeated failure to respond and to raise the constitutional arguments at the administrative level, they are barred from pursuing these claims now. See Arkansas Health Servs. Agency v. Desiderata, 331 Ark. 144, 958 S.W.2d 7 (1998). In conclusion, we affirm the chancery court’s orders dismissing the counterclaim and enforcing the default order.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Terrance ROBINSON and Tamagum Antonio Robinson v. STATE of Arkansas
    CR 99-1112
    39 S.W.3d 432
    Supreme Court of Arkansas
    Opinion delivered October 18, 2000

      Lewellen & Associates, by: Roy C. Lewellen, for appellants.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal is brought by appellants Terrance Robinson and Tamagum Antonio Robinson. Terrance Robinson was convicted of discharging a firearm from a vehicle and felon in possession of a firearm and sentenced to total time to serve of 372 months. Antonio Robinson was convicted of discharging a firearm from a vehicle and sentenced to 216 months. Both men appeal on multiple points, including lack of sufficient evidence to sustain their convictions. The appeal was certified to this court by the court of appeals because interpretation of Supreme Court Rules was involved. We accepted certification. We now hold that under Rule 2(a) of the Rules of Appellate Procedure-Criminal, the notice of appeal in this case was not timely filed. We, therefore, dismiss the appeal.

The facts, according to the testimony of State witnesses at trial, are these. On September 21, 1998, at some time after 10:00 p.m., Willie Gillum and his wife, Peggy Gillum, were returning to their home at 201 South OK Street in West Memphis. After pulling into their driveway, Willie Gillum got out of the vehicle. He then heard his wife say, “Duck.” Willie Gillum did not see another car pull up because his back was to the street as he closed the door of the car. After closing the door, he heard shots, and he turned to face the car. The car’s windows were down, and he could see Terrance Robinson, who was in the front seat of the vehicle on the passenger side, and Antonio Robinson, who was in the back seat on the passenger side. He also saw the driver, whom he identified as Marcus Turner. Willie Gillum stated that both of the Robinsons had weapons which they were firing at him. While trying to move to the front of the car, he was shot in the back.

Both appellants were charged with unlawful discharge of a firearm, and Terrance Robinson was also charged with felon in possession of a firearm. They were convicted, following a jury trial, as previously set out in this opinion.

After the jury trial and verdict, these events occurred in the procedural history of the case.

• Each appellant filed a motion for new trial on May 10, 1999.
• The judgment and commitment orders were entered by the court on May 24, 1999.
• An order setting the motions for new trial for hearing on June 16, 1999, were filed on June 10, 1999.
• The Robinsons filed a notice of appeal on July 8, 1999. A hearing on the motions for new trial was held on July 8, 1999.
* An order denying the motions for a new trial was entered on July 23, 1999.

As an initial matter, the State contests the subject-matter jurisdiction of this court based on the fact that the Robinsons’ notice of appeal was untimely under Ark. R. App. P. — Crim. 2(a) & (b). Specifically, the State points to the fact that the notice of appeal was filed more than thirty days after the entry of the judgment and commitment orders. Further, the State asserts that under our caselaw, the Robinsons’ motions for new trial were void and ineffective because they were filed before entry of the judgments. The State cites Brown v. State, 333 Ark. 698, 970 S.W.2d 287 (1998), in support of its argument. We agree with the State that the Robin-sons’ appeal was untimely and must be dismissed.

Rule 2(a)(1) of our Rules of Appellate Procedure- — Crim. provides that a notice of appeal must be filed within thirty days of entry of judgment. Rule 2(a) further provides for appeals from orders denying posttrial motions such as the motions for new trial involved in the instant matter. The issue before us is whether these posttrial motions were effective. Stated differently, are posttrial motions following a criminal trial void and ineffective if filed before entry of the judgments?

In Brown v. State, supra, a motion for new trial and motion for judgment notwithstanding the verdict were filed after the jury verdict but before entry of the judgment and commitment order. The appellant in that case had been found guilty of capital murder and the jury’s sentence was life in prison without the possibility of parole. The posttrial motions were premised on the fact that the jury only deliberated for ten minutes on the appellant’s guilt. We held that the issue raised in both posttrial motions was not preserved for our review. We said:

As an initial matter, both the posttrial motions in this matter were ineffective because they were filed before the judgment was entered in this case. See Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996) (per curiam); Webster v. State, 320 Ark. 393, 896 S.W.2d 890 (1995) (per curiam). Because the motions are void, we treat them as if they had never been made.

Brown, 333 Ark. at 700, 970 S.W.2d at 288.

Similarly, in the case at hand the posttrial motions for a new trial were void and of no effect because they were filed before the judgments were entered. The notice of appeal in this case was filed forty-five days after the entry of the judgments. Since the posttrial motions did not extend the period of time in which to appeal due to their ineffectiveness, the appeal is untimely.

The Robinsons contend that under one appellate rule for civil matters, and specifically under Ark. R. Civ. P. 59(b), new trial motions filed prematurely are deemed filed the day after judgment. However, that is not the case in criminal appeals as has been clearly set forth in Brown v. State, supra.

The Robinsons also maintain that they were misled by the trial court, which held the hearing on the motions for new trial after the thirty-day period for filing a notice of appeal had passed. Placing the responsibility on the trial court is not enough to excuse the absence of subject-matter jurisdiction in this court. Daniels v. State, 338 Ark. 328, 5 S.W.3d 1 (1999) (per curiam); Cook v. State, 327 Ark. 125, 937 S.W.2d 641 (1997) (per curiam); Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996) (per curiam).

Appeal dismissed.


author: Annabelle Clinton Imber, Justice.

text:
    George WILCOX v. STATE of Arkansas
    CR 00-570
    39 S.W.3d 434
    Supreme Court of Arkansas
    Opinion delivered October 18, 2000

      Sam T Heuer, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Appellant George Wilcox appeals the interim order of the Pulaski County Circuit Court denying his motion to dismiss. For reversal, appellant argues that the State is barred by double jeopardy from retrying him on the charge of first-degree battery. The trial court’s denial was affirmed by the Arkansas Court of Appeals in Wilcox v. State, 70 Ark. App. 110, 15 S.W.3d 353 (2000). This case is before us on petition for review; hence, our jurisdiction is pursuant to Ark. Sup. Cr. R. l-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

Mr. Wilcox was convicted of battery in the first degree based upon charges that he shot Kenneth Thompson in the neck and foot on the night of June 16, 1997. Testimony elicited at trial established that, on the night of June 16, 1997, Kenneth Thompson, who was ten years old at the time of trial, was playing with his brother Eddie Withers (15) and his friends, Donald Ray Adams (15) and Keith Jackson (10) in a sod field owned by Mr. Wilcox and his wife. The boys testified that they were riding their bicycles in the field, but lost one of the bicycles and turned on the lights of a tractor to locate it. At approximately 9:30 that evening, Mr. John Patton, who lived across the street from the field, heard the tractor running and the children’s voices. He called the Wilcox home to notify Mr. Wilcox that there were children in the field playing with his equipment; then he went back outside and noticed a white Ford truck pulling into the field. Mr. Patton drove to the field himself and encountered the children leaving. They told him that the other man allowed them to leave, so Mr. Patton let them go as well and went to speak with the man who was standing in the field by the truck. They briefly discussed the possible damages done to the farm equipment, and then Mr. Patton left. Mr. Patton testified at trial that the man he spoke with in the field on June 16, 1997, was not in the courtroom.

According to the testimony of Eddie Withers, he and Keith Jackson hid behind a tractor as the white truck came into the field, but Kenneth Thompson and Ray Adams ran. Eddie testified that he saw a man get out of the truck with a gun and fire a shot at the ground. He also testified that he heard the man yelling for the running boys to come back to him. Ray obeyed and returned to face the man, but Kenneth continued to run. Eddie further testified that the man then aimed the gun at Kenneth and fired again. This time, Kenneth fell to the ground, got back up and ran again. When the man yelled again for him to come back, Kenneth complied. The shooter then told the boys to leave before he killed them. Ray placed Kenneth, who had been shot in the neck and foot, on the handlebars of his bicycle and took him home. Kenneth was transported to Arkansas Children’s Hospital where he underwent surgery to remove a shotgun pellet from his neck.

Police officers investigating the incident went to the Wilcox home that evening and found a white Ford truck. It was muddy and the engine was warm, as if it had been driven recently. The officers also discovered golf tees inside the truck that matched two golf tees found at the scene of the shooting. Eddie Withers, who accompanied police to the Wilcox home, identified the truck as the one driven by the shooter. At trial, both Eddie Withers and Ray Adams identified Mr. Wilcox as the shooter. Mr. Wilcox denied the allegations, claiming that he was at home in bed when the events occurred and that he was awakened by the police.

Following a bench trial held on May 26, 1998, Mr. Wilcox was found guilty of battery in the first degree. Sentencing was postponed pending receipt of a presentence report. Prior to the date set for sentencing, Mr. Wilcox filed a motion for new trial based upon newly discovered evidence. Fie claimed to have evidence that Mr. Boyce Cope was the man who shot Kenneth Thompson. At a hearing on the motion, Mr. Patton, the eyewitness who had been unable to identify Mr. Wilcox at trial, testified that Mr. Cope was the man with whom he had spoken in the field on the night of June 16, 1997. Private investigator Keith Rounsavall testified about a conversation with Mr. Cope on July 6, 1998, in which Mr. Cope admitted that he was the man who shot Kenneth. The following day, Mr. Rounsavall taped Mr. Cope’s confession. At the hearing, Mr. Cope invoked his Fifth Amendment privilege against self-incrimination and declined to testify, whereupon the trial court declared him unavailable as a witness and allowed the taped confession to be introduced into evidence. Mr. Wilcox also presented evidence concerning his eyesight. His optometrist testified that without his glasses Mr. Wilcox was able to see only at a level of 20/100. No witness at trial recalled seeing glasses on the man who shot Kenneth. Mr. Wilcox and his wife had both testified at trial that he wore his glasses everywhere.

The trial court granted Mr. Wilcox’s motion for a new trial based upon newly discovered evidence. The presiding judge then recused, and the case was transferred to another division of Pulaski County Circuit Court for a new trial.

On June 8, 1999, Mr. Wilcox filed a motion to dismiss the charges against him on the basis of double jeopardy, or in the alternative for judgment of acquittal. He argued that allowing the State to proceed to trial a second time on the charges against Mr. Wilcox, in light of the newly discovered evidence before the court, would be a violation of the Fifth Amendment’s prohibition against double jeopardy. Alternatively, Mr. Wilcox asked the court to exercise its inherent power to enter a judgment of acquittal based upon the record before it. The trial court denied the motion to dismiss in an order entered on June 17, 1999, but recognized Mr. Wilcox’s right to appeal from the decision. A notice of appeal was filed on that same date.

Mr. Wilcox’s sole point on appeal is that the State is barred from prosecuting him a second time in this matter. He argues that the trial court’s grant of a new trial was “tantamount to directing a verdict of acquittal,” because, in order to grant a new trial based upon newly discovered evidence, the trial court had to find that the new evidence would have impacted the outcome of the case. Mr. Wilcox asserts that the only impact that could occur under these circumstances is a judgment of acquittal based upon insufficient evidence. The State responds that in granting a new trial based upon newly discovered evidence, the trial court did not comment upon the sufficiency of the evidence; therefore, retrial is not barred by double jeopardy.

The Fifth Amendment to the United States Constitution provides that no person shall be twice put in jeopardy oflife or limb for the same offense. U.S. Const, amend. 5. See also Ark. Const, art. 2, § 8. The Arkansas General Assembly has reiterated this protection in two statutory provisions: Ark. Code Ann. § 5-1-112 (Repl. 1997) (“a former prosecution is an affirmative defense to a subsequent prosecution for the same offense” under certain specified circumstances) and Ark. Code Ann. § 16-85-712 (1987) (“an acquittal by a judgment on a verdict, or a conviction, shall bar another prosecution for the same offense”).

“The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184 (1957).

The Double Jeopardy Clauses of the United States and Arkansas constitutions protect criminal defendants from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711 (1969); Zawodniak v. State, 339 Ark. 66, 3 S.W.3d 292 (1999). Where double jeopardy applies, “its sweep is absolute.” United States v. DiFrancesco, 449 U.S. 117, 131 (1980) (quoting Burks v. United States, 437 U.S. 1 (1978)). However, the double jeopardy clause “imposes no limitation whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.” Id. at 131 (quoting North Carolina v. Pearce, supra) (emphasis original). There is only one exception to this rule: “the Double Jeopardy Clause prohibits retrial after a conviction has been reversed because of insufficiency of the evidence.” Id. at 131; see also Burks v. United States, supra.

Mr. Wilcox argues that the State is barred from retrying him in the instant case because his original conviction has been overturned on the basis of insufficient evidence. If he is correct, then retrial is absolutely barred. See United States v. DiFrancesco, supra. We must therefore determine whether, by granting a new trial on the basis of newly discovered evidence, the trial court tacitly found the evidence insufficient to support a conviction.

In rendering its decision on Mr. Wilcox’s motion for new trial, the trial court stated:

“To prevail [on a motion for new trial based upon newly discovered evidence], the appellant must show that the new evidence would have impacted the outcome of his case and that he used due diligence in trying to discover the evidence.” That also stands for the proposition that “newly-discovered evidence is the least favored ground for a new trial motion. When [the] new trial is denied on this ground, we will reverse only for an abuse of discretion,” . . . [quoting Misskelley v. State, 323 Ark. 449, 478, 915 S.W.2d 702, 717 (1996)].
In regard, and looking at some of the other cases around, such as Brown versus State, [330] Arkansas 627, a 1997 case, it states several things. Among the most important is, “[t]he mere fact that another person has confessed to a crime cannot alone be grounds for relief, for such confessions are not uncommon and must be approached with some skepticism. The trial court must carefully scrutinize the complete circumstances surrounding the confession and all the available evidence,” which this Court has taken the an opportunity to do in the last several hours that we’ve been out. I’ve also considered other matters including the Rules of Evidence involving the admissibility of the statement or alleged confession in this matter, my trial notes of the trial in this matter, and the trial here. Even though a newly-discovered evidence is among the least favored grounds for the granting of a motion for new trial, the law provides for such relief under appropriate circumstances. After reviewing the facts presented here today and the prevailing law in Arkansas, the motion for new trial should be and is hereby granted.

It is clear from a review of the trial court’s pronouncement from the bench that it made ho explicit finding that the evidence was insufficient to convict Mr. Wilcox of battery in the first degree. Mr. Wilcox argues, however, that a finding by the trial court that the evidence was insufficient is inherent in its decision to grant a new trial, when viewed in light of the standards to which the trial court must adhere in granting a new trial based upon newly discovered evidence.

To prevail on a motion for new trial based upon newly discovered evidence, the movant “must show that the new evidence would have impacted the outcome of his case, and that he used due diligence in trying to discover the evidence.” Misskelley v. State, 323 Ark. 449, 478, 915 S.W.2d 702, 717 (1996). The finding of due diligence is not at issue in this appeal. Mr. Wilcox argues that, because the trial court found that the newly discovered evidence would have impacted the outcome of his case, the trial court must have found the evidence insufficient to convict him. A finding of insufficient evidence to convict, according to Mr. Wilcox, is the only impact the evidence could have had on his case. In support of his argument, Mr. Wilcox relies upon the decision of the United States Supreme Court in Greene v. Massey, 437 U.S. 19 (1978).

In Greene v. Massey, the Florida Supreme Court had reversed the convictions of the defendants Greene and Sosa and remanded for a new trial after stating that “we are of the view that the evidence was definitely lacking [in] establishing beyond a reasonable doubt that the defendants committed murder in the first degree.” Id. at 20-21. The United States Supreme Court noted that “by using the precise terminology ‘lacking in establishing beyond a reasonable doubt,’ the highest court in Florida seems to have clearly said that there was insufficient evidence to permit the jury to convict petitioner at his first trial.” Id. at 25. The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of Burks v. United States, supra, which had been decided the

same day. Id. at 26-27. Greene v. Massey, however, is inapposite here. There has been no determination by any court that the evidence presented by the State in this case was insufficient to support the conviction of Mr. Wilcox.

The Supreme Court, in Burks v. United States, explained its reasoning behind treating a finding of insufficient evidence like a verdict of acquittal for double jeopardy purposes:

[A]n appellate reversal [on the grounds of insufficient evidence] means that the government’s case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal - no matter how erroneous its decision - it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.

Burks v. United States, 437 U.S. at 16 (emphasis in original). Similarly, in State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997), we stated that, to implicate double jeopardy, “the trial court’s judgment must be one that indicates that the government’s factual case has failed either as to the statutory elements of the' offense charged, or as to the burden shifted to the government when a defendant raises a prima facie defense that, unrebutted, would justify a finding of innocence.” Id. at 185, 946 S.W.2d at 939 (citing United States v. Scott, 437 U.S. 82 (1978)). Such is not the case here. The trial court never indicated that the State failed in its burden of proof as to the statutory elements of battery in the first degree; nor did Mr. Wilcox present any prima facie defense that, unrebutted, would justify a finding of innocence. To the contrary, the trial court made a finding that the evidence presented by the State was sufficient when it convicted Mr. Wilcox of the offense charged.

The instant case is more analogous to Tibbs v. Florida, 457 U.S. 31 (1982), wherein the Supreme Court reiterated that “the Double Jeopardy Clause precludes retrial once the reviewing court has found the evidence legally insufficient to support conviction.” Id. at 40-41 (internal quotation omitted). However, the Supreme Court noted that the rule barring retrial is confined only to those cases where the failure of the State to present sufficient evidence is clear. Id. at 41. The prohibition against double jeopardy does not bar retrial when a conviction is overturned based upon the weight of the evidence. “[RJeversal on this ground, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” Id. at 42. Rather, “[a] reversal based on the weight of the evidence . . . can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the [finder of fact] to convict.” Id. at 42-43.

[T]he Double Jeopardy Clause . . . should not exact the price of immunity for every defendant who persuades an appellate panel to overturn an error-free conviction and give him a second chance at acquittal. Giving the defendant this second opportunity, when the evidence is sufficient to support the first verdict, hardly amounts to ‘governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.’

Id. at 44 (quoting United States v. Scott, 437 U.S. at 91). This court has adopted the language of Tibbs when distinguishing between the weight and the sufficiency of evidence in reviewing directed verdicts. See State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992).

We cannot say that the trial court’s determination that a new trial was warranted in light of Mr. Wilcox’s newly discovered evidence was equivalent to a finding that the State’s case was so lacking that it should not have even been submitted to a jury. As the State argues, the trial court necessarily determined that the evidence presented by the State at trial was sufficient to convict because the trial court, sitting as trier of fact, entered a judgment of conviction. It certainly was not implicit in the trial court’s granting of a new trial that the State’s evidence had been rendered legally insufficient due to Mr. Wilcox’s newly discovered evidence. At most, the trial court’s grant of a new trial does nothing more than indicate that the new evidence would have impacted the outcome of the case only if a factfinder, after resolving questions of credibility and conflicting testimony, were to determine that the weight of the evidence supported an acquittal.

The grant of a new trial in this case simply provided Mr. Wilcox with “a second opportunity to seek a favorable judgment.” Tibbs v. Florida, 457 U.S. at 43. On retrial, it will be for the factfinder to determine the weight of the evidence; that is, whether a greater amount of credible evidence supports an acquittal or a conviction. State v. Johnson, supra; State v. Long, supra. Accordingly, we hold that the trial court properly denied Mr. Wilcox’s motion to dismiss on the basis of double jeopardy.

Affirmed.

       The Court noted that a retrial would “obviously” violate the Double Jeopardy Clause if only the quoted opinion were considered. The Court remanded the case for further consideration, however, because of the alignment of the Florida Supreme Court in its per curiam opinion. Although three justices concurred in the majority opinion finding insufficient evidence, they did not specifically address the sufficiency of the evidence in their concurring opinions; rather, they concurred based upon trial error. 437 U.S. at 25-26.

       Mr. Wilcox’s reliance on Freer v. Dugger, 935 F.2d 213 (11th Cir. 1991), in his petition for review is similarly misplaced. In Freer, the trial court specifically discussed the evidence and stated that it was not satisfied that the State had proven guilt beyond a reasonable doubt. Id. at 216.

       At the time that Mr. Wilcox was tried, the legal sufficiency of the evidence was necessarily considered by the trial court in a bench trial without regard to whether or when Mr. Wilcox raised the issue. Strickland v. State, 322 Ark. 312, 314-18, 909 S.W.2d 318, 319-21 (1995). Strickland has now been superceded by this court’s amendment to Ark. R. Crim. P. 33.1, which requires a dismissal motion in a nonjury trial. Ark. R. Crim. P. 33.1(b) (amended by per curiam order dated April 6, 1999).


author: Ray Thornton, Justice. Tom Glaze, Justice,

text:
    ALOHA POOLS & SPAS, INC. v. EMPLOYER’S INSURANCE OF WAUSAU
    99-1310
    39 S.W.3d 440
    Supreme Court of Arkansas
    Opinion delivered October 18, 2000
    [Petition for rehearing denied November 30, 2000.  ]

      Matthews, Sanders, & Sayes, by: Doralee Idleman Chandler, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard P.L.L.C., by: Marshall S. Ney, for appellee.

       Glaze, J., would grant.

   Ray Thornton, Justice.

Appellant Aloha Pools & Spas, Inc., brings this appeal of the trial court’s decision in favor of its workers’ compensation coverage carrier, Employer’s Insurance of Wausau, holding Aloha liable for unpaid premiums for policies of workers’ compensation coverage for certain subcontractors who did not have employees of their own and for whom certificates of noncoverage or proof of coverage were not obtained. Appellant contends that the trial court erroneously interpreted the applicable statute as requiring all such subcontractors to be deemed employees for purposes of determining premiums to be paid for workers’ compensation coverage. We agree and reverse and remand for further findings by the trial court, consistent with this opinion and the stipulations of the parties.

The premiums at issue covered policies written and issued to Aloha for the periods of January 28, 1994, through April 19, 1995. For each policy period, Aloha was charged an estimated premium on the effective date of the policy; then, during each policy year, Wausau conducted an audit to determine the amount of the final premium. The audits for the two policy periods resulted in an upward adjustment of the premium based on additional risks allegedly posed by Aloha’s business. Wausau filed suit in the Pulaski County Circuit Court seeking recovery of unpaid premiums. Aloha filed a counterclaim, alleging that it had overpaid premiums for workers’ compensation insurance due to errors made by Wausau in calculating the premiums. Specifically, Aloha contended that Wausau mis-classified the vast majority of those persons providing services to Aloha as being employees, thereby resulting in excessive premiums for workers’ compensation for individuals who were not employees of Aloha.

Wausau filed a motion for partial summary judgment, contending that Aloha was a prime contractor who associated with a number of subcontractors to perform work pursuant to contracts between Aloha and its customers and that Aloha had no proof that these subcontractors had insurance or certificates of noncoverage. Wausau contended that in the absence of such proof, it was liable for injuries to Aloha’s subcontractors because they were deemed employees under the Workers’ Compensation Act. Aloha responded that Wausau was not entitled to charge premiums for those subcontractors because they were not Aloha’s employees.

Prior to the trial court’s determination of the motion for partial summary judgment, the parties stipulated to the following facts: That it was undisputed that Aloha owed Wausau the sum of $4,638.75, for premiums earned and unpaid; that there remained in dispute the sum of $50,136.00, the sum that would be due Wausau if it were entitled to charge a premium for subcontractors who were sole proprietors or partners and had not furnished the prime contractor a certificate of noncoverage, and the only remaining issue was whether the subcontractors who are sole proprietors or partners were deemed to be employees of the prime contractor as a result of their failure to provide a certificate of noncoverage to the prime contractor. It was further stipulated that if Wausau was entitled to charge a premium for subcontractors who were sole proprietors or partners and had not furnished a certificate of noncoverage, Wausau would be entitled to judgment against Aloha in the amount of $54,774.75; and that if Wausau was not entitled to charge a premium for subcontractors who were sole proprietors or partners and who had not furnished a certificate of noncoverage, Wausau was entitled to judgment against Aloha in the amount of $4,638.75.

At the hearing on the summary-judgment motion, the parties further agreed to these facts: That a number of Aloha’s subcontractors are sole proprietors or partnerships; that these subcontractors do not employ workers but do the work themselves; that these subcontractors did not secure workers’ compensation coverage for themselves; and that these subcontractors did not provide Aloha, their prime contractor, with certificates of noncoverage. The issue presented for the trial court’s resolution was whether Ark. Code Ann. § 11-9-402 (Repl. 1996) required that these subcontractors be “deemed employees” of the prime contractor for purposes of workers’ compensation insurance coverage. The trial court found that subcontractors who are sole proprietors or partners and fail to provide their prime contractor with a certificate of noncoverage are deemed employees of the prime, and granted Wausau’s motion for summary judgment. Based upon the resolution of the summary-judgment motion and the stipulations of the parties, the trial court entered judgment in favor of Wausau in the amount of $54,774.75. An appeal of the entry of judgment followed, and this court accepted jurisdiction to decide the issue because of the first impression question of interpretation of the statute.

Summary judgment is an extreme remedy that should only be allowed when it is clear that there is no issue of fact to be litigated. Franklin v. Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992). A summary judgment should only be granted when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i. e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). Normally, on a summary-judgment appeal, the evidence is viewed most favorably for the party resisting the motion and any doubts and inferences are resolved against the moving party, but in a case where the parties agree on the facts, the appellate court simply determines whether the appellee was entitled to a judgment as a matter of law. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994).

We have held that issues of statutory construction are reviewed de novo on appeal, and it is for the appellate court to determine the meaning of a statute. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). The appellate court is not bound by the trial court’s interpretation, but in the absence of a showing that the trial court misinterpreted the law, the trial court’s interpretation will be accepted as correct. Id. This case involves a first-impression interpretation of a statute. The basic rule of statutory construction is to give effect to the intent of the Legislature. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). The Workers’ Compensation Law must be strictly and literally construed by the Commission and the courts, and 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). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. Id. If the language of the statute is plain and unambiguous, the analysis need go no further. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997).

Arkansas Code Annotated § 11-9-402 provides, in pertinent part:

(c)(1)(A) When a sole proprietorship or partnership fails to elect to cover the sole proprietor or partners under this chapter, the prime contractor is not liable under this chapter for injuries sustained by the sole proprietor or partners if the sole proprietor or partners are not employees of the prime contractor.
(B)(i) A sole proprietor or the partners of a partnership who do not elect to be covered by this chapter and be deemed employees thereunder and who deliver to the prime contractor a certification of noncoverage issued by the Workers’ Compensation Commission shall be conclusively presumed not to be covered by the law or to be employees of the prime contractor.
(ii) This provision shall not affect the rights or coverage of any employees of the sole proprietor or of the partnership.
(2) Furthermore, the prime contractor’s insurance carrier is not hable for injuries to the sole proprietor or partners described in this section who have provided a certification of noncoverage, and the carrier shall not include compensation paid by the prime contractor to the sole proprietor or partners described above in computing the insurance premium for the prime contractor.
(3)(A) Any prime contractor who, after being presented with a certification of noncoverage by a sole proprietor or partnership, nonetheless compels the sole proprietor or partnership to pay or contribute to workers’ compensation coverage of that sole proprietor or partnership shall be guilty of a Class D felony.
(B) Further, any prime contractor who compels a sole proprietor or partnership to obtain a certification of noncoverage when the sole proprietor or partnership does not desire to do so is guilty of a Class D felony.

Id.

The statute clearly provides that when a subcontractor delivers to the prime contractor a certification of noncoverage issued by the Workers’ Compensation Commission, the subcontractor who is a sole proprietor or partner will be conclusively presumed not to be covered by the workers’ compensation law or to be considered an employee of the prime contractor. Ark. Code Ann. § ll-9-402(c)(l)(B)(i). The prime contractor’s insurance carrier is not liable for injuries to the subcontractor who is a sole proprietor or partner who has provided a certificate of noncoverage, and the carrier shall not include compensation paid by the prime contractor to this subcontractor in computing the insurance premium for the prime contractor. Ark. Code Ann. § 11-9-402(c)(2). Similarly, the Workers’ Compensation Act provides in the definitions section that “any sole proprietor, partner of a partnership, or member of a limited liability company who desires not to be included in the definition of ‘employee’ may file for and receive a certification of noncoverage under this chapter from the commission.” Ark. Code Ann. § ll-9-102(9)(A)(Supp. 1999).

The trial court correctly found that this language means that if the subcontractor who is a sole proprietor or partner does not insure himself, but provides a certificate of noncoverage, the prime contractor will not be liable for the subcontractor’s workers’ compensation coverage. We cannot, however, agree with the trial court’s interpretation of Ark. Code Ann. § ll-9-402(c)(l)(A) to mean that, in the absence of certification of noncoverage, a subcontractor must be statutorily deemed an employee, and, therefore, the prime contractor will be liable for his workers’ compensation coverage.

To the contrary, Ark. Code Ann. § ll-9-402(c)(l)(A) provides that “when a sole proprietor or partner fails to elect to cover the sole proprietor or partners under this chapter, the prime contractor is not liable under this chapter for injuries sustained by the sole proprietor or partners if the sole proprietor or partners are not employees of the prime contractor.” Id. (emphasis added). This language does not provide that subcontractors who are sole proprietors or partners are automatically considered employees based upon their decision not to obtain coverage for themselves or obtain a certificate of noncoverage. Rather, the language of subsection (c)(1)(A) requires a determination whether those individuals claiming status as sole proprietors or partners are independent contractors or employees of the prime contractor. This requires an analysis whether such an individual is a subcontractor, independent contractor, or, depending upon the right of control, an agent of the prime contractor that would be treated as an employee under the workers’ compensation statutes. See Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996); Hollingsworth & Rockwood Ins. v. Evans, 255 Ark. 387 (1973)(decision under prior law).

Therefore, we reverse the judgment entered by the trial court, as well as the grant of partial summary judgment, and remand this case for a determination of the status of these sole proprietors or partners who have elected not to obtain coverage of their own or obtain certificates of noncoverage. In making this determination, the trial court should look to the factors outlined in D.B. Griffen Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999):

(1) the extent of control which is by the agreement the master may exercise over the details of the work;
(2) whether or not the one employed is engaged in a distinct occupation or business;
(3) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(4) the skill required in the particular occupation;
(5) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(6) the length of time for which the person is employed;
(7) the method of payment, whether by the time or by the job;
(8) whether or not the work is a part of the regular business of the employer;
(9) whether or not the parties believe they are creating the relation of master and servant; and
(10) whether the principal is or is not in business.

Id. This court reasoned that the “right of control” is the principal factor in determining whether the relationship is one of agency or independent contractor. Id.

This decision is consistent with our language in Arkansas Transit Homes v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000), that where the subcontractors at issue were not employees of the prime contractor, the prime contractor will not be responsible for payment of workers’ compensation premiums for the subcontractors themselves, but only for those employees of the subcontractors, if any, for whom no compensation coverage was provided. Id. (emphasis in original).' We conclude that the trial court incorrectly interpreted the statute as requiring that sole proprietors or partners who did not obtain workers’ compensation coverage or a certificate of noncoverage are automatically deemed to be employees. If the trial court determines that the sole proprietors or partners whose coverage is at issue here are not employees of the prime contractor, the prime contractor will not be liable for the payment of premiums on their behalf for workers’ compensation coverage. Ark. Code Ann. § ll-9-402(c)(l)(A).

Reversed and remanded.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. I dissent because I believe the majority has added an unnecessary step to the determination of an injured worker’s status. The issue presented in this case is whether subcontractors who are sole proprietors or partnerships who fail to provide their prime contractors with a certificate of noncoverage are deemed employees of the prime contractor. Given that the intent of the workers’ compensation statutes is to provide coverage to all legitimately injured workers, I would interpret Ark. Code Ann. § ll-9-402(c) (Supp. 1999) to mean that these sole proprietor subcontractors should be deemed employees for the purposes of workers’ compensation insurance coverage.

The purpose and intent of the workers’ compensation laws is “to pay timely temporary and permanent disability benefits to all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force.” Ark. Code Ann. § 11-9-101 (b) (Kepi. 1996). Our courts have interpreted Ark. Stat. Ann. § 81-1306 (Repl. 1976), the predecessor to the statute currently in issue, as having as its primary purpose to “protect the employees of subcontractors who are not financially responsible, and to prevent employers from relieving themselves from liability by doing through independent contractors what they would otherwise do through direct employees.” Liggett Constr. Co. v. Griffin, 4 Ark. App. 247, 629 S.W.2d 316 (1982).

Aloha stipulated that it had a number of sole proprietor subcontractors who neither secured .workers’ compensation coverage for themselves nor provided Aloha, their prime contractor, with certificates of noncoverage. Aloha also stipulated that those subcontractors did not employ workers, but rather did the work themselves. If the majority opinion is correct, then if one of these sole proprietor subcontractors who has not secured coverage for himself is injured on the job, then there is a chance that he will not be covered by anyone’s workers’ compensation coverage, and the primary purpose of the workers’ compensation statutes will be defeated. The majority’s declaration that a trial court must apply the traditional “right of control” factors will mean that a sole proprietor subcontractor who, for example, brings his own tools to the job site and gets paid by the job, but is injured while performing some task given him by Aloha, will likely not be able to receive workers’ compensation benefits because he cannot satisfy the test imposed by the majority’s decision.

Ark. Code Ann. § ll-9-402(a) (Supp. 1999) states that “[wjhere a subcontractor fails to secure compensation by this sub-chapter, the prime contractor shall be liable for compensation to the employees of the subcontractor.” However, when the subcontractor is a sole proprietor and is thus the only person performing the work for the prime contractor, the distinction between the “subcontractor” and the “employees of the subcontractor” vanishes. For this reason, the majority’s rebanee on Arkansas Transit Homes, Inc. v. Aetna Life & Casualty, 341 Ark. 317, 16 S.W.3d 545 (2000), which dealt with a subcontractor with multiple employees, is misplaced.

Section ll-9-402(c)(l)(B)(i) (Supp. 1999) provides that a sole proprietor who does not elect to be covered under this statute and be deemed an employee and who delivers to the prime contractor a certificate of noncoverage will be conclusively presumed not to be an employee of the prime. In addition, § 11-9-102 (9) (B) (Repl. 1999), which defines an “employee” for purposes of the workers’ compensation statutes, states that “any sole proprietor or partner of a partnership who desires not to be included in the definition of ‘employee’ may file for and receive a certification of noncoverage under this chapter from the [workers’ compensation] commission.” Thus, to avoid being deemed an employee, a sole proprietor is statutorily directed to take the affirmative steps of obtaining a certificate of noncoverage and delivering that certificate to the prime contractor. In the event that a sole proprietor does not deliver that certificate, he is deemed an employee. The intent of our workers’ compensation laws is to provide coverage for injured workers, and the specific purpose of the statute in question is to prevent prime contractors from avoiding workers’ compensation liability by farming out work to workers who are not direct employees. Why, then, should we make it easier for prime contractors to avoid liability by making it harder for sole proprietor subcontractors to be considered employees?

Because I believe that sole proprietor subcontractors, who do not present the statutorily required certificate of noncoverage to their prime contractors, should be deemed employees of the prime for purposes of workers’ compensation coverage, I dissent.


author: Tom Glaze, Justice. Robert L. Brown, Justice, Donald L. Corbin, Justice,

text:
    William L. “Bill” WALKER, R.C. “Bill” Lewellen, Jean Edwards, John Lewellen, Tracy Steele, John Eason, Robert White, Lindergh Thomas, Michael Booker, Wilma Walker, Henry Wilkins IV, Joe Harris, Steve Jones, Arnell Willis, Calvin Johnson, Individually and as Members of the Arkansas Legislative Black Caucus, Petitioners, and James Lane, Intervenor v. Sharon PRIEST, In Her Official Capacity as Secretary of State of the State of Arkansas, and Arkansas Children’s Hospital, Arkansas Hospital Association, Governor Mike Huckabee, University of Arkansas, Arkansas State University, American Cancer Society, American Heart Association, American Lung Association, Arkansans for Drug Free Youth, Hispanic Health Program, Campaign for Tobacco Free Kids, and National Black Leadership Initiative on Cancer, Individually, and as Members of Coalition for a Healthy Arkansas Today (“CHART”), Intervenors.

    00-1037
    29 S.W.3d 657
    Supreme Court of Arkansas
    Opinion delivered October 20, 2000

      Rickey Hicks; R.C. “Bill” Lewellen; Herschel W. Cleveland; and Michael D. Booker, for petitioners.

      Rieves, Rubens & Mayton, by: Kent J. Rubens, for intervenor James Lane.

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

      Williams & Anderson LLP, by: W. Jackson Williams, Peter G. Kumpe, and Jess Askew III, for intervenors Arkansas Children’s Hospital et al.

   Tom Glaze, Justice.

Representative Bill Walker and other members of the Arkansas Legislative Black Caucus filed this original action petition, under Ark. Const, amend. 7, seeking to enjoin the Secretary of State from placing Proposed Initiated Act No. 1 (“The Tobacco Settlement Proceeds Act”) on the November 7, 2000, General Election ballot. The petitioners generally allege that the ballot tide of the act “fails to convey an intelligible idea of the scope and import of the Proposed [Act], and is insufficient to enable a voter ... to make an intelligent choice, fully aware of the consequences of his or her vote.” James Lane subsequently intervened in this action, and joined in the petitioners’ challenge of the Act’s ballot title. The petitioners and Lane allege two primary defects in the ballot tide: (1) it is so complex, lengthy, and detailed that a voter cannot intelligendy make a choice in the time allotted him or her to vote, and (2) despite the tide’s length, the title is misleading, incomplete, deceptive, and has serious omissions.

Respondent Sharon Priest, Secretary of State, through her counsel, Attorney General Mark Pryor, answered the petitioners’ and Lane’s allegations, denying that the Act’s ballot tide is defective. The Act’s sponsors, known as the Coalition for a Healthy Arkansas Today (CHART), intervened in this proceeding and joined the State’s argument that the Act’s ballot tide is complete, fair, and intelligible and should remain on the general election ballot and be counted.

As background information, the initiated Act’s ballot title was certified by the Attorney General and submitted to the Secretary of State on May 3, 2000; the Secretary of State approved and certified the sufficiency of the ballot title on May 5, 2000, and certified that the petition met the signature requirements and the requirements of Amendment 7 for placement on the November 7 ballot.

In his opinion accompanying the ballot title’s certification, the Attorney General commented on “the particular hazards attendant to the preparation of a ballot title for a lengthy and complex proposal such as this one.” Op. Att’y Gen. # 2000-137, at 7. This opinion also noted that the ballot title in this case measured 994 words long, and the longest title ever approved contained 900 words. Bailey v. Hall, 198 Ark. 815, 131 S.W.2d 635 (1939). The Attorney General pointed out “that with any proposed act of considerable length and complexity, the sponsor runs the risk of a challenge and of a finding by the court that a ballot title prepared for the measure would be unacceptable, either because it is too ‘complex, detailed, and lengthy,’ or because it has ‘serious omissions.’ ” Op. Att’y Gen. # 2000-137, at 8 (citing Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)). Finally, the Attorney General noted that this court has held in some instances that “the text of some measures ‘precludes the writing of an acceptable ballot title.’ ” However, he would not determine “whether this is such a measure,” stating he would be “loath ... to follow the only option other than certification . . . of rejecting your submission based upon the substance of the proposed act.”

The questions now before us are whether the ballot title to the proposed initiated act is too complex, detailed, and lengthy for a voter to make an intelligent choice, and whether it is misleading, incomplete, deceptive, and suffering from serious omissions.

We turn first to petitioners’ contention that the Act’s ballot title is so lengthy and complex that the voter cannot reasonably understand the tide when reading it in the time allotted the voter to cast his or her ballot. Petitioners complain that the title contains 994 words and “is riddled with clause upon clause and modifier upon modifier.” They claim a voter reading the tide would be unable to ascertain bow tbe tobacco settlement proceeds and its percentages will be allocated, how the trust fund with the proceeds will be impacted, what option the legislature will have over the proceeds in the future, and what role the various state agencies will have. They further assert that the title is as complex and lengthy a tide as this court has ever considered, and for these reasons, the Act should be stricken from the November 7 ballot. Taking this same general ground of attack, Intervenor Lane complains that the title’s words include “legalese” and terms that are not defined or explained, and that the average voter will not be able to read and comprehend this act and the other proposed constitutional amendments on the ballot, when making choices between them and the various federal, state, and local candidates. Lane claims that, under these circumstances, length alone should be a sufficient ground to determine the Act’s ballot deficient.

The standards of review of a ballot-title case under Amendment 7 are well settled. In the more recent case of Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996), we repeated many of these controlling principles beginning with the established rules that Amendment 7 places the burden of proof in legal challenges to initiative matters upon those who challenge the proposed measure, and that this court will construe the requirements of Amendment 7 liberally in order to secure its purposes to reserve to the people the right to adopt or reject legislation. However, the court has also stated that liberality is not without limits or common sense. Id. at 342.

When we are confronted with a challenge to a ballot title based on the length of that title, as we are in this case, language found in Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994), is instructive. In Page, certain petitioners challenged a 587-word ballot title which attempted to cover a forty-page long proposal, comprised of twenty-three sections and more than 150 subsections. The court first noted that in drafting the ballot title for the proposed amendment there, the sponsors could not possibly cover the entire proposal because, if they had, the voter would have found it impossible to read, understand and cast his or her vote on the issue while at the polling precinct. See Page, 318 Ark. at 344. After discussing a number of omissions and misleading statements that amounted to fatal defects, the Page court held as follows:

Here, proposed Amendment 5 is so all-encompassing that to include every important factor of the proposal in the ballot title would cause the ballot title to be so complex, detailed and lengthy that the Arkansas voter could not intelligently make a choice on the title within the five minutes allowed in the voting booth. Cf. Dust v. Riviere, Secretary of State, 277 Ark. 1, 638 S.W.2d 663 (1982); see also Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988); Ark. Code Ann. 7-5-522(c) (Repl. 1993). Although Amendment 7 to the Arkansas Constitution does not specify a limit on the length of a proposal, the proposed measure must be of a size capable of having a ballot title which will not only convey the scope and import of the measure, but also impart a description of the proposal so voters can cast their votes intelligently and with a fair understanding on the issue. In sum, proposed Amendment 5 is so expansive that it precludes the writing of an acceptable ballot title.

Our court in Crochet was presented with a similar situation to the one in Page. In Crochet, the ballot title contained approximately 1,000 words, covering eleven definitions, seventeen sections, and 127 subsections. The court noted that length is indeed a consideration, but it is by no means the determining factor on the question of the sufficiency of the ballot title. See also Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996) (with respect to 550-word ballot title, length alone would not render the title invalid, but numerous material omissions prevented fair understanding of the amendment, causing the amendment to be struck from the ballot).

While the petitioners and Lane give great emphasis to those portions of the Crochet and Page opinions that suggest that a lengthy proposed initiative may run the risk of an unacceptable ballot title, both decisions very clearly hold that length is only one consideration in determining the sufficiency of a ballot title. In fact, the court in Page and Crochet held the respective ballot titles insufficient because material portions of the proposed measures had been omitted and that some of those omissions were important for a fair understanding of the measures and would give the voter “serious ground for reflection” on whether to vote for the measures.

In the present case, the Act’s ballot title meticulously covered the material matters contained in the text of the Act. In this respect, our long-settled rule is that a ballot title is sufficient if it recites the general purposes of the proposed initiated act and that the ballot title contains enough information to sufficiently advise electors of the true contents of the proposed act. Newton v. Hall, Secretary of State, 196 Ark. 929, 120 S.W.2d 364 (1938); Lewis v. Hall, 196 Ark. 115, 116 S.W.2d 353 (1938).

In Bailey v. Hall, Secretary of State, 198 Ark. 815, 131 S.W.2d 635 (1939), the court was confronted with a ballot title with 900 words, that described a lengthy initiative act which was to establish a workers’ compensation commission to administer and to provide funds for the initiative act’s administration and to provide the payment of compensation by employers for injuries to, or death of their employees. The Bailey court held that, while the 900-word title was very long, the title contained every essential necessary to set out the scope and import of the proposed act. Moreover, in Newton v. Hall, supra, the court was faced with a 735-word ballot title that covered a most complex and difficult to understand proposed amendment which provided for the refunding of the State’s highway debt. Even though the content of the amendment covered a complicated subject, the court refused to remove the refunding-bond amendment from the ballot because the court’s review reflected the title contained references to each section of the amendment and fairly summarized the subject covered in the proposal’s respective sections. Consistent with this court’s longstanding precedent, we do not hold the Tobacco Settlement Proceeds’ ballot title insufficient merely because it is lengthy and covers what the petitioners and Lane characterize as a complex subject.

Before departing from this first point, we note our cases that say that many voters will enter the voting booth knowing little about an initiated proposal, and therefore, the title should contain enough information to “convey an intelligible idea of the scope and import of the proposed law.” Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988). The court has further stated that the title must not be unduly long, since a voter is allowed only five minutes in the voting booth. Id.; see also Ark. Code Ann. § 7-5-522 (Repl. 2000).

While not fully discussed in this court’s decisions, we are compelled to mention other sources from which interested Arkansas voters may educate (and have educated) themselves regarding proposed measures that appear on general election ballots. For example, the secretary of state is charged with the duty to publish in two weekly issues of some newspaper in each county before the election a notice that the proposed measure(s) will be voted upon by the people and a publication of any such measure(s) must commence eight weeks before the election. Ark. Code Ann. § 7-9-113(a) and (b) (Repl. 2000). At least one notice for all measures must commence eight weeks before the election, and at least one notice shall contain the number, the popular name, the ballot title, and a complete text of the measure to be submitted. Ark. Code Ann. § 7-9-113(b)(2)(B) and (c) (Repl. 2000); see also Ark. Code Ann. § 7-5-206 (Repl. 2000) (county board of election commissioners shall make publication of all proposed amendments and other questions certified to it by the secretary of state by posting a list thereof at the courthouse door at least ten days before the election). In addition, election officials in general elections must post in a conspicuous place in the polling areas at least two copies of all constitutional amendments and acts to be voted upon. Ark.' Code Ann. § 7-5-302 (Repl. 2000).

While we by no means wish to diminish the importance of the preparation of a ballot title which concisely provides the purpose of the proposed measure, Ark. Code Ann. § 7-9-107 (Repl. 2000), and which can be fairly considered by the voters in the voting booth, it is also significant that the voter has other published means by which any voter can accurately learn the general purposes and fundamental provisions of the proposal(s).

We now consider the more serious issue urged by petitioners and Lane — are there serious material omissions or are there misleading tendencies that cause the ballot title to be deficient? Our review prompts us to say no. We first consider the petitioners’ five claims of misleading omissions and then we will review five separate assertions offered by Lane.

Petitioners’ initial complaint is that the initiated Act changes existing law by amending Ark. Code Ann. § 19-4-803 (Repl. 1998), to exempt the Tobacco Settlement Holding Fund from budgeting and appropriation requirements under that statute. Specifically, petitioners submit that the title does not adequately explain to the voter that § 19-4-803’s accounting and budgetary process will be circumvented if the voters approve the initiative act. The petitioners say that the ballot title in issue fails to reveal how or to what extent the new exemption-of-funds law will alter the state’s budget process. However, in reading the Act’s title, it is quite clear that the Tobacco Settlement proceeds will be deposited in a Cash Holding Fund which will serve as a cash fund held separate and apart from the state treasury and these proceeds will be transferred to other funds as directed in the initiated Act. The title also specifies that the Act amends § 19-4-803 to exempt the Holding Fund from the normal budgeting and appropriation requirements, and this language quickly dispels the petitioners’ notion that the title fails to explain how the state’s budget and appropriation process will be affected. Furthermore, the ballot title explains that the settlement proceeds will fund the Arkansas Century Trust Fund (Trust Fund) within the State Treasury to be invested to provide earnings to pay the State Board of Finance to manage the Tobacco Settlement and added health-related uses as directed by the General Assembly. Proceeds not needed to fund the Trust Fund will also be transferred to the Program Fund within the State Treasury and used for programs designated in the Act and described by the ballot title. The title further reveals that the program expenditures are subject to appropriation by the General Assembly, except a cash fund held separate from the State Treasury will be irrevocably pledged to pay debt service on any revenue bonds issued by the State for capital improvement projects named in the Act. In sum, the title simply could add little more in detail to explain how the settlement proceeds will be utilized by the State unless it printed the entire Act, which it obviously is not required to do.

Petitioners next argue that the proposed Act attempts to give the impression that the anticipated settlement proceeds will be expended on tobacco-related and health issues but the bioscience provisions of the Act have nothing to do with those issues. They suggest this fact is masked by omitting from the ballot title any explanation of this point. It is difficult to discern from petitioners’ argument if their problem is with the Act or the ballot title. Regardless, our review of the title — which is our duty here — reveals that the title covers all material aspects of the Act that involve the creation of an Arkansas Biosciences Institute and the establishment of its board which will have the authority to make research grants. As CHART points out, the Institute will be a cooperative venture of specified organizations that is to conduct research with 22.8% of the tobacco settlement proceeds. Petitioners simply fail in their burden to show that any material omissions exist that somehow make the ballot title misleading.

Petitioners’ third point involves section 3 of the Act, which they claim is largely omitted from the ballot title. Their example is that section 3(f) empowers the State Board of Finance “to perform all other tasks that may be assigned it”; however, they complain that no other tasks are mentioned. Again, petitioners fail to suggest exactly how the voter is misled when the State Board of Finance, an existing state entity, and its authority are thoroughly described in the ballot title. The title unveils the Board’s authority by stating the Board is to manage the tobacco settlement proceeds and additional health-related issues as directed by the general assembly, and it shall invest the Holding Fund, Program Fund, and related accounts, and Settlement Fund in the same manner as other State Treasury funds and invest those funds, including the Trust Fund and Debt Services Fund, in accordance with the prudent-investor standard.

In their fourth point, petitioners emphasize that, within thirty days of receipt of monies deposited into a Prevention and Cessation Program Account, fifteen percent of those monies must be placed in a special account to be expended for tobacco prevention and cessation programs in minority communities as directed by certain specified officials. They argue that the fifteen percent figure is omitted from the ballot title and that omission prevents the voter from understanding that a specific sum is committed to a specific community. While petitioners are correct that the title does not mention the fifteen percent number, it does provide that 31.6% of the annual excess proceeds shall be transferred to the Program Fund and that 15.8% goes to the Targeted State Needs Programs that include a Minority Health Initiative addressing health problems disproportionately affecting minorities (23%). (Emphasis added.) In reading the ballot title, no mistake exists over the fact that, when the tobacco proceeds are received, minority communities are specified beneficiaries of these proceeds. In short, we fail to see how the omission of the fifteen percent number alone in any way misleads the voter when the voter is fully apprised that minority communities will be favored with designated amounts.

Finally, petitioners argue that the Act contains confusing and conflicting provisions relating to the issue of bonds. They point out that section 6(d) deals with debt service involving tobacco settlement revenue bonds and provides that the settlement revenues are to be used to secure bonds for specified improvement projects described in the Act, and that the State Department of Finance Authority may determine that a lien be given on these projects. However, petitioners assert that the Act further provides that in no event shall the bonds constitute an indebtedness of the State. Lastly, petitioners urge that a voter reading the ballot is going to be misled because the title fails to reflect that there is a possibility that a lien could be placed on any project built under the Act if it is passed.

Once again, it is unclear whether the petitioners are complaining about the Act and its validity or over the ballot title. Certainly, the proposed Act does mention that the revenue bonds issued under it may additionally be secured by a lien on the building projects if so determined by the State Finance Authority. However, the Act equally provides that the revenue bonds shall be obligations only of the State Finance Authority and do not constitute an indebtedness of the State. This being so, the ballot title’s failure to mention the lien language in section 6(e) is of little import. Suffice it to say that the ballot title does make it clear to the voter that cash fund monies from the tobacco settlement are to be kept separate from the State Treasury and irrevocably pledged to pay debt service on any revenue bonds, and that any proceeds in the debt-service account not needed to pay services will then be transferred to the Trust Fund. We believe the language in the ballot title provides a fair understanding of the scope and import of the Act, and for these reasons, we reject the petitioners’ request to determine the title deficient.

We now consider Lane’s charge that certain omissions from, and deceptions and lack of clarity in, the ballot title, ring the death knell of the proposed measure. In his first point, Lane states that section 4 of the proposal prevents the General Assembly from appropriating funds held in the Cash Holding Fund, but such is not disclosed in the ballot title. He posits whether it is fair to ask whether a voter would deem it material to his or her decision in voting for or against the Act if the voter knew the General Assembly could not touch the monies in the Tobacco Settlement Cash Holding Fund? Lane’s question itself is misleading. As we have already gone to great lengths to point out in our earlier discussion of the petitioners’ arguments, the Act’s ballot title designates that the settlement proceeds shall be deposited in the Tobacco Settlement Cash Holding Fund, which is a cash fund separate from the State Treasury, and those proceeds will be transferred to other funds as directed in the Act. That being disclosed, the title further reveals that the first $100,000,000 of the proceeds will fund the Trust Fund within the State Treasury and annual proceeds will be transferred and allocated to the Program Fund provided that such expenditures are subject to appropriation by the General Assembly. (Emphasis added.) On the other hand, the title further provides that the cash funds separately deposited and pledged to pay debt service on revenue bonds will not be appropriated.

In his second argument, Lane states that the Act describes the Arkansas Healthy Century Trust Fund (Trust Fund) as a perpetual trust, but the ballot title refers to it as a revocable trust subject to amendment. Lane fails to mention how this point is materially misleading. The text of section 7(b) refers to the Trust Account as a perpetual trust and also as revocable and subject to amendment — which CHART says is not necessarily conflicting. In any event, the title, in using the word revocable, merely utilized the same wording found in the Act. Lane simply fails to establish any misleading tendency in this respect that would cause us to believe the Act should be removed from the ballot.

Lane’s third point is whether the ballot title must disclose that all of the proceeds of the Tobacco Settlement Fund are irrevocably committed to be spent as set out by the proposed Act. Lane’s argument is unavailing. As we mentioned earlier, the ballot title correctly reflects that, under the Act, the General Assembly has the power of appropriation over all expenditures except debt-services funds. Clearly, if the ballot title was worded to say the Settlement Fund proceeds are irrevocably committed to be allocated by the Act, the title would be wrong.

We next consider what may be considered another point Lane makes by asking, “How can the voter make an informed decision about future expenditures without knowing future income?” Again, Lane makes no real argument or offers any citation of authority concerning how not having exact setdement income amounts might mislead the voters. As this court has repeatedly stated, it is the challenger’s burden to show that the ballot title is misleading and defective. We would say, however, that at this stage, no one knows how much money, if any, the State will receive under the National Tobacco Settlement, and as CHART argues, it would be misleading for the ballot title to suggest an amount. We agree. Also, we would note that the General Assembly itself has enacted laws creating programs only to find later that no funds were available to put the programs into action. Knowing that these possibilities exist, the Act forthrightly provides that its allocations and other actions under the Act are dependent upon the State receiving settlement proceeds.

Although not set out as a separate argument, Lane also contends that the ballot title is misleading because sections 2 and 3 of the proposed Act are not mentioned in the ballot title. Section 2 is the Act’s definition provision. He complains that the voter must know the terms listed in the section or he or she will find the ballot title confusing. In making this argument, Lane refers to abbreviations used in place of certain state organizations, such as ADFA (Arkansas Development Finance Authority); he further questions whether voters can understand terms, such as the Program Fund and Holding Fund and others. However, in reading the ballot title, these organizations are formally named and the various terms to which Lane makes reference are used in the context of how the State will utilize any settlement proceeds it will receive. Although Lane (and two dissenting justices) are of the opinions that Arkansas voters cannot educate themselves so as to understand the initiative Act placed before them, we take note that this is not the first lengthy and complex measure placed before an Arkansas electorate. As discussed more fully above, such lengthy and complex ballots were given the Arkansas electorate by this court in Bailey, 198 Ark. 815, 131 S.W.2d 635, and Newton, 196 Ark. 929, 120 S.W.2d 364. And here again, as was the case in Newton, “we have an amendment which deals only with [a] single question,” Newton, 196 Ark. at 948, which helps confirm our confidence in our voters’ ability to understand this ballot title.

Lane’s suggestion in his argument that section 3 was not mentioned in the ballot title is an apparent mistake. Section 3 is labeled, GRANT OF AUTHORITY TO STATE BOARD OF FINANCE, and the section sets out the Board’s duties relative to the tobacco settlement. Suffice it to say that the State Board of Finance is mentioned repeatedly throughout the Act’s ballot title, and the Board’s various duties regarding the settlement proceeds are specifically provided.

We hold that, while the ballot title is long, it sufficiently recites the general purposes of the proposed Act and contains fair and understandable language from which the voters can consider the Act’s content, scope, and import. In this same vein, we further conclude that no material omissions or misleading tendencies result from the ballot title’s wording that should thwart a fair understanding of the Act’s purposes.

In conclusion, we note that at oral argument, both the representative from the Attorney General’s office and counsel for CHART advanced the argument that Amendment 7 of the Arkansas Constitution sets no time limit on a voter’s consideration of a proposed initiative. Under their theory, there is no time limitation on voting on proposed measures because it runs contrary to Amendment 7. Thus, a ballot title of 20,000 words could be offered under the protection of Amendment 7. That, with all due respect, makes no sense. Surely Amendment 7 was not meant to bog down the election process in a quagmire of words. We recognize that, at some point, length and complexity alone might militate against a voter’s ability to form an intelligent opinion about the issue at hand. However, that has not occurred with respect to the ballot title at issue. While the ballot title can be said to have staked out the outer limits for length and complexity, we cannot say those limits have been exceeded here.

The mandate herein will issue within five days from the filing of this opinion unless a petition for rehearing is filed.

Petition denied.

Brown, J., concurs; Corbin and Thornton, JJ., dissent; SMITH, J., not participating.

The following is the complete text of the ballot title of the Initiated Act:

ADDENDUM

BALLOT TITLE

An Act establishing funds and accounts for the deposit, investment and management of proceeds to be received by the State from the Master Setdement Agreement between various states and tobacco manufacturers (the “Tobacco Settlement”); and providing that the funds and accounts will be managed by the State Board of Finance;

Providing that all Tobacco Settlement proceeds shall be deposited in the Tobacco Settlement Cash Holding Fund (the “Holding Fund”), which will be a cash fund held separate and apart from the State Treasury, and that proceeds will be transferred from the Holding Fund to the other funds as directed in this Act;

Providing that the first $100,000,000 of Tobacco Settlement proceeds received by the State will fund the Arkansas Healthy Century Trust Fund (the “Trust Fund”) within the State Treasury as a revocable trust subject to amendment, to be invested for use in the future; providing that earnings on the Trust Fund shall be used only to pay costs of the State Board of Finance in managing the Tobacco Settlement and additional health-related uses as directed by the General Assembly;

Providing that in 2001, any Tobacco Settlement proceeds received by the State and not needed to fund the Trust Fund to its initial endowment level will be transferred to the Tobacco Settlement Program Fund (the “Program Fund”) within the State Treasury and used for the programs described below;

Providing that beginning in 2002 and in each year thereafter, Tobacco Settlement proceeds shall be divided as follows:

(1) the first $5,000,000 received in each year will be transferred to the Tobacco Settlement Debt Service Fund (the “Debt Service Fund”), a cash fund held separate and apart from the State Treasury and irrevocably pledged to pay debt service on Tobacco Settlement Revenue Bonds (the “Revenue Bonds”); providing that annual transfers to the Debt Service Fund shall be perpetual, but that amounts in the Debt Service Fund not needed to pay debt service shall be transferred to the Trust Fund; and providing that Revenue Bonds will be issued by the Arkansas Development Finance Authority for the following capital improvement projects:

(a) University of Arkansas for Medical Sciences (“UAMS”) Biosciences Research Building in a principal amount not to exceed $25,000,000;
(b) Arkansas State University (“ASU”) Biosciences Research Building in a principal amount not to exceed $20,000,000;
(c) School of Public Health in a principal amount not to exceed $15,000,000; and
(d) any other capital improvement projects related to health subsequently designated by the General Assembly;

(2) the remaining proceeds received each year shall be transferred to the Program Fund and used to pay for the following programs in the following percentages, provided, however, that such expenditures are subject to appropriation by the General Assembly:

(a) 31.6% to Prevention and Cessation Programs administered by the Arkansas Department of Health (“ADH”), which shall allocate money and make grants to prevent tobacco use and assist in cessation of tobacco use;
(b) 15.8% to the Targeted State Needs Programs, to be established by UAMS, with funds distributed among (i) a new Arkansas School for Public Health on the campus of UAMS (33%), (ii) a new Area Health Education Center to serve eastern Arkansas (22%); (iii) programs providing health services to the elderly through the Donald W. Reynolds Center on Aging (22%), and (iv) a Minority Health Initiative addressing health problems disproportionately affecting minorities (23%);
(c) 22.8% to the Arkansas Biosciences Institute, a cooperative venture among the University of Arkansas, Division of Agriculture, UAMS, the University of Arkansas, Fayetteville, Arkansas Children’s Hospital, and ASU, to conduct research; and
(d) 29.8% for the Medicaid Expansion Program, to be administered by the Arkansas Department of Human Services (“DHS”) to increase Medicaid benefits and services;

Providing that the State Board of Finance shall invest all amounts in the Holding Fund, the Program Fund and related accounts, and the Arkansas Tobacco Settlement Commission Fund (the “ATSC” fond) in the same manner as other State Treasury funds, and shall invest the Trust Fund and the Debt Service Fund pursuant to a prudent investor standard;

Creating the Arkansas Tobacco Settlement Commission (the “ATSC”) to monitor and evaluate the programs funded from Tobacco Settlement proceeds; providing that the ATSC shall be comprised of the directors or their designees of the Arkansas Science and Technology Authority (“ASTA”), the Department of Education, the Department of Higher Education, DHS, and ADH, two healthcare professionals (one selected by the Senate President Pro Tempore and one by the Speaker of the House), and two citizens (one selected by the Governor and one by the Attorney General); and providing that earnings on the Program Fund and the program accounts shall be transferred to the ATSC Fund to be used to pay expenses of the ATSC and fund ATSC grants;

Creating the Arkansas Biosciences Institute and establishing that its board has the authority to make research grants and will be comprised of the following: the president of the University of Arkansas (“UA”), the president of Arkansas State University, the chancellor of UAMS, the chancellor of UA, Fayetteville, the vice president of agriculture of UA, the director of the ASTA, the director of the National Center for Toxicological Research, the president of Arkansas Children’s Hospital, and two persons possessing scientific, academic or business qualifications appointed by the Governor;

Creating the Arkansas School of Public Health;

Creating an Advisory Committee to the Arkansas Board of Health to provide recommendations on prevention and cessation programs;

Establishing specific guidelines for evaluating each program funded under this Act;

Amending Ark. Code Ann. § 19-4-803 to exempt the Holding Fund from normal budgeting and appropriation requirements;

Directing the Director of DHS to commence Medicaid expansion from available funds prior to receipt of Tobacco Settlement proceeds;

Directing the Director of DHS to spend $600,000 during the biennial period ending June 30, 2001 to offset federal cuts in the Meals on Wheels program;

Declaring the provisions of this Act to be severable; and repealing all laws and parts of laws in conflict with this Act.

BROWN J., concurs.

Robert L. Brown, Justice,

concurring. I agree with the majority opinion that Initiated Act No. 1 should remain on the ballot and that it is not impermissibly long or complex. However, I also agree that Amendment 7 to the Arkansas Constitution does not authorize open-ended and unlimited ballot titles with the length and complexity of War and Peace to be submitted to a vote of the people. That is what the proponents of the initiated act claim, but in my judgment they are wrong.

My purpose in writing is to emphasize that the majority opinion does not reach the issue of whether the authority of the General Assembly to appropriate and budget state funds has been usurped by the Executive Branch in the proposed initiated act. Stated differently, we do not address whether the separation-of-powers doctrine as established by the Arkansas Constitution has been trumped by this proposal. Certainly, that allegation was made in the original action petition by the Walker proponents, but the point was not developed in either the Walker brief or in the brief of the intervenor. The failure to develop and argue this issue constitutes an abandonment of it. Stilley v. Priest, 341 Ark. 329, 16 S.W.3d 251 (2000).

But even had the separation-of-powers issue been developed before this court, we could not address it at this stage. Prior to the amendment’s enactment, any opinion rendered by this court on this constitutional issue would be advisory in nature, and we have refrained in the past from issuing advisory opinions on constitutional issues before an initiative’s adoption. See, e.g., Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992); see also Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996). In the event that the people of this state enact the proposed initiated act by majority vote on November 7, 2000, then the issue of whether the powers of the General Assembly have been unlawfully usurped will be ripe for our consideration.

Donald L. Corbin, Justice,

dissenting. I respectfully disagree with the majority’s holding that the ballot title, which spans 994 words and purports to summarize an act comprised of twenty-three different sections, sufficiently conveys the act’s content, scope, and import. In my opinion, the excessive length of the title combined with the fact that it fails to convey to the voters the true ramifications of the proposed act renders the ballot title insufficient.

While I agree with the majority that length alone will not render a ballot title insufficient, I believe that the length of this ballot title is so excessive and complicated that the voter will not have sufficient time to read and digest it within the time allotted by statute for casting his or her vote. When a voter enters the voting booth, he has five minutes to read, comprehend, and make an informed decision with regard to this proposed act and any other proposed amendments, as well as make choices among a host of local, state, and federal candidates. This court has previously recognized that a ballot title must not be unduly long because the voter is subject to time constraints while in the voting booth. See Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994); Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988). The majority attempts to avoid the problem of this title’s excessive length by pointing out that voters have opportunities to educate themselves about this act prior to entering the voting booth. This generalization ignores the fact that this court has long “regarded as axiomatic that the majority of voters, when called upon to vote for or against a proposed measure at a general election, will derive their information about its contents from an inspection of the ballot title immediately before exercising the right of suffrage.” Christian Civic Action Comm., 318 Ark. at 245, 884 S.W.2d at 607. Because its excessive length prohibits the voter from fully reading and comprehending the proposed act, the ballot title fails to adequately inform the voter of the consequence of voting for the proposal.

Specifically, the ballot title fails to notify the voters that this proposal circumvents the notion of separation of powers by infringing upon the legislature’s authority of appropriation. To fully understand my complaint, a little history of this proposal is informative. The Governor proposed this use of the tobacco settlement to the General Assembly, the body responsible for budgeting and appropriating state funds. After lengthy debate back and forth, the General Assembly rejected the Governor’s proposal. The Governor has now chosen to make an end run around the legislature by asking the voters of this state to approve an act that their own representatives rejected. The proposal, as now presented as Proposed Initiated Act No. 1, fails to adequately inform the voters that the funds from the tobacco settlement will not be spent or appropriated in the normal course of business.

I agree that the ballot title reveals that the settlement cash will be held in a holding fund separate from the state treasury. The ballot title does not, however, sufficiently convey to the voter that this is a significant change in the way that state monies are ordinarily handled. The ballot title is organized in such a manner that defeats this purpose. For example, the creation of the holding fund separate from the state treasury is located near the beginning of the ballot title, while the provision amending Ark. Code Ann. § 19-4-803 (Repl. 1998) and exempting the holding fund “from normal budgeting and appropriation requirements” is hidden within the last eighty-five words of the 994 word title. In this respect, the length of the ballot title hinders the voters’ ability to be fully informed of the sweep of this measure.

Moreover, I disagree that the scant information provided in the ballot title sufficiently notifies the voter of the potential impact of this proposal. Stating that the holding fund will be exempt from normal budgetary procedures is not the same as telling the voter that the General Assembly, comprised of elected officials, is prohibited from appropriating any money placed into the holding fund. The ballot title is also misleading in that it states that some expenditures are subject to appropriations by the General Assembly, whereas the text of the act reflects that all monies received as a result of the settlement will first go into this holding fund, which is not under the control of the General Assembly, and will then be divided out among various other funds.

I agree with Petitioners that in light of the fact that there is over $1.6 billion dollars at stake, the voter is entitled to an explanation of exactly how the appropriation process is being changed. I am further troubled that if the settlement funds are not subjected to the normal budgeting and appropriation requirements, there will be little or no accountability as to how the funds are spent. Ordinarily, there is ample accountability when the legislature is in charge of appropriating funds, i.e., there is robust debate between the various representatives and senators, who have undoubtedly received input from their constituents, and the matter must be approved by both houses. Here, however, there is no indication that the board in charge of appropriating the settlement funds will be subject to such accountability. This is something that the voters should know. Such information is a material fact that would give the voter “serious ground for reflection” on whether to vote for this proposed act. This omission of a material fact, coupled with its excessive length and complexity, renders this ballot title deficient.

I respectfully dissent.

Thornton, J., joins in this dissent.

       The petitioners and Lane initially questioned the validity and constitutionality of the Act, but they now concede these issues are not subject to attack until or unless the Act is approved by the electorate.

       In making this, argument, Lane also recognized that he is aware that no case has held that length alone precludes submission of a ballot title to the electorate.

       Although earlier mentioned, we note that amounts in the Debt Services Fund not needed to pay debt service shall be transferred to the Trust Fund.