Opinion No. 2012-142

December 12, 2012

David Couch, Co-Chair
Regnat Populus 2012 Ballot Question Committee
Post Office Box 1087
Little Rock, Arkansas 72203-1087

Dear Mr. Couch:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2011), of the popular name and ballot title for a proposed initiated act. You have previously submitted various similar measures, the history of which is explained in Op. Att’y Gen. No. 2012-129. In an attempt to cure the ambiguity noted in that opinion, you have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

The Campaign Finance and Lobbying Act of 2014

Ballot Title

AN ACT AMENDING ARKANSAS LAW, WHICH CURRENTLY ALLOWS INDIVIDUALS, CORPORATIONS, PROPRIETORSHIPS, FIRMS, PARTNERSHIPS, JOINT VENTURES, SYNDICATES, LABOR UNIONS, BUSINESS TRUSTS, COMPANIES, ASSOCIATIONS, POLITICAL PARTIES AND COMMITTEES TO MAKE CAMPAIGN CONTRIBUTIONS TO CANDIDATES AND TO AUTHORIZED POLITICAL ACTION COMMITTEES; TO PROVIDE THAT, WHILE THE FOREGOING MAY CONTINUE TO MAKE CAMPAIGN CONTRIBUTIONS TO AUTHORIZED POLITICAL ACTION COMMITTEES, ONLY INDIVIDUALS, POLITICAL PARTIES, COUNTY POLITICAL PARTY COMMITTEES, LEGISLATIVE CAUCUS COMMITTEES, AND AUTHORIZED POLITICAL ACTION COMMITTEES MAY MAKE CAMPAIGN CONTRIBUTIONS DIRECTLY TO CANDIDATES FOR PUBLIC OFFICE; AMENDING CURRENT ARKANSAS LAW, WHICH PROHIBITS MEMBERS OF THE GENERAL ASSEMBLY FROM ACTING AS REGISTERED LOBBYISTS FOR ONE YEAR AFTER THE EXPIRATION OF THEIR TERM IN OFFICE AND APPLICABLE ONLY TO MEMBERS ELECTED ON OR AFTER JULY 27, 2011; TO EXPAND THE PROHIBITION TO TWO YEARS AND MAKE THE PROHIBITION APPLICABLE TO ALL MEMBERS ELECTED OR RE-ELECTED ON OR AFTER NOVEMBER 4, 2014; AND AMENDING ARKANSAS LAW TO PROHIBIT AND MAKE UNLAWFUL THE GOVERNOR, LIEUTENANT GOVERNOR, SECRETARY OF STATE, TREASURER OF STATE, AUDITOR OF STATE, ATTORNEY GENERAL, COMMISSIONER OF STATE LANDS AND MEMBERS OF THE GENERAL ASSEMBLY FROM SOLICITING OR ACCEPTING GIFTS FROM A LOBBYIST, OR ANYONE ACTING ON BEHALF OF A LOBBYIST, OR ANYONE EMPLOYING A LOBBYIST, WITH GIFT DEFINED AS ANY PAYMENT, ENTERTAINMENT, ADVANCE, SERVICES, OR ANYTHING OF VALUE, UNLESS CONSIDERATION OF EQUAL OR GREATER VALUE HAS BEEN GIVEN THEREFOR, BUT DEFINED NOT TO INCLUDE: (1) INFORMATIONAL MATERIAL SUCH AS BOOKS, REPORTS, PAMPHLETS, CALENDARS, OR PERIODICALS INFORMING THE GOVERNOR, LIEUTENANT GOVERNOR, SECRETARY OF STATE, TREASURER OF STATE, AUDITOR OF STATE, ATTORNEY GENERAL, COMMISSIONER OF STATE LANDS OR MEMBER OF THE GENERAL ASSEMBLY REGARDING HIS OR HER OFFICIAL DUTIES, BUT SUCH INFORMATIONAL MATERIAL SHALL NOT INCLUDE PAYMENTS FOR TRAVEL REIMBURSEMENT FOR ANY EXPENSES; (2) GIFTS WHICH ARE NOT USED AND WHICH, WITHIN THIRTY (30) DAYS AFTER RECEIPT, ARE RETURNED; (3) GIFTS FROM THE GOVERNOR’S, LIEUTENANT GOVERNOR’S, SECRETARY OF STATE’S, TREASURER OF STATE’S, AUDITOR OF STATE’S, ATTORNEY GENERAL’S, COMMISSIONER OF STATE LANDS’ OR MEMBER OF THE GENERAL ASSEMBLY’S OWN FAMILY; (4) LAWFUL CAMPAIGN CONTRIBUTIONS; AND (5) ANY DEVISE OR INHERITANCE.

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition. Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal. This Office has been given no authority to consider the merits of any measure.

In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, following Arkansas Supreme Court precedent, this office will not address the constitutionality of proposed measures in the context of a ballot title review unless the measure is “clearly contrary to law.”[1] Consequently, this review has been limited to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the proposed popular name and ballot title accurately and impartially summarize the provisions of your proposed amendment or act.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.[2]

The popular name is primarily a useful legislative device.[3] It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal.[4] The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.[5]

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented.[6] According to the court, if information omitted from the ballot title is an “essential fact which would give the voter serious ground for reflection, it must be disclosed.”[7] At the same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9-107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit in voting booths when other voters are waiting in line.[8] The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.[9] The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring.[10] A ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law.[11] The ballot title must be intelligible, honest, and impartial.[12]

Applying all the foregoing to your current submission, I conclude that your proposed popular name and ballot title must be rejected due to ambiguities in the text of your measure. As noted above, a ballot title must indicate the scope and significance of the change in the current law. I am unable to ensure that the ballot title meets that standard because of an ambiguity found in a new subsection of your proposal that does not appear in any of your prior submissions.

Specifically, you have added subsection “(c)” to “Section 3” of your proposed measure. Section 3 proposes to amend current Arkansas statutory law by adding a new statute—namely, A.C.A. § “21-8-305”—that will make it illegal for certain persons to solicit or accept gifts from lobbyists. In what follows, I will refer to this as the “prohibited conduct.” In the current submission, you have added subsection “(c),” which states: “Any violation of this section is a class [sic] A misdemeanor.”

While this language itself is not ambiguous, its effect on current law is. You propose to add Section 3 to the 300s subchapter of Title 21, Chapter 8. That subchapter already contains the following criminal penalty: “Any person who knowingly or willfully violates any provision of this subchapter shall be guilty of a Class B misdemeanor.”[13] Three aspects of this provision are noteworthy: (1) the mental-state requirement is “knowingly or willfully”[14]; (2) the crime’s classification is a Class B misdemeanor; and (3) these two—the mental state and classification—apply to the entire 300s subchapter to which you propose to add a section.

While your proposal clearly intends to alter the effect of (2)—that is, a violation of your proposal would be a Class A instead of a Class B misdemeanor—the effect of (1) is not clear because your proposal lacks a mental-state requirement. Given the foregoing, and in light of other statutes dealing with culpable mental states, the failure to specify a mental state could change the law in one of three mutually incompatible ways:

First, you may be intending to make the prohibited conduct subject to the mental-state requirement found in the 300s subchapter. If so the mental state would change from “purposely” under the current gift prohibition —which is found in A.C.A. § 21-8-801(a), which was discussed in Opinion No. 2012-028—to the lesser standard of “knowingly or willingly.”

Second, you might intend the prohibited conduct to be subject to the general rule for criminal statutes that lack a specified mental state. Under that general rule, “a culpable mental state is nonetheless required” and can be as low as recklessness.[15]

Third, you might intend for the proposal to fall into A.C.A. § 5-2-204(c)(2), which is an exception to the general rule that at least some culpable mental state is required. If that is your intent, then the mental state would move from the highest mental state (i.e. “purposely”) to no mental state at all, which is surely something the ballot title would need to reflect.

In apparent attempt to apprise voters that your proposal somehow changes the current mental-state requirement, your current proposed ballot title says your proposal will “prohibit and make unlawful” the conduct described above. (Emphasis added.) The fact that you have added the italicized language seems to indicate that you intend to change the current mental state from purposeful to something else, though you do not state what the new standard would be.

The ambiguity in subsection (c) of Section 3 must be clarified before I can ensure that the ballot title fully and fairly summarizes the measure and informs the voter about changes in current law. In addition, as I noted in Opinion Nos. 2012-124 and 2012-129, you have altered some of the punctuation and wording of the version of your ballot title that I certified in Opinion Nos. 2012-040 and 2012-049. And, as I noted, the places in your current ballot title that deviate from this earlier version are still deficient.

Sincerely,


Dustin McDaniel
Attorney General

DM/cyh

Enclosure


[1]Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996).
[2]See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
[3]Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
[4]E.g. Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958).
[5]May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
[6]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
[7]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
[8]Id. at 288, 884 S.W.2d at 944.
[9]Id. at 293, 884 S.W.2d at 946–47.
[10]Id. at 284, 884 S.W.2d at 942.
[11]Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted).
[12]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
[13]A.C.A. § 21-8-302 (Supp. 2011).
[14]These are terms-of-art whose definitions can be found by combining A.C.A. §§ 5-1-102(8) and 5-2-202(2).
[15]A.C.A. § 5-2-203(b).