{ "id": 1892696, "name": "Cary L. GAINES and Bob Lamb v. W.J. \"Bill\" McCUEN, Secretary of State Governor Bill Clinton, et al., Intervenors/Respondents", "name_abbreviation": "Gaines v. McCuen", "decision_date": "1988-10-12", "docket_number": "88-229", "first_page": "513", "last_page": "524", "citations": [ { "type": "official", "cite": "296 Ark. 513" }, { "type": "parallel", "cite": "758 S.W.2d 403" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7\u00a7 5-52-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a77-6-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "229 Ark. 416", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1702799 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/229/0416-01" ] }, { "cite": "75 S.W.2d 248", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1934, "opinion_index": 0 }, { "cite": "189 Ark. 843", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425559 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/ark/189/0843-01" ] }, { "cite": "Ark. Code Ann. \u00a7 7-5-522", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "43 S.W.2d 356", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1931, "opinion_index": 0 }, { "cite": "184 Ark. 740", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1438652 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/ark/184/0740-01" ] }, { "cite": "422 S.W.2d 697", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1968, "opinion_index": 0 }, { "cite": "243 Ark. 864", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724687 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/243/0864-01" ] }, { "cite": "260 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616797 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0385-01" ] }, { "cite": "Ark. Code Ann. \u00a7 7-9-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "220 Ark. 925", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660031 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/ark/220/0925-01" ] }, { "cite": "229 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1702713 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/229/0411-01" ] }, { "cite": "288 Ark. 192", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718637 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0192-01" ] }, { "cite": "217 Ark. 734", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724159 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/217/0734-01" ] }, { "cite": "283 Ark. 463", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879950 ], "weight": 6, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/283/0463-01" ] }, { "cite": "44 S.W.2d 331", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1931, "opinion_index": 1 }, { "cite": "184 Ark. 740", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1438652 ], "year": 1931, "opinion_index": 1, "case_paths": [ "/ark/184/0740-01" ] } ], "analysis": { "cardinality": 911, "char_count": 19218, "ocr_confidence": 0.855, "pagerank": { "raw": 2.018426172267009e-07, "percentile": 0.7451117806482154 }, "sha256": "b205cd9c8cca9908b556c6c29fafe64d669b4f4a6e647129a587fb21b05121aa", "simhash": "1:13c7680ba98aba99", "word_count": 3053 }, "last_updated": "2023-07-14T19:25:51.901471+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle, J., dissents.", "Hays, J., not participating." ], "parties": [ "Cary L. GAINES and Bob Lamb v. W.J. \u201cBill\u201d McCUEN, Secretary of State Governor Bill Clinton, et al., Intervenors/Respondents" ], "opinions": [ { "text": "Robert H. Dudley, Justice.\nBy this original action, the petitioners seek to enjoin the Secretary of State from certifying as sufficient a popular name and ballot title to be voted upon at the general election in November. Pursuant to Paragraph 22, Amendment 7 to the Constitution of Arkansas, we have treated the case on an expedited basis. The petition asserts that the popular name is incomplete and that the ballot title is both incomplete and misleading. These assertions are controverted by the respondent Secretary of State and by the sponsors of this initiated act. We find that the popular name is sufficient to identify the initiative and the ballot title fairly states the general purposes of the proposed act and, accordingly, we decline to issue the injunction.\nPetitioners first attack the popular name of the initiative, which is: \u201cStandard of Conduct and Disclosure Act For Lobbyists And State Officials.\u201d The popular name of a proposed act must be intelligible, honest, and impartial. Arkansas Women\u2019s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984). The popular name is designed to make it easy for voters to discuss the proposal prior to the election, by giving them a label to identify it. Pofford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950). We have declared popular names invalid because they were misleading or used biased language. Jackson v. Clark, 288 Ark. 192, 703 S.W.2d 454 (1986); Arkansas Women\u2019s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958); Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). However, because so little is required of a popular name, we have never held a proposed measure invalid solely because of an incomplete description of the act by the popular name. See Kennedy, Initiated Constitutional Amendments In Arkansas: Strolling Through the Mine Field, 9 UALR L.J. 1, 23 (1986-87).\nIn this case the popular name reflects that the proposed ethics act affects \u201cLobbyists and State Officials.\u201d However, the proposed act also applies to candidates for state elective office. The petitioners contend that the failure to include mention of candidates for state office invalidates the measure. The argument is without merit because the popular name is concise enough, and clear enough, for the voters to refer to and identify it easily.\nThe petitioners next argue that the ballot title, as distinguished from the popular name, is invalid. It reads as follows:\nA proposed act requiring lobbyists, as defined, to register with the Secretary of State if seeking to influence legislative or administrative actions of state government; excepting some persons from registering; requiring lobbyists to file quarterly reports, and monthly reports during legislative sessions; specifying information to be reported, including gifts, as defined, itemized expenses, except campaign contributions, exceeding twenty-five dollars ($25.00), special event expenses, total expenses incurred in lobbying, business associations between the lobbyists and those lobbied, and loans in excess of twenty-five dollars ($25.00) made, promised, or contracted for to public officials, as defined, which are not in the ordinary course of business by regular lenders;\nProhibiting lobbyists from using coercion or bribery to influence any public official, as defined, purposely providing false information to public officials, as defined, while lobbying, purposely falsifying information when registering, or acting as a lobbyist for three years after being convicted of a violation of the subchapter governing lobbyist registration and disclosure;\nProhibiting any person from purposely employing a lobbyist who is required to register but is not registered;\nRequiring public officials, as defined, to report annually for themselves and their spouses the following: their names and all names under which they do business, sources of income exceeding one thousand dollars ($ 1,000.00) and twelve thousand five hundred dollars ($12,500.00) annually except individual items of income constituting a portion of the gross income of the public official\u2019s, as defined, or spouse\u2019s business or profession, business investments exceeding one thousand dollars ($1,000.00) and twelve thousand five hundred dollars ($12,500.00), offices or directorships held in businesses subject to government regulation in Arkansas, and gifts received having a value of one hundred dollars ($100.00) or more; requiring such officials to report each creditor, excepting family members and regular lenders, to whom five thousand dollars ($5,000.00) or more is owed, each guarantor or co-maker, excepting family members, of debts assumed or arising after January 1, 1989, and nongovernmental sources of payment for their official food, lodging, and travel exceeding one hundred fifty dollars ($150.00); requiring such officials to disclose employment with firms regulated by the official\u2019s government office, and financial ties with firms doing business in excess of one thousand dollars ($1,000.00) annually with such office;\nProhibiting public officials, as defined, from receiving private gifts or compensation for the performance of official duties, or purposely disclosing or using confidential government information to secure something of material benefit; restricting appearances by state legislators on behalf of others for compensation before state agencies; requiring state legislators to report official actions that may conflict with or affect their personal financial interests or their businesses;\nPunishing violations as Class A misdemeanors requiring a purposeful mental state; providing that prosecuting attorneys in districts where violations occur have jurisdiction; granting the State Attorney General authority to investigate alleged violations, to conduct hearings, to issue public letters of caution or warnings, to issue advisory opinions and guidelines, and to make reports and recommendations, when appropriate, to law enforcement officials and prosecuting attorneys; making the initiated act effective on January 1, 1989; and for other purposes.\nThe sponsors of the proposed act submitted the popular name and ballot title to the Attorney General for his approval prior to circulation of the initiative petitions. See Ark. Code Ann. \u00a7 7-9-107 (1987). The Attorney General changed both the popular name and ballot title and, as changed, certified them as sufficient. The respondents contend that the Attorney General\u2019s determination of sufficiency mandates deference, pointing to our statement \u201cthat only in a clear case, should a title so prepared be held insufficient.\u201d The quoted language is from Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976). We have made other similar statements but they are somewhat illusory. Whether the Attorney General has correctly determined the sufficiency of the name and title is a matter of law to be decided by this Court. It is not at all comparable to a finding of fact by a trial court, which we will set aside only if it is clearly erroneous. ARCP Rule 52(a).\nArk. Code Ann. \u00a7 7-9-107, the only statutory law concerning sufficiency of ballot titles, provides that the ballot title \u201cshall briefly and concisely state the purpose of the proposed measure.\u201d The bulk of the law on the subject is case law. Our most significant rule is that in determining the sufficiency of the title we give a liberal construction and interpretation of the requirements of Amendment 7 in order to secure its purposes to reserve to the people the right to adopt, reject, approve, or disapprove legislation. Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 697 (1968). We assume that many voters will enter the voting booth knowing little about an initiated proposal, Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931), and, therefore, the title should contain enough information to \u201cconvey an intelligible idea [of the] scope and import of the proposed law.\u201d At the same time, it must not be unduly long since a voter is allowed only three minutes in the voting booth. Ark. Code Ann. \u00a7 7-5-522(d) (1987). The ballot title must accurately reflect the general purposes and fundamental provisions of the proposed initiative, so that an elector does not vote for a proposal based on its description in the ballot title, when, in fact, the vote is for a position he might oppose. Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248 (1934). The title need not recite all of the details of the proposal, Coleman v. Sherrill, supra; however, if the information would give the elector \u201cserious ground for reflection\u201d it is not a mere detail, and it must be disclosed. Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958). Finally, a ballot title, like the popular name, must be intelligible, honest, and impartial. Arkansas Womens Political Caucus, 283 Ark. 463, 677 S.W.2d 846 (1984).\nThree of the petitioners\u2019 points of appeal are that the ballot title at issue is invalid because of omissions. They first argue that the title does not mention candidates for state elective office, and that since the proposed act concerns them, the title is invalid. Although the ballot title does not expressly refer to candidates for state elective office, neither does the proposal itself purport to have the general purpose of regulating campaign practices. It only tangentially governs candidates for state office, by seeking to illuminate those relationships which would be covered under the initiative if the candidate were to win the election. The only real change in the proposed act regarding candidates is a slight broadening of the scope of disclosure and an increase in the penalty for violation of the disclosure requirements, from a Class B misdemeanor to a Class A misdemeanor. The proposal does not affect any other existing laws governing candidates, which remain within the scope of the campaign practices and financing laws, found in Ark. Code Ann. \u00a7\u00a77-6-101 to -214 (1987). These changes are minimal when viewed in the context of the entire initiative, and are certainly consistent with the act\u2019s general purposes. This is not the type of omission that would give the elector \u201cserious ground for reflection\u201d if he were made aware of it.\nPetitioners next attack the ballot title because it \u201cfails to disclose the act\u2019s disparate treatment of lobbyists.\u201d The title states that \u201clobbyists, as defined\u201d will be required to register and that \u201csome persons\u201d will be exempt from registration. This is sufficient since it states that the proposed act defines \u201clobbyist\u201d and provides for certain exemptions from the act. The general purpose and fundamental provisions of the initiative are set out. Requiring more detail would thwart the purpose of having a ballot title.\nPetitioners next state that the title fails to disclose that small gifts from lobbyists do not have to be reported, and argue that this constitutes a material omission. Again, the title refers to \u201cgifts, as defined\u201d and provides: \u201cSpecifying Information to be Reported, Including Gifts, as defined, Itemized Expenses, except Campaign Contributions, exceeding Twenty-Five Dollars ($25.00) . . . .\u201d The ballot title is accurate in its description of the reporting requirement.\nIn addition, petitioners argue that the ballot title contains two statements which are false and misleading. A ballot title must be honest, it must not be misleading or deceptive. The first allegedly deceptive statement is that \u201clobbyists\u201d will be subject to prohibitions for using undue influence or for providing false information to public officials. Petitioners contend that the statement is deceptive because the prohibitions actually apply to \u201call persons engaged in lobbying\u201d and not just to \u201clobbyists.\u201d Initiative \u00a7 21-8-607 (b) (1) and (2).\nThe only difference between a \u201clobbyist\u201d and a \u201cperson engaged in lobbying\u201d is that a lobbyist is paid, or spends more than $250.00, excluding expenses, on lobbying in a calendar quarter. At present, all citizens, whether lobbyists or persons engaged in lobbying, are prohibited from bribing public officials or using deceit to influence public action. See Ark. Code Ann. \u00a7\u00a7 5-52-102 to -105 (1987). Sections 21-8-607(b)(1) and (2) of the initiative would not change the present law on bribery of public officials or on the use of deceit to influence public officials. They would only prevent some practices, which, though not directly public servant bribery or deceit, fall into a gray area. This is not a significant change in the law, only an incremental one to fill a void in the current law, and the statement is not misleading or deceptive.\nFinally, the petitioners argue that the title misleadingly provides that lobbyists will be required to file public reports under the initiative when, in actuality, those who are exempt from registration will not be required to file a public report. We are of the opinion that petitioners\u2019 initial premise, that the title is misleading, is not valid. The pertinent part of the title provides:\nA proposed act requiring lobbyists, as defined, to register with the Secretary of State if seeking to influence legislative or administrative actions of state government; excepting some persons from registering; requiring lobbyists to file quarterly reports ....\nAs can be seen, the title expressly states that some persons may be exempted from registering, and nowhere does it indicate that exempt persons would be required to file public reports. However, even if a voter could not tell from the title that only registered lobbyists must file reports, the alleged variance between the ballot title and the initiative is not of any real significance and does not counteract the general purpose of the initiative.\nIn summary, the initiative is adequately identified by popular name and its general purposes are fairly stated in the ballot title. A liberal construction of Amendment 7 requires that we not thwart the right of the voters to approve or reject the measure because of the minor deficiencies asserted by petitioners.\nThe petition for an injunction is denied.\nPurtle, J., dissents.\nHays, J., not participating.", "type": "majority", "author": "Robert H. Dudley, Justice." }, { "text": "John I. Purtle, Justice,\ndissenting. It gives me no pleasure to dissent in a case where the objectives of the proposed initiated act are so clearly laudible. However, it is my duty and responsibility to point out the mistake that has been made by the sponsors of the proposed amendment and the majority of this court.\nI am in complete agreement with the majority concerning the law and precedent. My difference with them is in the interpretation of the popular name and ballot title. The popular name is short and simple-looking and clear, provided you know what a \u201clobbyist\u201d is. Certainly the name does not explain the meaning of the word. To compound the error, the act itself uses the term in several different ways.\nThe ballot title is supposed to give the voter a condensed version of the text of the proposal in sufficient detail to enable the voter to make an intelligent choice when voting on the proposal. Westbrook v. McDonald, 184 Ark. 740, 44 S.W.2d 331 (1931). The present ballot title does not meet this requirement. Most voters cast their vote with no more information than is contained in the ballot title. Publication and public discussion of the text cannot cure the defects in a ballot title. Since it is the single most influencing factor utilized by most voters in casting their ballots, it must be complete enough to convey the major components of the proposal.\nThe ballot title commences: \u201cA proposed act requiring lobbyist, as defined, to register with the Secretary of State if seeking to influence legislative or administrative actions of state government. . . .\u201d Yet nowhere in the title is \u201clobbyist\u201d defined or explained. By reading the text of the proposed act, one learns that indeed an ordinary citizen may be classified as a lobbyist by simply performing his civic duty to persuade his elected officials of the merits or faults of proposed legislation. The text defines a \u201clobbyist\u201d as a person who \u201cexpends two hundred fifty dollars ($250) or more in a calendar quarter for lobbying. . . .\u201d \u201cLobbying\u201d is defined in the text to mean \u201ccommunicating directly or soliciting others to communicate with any public official \u2014 with the purpose of influencing legislative action or administrative action.\u201d\nThe act does allow a citizen to spend two hundred and fifty dollars ($250), including postage, without being labeled a lobbyist, and consequently subjected to all the provisions of the act, provided the communication has first been filed with the Secretary of State or published in the news media. This smacks of censorship and prior restraint. It also is in direct violation of freedom of speech as guaranteed by the First Amendment.\nIt would take clairvoyant powers to glean from the popular name or ballot title the fact that any active citizen who spends some time and money in an effort to keep in close contact with public officials might well end up violating the law. It seems to me we ought to be encouraging the citizens and their public servants to communicate instead of constructing barriers between them.\nAlthough perhaps unintended, the result is that only registered lobbyists will be allowed to sponsor \u201cappreciation\u201d dinners and receptions for legislators and other candidates and public officials. Since cities, civic clubs, churches and corporations are \u201cpersons\u201d for the purposes of the act, they may be subject to the penalties of this law if they sponsor events with the intent of influencing public officials. Any group of persons who tries to block legislation or cause it to be enacted cannot expend more than two hundred fifty dollars ($250) in their efforts without being subject to the provisions of the act. The mailing of a thousand letters or brochures would place the group in the class of \u201clobbyists.\u201d\nAll persons engaged in \u201clobbying,\u201d including ordinary taxpayers as well as professional lobbyists, will be subject to the prohibitions and penalties of the act. Average citizens who are interested in the performance of their public officials cannot possibly learn from the ballot title that they themselves are potential lobbyists. The term \u201clobbyist\u201d as used by the media and perceived by the public means a person who works for pay rather than belief in a cause. It is a label which the ordinary person seeks to avoid. The act therefore will have a chilling effect on the relationship between the citizens and their public officials.\nThe intent behind this proposal is worthy of much praise. However, good intentions alone are insufficient to present this matter to the people for a vote.", "type": "dissent", "author": "John I. Purtle, Justice," } ], "attorneys": [ "Friday, Eldredge & Clark, by: Michael G. Thompson and Robert S. Shafer, for petitioners.", "Steve Clark, Att\u2019y Gen., by: Frank J. Wills III, Asst. Att\u2019y Gen., for respondent.", "Rose Law Firm, A Professional Association, by: Webb Hubbell and Jess Askew III, for intervenors/respondents." ], "corrections": "", "head_matter": "Cary L. GAINES and Bob Lamb v. W.J. \u201cBill\u201d McCUEN, Secretary of State Governor Bill Clinton, et al., Intervenors/Respondents\n88-229\n758 S.W.2d 403\nSupreme Court of Arkansas\nOpinion delivered October 12, 1988\nFriday, Eldredge & Clark, by: Michael G. Thompson and Robert S. Shafer, for petitioners.\nSteve Clark, Att\u2019y Gen., by: Frank J. Wills III, Asst. Att\u2019y Gen., for respondent.\nRose Law Firm, A Professional Association, by: Webb Hubbell and Jess Askew III, for intervenors/respondents." }, "file_name": "0513-01", "first_page_order": 539, "last_page_order": 550 }