{ "id": 1455709, "name": "Bill WALMSLEY, et al. v. W.J. \"Bill\" McCUEN, Secretary of State of the State of Arkansas", "name_abbreviation": "Walmsley v. McCuen", "decision_date": "1994-10-17", "docket_number": "94-981", "first_page": "269", "last_page": "277", "citations": [ { "type": "official", "cite": "318 Ark. 269" }, { "type": "parallel", "cite": "885 S.W.2d 10" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "287 S.W.2d 467", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1642937 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ark/225/0976-01" ] }, { "cite": "225 Ark. 975", "category": "reporters:state", "reporter": "Ark.", "year": 1956, "opinion_index": 0 }, { "cite": "300 Ark. 570", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886928 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0570-01" ] }, { "cite": "306 Ark. 554", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900919 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0554-01" ] }, { "cite": "268 Ark. 78", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715414 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0078-01" ] }, { "cite": "789 S.W.2d 71", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9991968, 1882711 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/sw2d/789/0071-01", "/ark/303/0482-01" ] }, { "cite": "303 Ark. 482", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882711 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0482-01" ] }, { "cite": "259 Ark. 294", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1619166 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/259/0294-01" ] }, { "cite": "200 Ala. 230", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3604738 ], "weight": 2, "year": 1917, "opinion_index": 0, "case_paths": [ "/ala/200/0230-01" ] }, { "cite": "277 Ark. 252", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750201 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/277/0252-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-3-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1994, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 7-9-113", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 0 }, { "cite": "277 Ark. 252", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750201 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "255" }, { "page": "4" } ], "opinion_index": 1, "case_paths": [ "/ark/277/0252-01" ] }, { "cite": "273 S.W. 355", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1925, "opinion_index": 2 }, { "cite": "169 Ark. 97", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1373916 ], "year": 1925, "opinion_index": 2, "case_paths": [ "/ark/169/0097-01" ] }, { "cite": "197 Ark. 812", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724278 ], "weight": 2, "year": 1939, "opinion_index": 2, "case_paths": [ "/ark/197/0812-01" ] }, { "cite": "277 Ark. 252", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750201 ], "weight": 2, "year": 1982, "opinion_index": 2, "case_paths": [ "/ark/277/0252-01" ] }, { "cite": "Ark. Code Ann. \u00a7 7-9-113", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 2 } ], "analysis": { "cardinality": 676, "char_count": 15601, "ocr_confidence": 0.885, "pagerank": { "raw": 6.279781768388751e-08, "percentile": 0.38709631333718686 }, "sha256": "40535d415e297613206bebc00fb1591f5912eff457be66915150a08f73b8f327", "simhash": "1:1ad46621e0cedb84", "word_count": 2605 }, "last_updated": "2023-07-14T18:28:16.788487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., concurs.", "Hays, J., dissents.", "Dudley and Glaze, JJ., not participating.", "Special Justices Bruce T. Bullion and Ernie E. Wright join in this opinion." ], "parties": [ "Bill WALMSLEY, et al. v. W.J. \u201cBill\u201d McCUEN, Secretary of State of the State of Arkansas" ], "opinions": [ { "text": "David Newbern, Justice.\nThis is an election case. The appellants, Bill Walmsley and others, sought to enjoin the appellee, Secretary of State W.J. \u201cBill\u201d McCuen, from placing on the November 8, 1994, general election ballot a proposed amendment to the Arkansas Constitution. In the alternative they asked that, if votes are cast on the proposed amendment, Mr. McCuen be enjoined from counting or certifying them. The Chancellor declined to issue the injunction. We reverse and remand the case for entry of the injunction which was sought.\nProposed Constitutional Amendment #3 was referred by the General Assembly pursuant to the authority granted to it by Ark. Const, art. 19, \u00a7 22. Its purpose, according to its popular name is \u201cto remove from the definition of lottery certain charitable games of bingo and charitable raffles.\u201d It is contended here, as it was to the Chancellor, that the injunction should issue for three reasons. First, that Mr. McCuen did not comply with the requirement of art. 19, \u00a7 22, that the proposed amendment be \u201cpublished in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection. .. .\u201d Second, that the proposed amendment did not receive proper approval by both houses of the General Assembly, as required by art. 19, \u00a7 22, because an unauthorized change was made in the proposal language, thus making the proposal to be presented to the electors different from that approved by at least one of the legislative bodies. The third allegation is that the ballot title is misleading. Because we hold the publication requirement of \u00a7 22 was not met, and thus the injunction should have issued, we need not address the other two points.\nMr. McCuen published a \u201cPublic Notice\u201d on May 6, 1994. It contained the number, popular name, and ballot title of the proposed amendment, along with a statement that the full text would be published at a time and date to be announced. At the hearing held by the Chancellor on September 9, 1994, the Elections Director of Mr. McCuen\u2019s office testified that the full text of the proposed amendment had not been published and she did not know when it would be published. She testified she followed the publication schedule set out in Ark. Code Ann. \u00a7 7-9-113 (Supp. 1993).\nSubsection (b)(2) of \u00a7 7-9-113, as amended by Act 798 of 1991, provides in its relevant parts: \u201cPublication of the notice for amendments proposed by the General Assembly shall commence six (6) months . . . before the election. Subsection (c) states: \u201cAt least one (1) notice shall contain the number, the popular name, the ballot title, and a complete text of the measure to be submitted . . . .\u201d\nIn her order, the Chancellor cited \u00a7 7-9-113 along with Ark. Code Ann. \u00a7 16-3-102(b) (Repl. 1994) which provides, again in relevant part, that \u201cwhen a definite time is specified for publication of constitutional amendments proposed by the General Assembly, it shall be construed to mean publication in four (4) weekly issues of some newspaper in each county as is provided by law.\u201d She noted that the amendment of \u00a7 7-9-113 was apparently an attempt to avoid the expense involved in publication, more than once, of the full text of a proposed constitutional amendment. She acknowledged that there must be at least one publication of the entire text of the amendment and noted that there would be time for Mr. McCuen to comply with that requirement prior to the November 8, 1994, general election.\nThe Chancellor\u2019s notion that the full text might have to be published more than one time comes perhaps from the citation by Mr. Walmsley and the other plaintiffs of an obiter dictum rendered in Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982). That case involved the propriety of a proposed ballot title. There, the Chancellor held that no ballot title need be submitted with respect to an amendment referred to the people in accordance with art. 19, \u00a7 22, but that the ballot title proposed was \u201csufficient,\u201d and thus the injunction complaining of its insufficiency was denied. We agreed with the Chancellor and pointed out that ballot titles are necessary with respect to constitutional amendments proposed pursuant to Ark. Const, amend. 7. That, we said, is so because \u201cAmendment 7 does not require publication of the proposed amendment except as may be required by the General Assembly, but it does provide a safeguard by specifically requiring that the proposed amendment have a ballot title,\u201d the purpose of which is to \u201cinform the voter so that he can mark his ballot with a fair understanding of the issues presented.\u201d\nComparing the one other means of presenting a proposed amendment, we said:\nOn the other hand, . . . art. 19, \u00a7 22, does not specifically require a ballot title. All that is required is that the proposed amendments under art. 19, \u00a722, \u201cbe so submitted as to enable the electors to vote on each amendment separately.\u201d So, the purpose of the \u201cBallot Title\u201d under art. 19, \u00a7 22, is not to inform the voter, but merely to distinguish and identify the amendment. Voters can be presumed to be informed as to the contents of the amendment since art. 19, \u00a7 22, specifically requires an extended publication period of six separate monthly insertions in one newspaper in each county prior to the election. See Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917).\nThe case obviously did not turn on the necessity of six separate publications of the text of a proposed amendment, so that was not its \u201cholding.\u201d The point, however, that no ballot title is needed for an amendment proposed in accordance with art. 19, \u00a7 22, is significant for the case before us now. Our reason for saying no ballot title was necessary in Becker v. Riviere, supra, was that the voter would be familiar with the proposed amendment because of the constitutional publication requirement. It was also made clear that we regarded the constitutional requirement as set and not subject to legislation which might purport to alter it. We made essentially the same point in Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976), where we said \u201cit is notable that the Constitution requires that amendments proposed by the General Assembly be published for six months-before the election in a newspaper in each county, but only requires one pre-filing publication of an initiated proposal and such other publications as may be required by law.\u201d\nThe General Assembly\u2019s attempt to state publication requirements applicable to both types of proposals for constitutional amendments may have been stimulated by our opinion in Becker v. McCuen, 303 Ark. 482, 789 S.W.2d 71 (1990), where we questioned the \u201cdouble standard\u201d for ballot titles with respect to proposals initiated pursuant to Amendment 7 and those referred pursuant to art. 19, \u00a7 22. Mr. McCuen cites that case for his argument that substantial compliance with the publication requirement is all that is required. Nothing we said in that case, however, indicated we might consider permitting any deviating from a specific requirement of the Constitution with respect to timeliness of publication. That leads to the ultimate question in this case which is whether there is such a specific constitutional requirement. There is.\nWe cannot read art. 19, \u00a7 22, referring to amendments submitted by the General Assembly, as saying anything other than that \u201csuch proposed amendments shall be . . . published ... for six months immediately preceding the next general election . . . .\u201d While the words, \u201cfor six months\u201d present some ambiguity with respect to the number of publications required, they present none as to when \u201csuch amendments\u201d must first be published. We agree with Mr. McCuen\u2019s assertion that there is a presumption of constitutionality of the statutes in question here, and we must resolve all doubts in favor of constitutionality. See Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980); Clinton v. Bonds, 306 Ark. 554, 816 S.W.2d 169 (1991). We must, however, interpret language of the Constitution according to its plain and common meaning, Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989), and the language leaves us with no doubts. Although constitutional language is to be interpreted according to the spirit of the instrument as well as the obvious and plain meaning of its words, when the words and the spirit of the Constitution are not in conflict, statutory language to the contrary must fall. Gipson v. Manor, 225 Ark. 975, 287 S.W.2d 467 (1956). We can find no conflict between the words and the spirit of the Constitution in this instance.\nIn her order following the statutory provisions for publication and holding that the statutes set up a constitutionally permissible scheme for providing notice to the electorate of the contents of amendments proposed pursuant to art. 19, \u00a7 22, the Chancellor properly expressed her doubts about the propriety of her ruling. We cannot disagree with her concern about the need for and the cost of publication of an entire proposed amendment in a newspaper in every county that has a newspaper. Those are, however, concerns which should be addressed by the General Assembly which could propose to amend art. 19, \u00a7 22, to alter the publication requirement. That concern could, of course, be addressed by the initiative process pursuant to amend. 7. It cannot be done by the courts.\nWe hold that an amendment referred to the electors in accordance with art. 19, \u00a7 22, must be published \u201cfor six months\u201d prior to the general election to which it is subject. By failing to publish the amendment at any time prior to September 9, 1994, Mr. McCuen has not complied with the requirement with respect to an amendment to be considered at the November 8, 1994, general election.\nReversed and remanded for entry of an order consistent with this opinion. The mandate is ordered issued within five days unless a petition for rehearing is filed. If a petition rehearing is filed, briefing will be on an expedited basis to be set by the clerk.\nBrown, J., concurs.\nHays, J., dissents.\nDudley and Glaze, JJ., not participating.\nSpecial Justices Bruce T. Bullion and Ernie E. Wright join in this opinion.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Robert L. Brown, Justice,\nconcurring. I agree with the majority opinion but would go a step further. The pertinent words in Article 19, \u00a7 22 of the Arkansas Constitution are \u201csuch proposed amendments shall be . . . published ... for six months immediately preceding the next general election . ...\u201d A common sense reading of \u201cfor six months,\u201d giving the words their ordinary and commonly accepted meaning, compels full publication of the amendment more than one time. Common sense also dictates that these words do not require publication every day of the six month period. The most logical and reasonable interpretation of the phrase is that the publication must take place once a month for six consecutive months.\nWe said as much, albeit by dictum, in a previous case, as the majority correctly points out. See Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982). In Becker, we referred to informing the voters pursuant to Article 19, \u00a7 22 by \u201csix separate monthly insertions in one newspaper in each county prior to the election.\u201d Id. at 255, 641 S.W.2d at 4. Any other interpretation of these words cannot withstand scrutiny.", "type": "concurrence", "author": "Robert L. Brown, Justice," }, { "text": "Steele Hays, Justice,\ndissenting. If art. 19, \u00a7 22 were clear in its provisions I could agree with the Court in this matter. But it is not. It is manifestly inexplicit in the number of times a proposal must be published and in whether the publication of the entire text must precede the election by six months. This Court has never addressed either of those issues heretofore and our comment in Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982), was plainly dictum.\nThe legislature has sought to remedy the obvious ambiguity of art. 19, \u00a7 22 by the adoption of Ark. Code Ann. \u00a7\u00a7 7-9-113 and 16-3-102(b) (Repl. 1994), effectively requiring publication \u201cin four weekly issues of some newspaper in each county as is provided by law,\u201d and \u201ccommencing six months before the election.\u201d Here it is undisputed that on May 6, 1994, the Secretary of State published a \u201cPublic Notice\u201d containing the Popular Name and Ballot Title of the proposed amendment now before us. (See appendix). The Chancellor held these statutory provisions were not contradictory with art. 19, \u00a7 22 and that the Secretary of State had complied with the law, as of that point in time (September 15, 1994, the date of her order). She further observed that while three additional publications were necessary to comply with the statutes, there was adequate time before the election on November 8.\nWe have held that a literal compliance with art. 19, \u00a7 22 is not required. Coulter v. Dodge, 197 Ark. 812, 125 S.W.2d 115 (1939); McAdams v. Henley, 169 Ark. 97, 273 S.W. 355 (1925). Since we may assume, as did the Chancellor, that prior to November 8 the proposed amendment will have been published once in its entirety and published three additional times in accordance with \u00a7 7-9-113, one of which occurred six months before the election, I cannot conclude the Chancellor clearly erred. I believe the public will have been fully and fairly apprised of the scope and nature of this proposed amendment and capable of an informed vote on its merit.\nAPPENDIX\nPUBLIC NOTICE\nNOTICE OF AMENDMENTS TO THE ARKANSAS CONSTITUTION PROPOSED BY THE GENERAL ASSEMBLY AND PUBLISHED BY SECRETARY OF STATE W.J. \u201cBILL\u201d McCUEN\nThe Arkansas Constitution provides that the General Assembly can propose up to three Constitutional Amendments to be voted on by the public in the November General Election. The Constitution also requires notice to the public on the various proposed amendments. As Secretary of State it is my responsibility to publish these notices. This notice is to make you aware of the amendments. The full text of these amendments will be published at a date to be announced in the various newspapers of the state. The members of the General Assembly and I hope you will take the time to familiarize yourself with these proposed amendments. If you have questions, please call the Secretary of State\u2019s Office at 1-800-482-1127.\nW.J. \u201cBill\u201d McCuen Secretary of State\nPROPOSED CONSTITUTIONAL AMENDMENT #3\n(Referred by the General Assembly)\nPOPULAR NAME\nFor a proposed amendment to the Constitution of the State of Arkansas to remove from the definition of lottery certain charitable games of bingo and charitable raffles.\nBALLOT TITLE\nFor a proposed Amendment to Article 19, Section 14 of the Constitution of (he State of Arkansas to remove from the definition of lottery as contained in Article 19, Section 14, of the Constitution of the State of Arkansas, certain games of bingo and raffles when conducted by certain authorized organizations in accordance with the amendment.\nBe it resolved by the House of Representatives of the Seventy-ninth General Assembly of the State of Arkansas and by the Senate, a majority of all members elected to each house agreeing thereto.\nTHIS NOTICE PLACED BY SECRETARY OF STATE W.J. \u201cBILL\u201d McCUEN AS REQUIRED BY A.C.A. SECTION 7-9-113.", "type": "dissent", "author": "Steele Hays, Justice," } ], "attorneys": [ "Robert D. Smith, Tom Tanner and John Pagan, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Angela Jegley, Sr. Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Bill WALMSLEY, et al. v. W.J. \u201cBill\u201d McCUEN, Secretary of State of the State of Arkansas\n94-981\n885 S.W.2d 10\nSupreme Court of Arkansas\nOpinion delivered October 17, 1994\nRobert D. Smith, Tom Tanner and John Pagan, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Angela Jegley, Sr. Asst. Att\u2019y Gen., for appellee." }, "file_name": "0269-01", "first_page_order": 295, "last_page_order": 303 }