Becker v. McCuen

798 S.W.2d 71, 789 S.W.2d 71, 303 Ark. 482, 1990 Ark. LEXIS 509
CourtSupreme Court of Arkansas
DecidedOctober 31, 1990
Docket90-286
StatusPublished
Cited by409 cases

This text of 798 S.W.2d 71 (Becker v. McCuen) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Becker v. McCuen, 798 S.W.2d 71, 789 S.W.2d 71, 303 Ark. 482, 1990 Ark. LEXIS 509 (Ark. 1990).

Opinions

Robert H. Dudley, Justice.

The appellants, J. Bill Becker and Jim Clark, filed this action in chancery court asking that the proposed “Interest Rate Amendment” be taken off the November 6,1990 ballot. They argued that the popular name and ballot title were defective and misleading. The Chancellor refused to strike the proposed amendment from the ballot. We affirm that decision.

In Arkansas there are two different ways for a constitutional amendment to be proposed to the public. The two courses employ different procedures and have different legal requirements. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976). The first way, which has been available through all five of our constitutions, is through the General Assembly. The requirements of that method are set out in Ark. Const, art. 19, § 22. The second way, adopted in 1920, is through the initiative and referendum power reserved to the people. The requirements of the second way are set out in Amendment 7. The provisions of Amendment 7 do not govern constitutional amendments proposed by the General Assembly. Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433 (1960). This case involves an amendment proposed by the General Assembly and, accordingly, is governed by Ark. Const, art. 19, § 22. In such cases our jurisdiction is appellate only. Berry v. Hall, supra.

The factual background leading to this case is not complex. The amendment was proposed in 1989 through a House Joint Resolution. The title of that joint resolution was styled:

PROVIDING FOR A PROPOSED CONSTITUTIONAL AMENDMENT TO ESTABLISH A MAXIMUM LAWFUL RATE OF INTEREST IN THIS STATE

The joint resolution provided that the ballot title would be:

AN AMENDMENT TO SECTION 13 OF ARTICLE XIX OF THE CONSTITUTION OF THE STATE OF ARKANSAS TO CONTROL INTEREST RATES AND SET THE PENALTY FOR VIOLATIONS THEREOF.

It further provided that the popular name would be:

THE 1989 INTEREST RATE CONTROL AMENDMENT

Ark. Code Ann. § 7-9-113(b)(2) and (c) (1987) require the Secretary of State to publish the proposed amendment, with each legal notice to contain “the popular name, the ballot title” and a text of the amendment. After publication, the Secretary of State is to furnish the election commissioners the popular name and ballot title for the official ballot. Ark. Code Ann. § 7-9-115 (1987). Appellee McCuen, in performing his statutory duties, somehow added the title of the joint resolution to the end of the designated ballot title. The result was that the legal notices were published, and the official ballots are printed as follows:

(POPULAR NAME)
THE 1989 INTEREST RATE CONTROL AMENDMENT (BALLOT TITLE)
AN AMENDMENT TO SECTION 13 OF ARTICLE XIX OF THE CONSTITUTION OF THE STATE OF ARKANSAS TO CONTROL INTEREST RATES AND SET THE PENALTY FOR VIOLATIONS THEREOF. PROVIDING FOR A PROPOSED CONSTITUTIONAL AMENDMENT TO ESTABLISH A MAXIMUM LAWFUL RATE OF INTEREST IN THIS STATE.

Appellants advance six arguments for reversal of the trial court. Their first is that the trial court should be reversed because its written opinion did not address each of their contentions. We need not dwell on the argument. An appeal in a chancery case opens the whole case for review as if no decision had been made in the chancery court. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979).

It has been the invariable practice of this court not to remand a case to a chancery court for further proceedings and proof where we can plainly see what the equities of the parties are, but rather to render such decree here as should have been rendered below.

Accordingly, we now address each of appellants’ remaining arguments.

Their primary argument is that the ballot title as published and certified by the Secretary of State is misleading and deceptive. Neither art. 19, § 22, nor any statute, requires that a ballot title be placed on amendments which are proposed by the General Assembly. Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982). Article 19, § 22 only requires that amendments referred to the people by the legislature “shall be so submitted as to enable the electors to vote on each amendment separately.” As a direct result of that language we only look to see: (1) whether the ballot title is sufficient to “distinguish and identify” the proposal, and (2) whether the ballot title is a “manifest fraud upon the public.” Becker v. Riviere, supra. This is a different, and less demanding, standard than is employed for Amendment 7 initiatives. See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984).

When the General Assembly submits a ballot title with a proposed amendment it must be sufficient for a voter to distinguish it from the other proposals on the same ballot. This ballot title, even as mistakenly altered by the Secretary of State, distinctly separates and identifies this proposed amendment from the others.

In addition, a ballot title must not constitute a manifest fraud upon the public. The mistakenly altered title meets this test. The first sentence was approved word for word in 1982 in Becker v. Riviere, supra. The General Assembly obviously relied on that approval and repeated it for this proposed amendment. The second sentence, the one mistakenly added, was copied from the title of the joint resolution. That sentence, “Providing For A Proposed Constitutional Amendment To Establish A Maximum Lawful Rate Of Interest In This State,” adds information to the title. The additional sentence does not render the title a manifest fraud upon the public.

Appellants further argue that the ballot title is manifestly fraudulent because it fails to disclose that the proposed amendment has no maximum rate of interest for credit contracts which are equal to or exceed $250,000.00. It is not required that the ballot title contain a synopsis of the proposed amendment and cover every detail of it. Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884(1942). It is sufficient if the title is complete enough to convey an intelligible idea of the scope and import of the proposed amendment. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931). We have recognized the impossibility of preparing a ballot title which would suit everyone. Hogan v. Hull, 198 Ark. 681, 130 S.W. 716 (1939).

The ballot title of this proposed amendment conveys the idea that it amends the present constitution, and that it controls interest rates. The provision relating to credit contracts which equal or exceed $250,000.00 is a minor exception which will apply only to a few members of the general public.

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Bluebook (online)
798 S.W.2d 71, 789 S.W.2d 71, 303 Ark. 482, 1990 Ark. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becker-v-mccuen-ark-1990.