Why did Arkansas reject the 2018 ballot title authorizing the General Assembly to waive state sovereign immunity?

Plain-English summary

The Committee to Restore Arkansan's Rights submitted a proposed constitutional amendment that would let the General Assembly authorize suits against the State of Arkansas in its own courts. The Attorney General found the proposed popular name sufficient, but rejected the ballot title because it used “sovereign immunity” without explaining the term or what a legislative waiver would do.

The AG said most voters would not know that sovereign immunity means a state cannot be sued in its own courts. They also would not understand from this title that waiver would allow the General Assembly to enact laws permitting people and entities to sue the State in state court for money damages and other relief. Both ideas needed brief explanation in the ballot title so voters could understand the proposed change.

The AG warned that the ambiguities she identified might not be the only ones in the proposal. She did not certify replacement wording or say that adding a definition alone would guarantee certification.

Currency note

This February 2018 opinion reviews one proposed ballot title. It does not establish current Arkansas sovereign-immunity law or the status of later initiatives. Check current law and later decisions for those questions.

Background and statutory framework

The submitted ballot title said the amendment would authorize the General Assembly to waive the State's sovereign immunity. The attached proposed constitutional text would add “unless authorized by the General Assembly” to Article V, Section 20's statement that the State shall never be made defendant in any of its courts.

Under Ark. Code Ann. § 7-9-107, the AG reviewed whether the popular name and title accurately and impartially summarized the measure. She explained that a popular name can serve as a brief identifying label, while a ballot title must give voters a fair understanding of the proposal. Technical terms that voters would not readily understand can make a title inadequate unless explained.

The AG accepted the popular name but found the title deficient on that technical-term ground. The opinion expressly left open whether other ambiguities might prevent certification after revision.

Common questions

What did “sovereign immunity” mean in this opinion?

The AG described it as the doctrine that a state cannot be sued in its own courts. She said that meaning was unlikely to be familiar to most voters reading the title.

What would waiver by the General Assembly mean?

According to the AG, it would give the legislature power to enact statutes allowing people and entities to sue Arkansas in state court for money damages and other forms of relief. The submitted title did not tell voters that.

Was the popular name rejected too?

No. The AG called it sufficient as proposed. Her rejection was directed to the ballot title.

Would a short definition automatically cure the title?

The AG said both sovereign immunity and waiver needed brief explanation, but also warned that the stated ambiguities might not be exhaustive. She made no promise about a revised title.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STAT E OF ARKAN SAS
ATTORNEY GENERAL
LES LI E RUT LEDGE

Opinion No. 2018-006

February 6, 2018

Alex T. Gray, Legal Counsel
Committee to Restore Arkansan's Rights
c/o Steel, Wright, Gray & Hutchinson
400 West Capitol Avenue, Suite 2910
Little Rock, AR 72201

Dear Mr. Gray:

I am responding to your request for certification of the popular name and ballot title for a proposed initiated measure.

At the outset, I wish to make clear that the decision to certify or reject a popular name and ballot title in no way reflects my view of the merits of the measure. I am not authorized to, nor do I, consider the merits of a measure when weighing whether to certify or reject.

Arkansas Code Annotated 7-9-107 authorizes my office to ( 1) certify the popular name and ballot title of a proposed measure, (2) substitute and certify the popular name and ballot title, if practicable, or (3) reject the entire submission if "the ballot title, or the nature of the issue, is presented in such manner that the ballot title would be misleading" to voters. 1 The purpose of this statutory review 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 In this way, voters will have a fair understanding of the issues presented by reference to the ballot title. 3 Thus, and consistent with Arkansas Supreme Court precedent, I have limited my review to a

1
Ark. Code Ann .§ 7-9-107(c) (Supp. 2017).
2
See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S. W.2d 846, 848 (1948). 3 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 ( 1980) (internal citations omitted).

323 CENTER STREET. Su n E 200. LITTL E RO CK. ARKAN SAS 72201 TELEP HONE (50 1) 682-2007 ·FAX (50 1) 682-8084 ARKANSASAG.GOV

Alex T. Gray, Legal Counsel
Comm. to Restore Arkansan's Rights BQC
Opinion No. 2018-006
Page 2

determination of whether your popular name and ballot title accurately and impartially summarize the content of your proposal.

REQUEST

You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name

An Amendment to Authorize the General Assembly to Waive The State's Sovereign Immunity

Ballot Title

An amendment to Article V, Section 20 of the Arkansas Constitution authorizing the General Assembly to waive the State's sovereign immunity.

GUIDELINES

The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency. 4 The popular name is primarily a legislative device, and it need not contain the detailed information that might be required of a ballot title. 5 However, the popular name must not mislead or give partisan coloring to the merit of the proposal. 6

The ballot title must include an impartial summary of the proposed amendment that gives the voter a fair understanding of the issues presented. 7 A ballot title is insufficient if it does not "adequately inform" voters of the contents of a proposed

4
May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
5
Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). See also Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976). 6 See Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term "partisan coloring," see note 9 infra. 7 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).

Alex T. Gray, Legal Counsel
Comm. to Restore Arkansan's Rights BQC
Opinion No. 2018-006
Page 3

amendment so that they can make a "reasoned decision in the voting booth." 8 And the title must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring. " 9

A ballot title's failure to "honestly and accurately reflect what is contained in the proposed Amendment" may lead the Court to conclude that the "omission is significant." 10 The Court has also disafiproved the use of terms that are "technical and not readily understood by voters." 1 Without a definition of such terms in the ballot title, the title may be deemed insufficient. 12 Likewise, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." 13 At the same time, a ballot title must be brief and concise. 14 Voters could otherwise run afoul of Ark. Code Ann. § 7-5-309's five-minute limit when other voters are waiting in line for the voting booth. 15

But the ballot title is not required to be perfect, nor is it reasonable to expect that it cover every possible legal argument the proposed measure might evoke. 16 And

8
Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n.2.
9
Bailey v. McCuen, 318 Ark. 277, 284, 884 S.W.2d 938, 942 (1994). Language "tinged with partisan coloring" has been identified by the Arkansas Supreme Court as language that "creates a fatally misleading tendency" or that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994) (internal citation omitted). 10 Lange, 2016 Ark. at 9, 500 S.W.3d at 159.
11
Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167.

13
Bailey, 318 Ark. at 285, 884 S.W.2d at 942.
14
See Ark. Code Ann. § 7-9-107(b).
15
Bailey, 318 Ark. at 284, 884 S.W.2d at 944.
16
Id. at 293, 884 S.W.2d at 946-47.

Alex T. Gray, Legal Counsel
Comm. to Restore Arkansan's Rights BQC
Opinion No. 2018-006
Page 4

unless the measure is "clearly contrary to law," 17 this office will not require that the ballot title acknowledge every possible constitutional infirmity. 18

RESPONSE

It is my opinion, based on the above guidelines, that the popular name you submitted is sufficient as proposed. However, the ballot title has a deficiency requiring that I reject it. I believe most voters will be unfamiliar with the term "sovereign immunity" as it appears in the ballot title, because it is a legal term of art. 19 Most voters will not know that the doctrine of sovereign immunity means that a state cannot be sued in its own courts. Likewise, most voters will not appreciate that authorizing the General Assembly to waive sovereign immunity means giving the legislature the ability to enact statutes that allow people and entities to sue the State in state court for money damages and other forms of relief. Given the content of your ballot title as proposed, both of these concepts- sovereign immunity and waiver of sovereign immunity-need to be briefly explained to ensure voters are "adequately inform[ed]" and can make a "reasoned decision in the voting booth." 20

CONCLUSION

My office, in the certification of ballot titles and popular names, does not address the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate.

17
See 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); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). 18 As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents. 19 See Wilson v. Martin, 2016 Ark. 334, *9, 500 S.W.3d 160, 167 (2016) ("Without a definition of this [technical] term, the voter would be in the position of guessing as to the effect his or her vote would have unless he or she is an expert in the legal field."). 20 Lange, 2016 Ark. 337, 500 S.W.3d 154, at n.2.

Alex T. Gray, Legal Counsel
Comm. to Restore Arkansan's Rights BQC
Opinion No. 2018-006
Page 5

Based on what has been submitted, my statutory duty is to reject your proposed 21 ballot title. The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious that I am unable to certify your ballot title at this time.

Sincerely,

Attorney General

Enclosure

21
Ark. Code Ann.§ 7-9-107(c).

Popular Name

AN AMENDMENT TO AUTHORIZE THE GENERAL ASSEMBLY TO WAIVE THE STATE'S SOVEREIGN IMMUNITY

Ballot Title

An amendment to Article V, Section 20 of the Arkansas Constitution authorizing the General Assembly to waive the State's sovereign immunity.

ARTICLE V, SECTION 20. State not made defendant unless authorized by General Assembly.

The State of Arkansas shall never be made defendant in any of her courts, unless

authorized by the General Assembly.