Why did Arkansas reject the 2018 ballot title for amending Article V, Section 20 sovereign immunity?

Plain-English summary

Sponsor Alex T. Gray submitted a proposed amendment to Article V, Section 20 of the Arkansas Constitution that would have created three new circumstances in which lawsuits could proceed against the State: when authorized by the General Assembly, when waived by the State, or when seeking nonmonetary relief. The AG accepted the first branch but rejected the second and third, and therefore rejected the entire submission.

The "waived by the State" language was rejected because it was grammatically incomplete (no clear object of "waived") and substantively ambiguous: it could mean a statutory waiver, or it could refer to the established doctrines under which the State is treated as having waived immunity through its own litigation conduct (filing suit, asserting counterclaims, or failing to timely raise the defense). Voters could not tell which.

The "nonmonetary relief" branch was rejected because the proposed text did not clarify whether suits seeking both monetary and nonmonetary relief were authorized, or only suits seeking only nonmonetary relief (excluding even attorney's fees and costs).

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the AG flagged

Branch 1, "authorized by the General Assembly," was acceptable. The AG said the italicized language adequately and impartially explained the first new instance in which lawsuits against the State might be permitted.

Branch 2, "waived by the State," was ambiguous on two levels.

• Grammatical ambiguity: "It is unclear what is intended as the object of 'waived.'" The sentence structure left voters guessing what would be waived and by what mechanism.
• Doctrinal ambiguity: In sovereign-immunity practice, the term "waived" can refer to several distinct doctrines. The State's immunity may be considered "waived" if the State seeks affirmative relief (filing as plaintiff or asserting counterclaim/cross-claim), or if the State fails to timely raise immunity as a defense. If the proposed amendment meant litigation-conduct waiver, voters needed that explained.

Branch 3, "lawsuits seeking nonmonetary relief," did not draw a clear line. The text did not say whether plaintiffs could combine monetary and nonmonetary claims, or whether the amendment authorized only purely nonmonetary suits. Under the second reading, even attorney's fees and legal costs would be off-limits. The AG said this had to be resolved before voters could make a reasoned decision.

Common questions

What was Article V, Section 20 of the Arkansas Constitution at the time? The original text said: "The State of Arkansas shall never be made defendant in any of her courts." The proposed amendment would have added three exceptions.

Was this AG rejection a rejection of the policy idea? No. The governing statute limits the AG to reviewing whether the popular name and ballot title fairly summarize the proposal. The AG explicitly disclaimed any view on the merits.

What did "waived by litigation conduct" mean in 2018 sovereign-immunity practice? Two main doctrines: (1) the State waives immunity when it itself files a lawsuit and the defendant counterclaims on the same transaction; (2) the State can waive immunity by failing to timely raise it as an affirmative defense. The AG worried that voters would not understand whether the amendment was constitutionalizing those doctrines.

If the proposal had been accepted, would litigants have been free to sue the State? Only if the General Assembly enacted authorizing legislation, or the State waived immunity, or the suit sought only nonmonetary relief, depending on which branch the proposal contemplated. Each branch operates independently.

Background and statutory framework

The AG's ballot-title review function under Ark. Code Ann. § 7-9-107 has three possible outcomes: certify, substitute and certify, or reject. The Arkansas Supreme Court has long held that ambiguities in the proposal text require rejection because no clear ballot title can summarize an unclear measure. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), set out the materiality and clarity standards the AG applied here.

The opinion emphasized that the AG cannot rewrite the proposal. If the underlying text is ambiguous, the AG cannot use the substitute-and-certify power to fix the substance: that would amount to drafting the amendment.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017) (AG ballot-title certification authority)
• Ark. Code Ann. § 7-5-309 (Supp. 2017) (five-minute voting-booth limit)
• Ark. Const., art. 5, § 20 (sovereign immunity bar)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (ballot-title materiality)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (fair-understanding standard)

Source

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

Original opinion text

STATE OF ARKAN SAS
ATTORN EY GENERAL
LES LIE RUTLED GE

Opinion No. 2018-020

March 9, 2018

Alex T. Gray, Attorney at Law
Steel, Wright, Gray & Hutchinson, PLLC
400 West Capitol Avenue, Suite 2910
Little Rock, AR 72201

Dear Mr. Gray:

I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2017), 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. 2 I 9, 226, 604 S.W .2d 555, 558 (I 980) (internal citations omitted).

323 CENTER STREET. SU ITE 200 · LI TTL E ROCK. ARKANSAS 7220 1 TELEPHONE (50 1) 682-2007 · FAX (501) 682-8084 A i1.KA NSASAG.GOV

Alex T. Gray, Esq.
Steel, Wright, Gray & Hutchinson, PLLC
Opinion No. 2018-020
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 Allow Lawsuits to be Brought Against the State if Authorized by the General Assembly or Waived by the State and to Allow Lawsuits Against the State Seeking Nonmonetary Relief

Ballot Title

An amendment to Article V, Section 20 of the Arkansas Constitution allowing lawsuits to be brought against the State if authorized by the General Assembly or waived by the State and to allow lawsuits against the State seeking nonmonetary relief.

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

4
May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
5
Pafjordv. 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.

Alex T. Gray, Esq.
Steel, Wright, Gray & Hutchinson, PLLC
Opinion No. 2018-020
Page 3

The ballot title must include an impartial summary of the pro.posed amendment that gives voters a fair understanding of the issues presented. A ballot title is insufficient if it does not "adequately inform" voters of the contents of a pro;osed amendment so that they can make a "reasoned decision in the voting booth." 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 might otherwise exceed the five-minute time limit while other voters are waiting in line at the polling place. 15

7
Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d SSS, S58 (1980) (internal citations omitted).
8
Lange v. Martin, 2016 Ark. 337, SOO S.W.3d 1S4, 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 60S, 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.
12 Id

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. See also Ark. Code Ann.§ 7-5-309 (Supp. 2017).

Alex T. Gray, Esq.
Steel, Wright, Gray & Hutchinson, PLLC
Opinion No. 2018-020
Page 4

The ballot title is not required to be perfect, however, nor is it reasonable to expect that it cover every possible legal argument the proposed measure might evoke. 16 Likewise, this office will not require that a ballot title acknowledge every possible constitutional issue, unless the measure is "clearly contrary to law." 17

RESPONSE

Your ballot title proposes three instances in which Article 5, § 20 of the Arkansas Constitution might allow lawsuits to be brought against the State. In my opinion, the first proposed instance (where lawsuits are "authorized by the General Assembly") is described in a manner that will give Arkansas voters a fair understanding of the issues presented. However, I believe the second and third instances are described inadequately under Ark. Code Ann. § 7-9-107. I must therefore reject the ballot title (and the identical popular name) as drafted.

First Instance in Which Lawsuits Might Be Allowed

Relevant to the first instance, your proposed ballot title states, "An amendment to Article V, Section 20 of the Arkansas Constitution allowing lawsuits to be brought against the State if authorized by the General Assembly .... " (emphasis added). I believe the italicized language adequately and impartially explains to voters the first instance in which lawsuits against the State might be authorized.

Second Instance in Which Lawsuits Might Be Allowed

Relevant to the second instance, your proposed ballot title states, "An amendment to Article V, Section 20 of the Arkansas Constitution allowing lawsuits to be brought against the State if ... waived by the State .... "(emphasis added). I do not believe the italicized language adequately and impartially explains the second instance in which lawsuits against the State might be authorized.

Grammatically, it is unclear what is intended as the object of "waived." And so the meaning of the quoted sentence is inherently ambiguous.

16
Bailey, 318 Ark. at 293, 884 S.W.2d at 946-47.
17
See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931S.W.2d119, 121 (1996); Plugge v. Mccuen, 310 Ark. 654, 841S.W.2d139 ( 1992). But as part of my review, I may address constitutional concerns for consideration by the sponsor.

Alex T. Gray, Esq.
Steel, Wright, Gray & Hutchinson, PLLC
Opinion No. 2018-020
Page 5

But it is also unclear what the term "waived" means with regard to lawsuits against the State. In that context, the State's immunity is sometimes considered "waived" if the State seeks affirmative relief (either by filing a lawsuit as a plaintiff, or by making a counterclaim or cross-claim as a defendant). And the State's immunity may be "waived" if the State does not timely raise immunity as a defense.

If the term "waived" does in fact refer to waiver of immunity by the State's litigation conduct, the ballot title must reasonably explain this concept to Arkansas voters.

Third Instance in Which Lawsuits Might Be Allowed

Relevant to the third instance, your proposed ballot title states, "An amendment to Article V, Section 20 of the Arkansas Constitution ... to allow lawsuits against the State seeking nonmonetary relief" (emphasis added). I do not believe the italicized language adequately and impartially explains the third instance in which lawsuits against the State might be authorized.

It is unclear if such lawsuits could proceed where plaintiffs seek both nonmonetary and monetary relief. On the other hand, the third instance could be interpreted as authorizing lawsuits against the State in which plaintiffs seek only nonmonetary relief (to the exclusion of all money damages, including but not limited to attorney fees and legal costs). This ambiguity must be clarified in order to give voters a fair understanding of the issue at hand.

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 mandate is embodied in Ark. Code Ann. § 7-9-107, and my duty is to the electorate.

Based on what has been submitted, my statutory duty is to reject your proposed ballot title and popular name. 18 The ambiguities discussed above are not necessarily all the problems that might arise with your proposal, but they are

18
Ark. Code Ann.§ 7-9-107(c).

Alex T. Gray, Esq.
Steel, Wright, Gray & Hutchinson, PLLC
Opinion No . 2018-020
Page 6

sufficiently serious that I am unable to certify your ballot title and popular name at this time.

Sincerely,

~~~~
LESLIE RUTLED
Attorney General

Enclosure

                                   Popular Name

AN AMENDMENT TO ALLOW LA WSUJTS TO BE BROUGHT AGAINST THE STA TE IF
AUTHORIZED BY THE GENERAL ASSEMBLY OR WAIVED BY THE STATE AND TO
ALLOW LAWSUITS AGAINST THE STATE SEEKING NONMONETARY RELIEF

                                    Ballot Title

An amendment to Article V, Section 20 of the Arkansas Constitution allowing lawsuits to be
brought against the State if authorized by the General Assembly or waived by the State and to
allow lawsuits against the State seeking nonmonetary relief.

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 (i)

authorized by the General Assembly, (ii) waived by the State of Arkansas, or (iii) named as

defendant in actions seeking nonmonetary relief.