Why did the Arkansas AG reject the 2018 minimum wage proposal that would have let cities and counties set higher local minimum wages?

Plain-English summary

David Couch asked the Arkansas Attorney General to certify the popular name and ballot title for an initiated act that would raise the state minimum wage in stages to $12 an hour in 2022. The proposal also would allow counties, cities, and towns to set and enforce a higher local minimum wage. The Attorney General rejected the submitted title because she could not fairly summarize the measure while ambiguities in its text remained.

The title did not explain how the new local authority would change existing Arkansas law governing counties and municipalities. The measure also said local governments could enact a “law or ordinance,” leaving the meaning of “law” unclear in that context. It permitted local enforcement through private lawsuits, penalties or fees, liquidated damages, and recovery of costs and attorney's fees, yet the title said nothing about those powers.

The Attorney General raised two further concerns about the state wage increase. Referring simply to a higher “State minimum wage” could lead voters to think every hourly worker would receive a raise. The measure did not explain the existing wage law's definitions of employers and employees or its exceptions, or whether the proposal would change those exceptions. She also wanted the sponsor to explain the underlined and stricken text in the proposal. These issues prevented her from writing a suitable substitute title.

Currency note

This opinion rejected a proposed 2018 ballot title. The wage rates and local authority described here were parts of that proposal, not a statement of current Arkansas law. Check current law and later ballot measures before relying on them.

Common questions

Did the Attorney General decide whether cities could set higher minimum wages? No. Her objection was that the title failed to tell voters how the proposal would change the existing law on counties', cities', and towns' power to set and enforce a local minimum wage. The opinion did not decide the current scope of that power.

What was ambiguous about “law or ordinance”?
The measure used both words for what a county, city, or town could enact. The Attorney General said voters might understand “law” as a state legislative enactment and “ordinance” as local legislation, leaving the meaning of “law” unclear in a provision about local governments.

What enforcement powers were missing from the title? The proposal allowed local enforcement provisions including a private right of action, penalties or fees that could exceed state levels, liquidated damages, and recovery of costs and attorney's fees. The Attorney General called this significant and said the ballot title needed to summarize it.

Why did the Attorney General object to the description of the state wage increase? She said the bare reference to raising the “State minimum wage” might suggest that every hourly worker would receive the listed increase. Voters also needed an explanation of which employers and employees the wage law covers, its existing exceptions, and whether the proposal would affect those exceptions.

Could the Attorney General write a substitute title? She said the unresolved ambiguities in the measure prevented her from knowing precisely what changes a fair and complete title required. She instructed the sponsor to redesign the measure and title.

Background and statutory framework

Ark. Code Ann. § 7-9-107 authorizes the Attorney General to certify a proposed popular name and ballot title, substitute and certify them where practicable, or reject a misleading submission. This proposal would have amended § 11-4-210(a), concerning the state wage, and § 11-4-222, concerning local governments' employment laws. The opinion reviewed the clarity of this submission; it expressed no view on the merits of raising wages.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017)
• Ark. Code Ann. § 11-4-210(a)
• Ark. Code Ann. § 11-4-222
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)

Source

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

Original opinion text

STATE OF ARXAN SAS
ATTOR N EY GENERAL
LES LI E RUTLEDGE

Opinion No. 2018-048

May 4, 2018

David A. Couch, Esq.
1501 North University, Suite 228
Little Rock, AR 72207

Dear Mr. Couch:

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 to you that the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and I do not, consider the merits of the measure when making a decision to certify or reject.

Section 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 my review under section 7-9-107 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 referenced to the ballot title alone. 3

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 CENTrn. STREET. Su m : 200. LI TTLE RO CK, ARKANSAS 7220 1 TELEPHONE (50 1) 682-2007 · FAX (50 1) 682-8084 ARKAN SASAG.GOV

David A. Couch, Esq.
Opinion No. 2018-048
Page 2

Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the proposed act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to law," 4 this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. 5 Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions 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 initiated act:

Popular Name

An Act to Increase the Arkansas Minimum Wage and to Allow Counties, Cities and Towns the Option to Enact and Enforce a Higher Local Minimum Wage

Ballot Title

An Act to amend the Arkansas Code concerning the State minimum wage; the Act would raise the current State minimum wage from eight dollars and fifty cents ($8.50) per hour to nine dollars and twenty-five cents ($9.25) per hour on January 1, 2019, to ten dollars ($10.00) per hour on January 1, 2020, to eleven dollars ($11.00) per hour on January 1, 2021, and to twelve dollars ($12.00) per hour on January 1, 2022; and allowing, [sic] counties, cities and towns in the State to adopt and enforce a higher local minimum wage.

4
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). 5 As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents.

David A. Couch, Esq.
Opinion No. 2018-048
Page 3

GUIDELINES

The popular name is primarily a useful legislative device. 6 It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. 7 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency. 8

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. 9 According to the Court, a ballot title will not be legally sufficient unless it "adequately inform[ s]" the voters of the contents of a proposed amendment or act so that they can make a "reasoned decision in the voting booth." 10 A ballot title's failure to "honestly and accurately reflect what is contained in the proposed [act or] Amendment" may lead the Court to conclude that the "omission is significant." 11 The Court has also disagproved the use of terms that are "technical and not readily understood by voters." 2 Without a definition of such terms in the ballot title, the title may be deemed insufficient. 13

Additionally, if information omitted from the ballot title is an "essential fact which 14 would give the voter serious ground for reflection, it must be disclosed." At the same time, however, a ballot title must be brief and concise; 15 otherwise voters 6 Paffordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
7
See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term "partisan coloring," see note 18 infra. 8 Mayv. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
9
Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
10
Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
11
Id. at 9, 500 S.W.3d at 159.
12
Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167.
13
Id., 500 S.W.3d at 167.
14
Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
15
See Ark. Code Ann.§ 7-9-107(b).

David A. Couch, Esq.
Opinion No. 2018-048
Page 4

could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths when other voters are waiting in line. 16 The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke. 17 The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." 1 The ballot title must be honest and impartial, 19 and it must convey an intelligible idea of the scope and significance of a proposed change in the law. 20

Furthermore, the Court has confirmed that a ballot title cannot be approved if the text of the proposed measure itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the measure. 21 The Court concluded that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself. " 22 Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without ( 1) clarification or removal of the ambiguities in the proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal.

16
Bailey, 318 Ark. at 284, 884 S.W.2d at 944.
17
Id. at 293, 884 S.W.2d at 946-47.
18
Id. at 284, 884 S.W.2d at 942. Language "tinged with partisan coloring" has been identified by the Arkansas Supreme Court as language that "creates a fatally misleading tendency" (Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) 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). 19 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
2
°Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted). 21 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).

22 Id.

David A. Couch, Esq.
Opinion No. 2018-048
Page 5

RESPONSE

It is my opinion, based on the above guidelines established by the Court, that a number of additions or changes are necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of some ambiguities in the text of the measure itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. It is therefore not practicable, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b).

DISCUSSION

I highlight below the more concerning ambiguities in the text of your proposal.

1. A fundamental problem arises from your ballot title's failure to inform the voters about the scope and significance of your proposed changes in law. A ballot title for a proposed initiated measure must summarize the proposal in a non-misleading fashion and "should be complete enough to convey an 23 intelligible idea of the scope and import of the proposal." Your ballot title is wholly deficient in its attempt to summarize for the voter what effect your proposed measure would have on current law so that voters will have a fair understanding of the issue. Specifically, your ballot title fails entirely to give the voters any understanding of how your proposed measure regarding the authority of "counties, cities and towns in the State to adopt and enforce a higher local minimum wage" relates to current law in the Arkansas Code that covers counties', cities', and towns' power in this respect. Without alerting voters to the extent to which your proposal would change current law, it will be impossible for a voter to make an informed "choice between retention of the existing law and the substitution of something new." 24 The precise manner in which you acknowledge your proposal's effects on existing law is a matter for you to determine and submit to this office in draft form. While I can modify a proposed ballot

23
Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994) (internal quotations omitted). The Arkansas Supreme Court has explained that the ballot title must "adequately inform" voters and enable a "reasoned decision in the voting booth." Lange, supra note 10. 24 Bradley v. Hall, 220 Ark. 925, 927, 251S.W.2d470, 471 (1952).

David A. Couch, Esq.
Opinion No. 2018-048
Page 6

title to render it a more accurate summary of the measure, I am not authorized to craft a ballot title that amounts to an independent product.

2. Section 2 of your proposed measure proposes to permit "[a] county, city or town in the state [to] enact and enforce a law or ordinance, adopted through its governing body or through residents exercising their initiative powers .... " (Emphasis added). It is unclear what is meant by the word "law" in this context. It is reasonable to believe that the average voter, when seeing those two words paired disjunctively by the word "or," would be led to think that the words refer to different things. Specifically, and in my opinion, the word "law" is commonly thought of as an enactment by the legislature ("a state law"), while an "ordinance" is more commonly understood as something related to county or municipal governments ("a city ordinance"). Thus the wording of the text-"law or ordinance"- creates an ambiguity with respect to what is actually meant by "law." Without clarification of this ambiguity in the text of your proposal, your ballot title cannot accurately summarize your proposal for the voters.

3. Additionally, Section 2 of your proposal would amend the Arkansas Code to allow "local enforcement provisions that may include, but are not limited to, a private right of action, penalties or fees at levels that may exceed those set by state law, liquidated damages, and recovery of costs and attorney's fees." However, this important aspect of the enforcement mechanism is completely missing from your ballot title. In my opinion, this part of your proposal is highly significant and must be conveyed, and adequately summarized, in a ballot title so that voters will understand what effect their votes will have.

4. As I explained in my opinion on your previous minimum-wage proposal, 25 your ballot title states that your proposal would "amend the Arkansas Code concerning the State minimum wage" by "rais[ing] the current State minimum wage .... " I believe that such a bare and general reference to the increase of the "State minimum wage" may lead to confusion amongst the voters and may cause them to believe that every hourly wage earner will or would be eligible to receive a raise in accordance with the terms of your proposed ballot title. The current law and the effects your proposed measure will have on it must be explained in a manner in which voters will fully comprehend what they are being asked to consider, and how the changes will or will not affect them.
25
Op. Att'y Gen. 2018-043.

David A. Couch, Esq.
Opinion No. 2018-048
Page 7

5. In that earlier opm10n, I also described that the text of your initiated measure for section 11-4-210(a) refers to "employers" and "employees." In my opinion, the Court would view the terms "employers" and "employees" in the context of raising the minimum wage as "technical terms" that need to be defined. 26 While those terms are defined in the "Arkansas Minimum Wage" section of the Code, I believe the Court would require that your ballot title-and thus the text of your measure-define these terms as they relate specifically to the minimum-wage portion of the Code so that there will not be confusion amongst the voters with respect to whom your proposed act does and does not apply.

Similarly, your proposed measure's text regarding section 11-4-2 IO(a) requires the minimum-wage increases apply "except as otherwise provided in this subchapter." But your text fails to explain the current exceptions to the minimum wage law, and likewise does not elaborate on any impending exceptions-if any-to your proposed statutory amendment. This is ambiguous, as it is unclear what effect, if any, your proposed measure has on current exceptions "as provided in this subchapter." Without an explanation regarding what exceptions currently exist, and whether the proposed act has any effect on those exceptions, voters will not have the ability to make an informed choice between current and proposed law.

I must note, with respect to your current submission and your previous minimum- wage submission, that it is incumbent upon sponsors of virtually identical measures to craft ballot titles that clearly and fairly summarize the proposals in a manner in which voters will appreciate the subtle differences. This ensures that voters adequately understand what they are being asked to approve.

As a final matter, I note that the text of this proposed initiated act contains underlined and stricken text. While I understand this drafting technique, it is my opinion that it should be explained to voters what you are trying to convey in using this technique to try to ameliorate any potential voter confusion.

CONCLUSION

While the ambiguities noted above are not necessarily all the ambiguities contained in your proposal, they are sufficiently serious to require rejection of your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Additional ambiguities may come 26 See Wilson, supra note 12, 2016 Ark. 334 at *9, 500 S.W.3d at 167.

David A. Couch, Esq.
Opinion No. 2018-048
Page 8

to light on review of any subsequent proposals. But at this time, listing additional ambiguities would go beyond the appropriate examination and certification process under Ark. Code Ann. § 7-9-107, and would tantamount to acting as the proposal's drafter.

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.

Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the fore~oing reasons and instruct you to redesign the proposed measure and ballot title. 7

Sincerely,

~~==;;::>- ~. //~--)?
LESLIE RUTLEDGE
Attorney General

Enclosure

27
Ark. Code Ann.§ 7-9-107(c).

POPULAR NAME
AN ACT TO INCREASE THE ARKANSAS MINIMUM WAGE AND TO ALLOW COUNTIES, CITIES AND TOWNS THE OPTION TO ENACT AND ENFORCE A HIGHER LOCAL MINUMUM WAGE

BALLOT TITLE
AN ACT TO AMEND THE ARKANSAS CODE CONCERNING THE STATE MINIMUM WAGE; THE ACT WOULD RAISE THE CURRENT STATE MINIMUM WAGE FROM EIGHT DOLLARS AND FIFTY CENTS ($8.50) PER HOUR TO NINE DOLLARS AND TWENTY-FIVE CENTS ($9.25) PER HOUR ON JANUARY 1, 2019, TO TEN DOLLARS ($10.00) PER HOUR ON JANUARY 1, 2020, TO ELEVEN DOLLARS ($11.00) PER HOUR ON JANUARY 1, 2021, AND TO TWELVE DOLLARS ($12.00) PER HOUR ON JANUARY 1, 2022; AND ALLOWING, COUNTIES, CITIES AND TOWNS IN THE STATE TO ADOPT AND ENFORCE A HIGHER LOCAL MINIMUM WAGE.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS:

SECTION 1. Arkansas Code § 11-4-210(a), concerning the state minimum wage, is amended to read as follows:

(a)(l) Beginning October 1, 2006, every employer shall pay each of his or her employees wages at the rate of not less than six dollars and twenty-five cents ($6.25) per hour except as otherwise provided in this subchapter.

(2) Beginning January 1, 2015, every employer shall pay each of his or her employees wages at the rate of not less than seven dollars and fifty cents ($7.50) per hour, beginning January 1, 2016 the rate of not less than eight dollars ($8.00) per hour and beginning January 1, 2017 the rate of not less than eight dollars and fifty cents ($8.50) per hour except as otherwise provided in this subchapter.

(3) Beginning January 1, 2019, every employer shall pay each of his or her employees wages at the rate of not less than nine dollars and twenty-five cents ($9.25) per hour, beginning January 1, 2020 the rate of not less than ten dollars ($10.00) per

hour, beginning January 1, 2021 the rate of not less than eleven dollars ($11.00) per hour, and beginning January 1, 2022 the rate of not less than twelve dollars ($12.00) per hour except as otherwise provided in this subchapter.

SECTION 2. Arkansas Code§ 11-4-222, concerning political subdivisions' power to adopt certain laws relating to employment, is amended to read as follows:
(a) As used in this section:

(1) "Employee" means an individual employed in this state by an employer;
(2)(A) "Employer" means an individual, sole proprietorship, partnership, limited liability company, corporation, or other entity that does business in this state.
(B) However, "employer" does not include a public employer;
(3) "Employment benefit" means anything of value that an employee may receive from an employer in addition to other than wages and salary, including without limitation:
(A) Health, disability, retirement, profit-sharing, and death benefits;
(B) Group accidental death and dismemberment benefits;
(C) Paid or unpaid days off from work for holidays, sick leave, vacation, and personal necessity; and
(D) Terms of employment, notice of scheduling, attendance, or leave policies;
(4) "Political subdivision" means a county, city, or town in this state; and (5) "Public employer" means the State of Arkansas and each political subdivision of the state.
(b) A political subdivision shall not establish, mandate, or otherwise require an employer to provide to an employee a minimum or living ·.vage rate or an employment benefit that exceeds the requirements of federal laws or regulations or state laws or rules.
(c) A county, city or town in the state may enact and enforce a law or ordinance, adopted through its governing body or through residents exercising their initiative powers, establishing a minimum wage for employees that exceeds the minimum wage

established by state or federal law, with local enforcement provisions that may include, but are not limited to, a private right of action, penalties or fees at levels that may exceed those set by state law, liquidated damages, and recovery of costs and attorney's fees.