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 submitted a May 4, 2018 initiated act that would have raised Arkansas's state minimum wage in steps to $12.00 per hour by January 2022 AND added a local option allowing counties, cities, and towns to adopt higher local minimum wages. AG Leslie Rutledge rejected the popular name and ballot title.

The opinion cites two grounds: ambiguities in the text of the measure itself, and omissions of significant aspects of the proposal from the ballot title. Adding a local-option layer to a state minimum wage measure raises real legal complexity (preemption questions, enforcement questions, what "adopt and enforce" actually means at the city or county level), and the proposed ballot title did not explain how those would be resolved.

This is one of three 2018 Couch minimum wage drafts the AG rejected (along with 2018-043 and 2018-053). The version that reached the November 2018 Arkansas ballot as Issue 5 came from a different sponsoring effort and did not include a local-option provision.

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.

The Arkansas state minimum wage was raised by ballot measure in November 2018 and reached $11.00 per hour by January 2021 under that measure. Local-option minimum-wage authority remains a contested area in many states; current Arkansas law on whether cities and counties can set higher minimum wages should be checked against the present state statutes and any preemption rulings.

Common questions

What is a "local-option minimum wage"?

The idea that cities and counties can set their own minimum wage that is higher than the state floor. Some states allow it (e.g., California, Oregon); some preempt it (most southern states). Couch's proposal would have explicitly authorized Arkansas counties, cities, and towns to "adopt and enforce" a higher local minimum wage. The AG's concern was that "adopt and enforce" was undefined: would each city need an ordinance? Could a city set different minimums for different industries? How would enforcement work if state and city wage laws disagreed? Voters reading the ballot title alone would not know.

Why did the AG say the title "omitted significant aspects"?

Because the ballot title described only the wage steps and the local-option authority. It did not explain how the local-option authority would interact with the existing state Wage and Hour Law's exemptions (the long list of exempt employees in Ark. Code Ann. § 11-4-203). Voters needed to know whether cities could expand or shrink the categories of covered workers. The proposal was silent.

How is this different from Couch's other 2018 minimum wage drafts?

Op. 2018-043 (April 26): the original Couch draft, just wage steps to $11. Op. 2018-048 (this one, May 4): added the local-option provision. Op. 2018-053 (May 14): different draft with wage steps to $12 and statutory definitions of "employer" and "employee" copied verbatim into a 967-word title. Each rejection led Couch to revise. None made it to the ballot.

Did the local-option idea ever get adopted in Arkansas?

Not as of this writing. Most southern states preempt local minimum wages, and Arkansas has not formally adopted local-option authority. Workers in Arkansas cities and counties get the state floor, not a higher city floor.

Why is the AG so picky about ballot titles?

Because Arkansas voters cast their constitutional and statutory amendments based on the title alone in the booth. The Arkansas Supreme Court has repeatedly held that if the title misleads or omits significant facts, the proposal can be struck down even if it would otherwise win the popular vote. The AG's review is the first gatekeeper to keep that from happening.

Background and statutory framework

The relevant statutes:

• Ark. Code Ann. § 7-9-107 (the AG's certification authority).
• Ark. Code Ann. § 11-4-203 (statutory definitions of "employer" and "employee").
• Ark. Code Ann. § 11-4-210 (the state minimum wage).

The AG's standard:

• A ballot title must include an impartial summary that gives voters a fair understanding of the issues (Becker v. Riviere).
• A ballot title is insufficient if it omits an essential fact a voter would need to make an informed decision (Bailey v. McCuen).
• A ballot title cannot be approved if the underlying measure is internally ambiguous, since no honest summary is possible.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017)
• Ark. Code Ann. § 11-4-203 (statutory definitions of "employer" and "employee")
• Ark. Code Ann. § 11-4-210 (state minimum wage)
• 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

Opinion No. 2018-048
May 4, 2018
David A. Couch, Esq.
STATE OF ARXANSAS
ATTORNEY GENERAL
LES LI E RUTLEDGE
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. Sum: 200. LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.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
would give the voter serious ground for reflection, it must be disclosed."14 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
   intelligible idea of the scope and import of the proposal."23 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 ST ATE 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.