Why did the Attorney General reject David Couch's revised initiative and referendum amendment for a second time in April 2025?
Subject
The Attorney General's second rejection of attorney David Couch's revised proposed initiated amendment titled "An Amendment to Amend the Initiative and Referendum Process," addressing his attempted fixes to the issues identified in Opinion No. 2025-018.
Plain-English summary
About three weeks after the AG rejected David Couch's first version of his initiative and referendum amendment (see Opinion 2025-018), Couch came back with a revised submission. The AG rejected it again. The revision had real fixes for some of the original problems, but it created two new ones and left a third problem unsolved.
The revision's key changes:
- AG certification standard. The original required the AG to certify both that the popular name and ballot title were "not misleading" and that the ballot title was an "honest and impartial summary." The revision dropped the "not misleading" requirement for the ballot title (keeping it only for the popular name) and softened "honest and impartial" to "accurate and impartial."
- Self-amendment limitation. The original said "This Amendment may only be amended by a constitutional amendment initiated by the people." The revision changed "this Amendment" to "this Article" so that the text and ballot title would match.
- 24-hour emergency clause vote. The proposed language about a separate vote on emergency clauses was clarified.
- Compelling state interest provision. New language was added that no legislation could "restrict, hamper, impair or otherwise regulate" the rights reserved in the amendment unless it served "a compelling state interest" and was "narrowly tailored."
The AG agreed the self-amendment language disconnect was fixed; the text and ballot title now both said "Article" so the scope was unambiguous. But the fix created a much bigger problem: "this Article" means all of Article 5 of the Arkansas Constitution, which has 41 operative sections covering wildly diverse topics, not just the initiative and referendum process. Article 5 governs the length of legislative sessions (§ 17), the State's sovereign immunity (§ 20), workers' compensation (§ 32), and review of administrative rules (§ 42), among many other things. By prohibiting Article 19, § 22 amendments to all of Article 5, Couch's proposal would lock in current rules on these unrelated topics, blocking legislative-referred amendments to any of them.
The Arkansas Supreme Court's 2024 Paschall v. Thurston decision was directly on point. In Paschall, the Court held that a popular name was misleading because it covered only one topic ("Arkansas Medical Marijuana Amendment of 2024") while the measure also rewrote Article 5, § 1 to limit legislative amendment of voter-approved measures. The same defect appeared in Couch's revision: the popular name "An Amendment to Amend the Initiative and Referendum Process" suggested the measure dealt only with that process, but the Article 19, § 22 limitation reached far beyond the initiative process.
The certification-standard fix did not work either. The AG explained that even if the AG no longer had to certify a ballot title as "not misleading," the AG still had to certify that the title was "an accurate and impartial summary" giving voters "a fair and reasonable understanding of the issues." When a measure's text is itself contradictory, ambiguous, or misleading, no substituted ballot title can deliver that fair and reasonable understanding. Couch's revision still misleadingly presented the system as if certification would always happen, while creating circumstances where it simply could not.
The AG also noted secondary issues to clean up if Couch resubmits: "submit" vs. "refer" wording inconsistency with Article 19, § 22's actual language; "state-wide" vs. "statewide" inconsistency with Amendment 7's spelling; "within in" still appearing in the proposed measure text (although fixed in the ballot title); the continued use of "and/or" (which Arkansas Supreme Court has called a "linguistic abomination" in Kennedy v. Papp); and the unfortunate "she/he" formulation, which style authorities consider a "contrived device."
The AG's footnote 2 explicitly contrasted Couch's prior 2024-026 submission, which had a similar structural design (no AG reject-redesign authority) but worked because that proposal allowed automatic certification through AG inaction after ten days. The 2024-026 measure presented its system honestly: certification was either by AG action or by AG inaction. Couple's current revision presented certification as always happening, while creating cases where it could not, which is the misleading framing the AG could not certify.
What this means for you
Initiative petition sponsors
The opinion is a textbook example of what happens when you fix the smaller issue without rethinking the structural one. Couch addressed the language disconnect (good) but the fix expanded the substantive scope of his amendment in a way the popular name and ballot title did not capture. If your fix to a drafting issue changes the substantive reach of the measure, your popular name and ballot title need to change too.
The Paschall lesson is also worth memorizing: a popular name like "Arkansas Medical Marijuana Amendment of 2024" or "An Amendment to Amend the Initiative and Referendum Process" cannot smuggle in unrelated provisions. If your measure also changes how the legislature can amend the constitution, that has to be reflected up front.
Election law attorneys
Two doctrinal points worth flagging from this opinion:
- Identity between text and ballot title is not a safe harbor. Paschall holds that a ballot title that perfectly matches the measure's text can still be misleading if the language fails to give voters a fair understanding. Identity is necessary but not sufficient.
- The AG's substitution authority does not include rewriting the measure. A.C.A. § 7-9-107 lets the AG substitute "more suitable" ballot titles, but the AG cannot edit the measure's underlying text. When the text is the problem, the only option is rejection.
Voters
A practical note: the initiative process produces drafted-and-redrafted-and-redrafted versions of proposed amendments. AG rejections like this one are the front-end review that tries to keep the version you ultimately see on a ballot understandable. If you signed an early Couch petition draft, the language has changed materially since. Always read the certified ballot title that ends up on the petition you sign.
Common questions
Q: Why is "this Article" worse than "this Amendment"?
It depends on what you want the limitation to do. "This Amendment" limits only the new text being added by Couch's measure, which is a narrow self-amendment lock. "This Article" reaches all of Article 5, which has 41 sections covering many unrelated topics. Couch's revision picked the broader option to fix a text-vs-title mismatch, but that broader option swept in topics his ballot title did not mention.
Q: What's the practical effect of locking in all of Article 5 against Article 19, § 22 amendment?
The Arkansas General Assembly can currently propose amendments to any constitutional provision under Article 19, § 22 (subject to constitutional limits on the number per session). Couch's revision would have removed that authority for all 41 sections of Article 5. The practical effect: if voters wanted to change the length of legislative sessions, modify the State's sovereign immunity rules, or update workers' compensation provisions, the only path would be a citizen-initiated amendment, not a legislative referral.
Q: Why does Paschall keep coming up?
Because it's a recent (2024) Arkansas Supreme Court decision on the precise legal point at issue: when a measure does more than its popular name suggests, both the popular name and ballot title can be misleading even if they accurately quote the measure's text. The Court rejected the medical marijuana amendment in Paschall on this ground, and the same logic applies to Couch's revision.
Q: Why does the AG cite a footnote about a different prior Couch submission (2024-026)?
To show that a similar structural design (no AG reject-redesign authority) is not automatically a deal-breaker. The 2024-026 version disclosed the inaction-equals-certification path explicitly, so voters and the AG knew what the system did. The current revision presents certification as always happening when it cannot. That misleading framing, not the structural design itself, is the certification problem.
Q: Has Couch given up?
The opinion does not address that. Sponsors typically iterate and resubmit when they're invested in a measure. The list of secondary issues (and/or, she/he, statewide vs. state-wide, within in) is the AG's roadmap for what a third submission would need to clean up.
Q: What is the "compelling state interest, narrowly tailored" provision the revision added?
It's a strict-scrutiny clause: legislation "restricting, hampering, impairing, or regulating" the rights reserved in the amendment would have to serve a compelling state interest and be narrowly tailored. This is borrowed from First Amendment and equal-protection doctrine. Whether it would survive judicial review on its own merits is a separate question; the AG opinion does not analyze it because it found other grounds for rejection.
Background and statutory framework
Refer to Opinion No. 2025-018 for the full procedural and statutory framework on AG ballot title review under A.C.A. § 7-9-107. This second opinion incorporates that framework by reference.
The new doctrinal point is the Paschall v. Thurston, 2024 Ark. 155, 699 S.W.3d 352, holding that a ballot title's identity with the measure's text does not save it when the measure does more than the popular name and ballot title disclose. Specifically: the measure in Paschall was the "Arkansas Medical Marijuana Amendment of 2024," whose text included a provision rewriting Article 5, § 1 to limit the General Assembly's power to amend voter-approved measures. The Court held the popular name was misleading because the title gave no hint of the Article 5 changes, and the ballot title was misleading because it did not state that the measure would repeal Amendment 98 §§ 23 and 26 in their entirety even though the text said exactly that.
Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), supplies the rule that a ballot title cannot be approved when "the text of the proposed amendment itself contributes to confusion and disconnect." That principle is what makes the AG's rejection authority under § 7-9-107(e) the only available path here: substituting a ballot title cannot fix a text problem.
Citations
- A.C.A. § 7-9-107 (full review procedure)
- A.C.A. § 7-9-107(e) (AG authority to reject and instruct redesign)
- Ark. Const. art. 5, § 1 (initiative and referendum)
- Ark. Const. art. 5, §§ 17 (length of legislative sessions), 20 (sovereign immunity), 32 (workers' compensation), 42 (review of administrative rules)
- Ark. Const. art. 19, § 22 (legislative-referred amendments)
- Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
- Paschall v. Thurston, 2024 Ark. 155, 699 S.W.3d 352
- Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987) (and/or as "linguistic abomination")
- Bryan A. Garner, Garner's Modern English Usage (5th ed. 2022) (style authority on "she/he")
- Prior AG opinions cited: Ops. 2024-026, 2023-131, 2023-123, 2023-113, 2019-006, 2018-132, 2018-108, 2017-135, 2017-127, 2014-135, 2013-128, 2013-130, 2013-122, 2013-112, 2011-145, 2011-023, 2007-289, 2007-183, 2003-160, 2000-312, 2000-138, 99-298
Source
Original opinion text
Opinion No. 2025-021
April 14, 2025
David A. Couch
5420 Kavanaugh Boulevard, Suite 7530
Little Rock, Arkansas 72707
Dear Mr. Couch:
I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the popular
name and ballot title for a proposed constitutional amendment. In Opinion No. 2025-018, I rejected
a prior version of your proposed initiated amendment to the Arkansas Constitution. You have now
revised the language of your proposal and submitted it for certification.
My decision to certify or reject a popular name and ballot title is unrelated to my view of the
proposed measure’s merits. I am not authorized to consider the measure’s merits when considering
certification.
1. Request. Under A.C.A. § 7-9-107, you have asked me to certify the following popular name
and ballot title for a proposed initiated amendment to the Arkansas Constitution:
Popular Name
AN AMENDMENT TO AMEND THE INITIATIVE AND REFERENDUM
PROCESS
Ballot Title
Providing that the General Assembly may not amend or repeal a constitutional
amendment approved by a vote of the people; Providing that prior to a petition on
a state-wide measure being circulated, the proposed measure, the popular name and
exact title to be used on the ballot shall be submitted to the Attorney General for
approval and certification. Within ten days, the Attorney General shall either
certify that the popular name is not misleading, and that the ballot title is an accurate
and impartial summary of the proposed measure that gives the voter a fair and
reasonable understanding of the issues in the measure, or reject the popular name
and/or title if she/he determines that either do not meet the requirements of this
section. If the proposed popular name or ballot title are rejected, the Attorney
General shall provide a written statement clearly explaining all the reasons for
rejection and shall provide a substituted popular name and/or ballot title that makes Mr. David A. Couch
Opinion No. 2025-021
Page 2
only such changes to the proposed popular name and/or title as is necessary to meet
the requirements of this section, and then certify the approved substituted popular
name and ballot title to be used on the ballot. The Attorney General upon
certification of the approved popular name and ballot title shall deliver the
certification to the Secretary of State on the day of certification. The Secretary of
State shall within ten days cause to be published in a newspaper of statewide
circulation and shall publish on its website a notice informing the public of such
certification and the procedure identified in this section to govern any party who
may contest such certification before the Supreme Court. The procedure shall be
as follows: (A) Any legal action against such certification shall be filed with the
Supreme Court within forty-five (45) days of the Secretary of State’s publication;
(B) No such action filed later than forty-five (45) days following publication shall
be heard by the Supreme Court; (C) An action timely filed shall be advanced by the
Supreme Court as a matter of public interest and shall be heard and decided
expeditiously. Providing that the Ballot Title for any state-wide referendum petition
shall be the title of the Act as assigned by the General Assembly and the name shall
be the subtitle as assigned by the General Assembly; Providing that each part of
any petition shall have attached thereto the declaration under penalty of perjury of
the person circulating the same, that all signatures thereon were made in the
presence of the declarant, and that to the best of the declarant’s knowledge and
belief each signature is genuine, and that the person signing is a legal voter and no
other affidavit, declaration or verification shall be required to establish the
genuineness of such signatures; Providing that any vote on an emergency clause
must occur at least 24 hours after passage of the measure; Providing that this Article
may only be amended by a constitutional amendment initiated by the people
pursuant to the terms of this amendment and not by an amendment referred by the
General Assembly pursuant to Article 19, Section 22. Providing that no legislation
shall be enacted to restrict, hamper, impair or otherwise regulate the exercise of the
rights reserved herein to the people, unless such legislation serves a compelling
state interest and is narrowly tailored to serve that interest. Providing that all
provisions of the Constitution, statutes, and common law of this State to the extent
inconsistent or in conflict with any provision of this Amendment are expressly
declared null and void and providing that if any provision or section of this
amendment or the application thereof to any person or circumstance is held invalid,
such invalidity shall not affect any other provision or application of the amendment
that can be given effect without the invalid provision or application, and to this end
the provisions of this amendment are declared to be severable.
2. Rules governing my review. In Opinion No. 2025-018, issued in response to your previous
request for review and certification, I explained the rules and legal standards that govern my review
of popular names and ballot titles. I rely on those same rules and legal standards here and
incorporate them by reference. Mr. David A. Couch
Opinion No. 2025-021
Page 3
3. Application. In Opinion No. 2025-018, regarding the prior version of your proposal, I listed
issues that prevented me from certifying your popular name and ballot title. Several of those issues
have been resolved, but one issue remains and others were created.
Ballot title review process. As discussed in Opinion No. 2025-018, the previous version of your
proposed text significantly changed the Attorney General’s role in reviewing ballot titles. Under
the current process set forth in A.C.A. § 7-9-107, the Attorney General may (1) certify the popular
name and ballot title as submitted, (2) substitute and certify a “more suitable” popular name and
ballot title, or (3) reject the proposed popular name and ballot title and “instruct” the sponsor to
“redesign the proposed measure and the ballot title and popular name.” Your prior submission
would have added language to Article 5, § 1 of the Arkansas Constitution purporting to require the
Attorney General to certify every proposed popular name and ballot title by either: (1) certifying
the popular name and ballot title as submitted or (2) “reject[ing] the popular name and/or title,”
providing a written statement explaining the reasons for the rejection, and “provid[ing] a
substituted popular name and/or title that makes only such changes to the proposed popular name
and/or title as is necessary to meet the requirements of this section, and then certify the approved
popular name and title to be used on the ballot.”
I explained that, by removing the Attorney General’s authority to reject a proposed measure
without granting the authority to edit the measure’s text—while simultaneously requiring the
Attorney General to certify that the popular name and ballot title are not misleading and that the
title provides “an honest and impartial summary of the proposed measure that gives the voter a fair
and reasonable understanding of the issues”—your proposed amendment ensured that there would
be times where the Attorney General would be unable to act. Yet your proposal misleadingly
presented the matter as if, upon submission to the Attorney General, some version of the ballot
title would always be approved, even though you created a system in which certification would at
times be impossible. Consequently, I could not certify your ballot title or substitute a more suitable
ballot title, so I returned your submission to you with instructions to redesign your proposed
measure and ballot title in a manner that would not be misleading.
It appears you have attempted to remedy this problem with two edits to your current submission:
(1) you have changed the “not misleading” requirement so that the Attorney General must only
certify that the popular name is not misleading, rather than certify that both the popular name and
ballot title are not misleading, and (2) you have changed “honest and impartial” to “accurate and
impartial.” However, these changes do not remedy the issue I identified in Opinion No. 2025-018.
Even if the Attorney General is no longer required to review and certify that a ballot title is not
misleading, the Attorney General must still certify that the ballot title is “an accurate and impartial
summary of the proposed measure that gives the voter a fair and reasonable understanding of the
issues in the measure.” And, as Attorneys General have long opined, if the text of the measure is
contradictory, ambiguous, inconsistent, or nonsensical, no ballot title I could substitute would be
able to give voters “a fair and reasonable understanding of the issues in the measure.”1 Thus, your
1 See Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000) (holding that the text of a proposed amendment
and its “internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to Mr. David A. Couch
Opinion No. 2025-021
Page 4
current submission runs into the same problem as your previous submission: it again misleadingly
suggests that the Attorney General will always approve some version of a submitted ballot title,
while creating a system that ensures the Attorney General will at times be unable to certify a ballot
title.2
Prohibiting amendments to Article 5 through the process in Article 19, § 22. In Attorney General
Opinion No. 2025-018, I noted that there was ambiguity regarding how your proposal would
change the General Assembly’s authority to amend the Arkansas Constitution. The text of your
measure would have added the following language to the “Self-Executing” paragraph of Article 5,
§ 1: “This Amendment may only be amended by a constitutional amendment initiated by the
people pursuant to the terms of this amendment and not by an amendment referred by the General
Assembly pursuant to Article 19, Section 22.” Yet your ballot title provided that “this section may
only be amended by a constitutional amendment initiated by the people pursuant to the terms of
this amendment and not by an amendment referred by the General Assembly pursuant to Article
19, Section 22.”3 As a result of this discrepancy, it was not clear whether you intended the scope
of that limitation to extend only to the text that your proposed amendment would have added to
Article 5, § 1, or whether you intended to limit the means by which all of Article 5, § 1 could be
amended.
You have addressed this issue by changing both the text of your proposed amendment and your
proposed ballot title to say that this “Article may only be amended by a constitutional amendment
initiated by the people pursuant to the terms of this amendment and not by an amendment referred
by the General Assembly pursuant to Article 19, Section 22.”4 This change fixed the ambiguity by
prohibiting Article 19, § 22 amendments to any of the operative 41 sections of Article 5, which
confusion in the ballot title itself”); see also Ark. Att’y Gen. Ops. 2023-113, 2017-127, 2011-145, 2007-183, 2000-
138, 99-298.
2 I will note that you previously submitted another ballot title and proposed constitutional amendment addressing this
issue, which was the subject of Opinion No. 2024-026. That submission would have created a similar system, whereby
the Attorney General could not reject a proposed popular name or ballot title and return it to the sponsor for revision.
But that proposal permitted certification by three different means: (1) certification of the popular name and ballot title
as submitted, (2) substitution and certification, or (3) inaction by the Attorney General, which would result in
automatic certification of the proposed popular name and ballot title after ten calendar days. In that opinion, I noted
that, as here, there would be times the Attorney General would be unable to take any action due to problems in the
text of a proposed measure. But because the measure and ballot title that were the subject of Opinion No. 2024-026
clearly explained that the Attorney General’s inaction was an option, rather than misleadingly suggesting that the
Attorney General would take action to certify some version of all submitted ballot titles, it did not provide grounds
for rejection. I mention this to emphasize that this issue preventing me from certifying your current submission is not
your proposed change to the review and certification process but how you have misleadingly presented the change in
your proposed measure and ballot title.
3 Emphasis added.
4 Emphasis added. Mr. David A. Couch
Opinion No. 2025-021
Page 5
spans topics from the length of legislative sessions5 to the State’s sovereign immunity6 and
workers’ compensation7 to review of administrative rules.8 This wide-ranging effect creates
separate problems.
First, the proposed popular name. The Arkansas Supreme Court recently held in Paschall v.
Thurston that the use of “Arkansas Medical Marijuana Amendment of 2024” as the popular name
for a proposed amendment was misleading because the proposed amendment also included a
provision that would have rewritten Article 5, § 1 to limit the General Assembly’s authority to
amend or repeal a measure approved by a vote of the people.9 The Court held that a plain reading
of the popular name, regardless of how liberally it was construed, did not encompass amending
Article 5, § 1 of the Constitution, thus making the popular name misleading.10 Similarly, your
popular name suggests that this amendment would only affect the initiative and referendum
process, which is the subject of Article 5, § 1. Yet the amendment’s limitation on the General
Assembly’s Article 19, § 22 powers would extend to all of Article 5, which covers many other
topics.
Second, the proposed ballot title. This change to “Article” also makes the ballot title misleading.
Again in Paschall, the Supreme Court held that a ballot title was misleading “because it omit[ted]
language stating that the proposed amendment would repeal the General Assembly’s authority to
amend Amendment 98.”11 This was misleading despite the ballot title and proposed amendment’s
text being identical: “repealing Amendment 98, §§ 23 and 26 in their entirety.”12 In the same way,
your proposed ballot title and text, although identical to each other, would not indicate to voters
that your proposal affects the amendment of topics far beyond the initiative and referendum
process, such as the State’s sovereign immunity. And while I am authorized to substitute and
certify a ballot title that is more suitable (in terms of affording voters a fair understanding of the
issues presented), A.C.A. § 7-9-107 neither contemplates nor requires that I modify or rewrite the
proposed ballot title when the one submitted is wholly deficient.13 Instead, crafting and accurately
summarizing the measure are the sponsor’s responsibilities prior to submission.
5 Ark. Const. art. 5, § 17.
6 Id. § 20.
7 Id. § 32.
8 Id. § 42.
9 See Paschall v. Thurston, 2024 Ark. 155, at 15–16, 699 S.W.3d 352, 362–63.
10 Id.
11 Id. at 16, 699 S.W.3d at 363.
12 Id.
13 See Ark. Att’y Gen. Ops. 2019-006, 2018-132, 2018-108, 2017-135, 2014-135, 2013-128, 2013-112, 2011-023. Mr. David A. Couch
Opinion No. 2025-021
Page 6
Because the text of your proposed amendment is misleading, I am prevented from substituting and
certifying a more suitable ballot title that is not misleading. Consequently, my statutory duty under
A.C.A. § 7-9-107(e) is to reject your proposed popular name and ballot title, stating my “reasons
therefor,” and to “instruct … [you] to redesign your proposed measure and the ballot title … in a
manner that would not be misleading.”
4. Additional issues. While the foregoing defects provide sufficient grounds for me to reject your
submission, I have identified other issues in your proposal that you may wish to address if you
resubmit:
• Consistency with terms in Article 19, § 22. The proposed ballot title and the text of your
proposed amendment provide that amendments to Article 5 of the Arkansas Constitution
may “not [be made] by an amendment referred by the General Assembly pursuant to
Article 19, Section 22.”14 But under Article 19, § 22 the General Assembly “submit[s],”
not “refer[s],” proposed amendments to the electors. Thus, to harmonize your proposed
measure with the text of the Constitution, the proposed measure and ballot title should use
the term “submit.”
• Consistency with terms in Amendment 7. In your proposed ballot title and the text of your
proposed measure, you use both the spellings “state-wide” and “statewide.” In Amendment
7’s current language, “state-wide” is used throughout. You may wish to make your use
uniform with Amendment 7’s.
• Grammatical issues. I have also identified a few grammatical changes and clarifications
that you may wish to make:
o In Opinion No. 2025-018, I noted that there was a clause in the “Initiative Popular
Name and Ballot Title” portion of your proposed measure and ballot title that stated,
“Any legal action against such certification shall be filed with the Supreme Court
within in forty-five (45) days of the Secretary of State’s publication.” I wrote that
your use of “within in” appeared to be an error. While you have changed “within
in” to “within” in your latest proposed ballot title, it still appears in the text of your
proposed amendment. You may wish to make this change to the text of your
proposed amendment as well.
o I also noted in Opinion No. 2024-018 that the Arkansas Supreme Court has
repeatedly noted that “and/or” is “at best … equivocal, obscure and meaningless,”
and at worst “slovenly, improper and a linguistic abomination.”15 The submission
here uses “and/or,” so I again note that you may wish to remove these uses.
14 Emphasis added.
15 Kennedy v. Papp, 294 Ark. 88, 92, 741 S.W.2d 625, 628 (1987) (cleaned up). Mr. David A. Couch
Opinion No. 2025-021
Page 7
o Similarly, your proposed ballot title also uses the term “she/he.” Writing authorities
reject this formulation, calling it a “contrived device” that should only be “[u]se[d]
… as a last resort.”16 “[T]here’s almost always a better choice,”17 such as “she or
he.”
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General
16 Bryan A. Garner, Garner’s Modern English Usage 540, 904 (5th ed. 2022).
17 Id. at 904.