IN THE SUPREME COURT OF ARKANSAS DRIVING ARKANSAS FORWARD LESLIE RUTLEDGE, ATTORNEY GENERAL

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1 IN THE SUPREME COURT OF ARKANSAS DRIVING ARKANSAS FORWARD ELECTRONICALLY FILED Arkansas Supreme Court Stacey Pectol, Clerk of the Courts 2018-Apr-20 11:26:50 CV Pages PETITIONER v. CASE NO. CV LESLIE RUTLEDGE, ATTORNEY GENERAL RESPONDENT RESPONSE TO PETITIONER S REQUEST FOR PRELIMINARY INJUNCTION AND WRIT OF MANDAMUS Driving Arkansas Forward (DAF) seeks review by this Court of its proposed constitutional amendment and requests a preliminary injunction, or alternatively, a writ of mandamus, against the Attorney General s rejection of the same. This Court should deny DAF s petition because (1) the Attorney General performed her duties under Ark. Code Ann , and DAF is not aggrieved by the Attorney General s rejection of DAF s ballot proposal; (2) DAF does not seek proper relief under that statute because DAF may not compel or control the Attorney General s discretionary review of DAF s ballot submittal by mandamus or injunctive relief; and (3) on the merits of DAF s petition, the Attorney General properly rejected DAF s ballot proposal as misleading. A. DAF s petition fails under Ark. Code Ann (d) to meet the threshold requirements for review by this Court. This Court should reject DAF s petition without reaching the merits because a ballot petition sponsor may only seek review from this Court where the Attorney General has refused to act on a ballot submittal, or where the petitioner is 1

2 aggrieved by the Attorney General s response. Ark. Code Ann (d). DAF fails to satisfy either of these conditions. First, the Attorney General has not refused to act on DAF s ballot submittal. Before any initiative and referendum petition ordering a vote upon any amendment or act may be circulated for signatures, the sponsor must submit a proposed ballot title and popular name to the Attorney General. Ark. Code Ann (a). Within ten days, the Attorney General must (1) approve and certify the ballot title and popular name; (2) substitute and certify a more suitable and correct ballot title and popular name; or (3) reject the entire ballot title, popular name, and petition and state his or her reasons therefore and instruct the petitioners to redesign the proposed measure and the ballot title and popular name in a manner that would not be misleading. Ark. Code Ann (b)-(c). Here, the Attorney General acted under Ark. Code Ann (c) by timely and properly rejecting DAF s ballot title because it did not fairly and correctly summarize the text of the measure itself where the measure s text contained several ambiguities. (Petition, p ) DAF concedes the Attorney General acted within the requirements of the statute when she found that DAF s ballot title was misleading. (Petition, 11.) Second, DAF is not aggrieved by the Attorney General s acts in such circumstances. As set forth below, the Attorney General s decision to reject DAF s ballot submittal was correct as a matter of law. Furthermore, the Attorney 2

3 General has not acted in any way that denies DAF any legal right. DAF has submitted a series of four ballot proposals, and in each instance the Attorney General reviewed the proposal and, in her discretion as authorized by statute, rejected the proposal, stated her reasons therefor, and instructed DAF to redesign the proposal in a manner that would not be misleading. (See Petition, p. 152.) DAF is free to redesign and resubmit its proposal in a manner that would not be misleading, but instead of doing so, it now seeks to circumvent the statutory process by petitioning this Court for improper relief. B. DAF s petition does not seek proper relief as required by Ark. Code Ann (d). DAF s petition seeks two types of relief in the alternative: (1) a writ of mandamus; or (2) a preliminary injunction. Neither of these is proper relief under the law. First, DAF would be entitled to a writ of mandamus only if it can show the Attorney General failed to perform a purely ministerial act required by Ark. Code Ann Clowers v. Lassiter, 363 Ark. 241, (2005). DAF is not entitled to a writ of mandamus where, as here, the Attorney General has complied with her duties under the statute by reviewing and informing DAF that its ballot measure is not eligible for certification. Arkansas Code Annotated requires nothing more of the Attorney General. Mandamus may not be sought for the purpose of controlling the discretionary acts of a state official. Russell v. Pope, 2015 Ark. 199, 2, 461 S.W.3d 681, 682; Robinson v. Craighead 3

4 County Bd. of Election Com'rs, 300 Ark. 405, 779 S.W.2d 169 (1989). DAF argues that the Attorney General exceeded her discretion in determining that the ballot measure was misleading. (Petition, 21.) By the plain text of Ark. Code Ann (c), the Attorney General s review of ballot proposals is unquestionably a discretionary process. The statute, however, places no boundaries on that discretion other than three possible dispositions, as described below, and two potential determinations by which the Attorney General may reject a ballot proposal. DAF may not, through a petition for writ of mandamus, control how the Attorney General exercises her discretion. While DAF has a right to submit a ballot petition and to have it reviewed and acted upon, it does not have a right to force a particular outcome of the Attorney General s review and disposition of the petition. See Russell v. Pope, supra. Because analyzing the validity of submitted ballot measures is a discretionary process and not a ministerial function, a petition for writ of mandamus compelling a specific result, i.e. certification or substitution, is not an application to this Court for proper relief as required by (d). Neither is injunctive relief against the Attorney General proper in this case. A state official may be enjoined from an act that is ultra vires, illegal, unconstitutional, or otherwise outside the official s authority. Ark. Dep t of Envtl. Quality v. Oil Producers of Ark., 2009 Ark. 297, 318 S.W.3d 570. A petitioner, 4

5 however, may not obtain injunctive relief against the lawful acts of a state official. Ark. Lottery Com n v. Alpha Mktng., 2013 Ark. 232, 428 S.W.3d 415. Arkansas Code Annotated (c) provides two grounds upon which the Attorney General is authorized to reject a ballot title without providing a substitution. Couch v. Rutledge, CV If, as a result of her review of the ballot title of a proposed constitutional amendment, the Attorney General determines that the ballot title, or the nature of the issue, is (1) presented in such manner that the ballot title would be misleading, or (2) designed in such manner that a vote FOR the issue would be a vote against the matter or viewpoint that the voter believes himself or herself casting a vote for, or, conversely, that a vote AGAINST an issue would be a vote for a viewpoint that the voter is against, the Attorney General may reject the entire ballot title, popular name, and petition and state his or her reasons therefor and instruct the petitioners to redesign the ballot title in a manner that would not be misleading. Ark. Code Ann (c). The Attorney General rejected DAF s ballot title because she determined, in her discretion, that the ballot title was misleading. Thus, the Attorney General lawfully rejected DAF s ballot title, and DAF s petition for a preliminary injunction is not an application to this Court for proper relief under (d). 5

6 C. DAF erroneously interprets Ark. Code Ann DAF argues the Attorney General exceeded her authority under Ark. Code Ann (c), and mistakenly asserts the Attorney General is required by statute to either approve and certify the ballot title submitted or to substitute and certify a more suitable and correct ballot title. (Petition, 26.) That assertion is without merit from a plain reading of the text of the statute. The three options for disposition after review are approval and certification, (b), substitution and certification, id., or rejection, (c). This Court has recently considered and rejected the same argument. Couch v. Rutledge, CV In Couch v. Rutledge, the petitioner argued he was entitled to either approval of his submitted ballot title or a substituted ballot title. Like DAF here, Couch sought an expedited preliminary injunction, asserting that Ark. Code Ann required the Attorney General to certify a substituted ballot title after his petition had been rejected. This Court denied Couch s motion for injunctive relief and dismissed his petition. The Court should reach the same result here. DAF claims, The purported reasons for the Attorney General s April 16, 2018 rejection of the Fourth Submission are incorrect; exceed the discretion provided to her under Ark. Code Ann (c); and unconstitutionally restrict, hamper, and impair the exercise of the rights reserved to the people under Article 5, section 1, of the Arkansas Constitution. (Petition, 19.) In Washburn v. Hall, 6

7 225 Ark. 868 (1956), this Court upheld the constitutionality of the Attorney General s review of ballot measures. To the extent DAF argues this Court should overrule Washburn, and assuming, arguendo, that the Attorney General s discretionary rejection of DAF s ballot title indeed violates Article 5, 1 of the Arkansas Constitution, then the only conclusion this Court may reach is that Ark. Code Ann must be struck in its entirety as unconstitutional. That conclusion would compel this Court to dismiss DAF s petition. D. The Attorney General properly rejected DAF s ballot title because it is misleading in several respects. If the Court reaches the petition s merits, it should conclude that the ballot title was properly rejected under (c) as misleading. This Court has held that ballot titles must adequately inform the voter of how the ballot proposal will change current law. Bradley v. Hall, 220 Ark. 925, 927, 251 S.W.2d 470, 471 (1952). The ballot title must include an impartial summary of the proposed amendment or act that gives the voter a fair understanding of the issues presented. Lange v. Martin, 500 S.W.3d 154, 157 (Ark. 2016), reh'g denied (Oct. 27, 2016); Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980). The ballot title must be intelligible, honest, and impartial. Ward v. Priest, 350 Ark. 345, 86 S.W.3d 884 (2002). Essential fact information omitted from the ballot title which would give the voter serious ground for reflection must be disclosed. Id. Furthermore, a ballot title cannot be approved if the text of the proposed measure 7

8 itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the measure. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). A careful comparison of DAF s proposed ballot text to the text of its proposed amendment reveals several inconsistencies that could lead to voter confusion. First, the ballot title and popular name represent that casinos will be located at Southland and Oaklawn. (Petition, p. 5.) There can be no certainty of this, however, because the proposed amendment explains that Southland and Oaklawn will be granted only an opportunity to operate casinos at specific locations. (Petition, p. 5.) There is no requirement that these two entities open and operate casinos. The popular name and ballot title leave voters with the impression that a vote for the measure will automatically create casinos at Southland and Oaklawn, though the amendment s text sets out that this is merely a possibility. These ambiguities between the ballot title and text do not give voters an honest and accurate picture of the proposed change in the law, and so the Attorney General correctly determined that the ballot title was misleading. This ambiguity alone is sufficient reason to reject DAF s petition. See Lange v. Martin, 2016 Ark. 337 (opining that the court need not reach the remaining grounds for determining sufficiency of a ballot title, where it found that the ballot title was insufficient on the first point). 8

9 Second, DAF s ballot title does not enable the voter to reach an intelligent and informed decision concerning whether Southland and Oaklawn are constitutionally mandated to operate horse and greyhound racing in perpetuity, whether or not those entities wish to continue operating. Specifically, the language continue to conduct and for so long as authorized appears to constitutionally mandate that private companies continue to operate, notwithstanding market conditions or other legitimate business concerns. The purpose and effect of this requirement are entirely unclear. The ballot title, therefore, does not give the voters a fair understanding of the scope and significance of the proposed change in law. The ballot title provides, Southland and Oaklawn shall continue to conduct horse racing or greyhound racing, as the case may be, from their facilities for so long as authorized under Arkansas law, and the Commission shall impose penalties on Southland or Oaklawn if either violates this provision. However, the measure contains no definition of allowable penalties and fails to give clear guidance to the Commission for adoption of rules on enforcement of this provision. It is further unclear whether penalties are imposed for declining to operate a private business or for operating a business without authorization under Arkansas law. To that end, voters cannot cast their ballots with a fair understanding of the issue presented. Third, the ballot initiative contains ambiguities about the types of licenses available for casino operations. Subsections 4(a) and 4(b) are confusing because 9

10 they imply that the Racing Commission will administer two different licenses for casino operations one for facilities and one for operations. The apparent distinction between a license for a casino facility and for operating a casino is significant. Under subsection 4(t), [n]o individual, corporation, partnership, association, trust, or other entity may hold more than one casino license [to operate] in Arkansas. There is no similar limitation, however, on a license for a casino facility. This ambiguity suggests that someone holding a license to operate a casino is not prevented from obtaining more than one license for a casino facility. Thus, the ballot measure is misleading. Fourth, the ballot title is silent concerning compensation to casino licensees, and the details of compensation in the proposed amendment s text are ambiguous. Subsection 4(u) states that [t]he casino licensee may receive compensation for providing the goods and services allowed by this Amendment. That a casino licensee may receive compensation is ambiguous. It is unclear whether a licensee has the discretion on its compensation, whether the Commission will have the authority to approve the compensation, or something else entirely. Further, it is unclear whether the services for which a licensee may receive compensation are related to casino gaming and it is also unclear as to what goods a casino licensee would provide. Moreover, the ballot proposal does not clearly indicate whether the licensee must itself operate the facility, or whether the casino license is 10

11 transferable and its operational responsibilities assignable. These are important matters pertaining to the compensation provision. Finally, the measure does not specify the source of compensation. Voters may assume that compensation is paid out of gross receipts, but the measure does not make clear this intent. DAF s proposal establishes an entire new industry in Arkansas. Considering the significance of compensation, voters should be fully apprised of the meaning and effect of this provision, which is not addressed or summarized in the ballot title. In Lange v. Martin, 2016 Ark. 337, this Court held that the impact of omitted language in a ballot title is whether knowledge of that language would give voters a serious basis for reflection on how to cast their ballots. The omission of a material issue is sufficient basis to strike a proposed amendment. Walton v. McDonald, 192 Ark (1936). Compensation for goods and services provided is a material issue, the omission of which is fatal to DAF s proposal because, if included, it would give voters serious ground for reflection on how to vote. Bailey v. McCuen, 318 Ark. 277 (1994). The Attorney General properly determined in her discretion that omitted language in DAF s proposed ballot title renders the proposal misleading. This Court should decline to reach the merits of DAF s petition, but if it does so, it should conclude that the Attorney General has performed her statutory duty to review DAF s ballot proposal in her discretion and 11

12 within the requirements of Ark. Code Ann , and should, therefore, deny DAF s petition for relief. Respectfully submitted, LESLIE RUTLEDGE Attorney General By: By: /s/ Kat R. Hodge KaTina R. Hodge Ark. Bar No Assistant Attorney General /s/ Monty Vaughan Baugh Monty Vaughan Baugh Ark. Bar No Deputy Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, AR Phone: (501) Fax: (501) KaTina.Hodge@arkansasag.gov Monty.Baugh@arkansasag.gov Attorneys for Respondent 12

13 CERTIFICATE OF SERVICE I, Kat R. Hodge, hereby certify that on April 20, 2018, I electronically filed the foregoing with the Clerk of the Court using the Court s eflex system, which shall advise all parties of record, including: Alex T. Gray alex@swghfirm.com Nate Steel nate@swghfirm.com Jeremy Hutchinson jeremy@swghfirm.com Steel, Wright, Gray & Hutchinson, PLLC 400 West Capitol Avenue, Suite 2910 Little Rock, AR /s/ Kat R. Hodge Katina R. Hodge 13