Donovan v. Priest

Eugenia T. DONOVAN, Individually, and On
Behalf of All Others Similarly Situated,
Petitioner v. Sharon PRIEST, Secretary of
State of the State of Arkansas, Respondent;
Arkansas Term Limits, Frank Gilbert, and
Spencer G. Plumley, Intervenors

96-1120                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 21, 1996


1.   Elections -- initiative & referendum -- supreme court's
     jurisdiction to hear challenge is original and exclusive. --
     The supreme court's jurisdiction to hear an initiative
     challenge is original and exclusive pursuant to Amendment 7 of
     the Arkansas Constitution.

2.   Elections -- initiative & referendum -- burden of proof --
     scope of Amendment 7. -- In legal challenges to initiative
     matters, Ark. Const. amend. 7 places the burden of proof "upon
     the person or persons attacking the validity of the petition";
     regarding the scope of Amendment 7 and its incorporation of
     the reserved rights of the people, the supreme court has
     previously observed that Arkansas voters essentially have,
     within constitutional limits, a right to change any law or any
     provision of the state constitution that they deem appropriate
     through Ark. Const. amend. 7. 

3.   Constitutional law -- Ark. Const. amend. 7 cannot empower
     people to initiate any measure outside reserved powers. -- The
     constitutional limitations on the voters' right to change any
     law or state constitutional provision through Ark. Const.
     amend. 7 derive from both the United States and Arkansas
     Constitutions; on the federal level, the rights reserved to
     the states and to the people of the states originate from the
     Tenth Amendment to the United States Constitution, which
     provides that "[t]he powers not delegated to the United States
     by the Constitution, nor prohibited by it to the States, are
     reserved to the States respectively, or to the people"; thus,
     Amendment 7 cannot empower the people of Arkansas to initiate
     any measure, law, or amendment that falls outside the powers
     reserved to the states and their citizens by the United States
     Constitution. 

4.   Elections -- initiative & referendum -- justiciability --
     factors to be weighed. -- In addition to the consideration of
     whether a proposed measure is clearly contrary to law, the
     supreme court has indicated that in determining whether an
     issue is justiciable, factors to be weighed include whether
     the issue at hand is a matter of significant public interest
     and a matter of constitutional law. 

5.    Elections -- initiative & referendum -- justiciability --
     when case is ripe. -- A case such as this one is ripe for the
     following reasons: (1) the case is concrete, and the record
     will not be improved by waiting until after the election is
     held; (2) the factual controversy (whether procedural and
     subject-matter requirements have been met) exists before the
     election; (3) post-election events will not sharpen the
     issues, as no additional facts are necessary for decision; and
     (4) the issue is not speculative or hypothetical because the
     only constitutional issues involved are those that govern the
     proponents' right to invoke the direct-legislation process.

6.   Actions -- justiciability -- when declaratory relief will lie
     -- requirements satisfied. -- Regarding justiciability in
     general, the supreme court has held that declaratory relief
     will lie where (1) there is a justiciable controversy; (2) it
     exists between parties with adverse interests; (3) those
     seeking relief have a legal interest in the controversy; and
     (4) the issues involved are ripe for decision; here, there was
     clearly a case in controversy over the effect and application
     of proposed Amendment 9 between parties with adverse
     interests; as a citizen, resident, taxpayer, and registered
     voter, petitioner had a legal interest in the controversy; as
     to ripeness, it has been viewed as largely a matter of timing.

7.   Elections -- initiative & referendum -- review of sufficiency
     of proposed measure includes review of whether proponents are
     entitled to invoke direct initiative process. -- The supreme
     court held that its review of the sufficiency of a proposed
     measure, as provided for in Ark. Const. amend. 7, includes a
     review of whether the measure's proponents are entitled to
     invoke the direct initiative process when the issue is
     properly presented; the court distinguished such a procedural
     challenge from a substantive constitutional challenge to a
     proposed measure before an election has been held, noting that
     substantive constitutional challenges necessarily involve
     fact-specific issues and thus are not ripe for review until
     the proposed measure becomes law and a case in controversy
     arises. 

8.   Constitutional law -- act of ratification by state derives its
     authority from United States Constitution -- initiative and
     referendum does not provide same power. -- Although the power
     to legislate in the enactment of the laws of a state is
     derived from the people of the state, the power to ratify a
     proposed amendment to the United States Constitution has its
     source in the United States Constitution; the act of
     ratification by the state derives its authority from the
     federal constitution to which the state and its people have
     alike assented; Article V of the United States Constitution
     only authorized state legislatures (i.e., the law-making
     bodies themselves) to ratify amendments to the United States
     Constitution; the people, through the process of initiative
     and referendum, do not have the same power.

9.   Constitutional law -- any measure that purports to take away
     power from state legislatures to ratify proposed amendments to
     United States Constitution is unconstitutional. -- Any measure
     that purports to place the power to ratify proposed amendments
     to the United States Constitution in the hands of the people
     of the states and that takes such power away from the state
     legislatures is unconstitutional because it conflicts with
     Article V of the United States Constitution; the function of
     a state legislature in ratifying a proposed amendment to the
     United States Constitution, like the function of Congress in
     proposing the amendment, is a federal function derived from
     the United States Constitution, and it transcends any
     limitations sought to be imposed by the people of a state.

10.  Elections -- initiative & referendum -- proposed amendment
     nothing more than coercive attempt to compel state legislature
     to do as alleged majority wished. -- The supreme court held
     that proposed Amendment 9 was nothing more than a coercive
     attempt to compel the Arkansas General Assembly to do as the
     alleged majority of the people wished, without any
     intellectual debate, deliberation, or consideration of whether
     such action would be in the best interest of all the people of
     the state.

11.  Elections -- initiative & referendum -- proposed amendment
     clearly violative of U.S. Const. art. 5. -- The supreme court
     held that proposed Amendment 9 was clearly violative of the
     provision in Article V of the United States Constitution that
     all proposals of amendments to that Constitution must come
     either from Congress or state legislatures and not from the
     people; it was an indirect attempt to propose an amendment to
     the United States Constitution, and as such violated the
     narrow, specific grants of authority provided in Article V;
     proposed Amendment 9 would virtually tie the hands of the
     individual members of the General Assembly so that they would
     no longer be part of a deliberative body acting independently
     in exercising their individual best judgments on every issue;
     consequently, the measure was an impermissible use of the
     initiative power reserved to the people of the state in
     Amendment 7 to the Arkansas Constitution and was clearly
     contrary to law.

12.  Elections -- initiative & referendum -- injunctive relief
     granted. -- The supreme court enjoined respondent from placing
     proposed Amendment 9 on the general-election ballot or,
     alternatively, from declaring the results.  


     Original Action Petition; granted.
     Friday, Eldredge & Clark, by:  Paul B. Benham III, Elizabeth
Robben Marray, and Robert S. Shafer, for petitioner.
     Winston Bryant, Att'y Gen., by:  Tim Humphries, Deputy Att'y
Gen., and William F. Knight, Ass't Att'y Gen., for respondent.
     Kelly Law Firm, by: A.J. Kelly, for intervenors.

     Donald L. Corbin, Justice.
     Petitioner, Eugenia T. Donovan, citizen and taxpayer, asks
this court to enjoin Respondent, Secretary of State Sharon Priest,
from placing the proposed Amendment 9 to the Arkansas Constitution
on the ballot for the general election on November 5, 1996. 
Petitioner also requests that any votes that may have already been
cast for the proposed Amendment 9 not be counted.  We allowed the
intervention of three additional parties in this original action,
which was filed pursuant to Amendment 7 to the Arkansas
Constitution of 1874:  "Arkansas Term Limits," the unincorporated
sponsor of the proposed Amendment 9; Frank Gilbert, Executive
Director of "Arkansas Term Limits"; and Spencer G. Plumley,
Chairman of "Arkansas Term Limits."
     Petitioner asserts that the proposed Amendment 9 exceeds the
legislative powers reserved to the people of this state by our
Amendment 7 in that it directly contravenes the amendment process
provided for in Article V of the United States Constitution. 
Respondent and Intervenors contend that the proposed Amendment 9
does not exceed the powers of the people reserved in Amendment 7
and that, even if it did, Petitioner's challenge to the proposal is
a question of substantive constitutional law that is not yet ripe
for our review.  Our jurisdiction to hear this case is original and
exclusive pursuant to Amendment 7 of the Arkansas Constitution.
                      I.  Justiciability  
     Respondent and Intervenors urge us to decline review of
Petitioner's constitutional challenge to the proposed Amendment 9
because the issue is not ripe for adjudication and, as such, any
opinion issued by this court on the matter would be purely
advisory.  Petitioner asserts that our review of the sufficiency of
the petition for this proposed amendment, as provided in Amendment
7, necessarily encompasses the issue of whether the proposal is
within the powers reserved to the people in Amendment 7. 
Petitioner argues that the people of this state do not have the
right to propose such a measure as the proposed Amendment 9, which
instructs the legislators of this state, along with the Arkansas
delegation to Congress, to use all the powers of their respective
offices in proposing and securing an amendment to the United States
Constitution limiting the number of terms members of Congress may
serve.  Petitioner asserts that the procedures for proposing
amendments to the United States Constitution are specifically and
exclusively provided for in Article V of that Constitution.
Respondent and Intervenors counter that Petitioner's argument is
nothing more than a substantive constitutional challenge to the
proposal, and as such, our review of the issue is not proper unless
and until the measure has become law.  
     Our reading of the proposed Amendment 9 indicates that it is
procedural in nature, purporting to empower the electorate with an
indirect and prohibited means to propose an amendment to the United
States Constitution.  Hence, we agree that the threshold issue
presented requires an analysis of whether such a procedure is
encompassed within the powers reserved to the people of this state
in Amendment 7.  
     Amendment 7 to the Arkansas Constitution of 1874 provides in
part:
          The legislative power of the people of this State
     shall be vested in a General Assembly, which shall
     consist of the Senate and House of Representatives, but
     the people reserve to themselves the power to propose
     legislative measures, laws and amendments to the
     Constitution, and to enact or reject the same at the
     polls independent of the General Assembly[.]  [Emphasis
     added.]

     Amendment 7 further provides that the sufficiency of statewide
petitions for initiatives shall be decided in the first instance by
the Secretary of State, subject to the review of the supreme court
which has original and exclusive jurisdiction over such causes.  
Upon legal challenges to initiative matters, Amendment 7 places the
burden of proof "upon the person or persons attacking the validity
of the petition."  As to the scope of Amendment 7 and its
incorporation of the reserved rights of the people, this court has
previously observed that "[t]he voters of this state essentially
have, within constitutional limits, a right to change any law or
any provision of our Constitution they deem appropriate through
Amendment 7 to the Constitution."  Dust v. Riviere, 277 Ark. 1, 4,
638 S.W.2d 663, 665 (1982) (emphasis added).  Clearly those
constitutional limitations derive from both the United States
Constitution and this state's constitution.  On the federal level,
the rights reserved to the states and to the people of the states
originate from the Tenth Amendment to the United States
Constitution, which provides that "[t]he powers not delegated to
the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people." 
Thus, our Amendment 7 cannot empower the people of this state to
initiate any measure, law, or amendment which falls outside the
powers reserved to the states and their citizens by the United
States Constitution.  We understand this to be the essence of
Petitioner's challenge. 
     This court has previously decided cases in which it reviewed
the validity of the people's reserved powers of initiative and
referendum.  In Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984),
this court was presented with a challenge to the validity of a
proposed local initiative.  In determining that such a review of
the initiative could be conducted by this court prior to the
election, the majority opinion stated:
          At the outset the appellees argue that we should
     permit the measures to be placed on the ballot without
     first determining their validity. Certainly it is true
     that a party who resists an initiated petition on grounds
     such as insufficiency of signatures or improper ballot
     title is not required to question the validity of the
     proposed measure. On the other hand, that question may be
     considered and decided when it is properly raised, even
     before the election. Proctor v. Hammans, 277 Ark. 247,
     640 S.W.2d 800 (1982); Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912).
Id. at 459, 677 S.W.2d  at 835 (emphasis added).
     In Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912), this
court considered our state's previous Initiative and Referendum
Amendment, which is comparable to our present-day Amendment 7,
together with its enabling clause and determined that it was the
duty of this court to determine the validity of a proposed
amendment before such became law.  The court concluded that it must
determine whether the proposed measure is "subject to the
initiative power of the people, and that the petition is legally
sufficient[.]"  Id. at 591, 149 S.W.  at 659 (emphasis added).  
     More recently in Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992), this court declined to address the petitioners'
substantive constitutional challenge as to whether a proposed
measure conflicted with the Qualifications Clause of the United
States Constitution.  The majority opinion did, however,
acknowledge that this court had previously addressed constitutional
challenges to a proposal's validity, but limited such review to
situations where the proposed measure was "clearly contrary to law"
and, therefore, should not be submitted to the electorate.  Id. at
660, 841 S.W.2d  at 142.  In addition to the consideration of
whether a proposed measure is "clearly contrary to law," this court
has indicated that in determining whether an issue is justiciable,
factors to be weighed include whether the issue at hand is a matter
of significant public interest and a matter of constitutional law. 
See U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349
(1994); Bryant v. English, 311 Ark. 187, 843 S.W.2d 308 (1992).  
     It has been said that the pertinent issue in cases such as
this one "is not the hypothetical question whether the law, if
passed, would be constitutionally defective; rather, it is the
present and ripe question whether the measure's proponents are
entitled to invoke the direct legislation process at all."  James
D. Gordon III & David B. Magleby, Pre-Election Judicial Review of
Initiatives and Referendums, 64 Notre Dame L. Rev. 298, 314 (1989)
(emphasis added).  We agree, especially when considering our
decisions in Czech, Hodges, and Plugge.  We also agree that a case
such as this one is ripe for the following reasons:  (1) The case
is concrete and the record will not be improved by waiting until
after the election is held; (2) the factual controversy -- whether
procedural and subject-matter requirements have been met -- exists
before the election; (3) post-election events will not sharpen the
issues, as no additional facts are necessary for decision; and (4)
the issue is not speculative nor hypothetical because the only
constitutional issues involved are those that govern the
proponents' right to invoke the direct-legislation process.  Id.
     Regarding justiciability in general, this court has previously
stated that declaratory relief will lie where (1) there is a
justiciable controversy; (2) it exists between parties with adverse
interests; (3) those seeking relief have a legal interest in the
controversy; and (4) the issues involved are ripe for decision.
U.S. Term Limits, Inc., 316 Ark. 251, 872 S.W.2d 349.  Here, there
is clearly a case in controversy over the effect and application of
the proposed Amendment 9 between parties with adverse interests. 
Certainly Petitioner as a citizen, resident, taxpayer, and
registered voter has a legal interest in the controversy.  As to
the issue of ripeness, the federal courts have viewed it as largely
a matter of timing.  Thorsted v. Gregoire, 841 F. Supp. 1068 (W.D.
Wash. 1994).  In Thorsted, the district court pointed out that the
United States Supreme Court has recognized the importance in
deciding challenges to the constitutionality of election laws when
it held that "[j]usticiability in such cases depends not so much on
the fact of the past injury but on the prospect of its occurrence
in an impending or future election."  Id. at 1075 (quoting Babbitt
v. United Farm Workers Nat'l Union, 442 U.S. 289, 300, n. 12
(1979)).
     Other courts have conducted preelection reviews of a proposed
measure's validity.  In Hawke v. Smith, No. 1, 253 U.S. 221 (1920),
the United States Supreme Court considered the issue of whether a
proposed measure was constitutional under Article V of the United
States Constitution before it had been enacted into law.  The
Supreme Court of California has interpreted Hawke as direct
authority for the proposition that a state court can remove a
proposed amendment from a state election ballot on the ground that
it does not conform to Article V, and by implication, that a state
court has authority to adjudicate that preelection question.  See,
e.g., AFL-CIO v. Eu, 686 P.2d 609 (Cal. 1984).
     Based on the aforementioned decisions of this court as well as
other courts, we hold that our review of the sufficiency of a
proposed measure, as provided for in Amendment 7, includes a review
of whether the measure's proponents are entitled to invoke the
direct initiative process when such issue is properly presented. 
In so holding, we do not conclude that we will entertain
substantive constitutional challenges to a proposed measure, such
as whether it violates the free speech provision of the First
Amendment, before an election has been held.  We distinguish such
substantive constitutional challenges from procedural challenges in
that the former necessarily involve fact-specific issues and thus
are not ripe for review until the proposed measure becomes law and
a case in controversy arises.  Given that the review we are asked
to conduct in this case is not one of direct review of the proposed
amendment's validity, but rather one of whether the proposed
amendment's advocates are entitled to invoke our initiative process
in the first place, we will address the merits of Petitioner's
challenge.  Our discussion of this issue necessitates our review of
the powers authorized by Article V of the United States
Constitution and the case law that has interpreted those powers.  
                  II.  Constitutional Challenge
     Article V of the United States Constitution provides in
pertinent part: 
          The Congress, whenever two thirds of both Houses
     shall deem it necessary, shall propose Amendments to this
     Constitution, or, on the Application of the Legislatures
     of two thirds of the several States, shall call a
     Convention for proposing Amendments, which, in either
     Case, shall be valid to all Intents and Purposes, as Part
     of this Constitution, when ratified by the Legislatures
     of three fourths of the several States, or by Conventions
     in three fourths thereof, as the one or the other Mode of
     Ratification may be proposed by the Congress[.]
 
     The pertinent sections of the proposed Amendment 9 provide as
follows:
               (e)  It is the will of the people of the State
     of Arkansas that the following amendment be added to the
     United States Constitution:
               Congressional Term Limits Amendment
               Section a.  No person shall serve in the office
     of United States Representative for more than three
     terms, but upon ratification of this amendment no person
     who has held the office of United States Representative
     or who then holds the office shall serve for more than
     two additional terms.
               Section b.  No person shall serve in the office
     of United States Senator for more than two terms, but
     upon ratification of this amendment no person who has
     held the office of United States Senator or who then
     holds the office shall serve more than one additional
     term.
               Section c.  This article shall have no time
     limit within which it must be ratified by the
     legislatures of three-fourths of the several states.
          . . . .
               (g)  Each member of the Arkansas delegation to
     the United States Congress is hereby instructed to use
     all of the powers of the Congressional office to pass the
     Congressional Term Limits Amendment set forth in
     subsection (e) above.
               (h)  All primary, general, and special election
     ballots shall have the information "DISREGARDED VOTER
     INSTRUCTION ON TERM LIMITS" printed adjacent to the name
     of any United States Representative or United States
     Senator who:
                    (1) Failed to vote in favor of the
     Congressional Term Limits Amendment proposed in
     subsection (e) when brought to any vote; 
                    (2) Failed to second the Congressional
     Term Limits Amendment proposed in subsection (e) if it
     lacked for a second before any proceeding of the
     legislative body;
                    (3)  Failed to propose or otherwise bring
     to a vote of the full legislative body the Congressional
     Term Limits Amendment proposed in subsection (e) above if
     it otherwise lacked a legislator who so proposed or
     brought to a vote of the full legislative body the
     Congressional Term Limits Amendment proposed in
     subsection (e) above; or
                    (4)  Failed to vote in favor of
     discharging the Congressional Term Limits Amendment
     proposed in subsection (e) before any committee or
     subcommittee upon which the legislator served in the
     respective legislative body; or
                    (5)  Failed to vote against or reject any
     attempt to delay, table, or otherwise prevent a vote by
     the full legislative body on the Congressional Term
     Limits Amendment set forth in subsection (e); or
                    (6)  Failed to vote against any term
     limits proposal with terms longer than those set forth in
     the Congressional Term Limits Amendment proposed in
     subsection (e); or
                    (7)  Sponsored or co-sponsored any
     proposed constitutional amendment or law that proposes
     term limits longer than those in the Congressional Term
     Limits Amendment set forth in subsection (e); or
                    (8)  Failed to ensure that all legislative
     votes on congressional term limits were recorded and made
     available to the public.
          . . . .
               (k)  The House of Representatives of the State
     of Arkansas, and the Arkansas Senate, due to the desire
     of the people of the State of Arkansas to establish term
     limits for the Congress of the United States, are hereby
     instructed to make the following application to the
     United States Congress, pursuant to their powers under
     Article V of the United States Constitution, to wit:
               "We, the people and legislature of the State of
     Arkansas, due to our desire to establish term limits on
     the members of the Congress of the United States, hereby
     make application to the United States Congress, pursuant
     to our power under Article V of the United States
     Constitution, to call a convention for proposing
     amendments to the Constitution."
          . . . .
                    (1)  All primary, general, and special
     election ballots shall have the information "DISREGARDED
     VOTER INSTRUCTION ON TERM LIMITS" printed adjacent to the
     name of any state senator or state representative who:
                         (a)  Failed to vote in favor of the
     application set forth in subsection (k) above when
     brought to a vote; or
                         (b)  Failed to second the application
     set forth in subsection (k) above if it lacked a second;
     or
                         (c)  Failed to vote in favor of all
     votes bringing the application set forth in subsection
     (k) above before any committee or subcommittee upon which
     the legislator served; or
                         (d)  Failed to propose or otherwise
     bring to a vote of the full legislative body the
     application set forth in subsection (k) if it otherwise
     lacked a legislator who so proposed or brought to a vote
     of the full legislative body the application set forth
     above; or
                         (e)  Failed to vote against any
     attempt to delay, table, or otherwise prevent a vote by
     the full legislative body on the application set forth in
     subsection (k) above; or
                         (f)  Failed to ensure that all votes
     on the application set forth in subsection (k) were
     recorded and made available to the public; or
                         (g)  Failed to vote against any
     change, addition, or modification to the application set
     forth in subsection (k) above; or
                         (h)  Failed to attend a hearing,
     session, or vote of the legislative body concerning any
     aspect of consideration of the proposals in subsection
     (e) and subsection (k) above, where such failure to
     attend resulted in any failure to obtain a quorum
     sufficient to  conduct business; or
                         (i)  Failed to move for, second, or
     vote in favor of a roll-call vote on any aspect of
     consideration of the proposals in subsection (e) and
     subsection (k) above, where such failure resulted in the
     defeat of any aspect of subsection (e) and subsection (k)
     above, without recording the votes of individual
     legislators to be held accountable at a later time.
                         (j)  Failed to vote against any
     effort to rescind the application.
                         (k)  Failed to vote in favor of the
     amendment set forth in subsection (e) above, when the
     amendment was sent to the states for ratification; or
                         (1)  Failed to vote against any term
     limits amendment with terms longer than the limits set
     forth in the proposed amendment in subsection (e) above,
     when such an amendment is sent to the states for
     ratification.
          . . . .
               (n)(1)  The Secretary of State of the State of
     Arkansas shall be responsible for making an accurate
     determination as to whether a candidate for state or
     federal legislative office shall have placed next to the
     candidate's name on the election ballot the information
     "DISREGARDED VOTER INSTRUCTION ON TERM LIMITS" or the
     information "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS"
     and for certifying the appropriate indication to the
     appropriate county clerks and other appropriate voting
     officials.  [Emphasis added.]

     It is clear from the aforementioned provisions that the
proposed Amendment 9, which bears the popular name "THE
CONGRESSIONAL TERM LIMITS AMENDMENT OF 1996," directs both state
and federal legislators to use the power of their respective
offices to advance the cause of adopting a proposed amendment to
the United States Constitution that would limit the number of terms
of United States Representatives and Senators.  The proposed
Amendment 9 also directs the General Assembly to use the power
specifically granted to the state legislatures in Article V to ask
the United States Congress to call a constitutional convention. 
The proposed Amendment 9 essentially provides for a vote of the
people to initiate the application process for a constitutional
convention and, likewise, it provides for a vote of the people to
propose to Congress an amendment to the United States Constitution. 
In the event any individual legislator, state or federal, fails to
do as instructed, the proposed Amendment 9 states that the words
"DISREGARDED VOTER INSTRUCTION ON TERM LIMITS" shall be placed
adjacent to their names on any ballots in future elections.      
     Respondent and Intervenors assert that the proposed Amendment
9 does not contravene Article V because it neither prevents nor
compels any action by any legislator, state or federal; it merely
puts the legislators on notice of the desire of the people to have
term limits on members of Congress.  Further, Respondents and
Intervenors assert that the main focus of this proposed amendment
is its provision for additional ministerial duties of the Secretary
of State, and that there is no binding effect on any legislative
power nor any penalty assessed to legislators.  As discussed
earlier, we limit our review to the only justiciable issue --
whether Amendment 7 reserves to the people of the State of Arkansas
the power to propose amendments to the United States Constitution
and to make application to Congress for a constitutional
convention.  In order to resolve this issue, it is helpful to
review the case law interpreting the provisions of Article V.   
     In Hawke, 253 U.S. 221, the Supreme Court determined that a
provision of the Ohio constitution extending the referendum to the
ratification process of proposed amendments to the United States
Constitution was in conflict with Article V.  The Court stated that
Article V provides for the proposal of constitutional amendments
only by votes of two-thirds of both houses of Congress or upon
application of the legislatures of two-thirds of the states, "thus
securing deliberation and consideration before any change can be
proposed."  Id. at 226.  The Court further stated that "[t]he
language of the article is plain, and admits of no doubt in its
interpretation.  It is not the function of courts or legislative
bodies, national or state, to alter the method which the
Constitution has fixed."  Id. at 227.  The Court defined the term
"legislatures" as the representative body which makes the laws of
the people -- not the people themselves.  Id.  In concluding that
the power to ratify a proposed amendment to the United States
Constitution is derived from that Constitution, the Court wrote:
          It is true that the power to legislate in the
     enactment of the laws of a State is derived from the
     people of the State.  But the power to ratify a proposed
     amendment to the Federal Constitution has its source in
     the Federal Constitution.  The act of ratification by the
     State derives its authority from the Federal Constitution
     to which the State and its people have alike assented.

Id. at 230 (emphasis added).  Ultimately, the Court held that
Article V only authorized state legislatures (i.e. the law-making
bodies themselves) to ratify amendments to the United States
Constitution.  The Court thus concluded that the people, through
the process of initiative and referendum, did not have the same
power.  
     Two years after the decision in Hawke, the Supreme Court had
another occasion to address the ability, or lack thereof, of the
people of the states to ratify a proposed amendment to the United
States Constitution.  In Leser v. Garnett, 258 U.S. 130 (1922), the
Court held that any measure which purports to place the power to
ratify proposed amendments to the United States Constitution in the
hands of the people of the states, and which takes such power away
from the state legislatures is unconstitutional because it
conflicts with Article V.  The Court held:
     [T]he function of a state legislature in ratifying a
     proposed amendment to the Federal Constitution, like the
     function of Congress in proposing the amendment, is a
     federal function derived from the Federal Constitution;
     and it transcends any limitations sought to be imposed by
     the people of a State.

Id. at 137 (citations omitted) (emphasis added).  
     Respondent and Intervenors argue that neither Hawke nor Leser
is applicable to the situation presented in this case because both
cases pertain only to the ratification clause of Article V. 
Instead, they assert that Kimble v. Swackhamer, 439 U.S. 1385
(Rehnquist, Circuit Justice 1978) is controlling.  Their reliance
on Kimble is misplaced, however, as the factual scenario presented
in Kimble is opposite to that in the instant case.  In Kimble, the
Nevada state legislature had requested an advisory referendum from
the people as to their positions on the proposed Equal Rights
Amendment to the United States Constitution, ostensibly for the
purpose of polling their constituents.  Justice Rehnquist, acting
in his capacity as Circuit Justice, concluded that the citizen
participation in the amendatory process in that particular instance
was not unconstitutional because of the nonbinding character of the
referendum.  While acknowledging the soundness of the previous
holdings in Hawke and Leser, Justice Rehnquist concluded that
neither of those cases ruled out "communication" between
legislators and their constituents.  Id. at 1387-88.  That is not
the case with proposed Amendment 9, which we conclude goes beyond
a mere advisory referendum or a nonbinding communication between
legislators and citizens.  
     In State ex rel. Harper v. Waltermire, 691 P.2d 826 (1984),
the Supreme Court of Montana considered the issue of whether the
people of that state could dictate to the state legislature that an
application be made to Congress to call a constitutional
convention.  Specifically, the proposed ballot measure, not unlike
the one at hand, directed the Montana Legislature to submit
application to Congress for a constitutional convention in order to
propose a balanced-budget amendment to the United States
Constitution.  The measure further provided that if the state
legislature failed to make such application within ninety days, it
had to remain in session, with only three days of permissible
recess and without pay to the legislators until such application
was made.  
     Relying on the holdings of Hawke and Leser, the Montana court
held that the word "legislatures," as used in both the ratification
clause and the proposal clause of Article V, referred to the
legislative bodies of the states.  The court reasoned that the
framers of the United States Constitution would not have ascribed
different meanings to the two instances in Article V where the word
"legislatures" is found.  The court further echoed the framers'
sentiments that the amendatory process should be deliberate,
holding that "whenever a state legislature acts to amend the United
States Constitution under Article V powers, the body must be a
deliberative representative assemblage acting in the absence of any
external restrictions or limitations."  State ex rel. Harper, 691 P.2d  at 830.  
     The sponsors of the Montana measure argued, just as Respondent
and Intervenors do in this case, that the initiative was merely a
nonbinding recommendation to the legislature.  In rejecting that
argument, the Montana court pointed to the express language
directing the actions of the legislature as well as the
consequences for not following those directions, namely that the
legislature would be kept in "perpetual session" and, after a
period of ninety days, legislators would no longer receive
compensation.  Id.  The court determined that such restrictions
violated the spirit of Article V as interpreted in Hawke and Leser. 
Finally, the court concluded that "[l]egislative deliberation
cannot exist where the outcome is a predetermined specific
action. . . .  The people through initiative cannot affect the
deliberative process."  State ex rel. Harper, 691 P.2d  at 830-31. 
     In Eu, 686 P.2d 609, the Supreme Court of California
considered the constitutionality of a similar proposed ballot
measure.  The proposed measure at issue there would have compelled
the California Legislature, on penalty of loss of salary, to apply
to Congress to call a constitutional convention for the purpose of
proposing a balanced-budget amendment.  In concluding that the
proposed measure did not conform to Article V of the United States
Constitution, the court stated:
     Article V provides for application by the "Legislatures
     of two-thirds of the several States," not by the people
     through the initiative; it envisions legislators free to
     vote their best judgment, responsible to their
     constituents through the electoral process, not puppet
     legislators coerced or compelled by loss of salary or
     otherwise to vote in favor of a proposal they may believe
     unwise.

Id. at 613.

     The California court reasoned that the purpose of that state's
initiative process is to allow a means of enacting legislation, not
a means of conducting public opinion polls.  The court stated that
the voters were not without remedy, as they had ample opportunity
to make their views known to the various candidates through the
campaign process.  The court acknowledged that the United States
Supreme Court had not yet addressed this particular issue involving
Article V's proposal clause, but it found the Court's previous
interpretations of Article V's ratification clause to be
persuasive.  Furthermore, the court cited with approval an earlier
determination by the Supreme Judicial Court of Massachusetts that
the reference to "legislatures" in the proposal clause, like that
in the ratification clause, meant the legislative body of a state,
not the whole legislative process.  Eu, 686 P.2d  at 620 (citing
Opinion of the Justices to the Senate, 366 N.E.2d 1226 (Mass.
1977)).  
     The California court further submitted that the framers of the
United States Constitution knew exactly what distinction they were
making in providing that only "Legislatures" were able to make
application to Congress to convene a constitutional convention. 
Relying on the constitutional analysis in Hawke, 253 U.S. 221, and
Barlotti v. Lyons, 189 P. 282 (Cal. 1920), the court wrote:
     The framers were, of course, aware of the difference
     between a representative body and the electorate as a
     whole; they knew that a legislature is a deliberative
     body, empowered to conduct hearings, examine evidence,
     and debate propositions.  Its members may be assumed
     generally to hold views reflecting the popular will, but
     no one expects legislators to agree with their
     constituents on every measure coming before that body. 
     Yet, although undoubtedly aware that the views of a
     deliberative body concerning a proposed amendment might
     depart from those of a majority of the voters, the
     framers of the Constitution chose to give the voters no
     direct role in the amending process; legislatures alone
     received the power to apply for a national convention,
     and legislatures or conventions, as Congress chose, the
     power to ratify amendments.

          The only conclusion we can draw from this fact is
     that the drafters wanted the amending process in the
     hands of a body with the power to deliberate upon a
     proposed amendment and, after considering not only the
     views of the people but the merits of the proposition, to
     render a considered judgment.  A rubber stamp legislature
     could not fulfill its function under article V of the
     Constitution.

Eu, 686 P.2d  at 621 (footnote omitted) (emphasis added).
     Most recently, the Supreme Judicial Court of Maine was asked
by its house of representatives for an opinion on a proposed
initiative measure comparable to the proposed Amendment 9.  In
Opinion of the Justices, 673 A.2d 693 (1996), the Maine court
stated that neither the electors of that state nor the state's
legislature may control the delegates to Congress in the
performance of their duties, because "[s]uch an exercise of control
would violate the essence of federalism."  Id. at 696.  The court
recognized that once elected by the people of the state,
Congressional representatives act on behalf of the nation as a
whole.  Id.  In reviewing the proposed initiative under the
provisions of Article V, the court held that "it is not within the
power of the electors to propose a constitutional amendment.  The
proposed initiative, if enacted by a referendum vote, would allow
the electors to do indirectly that which they are forbidden to do
directly."  Id. at 697.   
     These three cases from Montana, California, and Maine, along
with the Supreme Court cases interpreting Article V's ratification
clause, are persuasive authority for Petitioner's proposition that
Article V prohibits the action proposed by the measure at hand. 
Clearly, the proposed Amendment 9 is nothing more than a coercive
attempt to compel the Arkansas General Assembly to do as the
alleged majority of the people wish, without any intellectual
debate, deliberation, or consideration of whether such action is in
the best interest of all the people of this state.  This intent is
clear from the language of the proposed Amendment 9 that the
legislators are hereby instructed to do as told.  Although the
proposed Amendment 9 does not compel such action by the legislature
on threat of loss of salary, it is nonetheless binding on the
legislators in an extortive manner as failure to heed the
amendment's instructions will result in their threatened potential
political deaths.  Contrary to what Respondent and Intervenors
contend, the proposed duties to be given to the Secretary of State
by Amendment 9 are not merely ministerial; rather, they amount to
substantive penalties that are equivalent to an officially
sanctioned recommendation by the State of Arkansas not to vote for
such candidates because they disregarded the instructions and
wishes of the voters.  If, as Respondent and Intervenors assert,
the proposed measure is merely a nonbinding attempt to communicate
the desire of the people for term limits, then their remedy is to
voice their desires at the polls by voting for candidates who share
these beliefs.  
     The proposed Amendment 9 is clearly violative of the provision
in Article V of the United States Constitution that all proposals
of amendments to that Constitution must come either from Congress
or state legislatures -- not from the people.  It is an indirect
attempt to propose an amendment to the United States Constitution,
and as such violates the narrow, specific grants of authority
provided in Article V.  The proposed Amendment 9 would virtually
tie the hands of the individual members of the General Assembly
such that they would no longer be part of a deliberative body
acting independently in exercising their individual best judgments
on every issue.  Consequently, the measure is an impermissible use
of the initiative power reserved to the people of this state in
Amendment 7 to the Arkansas Constitution and is clearly contrary to
law.  See Plugge, 310 Ark. 654, 841 S.W.2d 139.
     Intervenors raise the issue in their reply brief that placing
the information "DISREGARDED VOTERS INSTRUCTION ON TERM LIMITS"
adjacent to candidates' names on election ballots is
constitutionally permissible as a time, place, and manner
regulation under the Elections Clause of Article 1, Section 4, of
the United States Constitution.  Because we conclude that the
proposed Amendment 9 exceeds the scope of the powers reserved to
the people in Amendment 7, we need not address this issue.  We thus
enjoin Respondent from placing the proposed Amendment 9 on the
ballot, or alternatively from declaring the results.  The mandate
is ordered issued on Friday, October 25, 1996, unless a petition
for rehearing if filed.  If a petition for rehearing is filed,
briefing will be on an expedited basis to be set by the clerk.
     Petition granted.
     GLAZE, J., concurs in the result reached.