Paul R. Parker v. Sharon Priest, in her official capacity as Secretary of the State of Arkansas

Paul R. PARKER, Petitioner v. Sharon PRIEST,
In Her Official Capacity as Secretary of
State of the State of Arkansas, Respondent;
Mike Wilson, Individually and On Behalf of
The Committee to Promote Arkansas,
Intervenors

96-995                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 21, 1996


1.   Elections -- ballot title -- must not be misleading -- must
     disclose enough information so that voters can make
     intelligent choice. -- The majority of voters will read a
     proposed amendment for the first, and only, time when they
     read it on the ballot; thus, it is crucial that the ballot
     title not be misleading and that it disclose enough
     information so that voters can make an intelligent choice and
     be fully aware of the consequences of their vote.

2.   Elections -- initiative process -- not undermined by
     initiative that benefits few. -- It is not the supreme court's
     function to express its view on, or to determine the merits
     of, a proposed measure; that power is expressly reserved to
     the people; furthermore, the purpose of the initiative process
     is not undermined by an initiative that directly benefits a
     relative few of the people so long as the benefits to the few
     are not concealed from the voters.

3.   Elections -- ballot title -- party challenging bears burden of
     proof. -- The party challenging a ballot title has the burden
     of proving that it is misleading or insufficient; the
     petitioner is not entitled to a ballot title that pleases him
     or her personally because it is impossible to draft a ballot
     title that would suit everyone.

4.   Elections -- ballot title -- sufficiency of -- requirements. -
     - The supreme court will be liberal when construing the
     sufficiency of a ballot title; while the ballot title is not
     required to summarize every aspect of the initiative, it must
     give the voter an intelligible idea of the scope and import of
     the proposed law; in other words, the ballot title must enable
     the voter to reach an intelligent and informed decision for or
     against the proposal and to understand the consequences of his
     or her vote.

5.   Elections -- ballot title -- sufficiency of -- further
     requirements. -- Although the ballot title need not summarize
     every aspect of the initiative, if the information is an
     essential fact that would give the voter serious grounds for
     reflection, it must be disclosed; moreover, the ballot must be
     free from any misleading tendency, whether of amplification,
     or omission, or of fallacy, and it must not be tinged with
     partisan coloring.

6.   Elections -- ballot title -- not clear that voter would know
     that two racetracks were designated sites for casino gaming. -
     - It was clear that the voter would not know from the ballot
     title that Southland and Oaklawn Racetracks were two of the
     three sites specifically designated in proposed Amendment 7
     for casino gaming and that they would therefore benefit
     greatly from the passage of the measure; the issue was thus
     whether such information was an essential fact that would give
     the voter serious grounds for reflection.

7.   Elections -- ballot title -- concealed from voters direct
     benefit to two racetracks. -- The supreme court concluded that
     the ballot title for proposed Amendment 7 clearly concealed
     from the voters the direct benefit to Oakland and Southland
     Racetracks, which were significant and important Arkansas
     gambling interests.

8.   Elections -- ballot title -- identities of two racetracks
     constituted essential fact that should have been disclosed. --
     The supreme court stated that the benefit to specific private
     interests can indeed be a matter that would give the voter
     serious grounds for reflection; that Oaklawn and Southland
     Racetracks were such interests; and that their identities
     constituted an essential fact that should have been disclosed,
     and indeed could have been disclosed, with fewer words than
     actually used in the ballot title.

9.   Elections -- ballot title -- failure to disclose information
     was material omission that rendered the ballot title fatally
     defective. -- The supreme court held that it was clear that
     the voters would not be made aware that, by voting for
     proposed Amendment 7, they would not simply be voting to
     authorize "two sites" in Garland County and "two sites" in
     Crittenden County, three of which were "specifically
     designated in the amendment"; instead, they would be voting to
     authorize casino gaming "at Oaklawn Race Track in Hot Springs"
     and at "Southland Race Track in West Memphis"; the failure to
     disclose this information was a material omission that
     rendered the ballot title fatally defective.

10.  Elections -- ballot title -- injunctive relief granted. -- The
     supreme court granted the original-action petition and
     enjoined respondent from placing proposed Amendment 7 on the
     general-election ballot or, in the alternative, from counting
     the votes cast on the issue.


     Original Action Petition; granted.
     Wright & Burke, by: William Randal Wright, for petitioner.
     Winston Bryant, Att'y Gen., by:  Kay J. Jackson DeMailly,
Asst. Att'y Gen., for respondent.
     Dover & Dixon, P.A., by: David A. Couch, for intervenors.

     Andree Layton Roaf, Justice.
     This is an original action by the petitioner, Paul Parker, to
enjoin the Respondent, Secretary of State, Sharon Priest, from
placing on the ballot proposed Amendment 7, which would authorize
a state lottery and legalize bingo, raffles, and casino gaming. 
This court has original jurisdiction over this matter pursuant to
Ark. Const. amend. 7 and Ark. S. Ct. R. 6-5.  The original action
petition is opposed by the respondent, and by the intervenors, Mike
Wilson, individually and on behalf of the Committee to Promote
Arkansas, who are the sponsors of proposed Amendment 7.
     The petition challenges the sufficiency of the ballot title  
of the proposed amendment and asserts that it is defective because:
1) it does not disclose that Oaklawn and Southland racetracks are
two of the three sites designated in the amendment where casino
gaming is authorized; 2) it does not state how four additional
sites for casinos will be selected by the General Assembly; 3) it
does not inform the voters that the primary purpose of the proposed
amendment is to legalize casino gaming at Oaklawn and Southland
racetracks or that its passage would grant a monopoly on the
combination of pari-mutuel wagering and casino gaming to these two
entities; and 4) the initiative petition filed with the Secretary
of State omitted a portion of the ballot title.   We hold that the
failure to disclose that two of the three designated sites for
casino gaming are Oaklawn and Southland racetracks causes the
ballot title to be fatally deficient.
     Certain general principles of law for ballot title cases have
been set forth in recent cases decided by this court and are
pertinent to this case. See Parker v. Priest et al., No. 96-779
(Ark. S. Ct., Sept. 30, 1996); Christian Civic Action Committee v.
McCuen, 318 Ark 241, 884 S.W.2d 605 (1994); Bailey v. McCuen, 318
Ark. 277, 884 S.W.2d 938 (1994); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994).
     We have said that the majority of voters will read a proposed
amendment for the first, and only, time when they read it on the
ballot.  Christian, supra.  Thus, it is crucial that the ballot
title not be misleading, and that it disclose enough information so
that voters can make "an intelligent choice and be fully aware of
the consequences of their vote."  Id.   However, it is not this
court's function to "express our view on, or to determine the
merits of, a proposed measure -- that power is expressly reserved
to the people."  Parker, supra.  Furthermore, the purpose of the
initiative process is not undermined by an initiative "that
directly benefits a relative few of the people so long as the
benefits to the few are not concealed from the voters." Id.
       The party challenging the ballot title has the burden of
proving that it is misleading or insufficient.  Christian, supra.
The petitioner is not entitled to a "ballot title that pleases him
personally, as we have previously recognized the impossibility of
drafting a ballot title that would suit everyone." Parker, supra. 
       We will further be "liberal" when construing the sufficiency
of the ballot title.  Bailey, supra.  While the ballot title is not
required to summarize every aspect of the initiative, it must give
the voter "an intelligible idea of the scope and import of the
proposed law." Christian, supra.  In other words, the ballot title
must enable the voter to "reach an intelligent and informed
decision for or against the proposal and to understand the
consequences of his or her vote." Id. 
     Finally, although the ballot title need not summarize every
aspect of the initiative, if the information is "an essential fact
which would give the voter serious grounds for reflection, it must
be disclosed."  Bailey, supra. Moreover, "[t]he ballot must be free
from any misleading tendency, whether of amplification, or
omission, or of fallacy, and it must not be tinged with partisan
coloring." Id. 
     Proposed Amendment 7 has the following popular name:
     AN AMENDMENT TO ESTABLISH A STATEWIDE STATE-RUN LOTTERY,
     TO PERMIT THE GAME OF BINGO AND RAFFLES TO BE CONDUCTED
     BY CHARITABLE, NON-PROFIT ORGANIZATIONS, TO AUTHORIZE
     CASINO GAMING AT TWO SITES IN GARLAND COUNTY AND AT TWO
     SITES IN CRITTENDEN COUNTY, TO PERMIT THE GENERAL
     ASSEMBLY TO AUTHORIZE CASINO GAMING AT UP TO FOUR
     ADDITIONAL SITES; TO ESTABLISH THE ARKANSAS EDUCATION
     TRUST FUND AND THE ARKANSAS CASINO GAMING COMMISSION.
     As to the four sites where casinos will be located in Garland
and Crittenden Counties, the ballot title states:
     TO AUTHORIZE CASINO GAMING IN GARLAND COUNTY AT TWO
     SITES, ONE SPECIFICALLY DESCRIBED IN THE AMENDMENT AND
     ONE TO BE CHOSEN BY THE QUORUM COURT OF GARLAND COUNTY,
     TO AUTHORIZE CASINO GAMING IN CRITTENDEN COUNTY AT TWO
     SITES BOTH OF WHICH ARE SPECIFICALLY DESCRIBED IN THE
     AMENDMENT. 
(Emphasis added.)  However, Section 3 of the amendment provides
that the four chosen sites are:  Oaklawn Racetrack in Hot Springs,
a site to be selected by the Garland County quorum court, Southland
Racetrack in West Memphis, and a specific parcel of land in
Crittenden county which is legally described.  There is no hint in
the ballot title that Oaklawn and Southland are two of the three
predetermined sites for casino gaming.  Certainly, most voters are
probably familiar with Oaklawn and Southland and know that these
are the only locations in Arkansas where gambling is presently
allowed.  Furthermore, although some voters will know that these
two racetracks are located in Crittenden and Garland Counties, it
is clear that the voter will not know from the ballot title that
Southland and Oaklawn are two of the three sites specifically
designated in the amendment for casino gaming, and that they will
therefore benefit greatly from the passage of this measure. The
issue is thus whether such information is "an essential fact that
would give the voter serious grounds for reflection." Bailey,
supra.
     The petitioner relies on Page in support of his argument that
the failure to disclose this information causes the amendment to be
fatally flawed.  In Page, this court rejected a casino amendment
because the ballot title stated only that a casino would be
authorized  "at a designated site" which would lead the voter to
believe that no site had yet been chosen. We explained that this
was a fatal defect because:
     Before casting their ballots, voters no doubt would pause
     for reflection if they were aware "the" designated site
     had already been established in the proposed
     constitutional measure itself, thereby guaranteeing the
     site's owner whatever benefits that would result from the
     measure's passage.
Id. (Emphasis added.)  However, in this instance the ballot title
clearly tells the voter that three of the four sites have already
been chosen. The intervenors, who also sponsored the amendment
which was removed from the ballot in 1994 in Page, submit that they
have satisfied the standard set forth in Page by disclosing that
the three sites have in fact been predetermined.
     Although the facts of Page are not directly analogous, we find
the underlying principle to be relevant.  In Page, this court
expressed a distaste for hiding from the voter that private
interests will directly benefit from a measure's passage.  Id. 
This concern was recently restated in Parker:
     The purpose of the initiative process is not undermined
     by the presentation to the voters of an issue that
     directly benefits a relative few of the people so long as
     the benefits to the few were not concealed from the
     voters.
Parker, supra (Emphasis added.)  In this instance, the ballot title
for Amendment 7 clearly conceals from the voters the direct benefit
to Oakland and Southland, which are significant and important
Arkansas gambling interests.
     In Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), this
court rejected an amendment that would have allowed state lotteries
because the ballot title failed to mention that the amendment
designated three people to serve on the State Lottery Commission. 
We explained:
     The electors are being asked to elect at least three
     people to important positions without being informed in
     the ballot title of the names or interests of these
     prospective board members, they are not even being told
     that named persons will be on the board.
Id.
     Similarly, in Dust v. Rivieria, 277 Ark. 1, 638 S.W.2d 663
(1982), this court rejected an initiative that would have benefited
a few private interests but did not disclose this matter to the
voting public.  In Dust, the ballot title stated that the amendment
would create a Ratepayers Utility Board whose seven members would
be appointed by various people in the Executive Department. Id. 
However, the ballot title did not mention that board members would
be selected to represent specific, private interests, including
environmental groups and labor organizations. Id. This court held
that:
     The voter, who is a residential or small business
     customer, has a right to know that these interests can
     direct and control the Board which is supposed to
     represent and advocate the interests of residential and
     small business consumers.
Id.  Accordingly, this court rejected an initiative that failed to
disclose in the ballot title the direct benefits to a "relatively
few" special interests. It is clear that the benefit to specific
private interests can indeed be a matter which would give the voter
"serious grounds for reflection."  We think that Oaklawn and
Southland are such interests and that their identities constitute
an essential fact which should have been disclosed, and indeed
could have been disclosed, with fewer words than actually utilized
in the ballot title.
     In sum, it is clear that the voters are not made aware that,
by voting for Amendment 7, they are not simply voting to authorize
"two sites" in Garland County and "two sites" in Crittenden County,
three of which are "specifically designated in the amendment."
Instead, they are voting to authorize casino gaming "at Oaklawn
Race Track in Hot Springs" and at "Southland Race Track in West
Memphis."  The failure to disclose this information is a material
omission which renders the ballot title fatally defective.
Consequently, we need not consider the remaining issues raised by
Parker in his petition.
     The petition is granted, and the Secretary of State is
enjoined from placing proposed Amendment 7 on the November 5, 1996,
general election, or in the alternative, from counting the votes
cast on this issue.  The mandate shall issue on October 25, 1996,
unless a petition for rehearing is filed on or before that date.
     Petition granted.
     Special Justice Sandra Smith Hochstetter joins this opinion.
Dudley, Glaze, and Corbin, JJ., dissent.
     Brown, J., not participating.

              Robert H. Dudley, Justice, dissents.
     The ballot title informs the voter that casino gambling would
be permitted at four sites, two in Crittenden County and two in
Garland County.  It informs the voter that the two sites in
Crittenden County have already been selected and that the
descriptions of those sites are set out in the body of the
amendment.  It informs the voter that one of the two sites in
Garland County has already been selected, and that site is
described in the body of the amendment, and that the other remains
to be selected by the quorum court of Garland County.  
     The majority opinion strikes the proposed amendment from the
November 5, 1996, general election on the ground that the ballot
title does not notify the voter that the selected site in Garland
County is the location of the Oaklawn race track and that one of
the selected sites in Crittenden County is the location of the
Southland dog race track.  The question for this court to weigh is
whether those omissions are of essential facts, Finn v. McCuen, 303
Ark. 418, 798 S.W.2d 34 (1990), and whether they would mislead a
voter or would give the voter "serious grounds for reflection." 
Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982).  It is not
required that the ballot title contain a synopsis of the proposed
amendment, but it should be complete enough to convey an
intelligible idea of the scope and import of the proposal.  Bailey
v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994).      
     A majority of members of this court, after weighing both sides
of the argument, have concluded that the omissions are essential
and would mislead a voter because the voter would not know that he
or she were voting for a casino at the Oaklawn race track and the
Southland race track.  Granted, it would have been better if the
ballot title disclosed the exact location that would benefit
private interests, but what might have been better is not the test
for determining whether a ballot title is misleading.  The test is
whether the omissions are of essential facts and would mislead a
voter, and whether the ballot title is sufficient to convey an
intelligible idea of the import of the proposal.  
     It is undisputed that the ballot title fairly discloses that
casino gaming would be authorized at four locations, two in
Crittenden County and two in Garland County.   It is also
undisputed that the ballot title clearly discloses that three of
the four proposed locations have already been selected, and,
consequently, a reasonable voter would understand that private, or
special, interests would stand to obtain casino locations at three
previously selected sites.  There simply is no failure to disclose
the essential facts that private or special interests stand to
obtain casino locations at four locations and that three of those
four have already been determined.  The essence of the voter's
concern is whether he or she wants to give private interests the
constitutional right to build casinos at two predetermined
locations in Crittenden County and two locations in Garland County,
with one already determined and one to be determined by the Garland
County Quorum Court.      
     The majority opinion holds that the core of the issue before
us involves the specific location of the three predetermined sites
and concludes that the failure to give the specific locations of
the three sites is something that would mislead the voter.  I
respectfully suggest that this weighing is not a weighing of the
essential issue.  It is only when the ballot title fails to
disclose an essential fact that we strike the proposal from the
ballot.  Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990).  The
essential issues that should be weighed in this case are whether a
voter would be given sufficient information by the ballot title to
decide whether constitutional licenses should be given to build
casinos at four locations, with three of those locations having
already been selected, and whether the voter would be informed by
the ballot title that private interests stand to obtain these
licenses from passage of the proposed amendment.  Whether the site
is specifically described is not of real consequence to the voter. 
However, even if the majority should be correct that the specific
site should be the issue weighed by this court, the ballot title
provides that the three predetermined tracts are specified in the
amendment itself.  The ballot title notifies a voter that if he or
she wishes to know about the specific location of the three sites
upon which casinos would be located, he or she can look in the
amendment to find them.  The material part of the title is as
follows:
     TO AUTHORIZE CASINO GAMING IN GARLAND COUNTY AT TWO SITES, ONE
     SPECIFICALLY DESCRIBED IN THE AMENDMENT AND ONE TO BE CHOSEN
     BY THE QUORUM COURT OF GARLAND COUNTY, TO AUTHORIZE CASINO
     GAMING IN CRITTENDEN COUNTY AT TWO SITES BOTH OF WHICH ARE
     SPECIFICALLY DESCRIBED IN THE AMENDMENT.        
The amendment then provides that one of the locations in Garland
County is the Oaklawn race track and that one of the locations in
Crittenden County is the Southland race track. 
     In summary, there is no material omission of an essential
issue from the ballot title; it conveys an intelligible idea of the
scope and import of the proposed amendment.  Therefore, I
respectfully dissent.     
     Corbin, J., joins in this dissent.

                  Tom Glaze, Justice, dissents.
      I dissent.  Proposed Amendment 7 is only eight (8) pages long
and its ballot title comprises 393 words and provides for lottery,
bingo, raffles, and casino gambling.  There is nothing complex or
lengthy about this proposal.  In fact, this court finds only one
problem with the ballot title of this proposal: It does not
specifically mention "Oaklawn" or "Southland" as being the two
predesignated sites in Garland and Crittenden counties where casino
gambling would occur if the proposal is adopted by the people at
the November 5 General Election.  
     I find it incredibly naive on this court's part to think
Arkansas voters would not know Oaklawn and Southland were the
designated sites for casino gambling under proposed Amendment 7. 
I find it even more farfetched for the court to suggest Arkansas
voters' decisions would be affected because Oaklawn's and
Southland's actual names do not appear in the ballot title.
     The ballot title clearly apprises the voters that two sites,
one in Garland County and another in Crittenden County, have
already been selected where casino gambling will be authorized.  In
sum, the voters know by reading the ballot title that two owners or
enterprises -- one in Garland County and the other in Crittenden
County -- will benefit by the passage of proposed Amendment 7. 
This is not the situation found in Page v. McCuen, 318 Ark. 342,
884 S.W.2d 951 (1994), where we held the ballot-title reference to
"a designated site" misled voters to believe a site for casino
gambling was yet to be selected when, in fact, the site and
landowner had already been established in the proposed amendment.
     Again, the ballot title here informs all voters that a site in
Garland County and in Crittenden County have already been selected,
and if it were the intention of the sponsors of proposed Amendment
7 to mislead or hide from Arkansas voters the entities who own
those two preselected sites, it has to be the worst-guarded secret
in Arkansas.  The Oaklawn and Southland names are found not only in
other initiative gambling proposals intended to be placed on the
General Election ballot, but also their names saturate the
advertisements seeking passage of those proposals.
     In my view, this court should not remove an initiative measure
from the ballot unless it is clear the proposal's ballot title will
mislead the voters from making an intelligent choice.  Our
constitution and case law requires this court to be liberal when
construing a ballot title's sufficiency.  Bailey v. McCuen, 318
Ark. 277, 884 S.W.2d 938 (1994).  
     The ballot title here fully discloses that two predesignated
sites have been chosen for casino gambling, and to suggest Arkansas
voters cannot cast an intelligent vote in these circumstances is
insulting, in my view.
     Corbin, J., joins this dissent.