Arkansas Women's Political Caucus v. Riviere/Dissent Hickman
DARRELL HICKMAN, Justice, dissenting. Because of the nationwide emotionalism surrounding the subject of this case, it is easy to lose sight of the only issue for us at this time: whether the ballot title is misleading, deceptive or dishonest.
Presently in this country there is a national debate on the question of abortion. It has polarized the two major political parties and their candidates for president. Various groups have thrown down the gauntlet on the issue and some of them are represented in this action. It is in this atmosphere that a proposal comes to us to change the Arkansas Constitution through the machinery provided in Amendment 7, the last remaining vestige of power directly retained by the people. Only this court can interfere with that right, and we should only do so in cases of deceptive or misleading statements on the ballot.
Our sole concern at this time is the legal sufficiency of the ballot title. As the majority has found, I agree that the ballot title itself pulls no punches, sugars no phrases and is an honest statement of the proposed amendment. The popular name, "The Unborn Child Amendment," however, is found by the majority to be "politically colored." I dissent because in no way is the popular name deceptive since that is precisely what the amendment is about. The popular name cannot, if it is to serve any useful purpose to the voter, be more than a statement of the subject matter of the amendment, and this amendment is about children that have not yet been born. It does not and should not contain every provision of a proposed law.
"Unborn child" is a catch phrase and partisan only if one is persuaded to join this fray between ideological, social and legal opposites. In Pafford v. Hall, 217 Ark. 735, 233 S.W.2d 72 (1950), we reviewed a ballot title called "A Statewide Prohibition Act." Prohibition is a catch phrase if any word is. The word "prohibition" is not an offensive or persuasive word in itself, and its use was not found to be misleading. Yet if any word would quickly excite the hearts of the temperance advocates and opponents during the days of prohibition, it was that word. We had no difficulty approving the title, and it did not explain what the act was about.
I will not discuss all the uses of the phrase "unborn child" that routinely occur in dictionaries and law books. I merely note that it is an ordinary phrase that has been in use for years. Union Pacific Railroad Co. v. Botsford, 141 U.S. 250 (1891); Webster's New Collegiate Dictionary (1980); Arkansas Digest, Descriptive Word Index, Vol. 1B, p. 577; West's Modern Federal Practice Digest, 2nd, Descriptive Word Index, Vol. 92, p. 476.
Most of the petitioner's argument centers on this phrase and the fact that the amendment attempts to alter or change what was said in Roe v. Wade, 410 U.S. 113 (1973). It is argued that the phrase "unborn child" is meaningless because a fetus, during the first three months of pregnancy, is not a "person;" therefore, unborn child is not accurate either legally or scientifically. Assuming that to be true, how many people know that? Should the amendment be called the conceptus amendment, because it defines an unborn child as being from conception? That would be nonsense. Whatever the United States Supreme Court held in Roe v. Wade, supra, in terms of defining what a person is constitutionally, is irrelevant to the question before us at this time.
In my judgment, the title is actually not what is objectionable to the petitioner; it is the whole amendment that it finds repulsive. I appreciate and respect the petitioner's legal and moral objections to the proposed amendment. All or part of the amendment may be illegal, but that is not the issue before us. We cannot inject ourselves into the ideological differences of the parties and, by so doing, interfere with the constitutional right of the people to vote on the amendment. Amendment 7 is the only means by which the people can choose the law they want, rather than be governed by a law the governor or legislature may want. Our role is only to see that the proposal meets the minimum requirement of sufficiency. Our duty is clear. We must liberally construe Amendment 7 in order to reserve to the people the right to approve or disapprove proposed legislation. Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976). The ideological and legal battle must wait until we are presented with the question of whether the amendment itself is legal and not contrary to the United States Constitution.
This is an emotional issue. However, the law does not prohibit the people from voting on issues that involve deep feelings. These issues always give rise to diametrically opposed viewpoints.
I cannot fail to mention that the last measure we allowed on the ballot was Amendment 60 which changed the usuary provision of the constitution. Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982). The amendment was to allow an increase in the interest rate, yet the ballot title said it would "control" interest rates. I have yet to fully understand how some ballot titles pass inspection and others fail. Ultimately, we are judged on what we do, not what we say.
The majority presumes that the people of Arkansas are too easily misled and uninformed about the voting process. They presume that the voters will read only the popular name and vote for it. I presume otherwise. The voters, that is those who have not already made up their minds, will see the popular name, read on and see what the amendment is about before they vote.
I find no deception and would deny the petition.