CHAPTER ONE

STATE CONSTITUTIONS

The Council of Stale Govcrnmenls 19

STATE CONSTITUTIONS AND CONSTITUTIONAL REVISION: 1988-89 AND THE 19808

By Janice C. May

The 19805 may well be remembered asa dis-tinctive decade in the contemporary history of state constitutions. There has been a de-cline in the overall levels of amendment and revision activity by formal processes. Revision of comprehensive o r general scope, including new constitutions, has fallen to the lowest lev-el in 40 and even 50 years. I In contrast, the use of the constitutional initiative, which has relatively little effect on overall revision lev-els, has riscn to historic heights during the de-cade.1 The increase in the number of consti-tUlional initiatives is part of the recent explo-sion in the use of the devices of direct demo-cracy, includ ing the statutory initiative, the referend um, and the recall.

A not her development has been Ihe revival of state constitutionallaw.4 In a sign ificant number of cases, state judges have interpret-ed their own constitutions independently of the U.S. Constitution regarding civil rights and other controversies. Statc judicial review is scarcely new, but the emerging body of law is a reminder that state constitutions are changed by judicial interpretation as well as by forma l amendment and revision process-es. The increasing reliance on state constitu-tions by judges has been accompanied by an extensive new literature to which the legal profession and many others have contribut-ed. This expanding body of information about state constitutions is a highlight of the decade. II is a reflection of the growing aware-ness of the importance of slale constitutions in the American federal syslem. This may be the most important development of all, a key to future constitutional change.

20 The Book of the States 1990-91

General Overview: Use of Authorized Methods

The level of constitutional amendment and revision by forma l methods was substanlial-Iy lower in 1988-89 than at the beginning of the decade. As Thble A shows, 267 proposals were referred 10 the voters in 45 states; 199 were approved, including two adopted in Delaware by legislative action alone. In 1980.. 81, however, there .... -ere 388 propo~s and 272 adoptions in 46 5lales. A companson of the decade wilh the 1970s shows an even greater decline. The tola1 number of proposals in the 1980s was 1.513 and the number of adoptions was 1,091. But in the preceding decade, pro-posals numbered 2.079, or 566 more, and adoptions werc 1,305. or 314 more. It is usc-ful to compare propositions and adoptions of statewide applicability only to eliminate the large number of local amendments charac-teristic of bienniums through 1982-83. (See Thble 8.) In the 198Os, theslatewide proposals and .adoptions numbered 1.187 and 811, re-spectively, compared with 1,520 proposals and 1,011 adoptions in the 19705. Though less than before, t he d ifferences between t he dec-ades remain substantial.

T he decli ne in constitutional change by authorized methods was most conspicuous with respect to comprehensive or general re-vision during the biennium. No new consti-tution was proposed to the voters or adopt-ed, no constitutional conventions were called by the voters or convened, and only two con-

Janice C. May is associale professor of Govern-ment at the University of Texas al Austin.

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sti tulional commissions were active al though a th ird was authorized. The onlyelcctoral ac-ti vi ty was the defeat by the Ill inois voters of a referendum on a convention call, mandat-ed by the Illinois Constitution. For the de-cade, on ly o ne new const itution was adopt-ed, the new Georgia Charter in 1982. In ot h-er recent decades more constitutions were ap-proved: six in the 1970s, four in the l%Os, two in the 1950s and three in the 19405. In the 19805, five constitutional conventions con-vened, although the Arkansas convent ion of 1978 met o nl y brieny in 1980 and the New Hampshire convention of 1974 authorized to serve until 1984 was not active. Othereonven-tions were: New Hampshire (1984), Rhode is-land (1986) and the District of Columbia (1982). A comparison by decades shows eight conventions in the 1970s, 14 in the 1%Os, nine in the 19505 and six in the 19405. Nine con-stitutional com missions were operative in the 19805, fewer than the other rccenl decades ex-cept for the 19405. There were 12 in the 19705, 51 in the 19605, 14 in the 1950s and six in the 1940s. Duri ng the decade. nine convent ion calls were on ballots but o nly th ree were adopted. The numbers called and approved in other recent decades were: 1970s- 17·10, 1960s-18-12. 1950s-15-8, and 19405-7-5. In summary, comprehensive revision as meas-ured by the number of new constitutions. con-ventions. commissions. and convention calls in the decade of the 19805 was the lowest in 50 years. The nu mbers of commissions and con-vention call approvals were the lowest in 40 years.

Use o f the constitutional initiative fo r con-stitutional change turned ou t to be an excep-

tion to the downward trends. In 1988-89, 21 constitutional amendments were proposed by initiative and II were adopted, a record for the decade. In addition, the 55 percent approval rate was a rarit y for constitutional initiat ives in any bien nium in recent years. For the dec-ade, there were 89 proposals and 33 adop-tions,the mOst since the 19305. The approval rate of 37 percent matched the rate for the last 50 years. Proposals and adoptions by decade were: 1970s-69-21, 1%Os-41-17. 1950s-45-16, 1940s-63-28, and 19305- 133-47.

Thbles 1.2. 1.3, and 1.4 summarize the pro-ced ures associated with each of the three ma-jor methods used to initia te state constitu-tions' amendments and revisions: proposal by the slate legislatu re ava ilable in al l states; the const itutional initiative provided for in 17 state constitutions; and the const itutional convention accepted as legal in all states al-though not expressly authorized in nine state const itut ions. A fo urth method used to initi-ate and refer proposed constitutional changes to the electorate. the constitut ional commis-sion (expressly authorized only in Ihe flori -da constitution) was not used in 1988-89 o r in any other biennium of the decade.

Legisla th·c proposal, co nstitu tional ini tiative

Legislative proposal, the most commonly employed method for initiating constitutional amendments, accounted for 246 of the 267 proposals referred 10 voters during the bien-nium. Of lhese, 188 were adopted and 186 (ex-cluding two Delaware propositions) (75.6 per-cent) were approved by the voters. In the

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1980s, 1,392 were proposed and 1043 were adopted, a 14.9 percent approval rate. The leg-islative proposals constituted 92 percent of proposals by al\ methods during the bienni-um and the decade. This is somewhat higher than in other periods because, although there were more constitutional initiatives, only 16 general revision propositions were proposed in 10 years.

The constitutional initiative, which em-powers the public by petition to propose amendments directly to the voters, is availa-ble in one-third of the states. Appropriate only for making limited constitutional change, the method accounted fo r a record number of proposals and adoptions during the bienni-um and decade. The constitutional initiatives, however, amounted to a fai rly small percent-age of total proposals and adoptions - 8 per-cent of the proposals for the biennium and 5 percent for the decade and 5 percent of the adoptions for the biennium and 3 percent fo r the decade. The number of initiative propo-sals and adoptions by states during the cur-rent biennium and the decade are as follows: (Biennium Considered-Passed-Decade Con-sidered-Passed) Arizona (I-I, 4-1), Arkansas (2-1,9-3), California (4-2, 12-5), Colorado (4-2, 10-4), Florida (2-1, 4-2), Illinois (0-0, I-I), Massachusetts (0-0,0-0), Michigan (0-0,5-0),

Missouri (2-1, 4-3), Montana (0-0, 2-1), Ne-braska (1-1,2-2), Nevada (1--, 1-3), Nonh Da-kota (1-0, 4-1), Ohio (0-0, 7-0), Ok lahoma (I -1, 3-2), Oregon (0-0, 10-3), South Dakota (2-1,5-2), California leads the initiative states in numbers of proposals and adoptions by dec-ade and Massachusetts, with no activity, is lasl.

Constitutional Con\'cntions

The constitutional convention is the oldest, best known, and most traditional of the methods for extensively revising an old con-stitution or writing a new one. As o f January I, 1990, 233 conventions, including the 1982 convention in the District of Columbia, had been held in the United States. During the bi-ennium there were none, and in the decade, five. As Thblc 1.4 shows, 14 Stale constitutions require a popular vote periodically on the question of calling a convention. Eight states mandate one every 20 years; one state, every nine years. During the biennium, the only convention referendum question on the bal-lot was in Illinois, whose constitution is one of the eight to require a vote every 20 years. For Jli inois this was the first vote on a call since the new Illinois charter was ratified in 1970. Opposed by the governor and most civic and political leaders, including delegates to

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the 1969-70 Illinois ConstitUlional Conven-tion, the referendum was defeated in the general ele(:tion of 1988. The vote was 900,109 in favor and 2,727,144 against; 4,697,192 votes were cast in the election. To pass, the resolu-tion would have had to receive either a majority of the total vote or three-fifths of the vote on the referendum.

Although no consti tutional convention con-vened in 1988 or 1989, a serious effort was mounted in Mississippi by Gov. Ray Mabus to persuade the Mississippi Legislature to place a call on the ballot in 1988. The last vol-ume of The Book of the States described the unsuccessful attempt by Gov. William B. Al-lai n, Mabus' prede(:essor, to win a favorable vote for a rderendum on a convention call from the Legislature in 1987. Mabus also failed, but the proposal passed thc House for the first time before dying in conference com-mittee. After adjournment, a group of state legislators sought unsuccessfully to revive the Mississippi initiative and referendum as an al-ternative method of calling aconvention. Al-though adopted by voters in 1914, the initia-ti ve and referendum had been invalidated by the Mississippi Supreme Court on procedur-al grounds in 1922.' Encouraged by the rea-soning applied in a recent case by the court, Burrell vs. Mississippi State Tax Commission, 93 So.2d 848 (Miss. 1988), the legislators hoped that a test case would resu lt in a rever-sal of the 1922 de(:ision. But the legislators failed in their attempt when they were unable to obtain the required number of signatures for an initiati ve petition.

ConsLitutional commissions

Constitutional commissions serve generally two major purposes: to study theconstitulion and propose changes and to prepare for a const itutional convention. During the bien-nium, commissions in Oklahoma and Utah were operative, and a third, in Kentucky was authorized to serve to May 1988 although it was not active. During the decade there were nine: Utah, 1977-; Alaska. 1979-80 and 1980-81; Georgia, 1977-1986; New Hampshire, 1983; Rhode Island. 1983; Mississippi, 1985-86; Kentucky, 1987-88; and Oklahoma, 1988-90.

Gov. Henry Bellman organized the Okla-homa Constitution Study Commission in Oc-tober 1988 after the Oklahoma Legislature had refused twice to grant his request for funding. The governor named himself, a Re-publican, and U.S. Senator David Boren. a Democrat, as honorary co-chai rs of the 32-member commission. Attorney General Ro-bert Henry was chair. The members includ-ed three legislators, other state and local gov-ernment officers and citizens representing business, law, agriculture, energy, and educa-tion interests. Funding was secured from three private foundations. The group organized into eight study committees. In June 1989 a 1000page draft of a revised constitution was reviewed at public hearings in six cities. Af-ter further st udy and revision, the Oklahoma commission gave final approval to three ar-ticles, which were submitted to the governor and the Legislature. The final report was ex-pected to be ready in 1990.

The three proposals revised the cxe(:ulive, the ethics, and the corporations articles. The executive article would strengthen the gover-nor's position substantially, wh ich was a key objective of revision leaders. Among the specific changes were: requiring the governor and the lieutenant governor to run as a team. aJlowing the governor to appoint a majority of boards and commissions soon after inau-guration, providing for a cabinet of not more than 15 members, and empoweri ng the first governor elected following the amendment's adoption to reorganize the 347 eXe(:utive of-fices and agencies. subject to a legislative veto. Called "anti-business" by the governor, the present corporations article was revised to transfer most of the provisions to the statutes, leaving only those concerning the selection and composition of the Corporation Com-mission and its general duties. The new ethics article, which made the Ethics Commission a permanent constit utional agency, provided for the method of selection of the five-member body and for its powers and duties. Thecommission is authorized to promulgate rules of ethical cond uct for state officers and employees as well as fo r campaigns for state office and for initiatives and referenda, in-cluding civi l penalties for violation of rules.

The Council of State Governments 23

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The rules may be modified or vetoed by leg· islalion, which, in turn, is subject to a guber-natorial veto. Among its other powers, the Ethics Commission is authorized to prosecute violations in state district court.

Backed by the governor, a campaign to place the three constitutional proposals on the ballot in 1990 by theconslitutional initia-tive method was under way by September 1989. Led by a group called Amend Our Con-stitution Today (ACT), the requisite number of signatures was gathered for each amend-ment and certified by the secretary of state in time for the next year's elections. At the date of writing, the initiatives were held up by a le-gal challenge before the Oklahoma Supreme Court. The ballot wording was under legal re-view for being deceptive, insufficient and not comprehensible on an eighth grade reading level, as required by law. Regardless of the outcome, Oklahoma voters also will have the opportunity to vote on a convention call in 1990, which is mandated by the Oklahoma constitution every 20 years. The governor and other revision leaders are opposed to a con-vention. Their strategy is to offer to the voters a viable alternative to the convention, the process to begin in 1990.

The Utah Constitutional Revision Com-mission, a permanent body since 1977, is re-quired by statute to submit recommendations for constitutional revision to the Legislature at least 60 days before each regular session. Major revisions of the articles on local gov-ernment and debt submitted to the Legisla-ture for action in 1988 were rejected. Also re-jected by the Legislature were major revisions of the labor and corporations articles and lesser changes recommended the followi ng year. The most recent recommendations, sub-mitted to the Legislature meeting in 1990, in-clude a major revision of the labor article and two changes to the article on the Legislature. At the 1988 general election, the voters ap-proved two propositions, one on bail and one a "clean-up" measure, both of which had b«n recommended to the Legislature by the commission. For further information see Th-ble 1.5.

The Kentucky Revision Commission was

24 The Book or the Slates 199().91

established in 1987 and served officially un-til May 1988. In January 1987, the Kentuc-ky Legislative Research Commission (LRC), whose 16 members are legislative leaders, adopted a resolution to create the LRC Spe-cial Commission on Constitutional Review. In the resolution, the LRC recognized the need to review the Kentucky constitution but held that a constitutional convention was nei-ther feasible nor warranted. The resolution directed the commission to study al1263 sec-tions of the Kentucky Constitution and to submit an initial report by September 1987.

Most of the 41 members of the commission were appointed by the speaker of the House and the president pro tem of the Senate, the co-chairs of LRC. They appointed 14 citizens; nine representatives of business, labor, and the media (three from each); four legislators (two from each chamber and party); and two mayors and two county executives. The deans of the three state law schools each appointed one of their faculty members and the Chief Justice of the Supreme Court appointed one judge from each or three court levels. Co-chairs of the Elections and Constitutional Amendments Thsk Force were also members, and the LRC co-chairs served ex officio. The LRC co-chairs named J. William Howerton, Chief Judge of the Court of Appeals, as com-mission chairman. The director of the LRC supplied staff and support; members were re-imbursed for expenses.

The commission organized iolO six sub-committees, each of which submitted recom-mendations for inclusion in the fuU commit-tee report. The full committee did not change the recommendations, but used a mail survey of the members to rank the recommendations on a priority scale of 1 through 5 and to de-termine how many members supported each proposal. The commission report, which was submitted on Sept. I, 1987, showed the pro-posal earning the highest priority called for an Emergency Budget Board to be composed of executive and legislative members and the chief justice or designee to deal with revenue shortfalls between legislative sessions. Among the 77 recommendations were the merit selec-tion of judges, tort caps, electing the gover-nor and lieutenant governor on a joint ticket,

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allowing the governor to serve while out of thc state, a privacy right, and a new equal rights amendment. No recommendations concern-ing state bonds o r a state debt limit were made, and on ly two recommendat ions received a unanimous vote.

In 1988, o nly one of the 77 recommenda-tions was referred by the Legislature to the voters as a constitutional amendment. Backed by the governor, the proposal repealed the constitutional lottery prohibition. The refer-endum was approved by the voters at the general election.

Substantive Changes

In 1988-89 no general revision proposals were on the ballot. The amendment that came closest to effecting a comprehensive change was the editorial revision of the Maine Con-stitution in 1988. The edit ing was limited to removing gender-biased language. A few amendments offered major changes in state and local governmental structure on a piece-meal basis, but most were rejected at the polls. North Dakota voters defeated for the third time during the decade a new executive arti-cle, which was the only revision of a major ar-ticle on the ballot in 1988 or 1989. The West Virginia electorate turned down major re-forms of local government, including coun-ty home rule, and the executive branch . An amendment establishing a Taxation and Bud-get Reform Commission in Florida attracted considerable interest. The commission was empowered to propose fiscal amendments directly to the voters as well as to recommend fisca l changes to the Legislature. Consti tu-tional proposals to change governmental poli-cy also were limited in scope. but co\lcctively they served as a guide to state governmental activity. This is particularly true of many fis-cal amendments. During the biennium, Cal i-fornia Proposition 98 was probably the most important single amendment to be adopted. It required a minimum level of spending for public schools and communit y colleges and loosened general expenditure limits. Coupled with the defeat of draconian tax reduct ion measures and the approval of new spending and debt proposals, the trend in 1988-89 was

toward a more active state government. Thble B offers an overview of the general

subject matter of state constit utional change by two-year periods during the 1980s. Propo-sals are placed in two major categories: those of general statewide application, which are by far, the most numerous and involved 4S states in 1988-89 and proposed local amendments considered in th ree states (Alabama. Mary-land, and Thxas) during the biennium. (Local amendments apply to only o ne or a few po-litical subdivisions.) Of the 228 statewide propositions, 164 were adopted (i ncluding two in Delaware). The voters approved 71.6 percent. Of the 39 local amendments, 3S were approved, or 89.7 percent .

In Thble B, statewide amendments are fur-ther classified under the principal subject areas of state constitutions, identified for convenience by the titles of articles fou nd in mOSt constilUtions.

There is considerable variation among con-stitutions, however, in the placement of the same o r similar subjects by article. The arti-cle on fi nance drew the mOSt propositions (54) and the Legislature was next (44) during the biennium. The highest approval rate was reg-istered by the Bill of Rights (90 percent) and the lowest by amendment and revision (40 percent), which was also the only article to drop below the 50 percent mark. For the de-cade, the finance and taxation article auract-ed the most proposals (291), which amount-ed to 24.S percent of all statewide proposi-tions. The legislative article was next (196) with 16.5 percent of the total. The highest ap-proval rate for the decade remains wil h the Bill of Rights (86 percent). The lowest rate was scored by Ihe executive article (62.9 per-cem). This was somewhat below the rale for finance and taxation (63.5 percent) and the legislative anicle (64.2 percent).

The Bill of Rights, suffrage lind elections

In 1988-89, the number of proposals (21) and adoplions (19) to the Slate Bills of Rights reached a record-high for the decade. Over half concerned crime, and all of these were approved by the voters. Four added bills of

The Council of State Governments 25

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rights for crime victims (Florida. Michigan. Texas. and Washington). They, in effect, con-slitutionaJized statutory rights found in most states. such as the rights to be informed. heard. present, and receive restitution. Four other measures increased the number of ex-ceptions to or otherwise restricted the right to bail (New Mexico. Oklahoma, Rhode Island and Utah). In South Carolina two amend-ments concerned the establishment of a stale grand jury. A Louisiana amendment allows the forfeilUre of contraband drugs and prop-erty in civil proceedings. In three slales, the right to jury trials in civil cases was changed by increasing the value of the maHer in dis-pute (Hawaii and New Hampshire) or allow-ing smaller juries (Minnesota). The Colora-do Bill of Rights was amended to make Eng-lish the official language; in Arizona and Florida a similar provision was in other arti-cles. The legality of all three provisions has been challenged in federal courts. The U.S. Courts of Appeals of the tenth and eleventh circuits. respectively. failed to find the Colo-rado and Florida amendments in violation of the Voting Rights Act of 1965 in the cases of Montero v. Meyer. 861 F.2d 603 (1988) and Delgado v. Smith. 861 F.2d 1489 (1988). The Arizona provision. however. was ruled uncon-stitutional by a federal district court in Yniguez v. Mollord. 730 F. Supp. 309 (1990). decided in February 1990. The judge ruled that the amendment violated rights of expres-sion protected by the First and Fourteenth Amendments of the U.S. Constitution. Ari-zona officials do not plan to appeal the rul-ing. Other amendments that passed were: the right to keep and bear arms, including a ban on local government regulation (Nebraska). grant Alaska residents preferred treatment over non-Alaskans to the extent allowable by the U.S. Constitution. a "broad form deed" to restrict strip mining (Kentucky). and per-mission for classified propeny taxation (Wyo-ming). The two amendments that failed were a Florida tort proposal to limit amounts and types of damage awards and a Georgia sover-eign immunity measure. Although nOi placed in state bills of rights. abortion rights meas· ures were on the ballot. A successful Arkan-

26 The Book of the Slates 1990-91

sas amendment bans public funding of abor-tion except to save the mother's life, states a public policy to protect the unborn from con-ception to birth, and excludes from its provi-sion contraceptives. Colorado voters defeat-ed a proposal to repeal the 1984 amendment banning public fu nds for abortions.

All but two of the proposed amendments concerning suffrage qualifications were non-substantive editorial changes. They included elimination of references to "idiots" and "lu-natics" (Washington) and "conforming" pro-visions to U.S. Constitutional standards (Hawaii-residence, Illinois-residence and age. Colorado-age and gender). Of these. only the Hawaii measure was rejected al the polls. Hawaiians rejected a change to allow a person turning 18 in a given year to vote in all of that year's elections. Nebraskans, hO .... 'CVer. voters approved an amendment to allow per-sons who are 18 at the time of the general elec-tion to vote in primaries held in the same year. Other proposals concerned elections. The Arizona electorate approved a change to re-quire a run-off election for state executive offices if no candidate received a majority in the general election. This was no doubt a reac-tion to the plurality election of Gov. Evan Me-cham, who was impeached and removed from office. The Delaware Legislature, which does nOt refer amendments to the voters. gave fi-nal approval to an editing change to eliminate gender-bias from the language of election offenses. The remaining election's amend-ments dealt with the initiative, referendum, or recall. South Dakota voters approved a change from the indirect to the direct statutory initia-tive. Two changes to restrict the procedures .....ere defeated in North Dakota: removal of the ban on legislative change of provisions adopted by initiative or referendum for sev-en years and allowing tax measures to remain in effect unlil election. The remaining meas-ures were adopted: a change from "electors" to "registered voters" to sign petitions (Nebras-ka), reimbursement of recall expenses limit-ed to state recalls (Colorado); time limit fo r the initial filing of petitions and use of statistical methods for verification (Nevada); and clarification of timing and publication of

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texIS on statewide questions (New Jersey). During the decade the U.S. Supreme Coun re-Quired an additional change in provisions on the initiative and referendum. In Meyer v. Grant, 108 S. Ct. 1886 (1988), the court held that a Colorado law making it a fe lony to pay petition circulators was in violation of the right to engage in polit ical speech protected by the First and Fourteenth AmendmenlS.

Three branches of government

Collectively, the proposals to change the legislative, executive, and judiciaJ anicles con-st ituted about 36 percent of propositions of statewide applicabilit y during the biennium. The legislative article drew twice as many amendments as the executive and more than twice the number to the judicial anicle. Three-Quarters of the legislative proposals were ap-proved, which marked a decade-high ap-proval rate in this category. The judicial arti-cle maintained the decade pattern of high adoptions. But adoptions of executive propo-sals were only 63 percent, virtually identical to the rate for the decade.

Ni neteen of the 44 proposed amendments to the legislat ive article concerned legislati ve sessions and organization, procedures, and powers over apportionment and administra-tive rules. Two of the five amendments on leg-islative sessions and a part of a third moved away from expansion of the amount o f time available fo r legislative deliberation and ac-tion, a goal of o lder legislative reforms. An Oklahoma constitutional initiative, support-ed by the group SOS (Shorten Our Sessions) and the governor, and approved by the voters, did not aller the number of days (90) allowed by the constitution fo r regular sessions. But it reduced the time spent in sessions by specifying dates for the beginning and end-ing of the sessions. The practice had bttn to convene for a few days a week for part of the session, thus spreading the 90 days over many weeks. The amendment also added a new deadline for completion of the budget before it was sent to the governor. A Colorado amendment approved by the voters placed a 120-day limit o n regular sessions, a change from 140 days in even-numbered years and

unlimited sessions in odd-numbered years. A success ful Missouri amendment moved the adjournment date of the odd-numbered ses-sion to May 30 from June 30 and added a deadline for completion of the budget. A different section of the same amendment was in harmony with the older reforms in that it authorized the Legislature to call special ses-sions, limited to 30 days, by a vote of three-quarters of the members of each house. A defeated Montana proposal would have sub-stituted annual sessions o f 60 and 40 days, respectively, for the current biennial session of 90 days. Part of a successful Louisiana measure concerned organizat ional sessions. It was added to a provision clarifying the number of days available to the governor for a veto during and after the session.

Tho proposals dealt with various rules and procedures governing legislative delibera-tions. The most novel and intrusive was a suc-cessful constitutional initiative called GAVEL (Give a VOle to Every Legislator). It required a commiuee hearing o n all referred bills, an automatic calendar for scheduling bills fo r noor action, and a prohibition against bind-ing caucus rules in voting decisions. The other measure was a Maryland proposal to save leg-islative time by allowing bills on first readi ng to be considered as a group on a consent calendar and to similarly consider vetoes on a veto calendar.

A Georgia amendment to increase the term of office of representatives from two to four years was defeated at the polls. In Hawaii,the voters approved an amendment that sets the beginning of a legislator's term at the lime o f the general election if the candidate is unop-posed a fter having won the primary. A suc-cessful New Jersey measure ensures that the person appointed to fill a vacancy in a legis-lative seat is of the same political party as the person replaced by allowing the county par-ty to fill the vacancy by a temporary appoint-ment.. In Utah, a section of a "clean-up" amendment lowered the maximum size pos-sible of the Senate from 30 members to the current number of 29.

Four propositions would have increased legislative compensation, but o nly o ne was

The Council of State Governments 21

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approved. A Nebraska measure that raised salaries from $400 to $600 a month won the voters' favor. The Thxas electorate turned down two measures in 1989. One would have set the legislative salary as a percentage of the governors salary - 2S percent for legislators and SO percent for the speaker and the lieu-tenant governor, the presiding officer of the Senate. The second proposal would have based per diem compensation on the federal income tax deduction for state legislators' daily expenses. New Mexico legislators, who receive no salary, tried unsuccessfully to ob-tain voter approval for a legislative annuity, one that had been in effect for some time be-fore an attorney general opinion held it was unconstitutional.

An unsuccessful Hawaii measure on reap-portionment would have changed the base from regiSlered voters to population. In Kan-sas, the voters approved a measure to replace the Kansas census with U.S. Census figures for reapportionment purposes. beginning in 1992. Three other amendments would have al-lowed the legislature to veto or otherwise regulate administrative rules and regulations; all were defeated by the voters {Nevada, New Hampshire, and Oklahoma}.

Among the remaining successful legislative proposals all of which concerned policy mat-ters were: legalizing raffles (Tbcas), gambling in Deadwood (South Dakota), allowing out-of-stale horse races 10 be shown on closed-circuit television at licensed trocks and pari-mutuel wagering on these races (Nebraska), allowing the legislature to compensate crime victims (Georgia), and alJowing an increase in fines for certa~n offenses as a source of reve-nue for jail improvement. Virtually all other changes proposed to the legislative article were fiscal measures.

During the biennium, 22 proposals to amend the executive article were referred to the voters; 14 were approved. The three most comprehensive changes failed at the poLis. Some less sweeping reforms were approved.

The governor was the subject of the la rgest single category of amendments, all of which added to the stature or powers of the office. The only provisions that failed to pass were

28 The Book of the Siaies 1990-91

sections of the new executive article to the North Dakota constitution and an executive reorganization amendment on the ballot the following year. Iowa voters approved the elec-tion of the govemor and the lieutenant gover-nor on a joint ballot. In Ohio, the governor gained power to fill a vacancy in the office of lieutenant governor, subject to legislative ap-proval. The New Mexico Constitution was changed to clarify and expand the governor's removal powers, which remain subject to leg-islative exceptions. In Oregon, the chief execu-tive was granted more time to veto bills after adjournment. The amendment also revised the language of the section to make it gender. neutral. In California, the governor may now deny parole to convicted murderers. In Ari-zona, where Rose Mofford, secretary of state, succeeded Evan Mecham as governor, the state constitution was amended to delete the re-quirement that state executive officers be male.

Proposals concerning other constitution-al executives did not fare as well at the polls. A West Virginia amendment rejected by the voters would have eliminated three constitu-tional offices (secretary of state, treasurer, and commissioner of agriculture) and left their status and duties to statutes. The measure also would have limited the terms of office of the auditor and attorney general. Three other measures that failed at the polls were: adding the elective superintendent of schools and cer· tain other statewide offices to the state retire· ment system (Alabama), lifting the two-term limitation on the state treasurer (Arizona), and substituting an appointive for an elective superintendent of schools (Georgia). Adopt-ed were: a companion measure to the Iowa joinl-licket amendment to remove the lieu-tenant governor as presiding officer of the Senate and to leave powers of the office to the governor or Legislature, and an Oklahoma amendment that restored the appointed com-missioner of labor to an elective status.

Only a handful of amendments concerned administrative structure, aside from changes already noted. The most important of t hese was a rejected 1989 North Dakota proposal that would have authorized a commission to propose a restructuring of the administrative

CONSTITUTI ONS

branch into not more than 14 departments. The governor also was anowed to make pro-posals. Florida voters approved the establish-ment o f two departments (Veterans Affai rs and Elderly Afrairs). Texans authorized the Legislature to reorgan ize criminal justice agencies, and South Dakota voters gave statu-tory replacement of the duties and names of the Board of Charities and Corrections. A proposal to add to the powers of the Louisi-ana Board of Ethics was defeated.

The 18 proposed amendments to the arti-cleon the judiciary dealt with merit selection, districti ng, terms o f orfice. qualifications, or-gan ization and jurisdiction, judicial conduct commissions and j urors.

A New Mexico measure, which was one of two merit selection proposals on the ballot during the biennium, provided for a modified plan under which judges run in itially in a par-tisan elect ion and subsequent ly in a non-partisan, non-competitive retention election. The voters approved the reform in 1988. The New Mexico Supreme Court upheld the con-stitutionality of the amendment in Siale ex rei. Chavez v. Virgil-Giron, 766 P.2d 305 (N,M. 1988). In Nevada, the voters rejected merit selection.

Two Louisiana proposals on judicial dis-tricting were made in response to federal court decisions that Louisiana judicial districts vio-lated the Voting Rights Act of 1965 by deny-ing mi nori ties a fair opportunit y to select judges o f their own choosi ng. One of the amendment s divided temporarily the on ly multi-member supreme court district into t .... ,o single-member districts. The other amend-ment authorized the Legislature to divide dis-tricts for select ion of appellate and dist rict judges; it also authorized a senior judiciary to shelter otherwise displ aced j udges. The voters rejected both amendments.

In California, a major reform of justice courts (j ustices of the peace) was approved. The courts became courts o f record. The judges, who are requi red to be allorneys, must meet a variety o f requirements. includ-ing not practicing private law. A Florida pro-posal to increase the term of o ffi ce of cou n-ty judges from four to six years failed at the polls; in another amendment that passed, the

Florida Legislature was a uthorized {Q im-peach county judges. The electorate approved a Montana amendment that allows the legis-lature LO set residence requirements for judges other than members of the supreme court, district courts, and just ices of the peace.

Four amendmems. all o f wh ich passed, concerned Judicial Conduct Commissions. Thl cc (Arizona, Cali fornia. and Washington) were reorganizations or modifications of the commissions, but the fourth established a new commission in Arkansas, styled the Commission for Judicial Discipline, Suspen-sion. Removal, and Disabili ty Retirement. The Arkansas voters also approved an amend ment authorizing the Legislature to create juvenile courts. In Indiana, a propos-al to limit the number of direct appeals o f criminal cases to the supreme court passed. Other voter-app roved measures were: authorization fo r a civil traffic hearing o ffi -cer (Florida) and al lowing judges to to teach part lime (California). The Delaware legis-lature gave final approval to an amendment changing the status o f clerks (prothonotaries) from elective to appoi ntive (by superior courts.).

The remaining two proposi tions concern jurors; both were adopted. A South Carolina amendment deletes the requirement that jurors must be o f good moral character and qualified voters and substituted state residen-cy and other qualifications to be set by the Legi slature. An amendment to the executive article of the Texas Constitution permitted a judge to include general information about eligibility for parole and good conduct lime in the j ury instructions d uri ng the punish-ment phase of the trial.

lAIcal gOl'crnment

Only one of the fo urt ecn proposed con-stitutional amendment s to the local govern-ment article provided for a major reform. Th is was the West Vi rgin ia amendment , which was rejected at the polls in 1989. Un-der the Cou nt y Organization Reform Amend-ment thc Legislature was required to provide at least three forms of county o rganization. incl uding Ihe count y manager form, from

The Council of State Go\'ernmenls 29

CONSTITUTIONS

which county voters could choose. The Legis-lature also could include the power of coun-ties to pass laws and ordinances relating to their local affairs. In addition. the amend-ment permitled. subject to local voter ap-proval, local government consolidation: of counties, of a division ofa county and one or more counties, of a county and a municipal-ity, and of two or more municipalities. Ap-proval ofa majority of voters residing in any of the jurisdictions that were merged wou ld be required.

A more limited reform was approved by the New Mexico electorate; counties were permit-ted to adopt five-member governing boards and to limit the terms of office of county officers. Other successful county measures were: requiring the election ofthecounty as-sessor (California). making counties liable for acts of sheriffs (New York), and allowing the Legislature to set the qualifications of sheriffs (South Caro lina). An I ndiana amendment to remove the limit on terms of county offices failed.

Amongother successful local government proposals were: allowing the legislature to cre-ate hospital districts by special or general law (Texas), permilli ng hospital district board members to serve four-year terms (Texas). authorizing state assistance to local fire fight-ers (lexas), liberalizing investment options for municipalities (Texas), and reducing the vote necessary for certain local bond issues if the election is held on general election days (Mis-souri). local government proposals concern-ing bonds, taxes, and certain expenditures will be reviewed under finance and taxation and debt articles.

Finance

State constitUlional amendments, pro-poSt'd and adopted to the finance and taxa-tion article out numbered those to any mher during the biennium and throughout the 19805 with the exception of 1986-87. The most comprehensive of the proposals in 1988-89 was the Louisiana Tax Reform Amendment supported strongly by Gov. Charles E. "Bud-dy" Roemer as a way to resolve the state's fis-cal crisis. Among the provisions were tax

30 The Book or the Slates 1990-91

changes (sales, income, property, severance), expenditure limit, balanced budget, Revenue Estimating Conference, and several new funds, including a revenue stabilization fund, transportation trust fund. and a wetlands fund. The voters rejected the amendment in a special election on April 29, 1989. Several of the provisions were submilled separately on October 7; three were adopted.

Thxes were the target of most amendments to the finance and taxation article. In a con-tinuation of the trend that began in the 1980-81 biennium. the voters rejected two pro-posals modeled after Proposition 13, the tax reduction initiative adopted in California in 1978. The most expansive and restrictive of the two was a Colorado constitutional initia-tive called the "Taxpayers Bill of Rights" by its sponsors and a "1erroristicAmendment" by Gov. Roy Romer who actively opposed it. The major provisions were: limit resident ial propeny taxes to 1 percent of assessed mar-ket value and limit further increases, reduce the income tax and use only a single rate, re-peal 1988 tax increases and require voter ap-proval for future changes. require notice of election to raise taxes to be mailed to every voter residence, limit average annual percent increase in state spending, and extend the in-itiative and referendum to all local govern-ments. The measure was defeated by a vote of 567,884 for and 778,075 against at the gener-al election in 1988. The other proposal, also a constitutional initiative, was on the gener-al election ballot in South Dakota. "Dakota Proposition II" was, as its title suggests, the second such proposal in the state, the first having failed in 1980. The measure would have lowered property taxes to a maximum limit of 2Vl percent of true value on non-agricullUral land and 1 percent on agricultural land, restricted future increases. and required a two-thirds vote of local and state govern-ments to impose special taxes or increase tax collections. respectively. The only other sig-nificant tax reduction measure during the biennium was a Nevada constitutional initia-tive that prohibited the personal income tax. The tax is not presently levied in the state. The voters gave the first of two approvals required

CONSfITUTIONS

by the Nevada constitution in the 1988 general election. The next election will be in 1990.

In cont rast to these tax reduction efforts, several amendments required tax increases. The most publicized was probably Proposi-tion 99, the California cigarette and tobacco amendment approved in the 1988 general election. The measure raised the cigarette tax by a substantial 25 cents (from to cents to 35 cents a pack) and imposed a new excise tax on other types of tobacco products. The new rev-enue, expected to be in the S600 million range the first year, was to be deposited in the C ig-arette and Tobacco lax Benefit Fund, the pro-ceeds to be spent on health and medical pro-grams and services with a small amount dedi-cated to wi ldlife and parks and recreation. Among other amendments to raise or in-crease taxes passed by the voters were: sever-ance tax on minerals (Nevada), tax on a ll gov-ernment property to the extent permitted by the U.S. Constitution (Oklahoma), continue a sales tax of .I percent for conservation and parks (Missouri), and increase the gasoline tax (Louisiana). The Louisiana proposal was one of two affecting automobiles. One re-placed the S31icense fee that had been set duro ing the days of Huey Long with a larger one (from SIO to S50) based on the value of the motor vehicle. The ot her ended the general sales tax on gasoline and motor fuels but ad-ded 44 cents to the l6-cent gasoline tax al-ready levied.

A substantial number of amendments to increase, add, or mix taxes failed to pass dur-ing the biennium. One was the Louisiana Tax Reform Amendment, the tax provisions of which might have yielded $116 million in new revenue in 1989-90.6 Four measures to re-form or change school financing methods were among the rejected amendments. Michi-gan voters were offered two options: Proposal A would have increased the sales tax by 'h of I percent and Proposal B, by 2 VI percent. Proposal B, a far more complex alternative, included among its provisions statewide prop-erty tax relief. Theother two school proposi-tions ..... ere on the ballot in Oregon (new tax base limits) and West Virginia (uniform prop-erty tax levy). In Pennsylvania, an amend-

ment requiring local governments to reduce residential real estate tax rates to the extent o f additional personal income lax revenues also died. And a Wisconsin measure to allow property or sales tax refunds and credi ts on the income tax failed. Allhough not propos-ing a speci fic tax increase, an Arkansas con-stitut ional initiative would likely have had that effect. The voters rejected the amend-ment sponsored by Gov. Bill Clinton to re-duce the legislative voting majority required to pass tax measures from 75 percent to 60 percent.

A large number of amendments not yet reviewed concerned the property tax. Seven of these, all of which passed, gave tax reductions or exemptions to veterans, the elderly, widow-ers or family heads in California, Colorado, F1orida, New Jersey, New Mexico, Texas, and Washington. Propert y tax exemptions also were approved in Colorado (certain mining claims) and in Texas (the "freeport" exemp-tion subject to local option). Several amend-ments were spedfically designed to promOte economic development. An Oklahoma amendment to liberalize tax exemptions for new business was adopted, but twO in loui-siana were rejected (property tax freeze for improvements in economic districts and re-view board authority to exempt certain new or expanding business from property taxes on invenrory). (A third Louisiana proposal that relied on the sales tax to promote economic industrial growth also was defeated.) Among successful property tax measures were special tax valuations for historic places (Georgia) and on land producing high water recharge to aquifers (Florida).

Significant fiscal developments occurred during the biennium with respect to appropri-ation limits and other spending proposals. Voter response to general expenditure limits may signal a turning point in their populari-ty. Of five such proposals on the ballot in 1988-89, the most imponant was Proposition 98, a constitutional initiative to change the California Constitution. This amendment, which the voters adopted, breached the Gann expenditure limits adopted in 1979(named af-ter Paul Gann, the sponsor). The new amend-

The Council of Stale Governments 31

CONSTITUTIONS

ment requires a minimum level of spending on public schools and community colleges 0

CONSTITUTIONS

di rectly concerned debt or stale credit; 18 were adopted. One of the rejected proposals. an amendment to allow the Alabama Music Hall of Fame 10 issue general obligation bonds. was adopted in a second election. T he four ot her defeated measures concerned locltl debt. A Nevada proposition to increase the bonding capacity of the state fro m I to 2 per-cent o f the assessed value of taxable proper-ty was passed, but measures in Virgi nia and Georgia to increase local debt capacity fa iled. The other amendments specifi ed the purpose for the bonds or use of state credit. Most were proposed to promote economic development or improve infrastructure. Measures on the ballot in Arizona, Florida. New York. and Oklaho ma concerned t ransportation. All passed except the Arizona proposition. which increased allowable municipal borrowing autho ri ty for municipal streets and bridges. A trio of amendments authorizing bonds for water development or clean water in Missou-ri. Oregon, and Texas were approved. Another three allowing bonds for economic develop-ment were adopted in Oklahoma. Sout h Carolina and Texas. Education was the sub-ject of twO amend ments in Texas (long-term construction bonds for school faci li ties and college bonds). Two concerned bonds fo r the Alabama Music Hall of Fame, as mentioned . the second o f which passed . The other amendments were: general obligat ion bonds for construction of prison and mental healt h faci li ties (approved in Texas). borrowing fo r county library books (approved in New Mexi-co). and a Georgia amend ment to issue tem-porary loans on behal f of special service dis-tricts, which fail ed. The two remaining amendments, wh ich were adopted, were changes to the Washington Constitution to al· low the use of public credit to encourage ener-gy conservation by private households and businesses.

Functions, amendments and rt"isions. and miscellaneous

Most contemporary state constitutions con-tain separate art icles on major policy or func-tional areas, primarily education, corpora-tions, health and welfare. and conservation.

Policy provisions also are incorporated in the legisla tive, fi nance and several other articles. This means that amendments to change poli-cy articles arc not indicative of a ll policy changes in any given biennium.

The total number of proposed cha nges to articles on government functions d ropped to 22 in 1988-89, the second lowest of the de-cade, but the percentage approved (77.2 per-cent) was the highest. The most proposals are typically o n education. T his was true of the bien nium; half (eleven) of the propositions were educat ion amendments o f which nine were adopted. Most oflhe educat ion amend-ments duri ng the biennium related to govern-ment structure and the management of school funds and lands. The most signi fica nt o f these was the Educational Reorganization Amendmen t on the West Virginia ballot. It would have removed the sta te Board of Edu-cation and the appointed superintendent of schools fro m the constitution, leaving the ex-ecutivc struct ure for the "supervision of free schools" to the legislat ure'S discretion. The vOters tu rned down the proposal. A success-ful Hawaii amendment was the first during the decade to provide for a high school SI U-dent to serve as a non-voting member o r the state Board o f Education. The student would be selected by the Hawaii State Student Coun-cil. A North Dakota proposit ion to a llow changes in the composition of the State Board o f Higher Education fa iled. Seven other pro-posed changes concerned school funds and lands; a ll passed (one each in Nevada and Oklahoma, two in Texas, and three in Ore-gon). One of the Oregon measures removes the constitutional requirement that proceeds from property forfeited to the state be placed in the Common School Fund . The change will allow the proceeds to be used fo r drug law enforcement. T he second allows Common School Fund invest ment in corporate stocks and investment income LO be applied to man-agement expenses. T he third is a " Buy Ore-gon" type o f measure. It rest ricts the sale or export of t imber from the Common School Lands unless it is processed in Oregon.

Next to ed ucat ion, the largest number of proposals pertain to the corporation article.

The Council of State Governments 33

CONSTITUTIONS

Five of these were on the ballot in 1988-89; three passed. The general purpose of amend-ments to (he Alabama, Mississippi, and Mis-souri constitutions was to loosen or end res-trictions on corporations. For example, the Mississippi proposal repealed the ban on building, leasing, or operating railroads by foreign corporations. The Alabama and Mis-sissippi measures were approved. but the Mis-souri measure failed. A second proposal that gave certain powers to shareholders was adopted in Missouri . The last proposal, which was defeated, would have repealed the con-stitutional requirement that the Arizona Cor-poration Commission must use the "fair val-ue" method to determine the value of public utility property.

Two of the remaining amendments per-tained to resources; both passed. The Hawaii provision asserted the right of the state to regulate resources in an exclusive economic zone; the Oregon water development fund loans were expanded. Other amendments have been R:Vit:Wcd under different constitu-tional articles.

Five changes to the amendment and revi-sion article were considered by the voters in 1988-89; two were adopted. These numbers, though low, were the second highest oflhe de-cade. Although all proposals are sign ificant, the Florida proposition that established a sec-ond commission empowered to propose amendments directly to the vOlers is unique. Approved at the 1988 general election, the new Taxation and Budget Reform Commis-sion is authorized to propose amendments on "mailers relating directly to taxation and the state budgetary process~' The Florida Consti-tUlion Revision Commission, created 20 years ago by the Florida Constitution, will no longer have power to propose amendments on the fiscal subjects to the voters. The Taxation and Budget Reform Commission is to be es-tablished every JO years, beginning in 1990. Eleven of the 29 commission members will be appointed by the governor and seven each by the speaker of the House and the presidenl pro tern of the Senate. In addition, four leg-islators (a minority and a majority represen-tative and their senate counterparts) appoint-

34 The Book of the States 1990-91

ed by their presiding officers will serve ex offi-cio without voting privileges. The commis-sion's chair will be appointed by the other commissioners. The amendment lists a formi· dable array of topics for the new commission to review. Commission members can then make recommendations for statutory change to the LegislalUre or propose constilUtional amendments to the voters. Any proposed amendment mUSt, however, run a procedur-al gauntlet: a two-thirds favorable vote by the whole commission and a majority of each of three groups identified by their appointing authority (governor, speaker, president pro tem). The amendmem also mUSt be timely filed before the general election of the second year following the commission's establish· men!.

The only other change to the amendment and revision article to be approved was the South Carolina measure. Applying only to the 1990 election, it authorized article-by-article revision notwilhslandinga permanent provision that requires separate .liubmission of multiple amendments. Although described as temporary on the ballot, it has applied to ev-ery general election since 1970. The three propositions that failed were: ed iting of the Georgia Constitution after every general elec-lion by a commission composed of the gover-nor, speaker. president of the Senate, and leg-islative counsel; removing the attorney gener-al from the Georgia commission that prepares official summaries of amendments; and liber-alizing the procedures of the Mississippi Con-stitution to permit limited or unlimited amend· ment and revision.

Most state charters contain a Miscellane-ous or General Provisions Article for place-ment of provisions that do not fit elsewhere or apply to more than one anicle, such as an oath of office. In 1988-89 nine such proposi-tions were proposed and six were adopted, far fe\\'er than two years ago but typical of the de-cade as a whole. Adding two amendments from the legislati ve anicle to four in miscel· laneous, six proposals concerned lotteries, the same member as in the preceding biennium. Lotteries were newl y legalized in Idaho. Indi-ana, Kentucky, and Minnesota, but rejected

CONSTITUTIONS

in North Dakota for the second time in four years.

The Missouri amendment modified the state lottery to increase prize money and end advertising restrict ions. No two of the other miscellaneous amendments were on the same subject. Two nOt already reviewed were a Tex-as amendment, which passed , to change the oath of office required of elective and ap-point ive officers and a Maine proposi tion, which fai led at the polls, to increase afforda-ble housing. With the backing of the full fai th and credit of the state, mortgages for low and moderate income people would have been in-sured by the Maine State Housing Authority.

For convenience, three amendment s limit -ed to editing but changing different sections and articles were counted under the miscel-laneous column because they are not general revisions. All were adopted. The most signifi-cant was the editorial revision of the Mai ne document to provide gender-neutral lan-guage. A Utah amendment, described in the caption as " Providing Miscellaneous 'T

CONSTITUTIONS

Chief Justices has commissioned a special study of state constitutional traditions to be edited by A.E. Dick Howard and published by the National Center for State Couns. Among recent books on individual state con-stitutions are The Constitution 0/ South Carolina, Vol.!l· The Journey TOward Local Self Government by James Lowell Under-wood (South Carolina University Press, 1989) and Rocky Mountain Constitution Making, 1850-1912 by Gordon Morris Bakken (Green-wood Press, 1987).

The first three volumes of the projected .52-volume series on state constitutions in the United States, to be edited by G. Alan 13rr and published by Greenwood Press, were scheduled for publication in 1990: New Jer-sey by Robert F. Williams, New York by Pe-ter J. Galie, and Michigan by Susan P. Fino. 'TWo books on individual rights protected by state constitutions are: Human Rights in the States, New Directions in Constitutional Pol· icymaking, edited by Stanley H. Friedelbaum (Greenwood Pre.IOS, 1988). and The "Texas Bill 0/ Rights: A Commentary and Litigation Manual by James C. Harrington (Butter-worth. 1987).

An extensive bibliographical collection of documents was made available in 1989 by the Congressional Information Service (CIS). State Constitutional Conventions. Commis-sions, and Amendments, 1979-1988 is part .5 of a compilation of materials on microform that spans the 200-year period from 1776 to the present. AJI parts are accompanied by an annotated bibliography that serves as a locater of documents and an independent reference source.

Another benchmark of the biennium and the decade was the inauguration of a new se-ries of annual reviews of state constitutional law by the Rutgers Law Journal (Rutgers University School of Law at Camden). The first review, published in the summer of 1989 (vol. 20), included a selected bibliography for 1980-89. The editors drew a parallel between the new series and annual surveys of state constitutional developments published for 20 years until discontinued in 1949 in the Attleri-can Political Science Review.

36 The Book of the States t990-91

Three state constitutions, Arizona, Ore-gon, and fuas, were highlighted by law schools and reviews during the biennium. The Arizona Constitution was the subject of ar-ticles in the spring 1988 issue (vol. 20) of the Arilona State Law Journal (Arizona State University College of Law at'Jempe). In 1988 the Oregon Law Review (vol. 67) reproduced remarks on the work of the Commission for Constitutional Review of 1961 at a 1987 sym-posium at the law school. The final report of the Oregon commission was reprinted. The University of 'R:xas School of Law and the Texas Law Review co-sponsored a one-and-a-half day meeting on the Texas Constitution in October 1989. The papers wiU appear in a future issue of the law review.

In addition, symposiums focused on the Montana and Maryland constitutions in 1989 in advance of the 1990 mandated referenda on a convention call in both states. The Univer-sity of Montana School of Law and Salisbu-ry University were the respective hosts. Bro-chures and citizen guides were planned for the elections. Following the report of the Kemuc-ky Constitutional Revision Commission, a se-ries of forums sponsored by the Kentucky Chamber of Commerce and the Kentucky Bar Association were held. In 1987, the Ken-tucky Legislative Research Commission pub-lished a revised edition of A Ciliuns Guide to the Kentucky Constitution. In New Mexi-co the "Fourth New Mexico Town Hall" con-vening in Las Cruces in 1989 issued a policy report that made the calling of a constitution-al convemion to revise the New Mexico con-stitution its first priority. The town halls are a creation of New Mexico First, a private, nonpartisan organization founded in 1986 by the state's two u.s. Senators, Pete V. Domeni-ci and Jeff Bingaman.

Literature and conferences on specialized state constitutional topics are too numerous to review, but among the meetings was the "Pacific Rim State Constitutional Law Con· ference" organized by the Oregon Criminal Defense Lawyers Association and held in Kono, Hawaii in November 1989.

The selected list of references at the end of this summary analysis includes several works

CONSTITUTIONS

of particular significance: Sources and Docu· menls of United Stales Constitution (edited and annOiated by William F. Swindler with Donald Musch) designed to imegrate national and state eonstilOtional documents into a reference collection on American constitu· tional developments; Model State Constitll-lion. first published by the National Munici-pal League in 1923 and since revised six times; and the Index Digest of State Constitutions prepared by the Legislative Drafting Research Fund of Columbia University. The selected list necessarily excludes many specific items developed for constitutio nal reform of par· ticular state constitutions, including official documents. special studies, and a vast quan· tity o f ephemeral material stored in stale libraries and archives. Of particular value are the complete, annotated, and comparative analyses of the Illinois and Texas constitu· t ions, prepared for delegates to the constitu-tional convemions of those states. Also ex-cluded from the list are numerous materials prepared by gro ups long identified with state cOllstitUlions, the League of Women Voters, the National Civic League, and The Council of State Governments. Excepting the holdings of the Library of Congress, probably the most extensive collection of fugitive and published materials are those of the National Civic League and The Counci l of State Govern-ments.

Sources o f periodic reviews and updates of state constitutional developments include the biennial summary of o ffi cial activities in The Book of the Slates. The 1982·83 volume fea-tured a 50-year review of state constitutional history and bibliography. From 1982-1986 Ronald K. L. Collins authored articles on state constitutional law that appeared period· ically in The Notional Law Journal. From 1970 through 1985, Albert L SlOrm con· tributed an annual su rvey of state constitu -tional developments to the National Civic Re--view.

.-ootnotes

I. Janice C. May. "ConstilOtional Revision in 1988;' Emerging Issues in State Constilll-liollal Law 2 (1989): 61·62. The data on com-

prehensive revision cited in the fo llowing pages of this review are from this source.

2. Janice C. May, "The Const itutional In-itiative: A Threat to Rights?" Human Righls in the States. New Directions in Constitution-al Policymaking, ed. Stan ley H. Friede\baum (Westport, Con n. : Greenwood Press. 1988), pp. 165-166. The data on constitutional initia-tives cited in the following pages of this review are from this source and the current biennial survey of state election officials.

3. Fo r recent studies of this development see David B. Magleby, Direct Legislation' Vot-ing on BallOI Proposilions in the United Slales (Baltimore and London: Jo hns Hop-kins University Press, 1984) and Thomas E. Cronin. Direct Democracy, The Politics of In-itiative. Rejerendum. al/d Recall (Cambridge, Mass. and London: Harvard University Press. 1989.)

4. Robert F. Williams and Earl M. Malt z, " Introduction - Annual Issue on State Con· stitutional LaW,' Rutgers Law Journal 20 (Summer 1989): 877. The two law professors contend that "the 1980's might well be desig-nated as the decade of revival of state con· stitutional laW.'

5. The case was Power v. Robertson, 93 So. 769 (I922). Fo r a discussion see May, "Con-stitutional Revision in 1988;' at 64·69.

6. Thomas H. Ferrell, "Louisiana Voters Reject Tax Reform Amendment :' Slale COI/-Slillliional Commentaries and Notes I (Fall 1989), 17.

Selcelcd References

"Annual Issue on State Constitutional LaW.' RUlgers Low Journal 20, 4 (Summer 1989): 877-1 11 3. Includes Bibliography, 1980-89.

Bamberger, Phylis Sk loot. ed. Recent De· velopments in State Constitutional Low, New York , N.Y.: Practising Law Institutite. 1985.

Brammer, Dana B. and Jo hn Winkle III , eds. A Contemporary AnalysisojMississippi's Constitutional Government: Proceedings of a Forum May 2·3, 1986. Oxford. Miss.: The Public Policy Research Center. Uni-versity o f Mississippi, October 1986.

The Council of State Governments 37

CONSTITUTIONS

Brown. Cynthia E., compo State Constitu-tional Convention$-' From Independence to the Completion oj the Present Union, A Bibliography. Westport, Conn.: Green-wood Press, 1973.

C lem, Alan L., ed. Contemporary Ap-proaches to Stale Constitutional Revision. Vermillion, S.D.: Governmental Research Bureau, University of South Dakota, 1970.

Collins, Ronald K.L., compo and ed. "Bills and Declarations of Rights Digest:' The American Bench, Judges oj the Nation. 3rd ed. Minneapolis, Minn.: Reginald Bish-op ForSler and Associates, Inc.. 1985. 2483·26SS.

Cons/ilutionsoJthe United States.: National and State, 2nd ed. 2 vols. Dobbs Ferry, N,Y. Oceana Publications, 1974. Loose leaf. Updated periodically.

Cornwell, Elmer E., Jr. et a1. Constitutional Conventions: The Politics oj Revision. New York, N.Y.: National Municipal league, 1974. (In second series of the Na-tional Municipal League's Siale Constitu-tion Studies.)

Dishman, Raben 8., State Constitutions: The Shape oj the Document. Rev. ed. New York, N.Y.: National Municipal League, 2968 (In first series of the National Muni-cipal League's State Constitution Studies.)

Edwards, William A., ed. Index Digest 0/ State Constitutions 2nd ed. Dobbs Ferry, N.Y.: Oceana Publications, 1959. Prepared by the Legislative Drafting Research Fund, Columbia University.

Elaz.ar, Daniel J., ed. Series of articles on American state constitutions and the con-stitutions of selected foreign states. Pub-fius: The Journal 0/ Federalism 12, 2 (Win-ter 1982): entire issue.

Emerging Issues in Stale Constitutional Law. Annual Law Review. Washington, D.C.: National Association of Attorneys Gener-al 1988-.

Friedelbaum, Stanley H. edt Human Rights in the States, New Directions in Constitu-tional Policymaking. Westport, Conn.: Greenwood Press, 1988.

Grad, Frank P., The State Constitution: Its

38 The Book of the Slaies 1990-91

Function and Form/or Our Time. New York, N.Y.: Nationa1 Municipal League, 1968. Reprinted from Virginia Law Review 54,5 (June 1968). (In first series of the Nation-al Municipal League's State Constitution Studies.)

Graves, W. Brooke. "State Constitutional Law: A lWemy-five Year Summary" William and Mary Law Review 8,1 (Fall 1966): 1-48.

___ , edt Major Problems in State Con-stitutional Revision. Chicago: Public Ad-ministration Service, 1960.

Harrington, James C. The 7b:as Bill 0/ Rights: A Commentary and Litigation Manual. Austin, lhuls: Butterworth, 1987.

Kincaid, John, special edt "State Constitutions in a Federal System:' The Annals 0/ the American Academy 0/ Political and Social Sciences 496 (March 1988): entire issue.

Leach, Richard H., edt Compacts 0/ Antiq-uity: State Constitutions. Atlanta, Oa.: Southern Newspaper Publishers Associa-tion Foundation, 1969.

Leshy, John D. "The Making of the Arizona Constitution:' Aritona Stale LAw Journal 20, 1 (Spring 1988): 1-113.

May, Janice C. "Constitutional Amendment and Revision Revisited!' Pubfius: The Journalo/Federalism 17, I (Wi nter 1987): 153-179.

____ "The Constitutional Initiative: A Threat to Rights?" In Human Rights in the States. New Directions in Constitution-al Poficymaking, Stanley H. Freidelbaum, cd., 163·184.

_.,.-__ . "Thxas Constitutional Revision: Lessons and Laments!' National Civic Re-view 66,2 (February 1977): 64-69.

_-=-__ ' The Texas Constitutional Revision Experience in the Seventies. Austin, lex.: Sterling Swift Publishing Company, 1975.

McGraw, Bradley D., edt Developments in State Constitutional Law, The Williams-burg Conference, S1. Paul, Minn.: West Publishing Co., 1985.

Model Slate Constitution. 6th ed. New York. N.Y.: National Municipal League, 1963. Revised 1968.

Pisciotle, Joseph P., ed t Studies in Illinois Constitution Making. 10 vols. Urbana, 111.:

CONSTITUTIONS

University of Illinois Prcss, 1972-1980. Report of the Special Commission on Con-

stilluionuf Revision. Research Report No. 226. Frankfort, Kentucky: Legislative Re-search Com mission, September 1987.

Sachs, Barbara Faith, ed. Index to Constitu-tions of the United Stales: Nalional and Stale. London, Rome and New York : Oceana Publications. 1980. Prepared by the Legislative Drafting Research Fund. Columbia University. The first twO in the series are: Fundamental Uberties and Righls.· A FiftY-State Index (1980), and Laws. Legislatures and Legislalive Proce-dures.' A Fifty-Slale Index (1982).

Schrag, Philip G. Behind the Scenes: The Pol-itics of a COnstilutional ConvenliOIl . Washington, D.C.: Georgetown Universi-ty Press, 1985.

Sout hwick, Leslie H. "State Const itutional Revision: Mississippi and the Sout h:' The Mississippi Lawyer 32. 3 (November-De-cember 1985): 21-25 .

_ .",-= and C. Victor Welsh, III . "Method of Constitutional Revision: Which Way Mississippi?" MiSSissippi Law JOllmal56, I (April 1986): 17-71.

Slate Constirllfional Commefllaries and Notes, A Quarterly Review. New Brun-swick, N.J. : Edward McNall Burns Center for Stale Const itutional Studies, Fall 1989-.

Stale COt/srilUlional Convelllions, Commis-sions. and Amendments, 1979-1988. An-notated Bibliography and Microfiche Col-lection, Pari 5. Bethesda, Maryland: Con-gressional lnformation Service. 1989. Pans 1-4 (1776-1978) published irregularly. For annOlated bibliography published sepa-rately fo r Pan I (1776-1959) see Cynthia Brown entry.

Siole Constitutional Convenlioll Studies. I I vo ls. New York, NY: National Muncipal League, 1969-1978.

State Constitution Swdies. 10 vols. in two se-ries. New York, N.Y.: National Municipal League, 1960-1965.

Stale ConSlilll lional Law Bullelin. Monthly from july-August. Washington, D.C.: Na-tional Association of Attorneys General, Dec. 1987.

St urm, Albert L., A Bibliography 011 State

Constilll tions alld ConSlilulional Revi-sion, 1945-1975. Englewood, Colo.: The Citizens Conrerence on Stale Legislatures, AugUSt 1975.

---7' An nual summary analyses of state constitu tional developments. Published in the Jan uary or February issues o f the Na-tional Civic Review 1970-1985.

-7"""-~' "The Development of American Stale Const itutions:' Publius; ThelOllrtlol of Federalism 12.2 (Winter 1982): 57-98.

_ --;-::-;-:-. Thirty YearsofSlote Constitution Makillg, 1938-1968. New York, N.Y.: Na-tional Municipal League, 1970.

Swindler, William E, cd. Sources of Docu-ments of Unired States COllstillllions. 10 vols. Dobbs Ferry, NY: Oceana Publica-tions, Inc. 1973-1979.

_ .,-,--: ed. (vol.l ), with Dona ld Musc h (vols. 2-4). Sources and DocllmenrsofUS. COIIStitlllions, Second Series /492- /800. 4 vols. Dobbs Ferry, N.Y.: Oceana Publica-tions, Inc. 1982-1986.

"A Symposium on Stale Constitutional Re-vision~' Oregon Law Review 67, I (1988): 1-238.

" Symposium on the Arizona Consti tution:' Arizona State Law Joumal20, I (Spring 1988): 1-368.

"Symposiu m on Constitutional Revision in Mississi ppi;' MissiSSippi Law Joumal, 56, I (April 1986): 1-163.

"Symposium: The Emergence of Stale Con-st itutional LaW.' Texas Law Review 63, 6 and 7 (March/Apri l 1985): 959-1375.

Tarr, G. Alan and Mary Cornelia POrler, eds. "New Developments in State ConSlitution-al LaW.' Pub/ius: The loumal of Federal-ism 17,1 (Winter 1987): enti re isslle.

Wheeler, John P., Jr. The Constitutional Convelllion: A Manual on lIS Plan nil/g. Orgallizalioll al/d Operatioll. New York , N.Y.: National Municipal League, 1961.

_-,:---:-,' ed. SaliellllssliesofConslitwiollal Revisioll . New York, N.Y.: National Muni-cipal League, 1961.

Williams. Robert F. SrateCoflstitwional Law: Cases and Malerials. Publ ication M-159. Washington, D.C.: Ad visory Commission on Intergovern mental Relations, 1988.

The Counci l of State Governments 39

CONSTITUTIONS

Table 1.1 GENERAL INFORMATION ON STATE CONSTITUTIONS

(As of January I. 1990) _ ... - '-"'0/ ... _.,," SiQI. 01' DtMr "",,,,tJ,,r 0/ or..-· EJt_""I_ ........, ,iMrIId/l:t"", COIIJIilu~' 0., .. 0/ Hopt/oft OM$II".,,,,,, ",~1IIbtr0/~ II, ..".., A_"

,,'--............ • 111'. 1161, I..,. 1161, It", 1901 New. 21, 1901 11(.000 no '" .--. .... , '''' ' ... 1. I'" " ... " n A"- , 1911 rril. 1', 1111 ~..,. I~ ,. ,~ ... "'_ ... , 1136, 1161,11601. 1161. 111~ Ott . XI. 117~ ... no ,~ ~.J

CONSTITlffIONS

GENERAL INFORMATION ON STATE CONSTITUTIONS-Continued

The Councilor Siale Governments 41

CONSTITUTIONS

Table 1.2 CONSTITUTIONAL AMENDMENT PROCEDURE: BY THE LEGISLATURE

" ..................... . " ............. . ,,_ .............. . ~ .............. . c.IM .................. .

c-... ... .. .. .. ~ ........... .. DwIo ..... .............. . 'lorioh ................ . c:.orpo .............. ..

Ita...!! ........ ...... .................. ....................... ,--.. Ka_ ... .. 1Ii .. 1-" ............. . I.otdooIaa .............. . M_ ................ . M..,..... .............. . M--..... .......... . MkWI:M ..•• M_ ... .- . -,. "' .. Iuo ............... . N_ • ............... ~ ...... . _I . ..,..,... N __ s .... _ .... . s.,."M ....... .. s_~ ...... . N ... 'DM_ .......... . 01110 .................. .

011_ ....•...•.... ~ ...... . .....,... .. .. . .......... ........... .... ~ s.." DM_ ........ . T .. _ .......••.•. T ............ . lilli' ................ . ,,_ .............. . ~ ........... . w ........ ......... . " ... \ ...... ..... . ,,--.............. . ".,...... .... . ,,_s.... ....... . N •. M..-' ..... ..... .. '-Itb .......... ..

....-..-...... "" ~(.) '" U, =: U, U, ,,' u, '" '" '" '" '" == U, '" U, U,"" '" MajoriIy (I) U, -. U'W ...... , 11' (h)

'" ....... '" . ) r(·) " "-'" "_, ,.) ~(o) ....... '" .) MIjor~J

'" U, U, ,.) ...... U, U, ....... '" '" '" 111M

Constllutlonal Provisions ~

C"""""'/cN!/)yI_ --"", ...

No No No No No

No ,,' ,-No No

'" No No ,-,-No No No No No

,-No No No No

No No ,-No

'" No ,-No No No

No No " .. (0) No Y .. (PI

No Y .. (q) No No ,-,-No No ,-No

No No No

MojoriIJ ...... 00 ........s-M~J"""oa_ = ...... 00 .......... _ ......... >'0«;" d«tIooo

.... .... .... , .... ..... ) .... No ~rermd"", ..... N_ .... .... , ..... .... .... , • ..... .... -.... .... .... .... .... N_ N_ ..... .... .... ru .... .... --..... -.... -.... .... .... ..... .... --.... .... .... .... .... .... .... ,

42 The Book of the Stalcs 1990-91

CONSTITUTIONS

CONSTITUTIONAL AMENDMENT PROCEDURE: BY THE LEGISLATURE-Continued

The Council of Siale Governments 43

CONSTITUTIONS

Table 1.3 CONSTITUTIONAL AMENDMENT PROCEDURE, BY INITIATIVE

Conslilutlonal Provisions

coW ..... ......... .

c __ .......... .

tlefWa ••..••..•••.•

IIIktoIa:ouo •••••••••••

"';.-n ........... .

111_ ..... ........... .

Notonob .•.•••••.••

~ ............ .

N_IkII ... ...... .

ow. .............. .

" ... or ,oul VOl ...... rOIl olI..-ndkll, .. fOIl ............ 1M LIlli -.... Ia.. or >OIn' r .. ..,...,....... II ... doa ....

.... or , .... ..,.... f .. all cutIitII, .. r ... __ 1M Iuc ""' .... 5 ... or ,oul,..... """ .. rOO" all ...... ldll .. f ... _01)' or II .... "' ... _"I • ...,,""' . .... or , .. &I ""' ..

CONSTITUTIONS

Table I." PROCEDURES mRCALLlNG CONSTITUTIONAL CONVENTIONS

Constitutional Pro"is.ions

f:~_liX -- ~$II"""""",, Popwl«" w,,, NqNIntI s,,"~ iX Oilwr p,."""",iX $II/Im ","",_,kHI '" ,,,,,1Ion1;l olrott_'''''' P ,.ri/lWkHI '" p.rfsdlN.".. ~-.. qomI/otI (I ' rott_'''''' __ kHI "'lwlrrd (bl rott .... " .. '" prDpt>ttI/¥ " ... 1.1 .. •.• .. •.• ,. " .p;o, "' ... No< Jpo10.10

CONSTITUTIONS

PROCEDURES FOR CALLING CONSTITUTIONAL CONVENTIONS-Conlinu'"

46 The Book of the States 1990-91

CONSTITUTIONS

1 iJUUjl .. i WiHil ~~iil!1 -0 .0 jW'" ~;E~I" ~i - ; -< ~. .- !j~'Hlibl i~1 ' iHjiol " " , .,'hl 'i!'li'l ,I., iA. ~~ -.§ ~ li j .. 1: A

:1jll•i 8i' ~{~ 1 i"lh~{ i·i~ - , !"1 I! ' ! ~ -';/.B]'"il-' , ti 1: .a ~ '°1 mIHI'H.!lIi~ l d.~l.!.' ~ " •• ... .. ~ ~:s j~ _ ,! .! it

'Ili §u .1"1 i' - ;]1 Hi 11' !'I; 0, • i · ;Iu fI- e ~ ~ . :I j . I~

:I!ll~ l' h~ ~i! . h ~ .; . ~ .:0 li-:::';

:1 h ~ ! " !

II ~

h '" jt z 0 -... z '" >

t z 0 u .... ~