Arkansas Bar Association to discuss potential constitutional amendment on justice system, ethics, vetoes and legislative power

The Legislation and Executive Committees of the Arkansas Bar Association have recommended a sweeping constitutional proposal to be considered by the ABA’s House of Delegates, the governing body for the statewide legal organization.

The proposal, which if approved would be a measure for voters to consider in the 2018 general election if it qualifies for the ballot, would affect five major aspects of the current Arkansas Constitution:

1) Requires any candidate or entity spending money on election advertising to disclose contributors and dollar amounts. The measure, which gives authority to the Arkansas Ethics Commission to develop rules, is an attempt to corral dark money in elections and it allows the commission to set contribution limits in judicial races.

2) Eliminates the practice of General Improvement Funds (GIF) by the state legislature. “The General Assembly shall not pass an act, and no agency or office of the executive department shall execute an act, that allows, or results in, an individual legislator or group of individual legislators designating, directly or indirectly, (1) the manner in which appropriated funds are spent, (2) the entities on whose behalf the appropriated funds are spent, or (3) to whom appropriated funds are provided, whether by grant or otherwise,” the proposal reads.

3) Changes the veto threshold for the legislature to override the governor from a simple majority to a two-thirds vote of both chambers.

4) Keeps the power of rulemaking authority for the courts within the judicial branch and prohibits the state legislature from restricting attorneys’ fees or limiting damages in civil cases. Arkansas lawmakers have referred a proposed amendment to voters for the 2018 general election that would cap damages and attorneys’ fees.

5) Allows legislative “review” of executive branch rules and regulations created by state agencies. A constitutional amendment several years ago gave the legislature the authority to “approve” state agency administrative rules.

In a letter dated May 12 and addressed to ABA delegates from President Denise Hoggard, she writes, “You are receiving this notice in compliance with Article XIV of the Association’s Constitution regarding Proposing, Supporting, or Opposing Amending U.S. or Arkansas Constitution. Article XIV mandates a 30 day notice to the membership prior to action by the Association’s House of Delegates.”

The ABA House of Delegates is scheduled to meet on Friday, June 16, 2017 at the Hot Springs Convention Center.

At the event, the delegates will decide “whether the Association will support, oppose or stand neutral on the amendment,” Hoggard writes.

In addition to the Executive Committee of the ABA supporting the proposal, Hoggard added, “The Association’s Legislation Committee has also reviewed the proposed amendment and voted unanimously to recommend the House support the proposal.”

The road to the ballot box could be a bumpy one for the proposal. First, the Arkansas Bar Association House of Delegates would have to approve the effort. Attorney General Leslie Rutledge would then have to approve a ballot title, which could be lengthy and will certainly have challenges in being clarified for voters with all of the different issues it represents.

Next, if approved for ballot signature collection by the attorney general, supporters would have to circulate petitions and gather 84,859 valid voter signatures to qualify for the November 2018 ballot. Finally, the measure would have to withstand all-but-certain legal challenges from opponents as well as garner a majority of votes for passage.

Arkansas Democrat-Gazette columnist John Brummett and TB&P’s Roby Brock discussed aspects of the ABA proposal in Monday’s Talk Business & Politics Daily digital edition below.