Arkansas Supreme Court OKs LEARNS Act emergency clause vote

The Arkansas Supreme Court ruled Thursday (Oct. 12) that state lawmakers did not violate the Constitution by voting on the LEARNS Act’s emergency clause at the same time they voted for the bill itself. The vote was 6-1, and the one dissenter, Chief Justice John Dan Kemp, wrote that the question was moot.

In an opinion written by Justice Barbara Webb, the court voted to reverse an earlier decision by Pulaski County Circuit Judge Herbert Wright. Webb wrote that the House and Senate journals recorded the votes as occurring separately, which under precedent constitutes the only legally allowed evidence regarding what happened.

She also wrote that the state in this case was not protected by the doctrine of sovereign immunity, the concept in the Arkansas Constitution that the state can’t be sued in its own courts.

The original plaintiffs had been patrons of the Marvell-Elaine School District and others who objected to a decision by the State Board of Education to place the district under the control of the Friendship Education Foundation, a private charter company.

Wright had granted a temporary restraining order May 26 prior to a full hearing June 20. The Supreme Court had reversed and vacated that order because it said the appellees had failed to demonstrate irreparable harm.

Wright on June 30 declared the emergency clause invalid because lawmakers had voted on the LEARNS Act and its emergency clause simultaneously. The Constitution requires that votes be done separately. The simultaneous vote meant that actions by the State Board were invalid until the act went into effect without the emergency clause Aug. 1, Wright ruled.

Webb wrote that the Arkansas Constitution states that a roll-call vote does not become law until “the names of the persons voting for and against the same be entered on the journal; and a majority of each house be recorded thereon as voting in its favor.” Elsewhere, the Constitution states that both the House and Senate shall keep a journal of their proceedings.

In 1918 in the case Niven v. Road Improv. Dist., the Supreme Court ruled that the “journal entry [is] the sole entry evidence of [legislative] proceedings.”

“Today, we reaffirm this precedent and conclude that the plain language of the constitution designates the journal of each chamber as the official record of the General Assembly’s votes,” Webb wrote.

Voting on bills and emergency clauses simultaneously and then recording them separately is a longstanding legislative practice.

“To be sure, if the circuit court’s order stands, countless State actions made in reliance on effective emergency clauses will be cast in doubt and potentially be subjected to collateral attacks. The substantial interest of both the public and our coordinate branches of government necessitates that we resolve the issues raised in this appeal,” she wrote.

In rejecting the state’s claim of sovereign immunity, Webb wrote that “lawsuits seeking declaratory or injunctive relief agains the state for ultra vires, unconstitutional, or illegal acts can surmount sovereign immunity.” “Ultra vires” is a legal term meaning an act done beyond an official’s legal authority.

She also wrote that, because the journals satisfied the emergency clause issue, the court did not have to consider “the validity of internal legislative procedures or whether such review presents a political question.”

Justice Courtney Hudson joined in the opinion, while Justices Karen Baker, Rhonda Wood and Shawn Womack and Special Justice Cory Cox wrote brief concurring opinions. Cox was appointed by Gov. Sarah Sanders to the case. Justice Cody Hiland recused. Sanders had appointed him as a full-time justice following the death of Justice Robin Wynne.

Baker and Cox wrote that sovereign immunity applies to this case and all other cases, while Wood said that deciding the case would involve answering a political question. Eight other states’ courts have ruled that challenges based on the legality of internal legislative processes are what she wrote was a “nonjusticiable political question.”

Wood wrote that the Arkansas Constitution gives each house the authority to determine its own rules and procedures.

“Answering a political question about how the legislature conducts its proceedings would violate separation of powers,” she wrote.

Kemp in his dissent wrote that the issue has become moot now that Aug. 1 has passed, and that the opinion issued on the merits is merely advisory.

Ali Noland, the attorney for the original plaintiffs, was critical of the ruling, saying the Supreme Court had to use “various legal gymnastics to get to that desired outcome.”

“Today’s Arkansas Supreme Court ruling makes it much harder for Arkansans to hold their government accountable for willfully violating the Arkansas Constitution. Despite the fact that this lawsuit has now been moot for more than two months, the Arkansas Supreme Court still chose to wade into the issue in order to make clear that, no matter how blatantly the Arkansas legislature violates the Arkansas Constitution, our courts will now be required to look the other way,” Noland said in a statement. “In 1920, the people of Arkansas passed a constitutional amendment adding the separate-vote requirement for enacting emergency clauses in order to curb legislative abuse of power. Today, the Arkansas Supreme Court has rendered that constitutional amendment meaningless. Arkansans should be asking why we have specific provisions in the Arkansas Constitution governing the actions of the legislative and executive branches if the judicial branch is unwilling to enforce them.”

Although the legal issue involved the constitutionality of the legislative procedure, not the constitutionality of provisions of the LEARNS Act, Gov. Sanders issued a statement declaring victory for her signature legislation.

“Today’s Supreme Court ruling in favor of the LEARNS Act is a historic victory for Arkansas parents, teachers, and students, and a crushing defeat for the partisan extremists who tried to undermine our kids’ futures. My administration will continue to implement our transformational reforms which empower parents to choose the best school for their family, prohibit indoctrination, raise teacher pay from one of the lowest to one of the best in the nation, and invest in pre-k, early literacy, and career and technical education so every Arkansan can find a good job in their community,” she said in a statement.

Attorney General Tim Griffin issued a statement saying, “This is a win for the people of Arkansas. The Arkansas Supreme Court confirmed that the General Assembly’s long-established procedure for adopting emergency clauses is valid and not subject to challenge. This ruling dismisses the lawsuit challenging LEARNS and confirms that all similar challenges fail as a matter of law and must be thrown out.”