A.G. opinion suggests line of attack on constitutional amendment | Arkansas Blog

Monday, October 13, 2014

A.G. opinion suggests line of attack on constitutional amendment

Posted By on Mon, Oct 13, 2014 at 4:29 PM

One of the bad batch of proposed constitutional amendments sent to the ballot by the legislature is an amendment to give the legislature control over state agency rules and regulations, where it now has only "review" power.

Today, the attorney general declined to give an opinion on whether this amendment — as a change in the Constituition — could open the door to legislative meddling with the constitutionally independent Highway and Game and Fish Commissions.

Short answer is that a court would have to decide that question when and if the measure was approved and the legislature took to meddling. In this, however, I can see a potentially potent argument against approval of this  amendment: Do you really want the legislature getting into bag limits and the dates of the duck season?

Here's the summary of the opinion request and answer:

Requestor:
Knoedl, Mike
Director, Arkansas Game & Fish Commissio

QUESTION:

Does "state agency" referenced in Section 1 of SJR 7 include the two constitutional commissions, i.e., The Arkansas Game and Fish Commission and the Arkansas Highway Commission? In other words, if SJR 7 is approved by the electorate, could the General Assembly enact a law that would require the Game and Fish Commission and the Arkansas Highway Commission to seek legislative committee review and approval of their administrative rules before they could become effective? Q2) If SJR 7 is approved by the voters, will any of its provisions create legal conflicts with existing provisions in Amendment 35 or 42 to the Arkansas Constitution? If so, how would such conflict likely be resolved? Q3) In light of the Ark. S.Ct. decision in Chaffin V. Arkansas Game & Fish Commission, 296 Ark. 431, 757 SW2d (1988), will any provision of SJR 7 conflict with any other provisions of the Arkansas Constitution, such as the separation of powers provisions in Art. 4, secs. 1 and 2, or the right to hunt, fish, trap and harvest wildlife under Amendment 88?

RESPONSE:

Q1 & 2) As a matter of policy, this office has traditionally declined to issue opinions interpreting proposed acts or amendments prior to those laws being put to a vote of the people. I must accordingly respectfully decline to interpret Senate Joint Resolution 7 ("SJR 7"). I can and will briefly note the issues that I believe a court might address in entertaining a challenge to legislation based upon the authority of SJR 7. Legislative intrusion into the rulemaking authority of a constitutionally independent commission must be undertaken by constitutional amendment. The fact that SJR 7 proposes a constitutional amendment may suggest that the legislature intends to authorize such an intrusion, but only a court faced with the issue could determine whether the amendment warrants such action. And, of course, whether the issue arises will depend upon an actual exercise by the General Assembly of what it takes to be its newly granted authority following the measure's adoption. If this measure were to pass; and if the legislature were to interpret its adoption as authority to condition the rulemaking of constitutional commissions upon obtaining prior legislative approval; and if the legislature elected actually to exercise this purported authority, then, and only then, would a judicial challenge be ripe for adjudication. The primary issue of law before the court would be whether the people intended to grant such a right in adopting this amendment. I will not speculate further regarding the possible outcome of any such judicial inquiry. Q3) The issue arising from the adoption of SJR 7 would not be whether the amendment was objectionable as conflicting with the constitutional principles you recite; rather, it would be whether the amendment, as a subsequently adopted constitutional principle, impliedly qualified or repealed such principles. In my opinion, Chaffin provides no direct guidance on this question. Instead, it confirms only that the Arkansas Constitution in its current form does not allow the legislature to encroach either directly or indirectly on the policy-making independence of the AGFC. The crucial remaining issue, which you raise in your first question, is whether SJR 7 would alter the constitution by amendment in a way that would warrant such legislative intrusion through control over commission rulemaking. This issue will not be ripe for adjudication until the legislature, in the event the voters adopt SJR 7, interprets the scope of its new authority and acts thereon. Q4) Absent fraud, a legislatively crafted constitutional amendment referred to the people pursuant to Ark. Const. art. 19, § 22 need only be identified to an extent that "'distinguishes the proposed amendment from others and is recognizable as referring to the amendment that was previously published in the newspapers.'" Again, the main issue in any future litigation alleging encroachment on a commission's rights under Amendments 35 and/or 42 will likely be whether, given SJR 7's silence on the issue, the voters intended to abridge such substantive rights in adopting the measure. Q5) The requested information is available from the Secretary of State.

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