Arkansas Legislative Approval of State Agency Rules Amendment, Issue 1 (2014)

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Issue 1
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Type:Legislatively-referred constitutional amendment
Constitution:Arkansas Constitution
Referred by:Arkansas State Legislature
Topic:Admin. of Gov't.
Status:Approved Approveda
2014 measures
Seal of Arkansas.svg.png
November 4
Issue 1 Approveda
Issue 2 Approveda
Issue 3 Approveda
Issue 4 Defeatedd
Issue 5 Approveda
PollsFull text
The Arkansas Legislative Approval of State Agency Rules Amendment, Issue 1 was on the November 4, 2014 ballot in Arkansas as a legislatively-referred constitutional amendment, where it was approved. The amendment requires legislative review and approval of all changes to state agencies' administrative rules.[1][2] The amendment was sponsored by Sen. Jonathan Dismang (R-28) in the Arkansas State Legislature, where it was known as Senate Joint Resolution 7.[3]

Election results

Below are the official, certified election results:

Arkansas Issue 1
ResultVotesPercentage
Approveda Yes 469,431 59.06%
No325,39640.94%

Election results via: Arkansas Secretary of State

Background

Arkansas law previously required state agencies to submit changes to their administrative rules to the legislature, but it did not grant the legislature the power to approve or disapprove those changes.[4] According to a report published by The Public Policy Center of the University of Arkansas Division of Agriculture Research and Extension detailing background information on Issue 1:[5]

Arkansas senators and representatives want to provide a committee of legislators the legal authority to approve state agency rules. Arkansas Legislative Council committee members currently review state agency rules but Arkansas Supreme Court and Attorney General opinions have said legislators do not have the legal authority to approve rules before they go into effect, but they are allowed to review them for informational purposes. According to Arkansas legal opinions and scholars, voting to approve or disapprove state agency rules would violate the state Constitution's requirement for separation of powers among the state's legislative branch, executive branch and judicial branch. However, legislators believe the current practice gives the executive branch, or state agency leaders, more power than what the state Constitution intends.

Legislators have proposed laws and constitutional amendments in previous years to give the Arkansas Legislative Council more oversight of state agency rules, but this is the first time the issue has been put on the ballot for voters to decide.

—The Public Policy Center of the University of Arkansas Division of Agriculture Research and Extension

The report also attempted to explain the concept of "administrative rules:"[5]

The proposed amendment does not define "administrative rules." However, current state law known as the Arkansas Administrative Procedure Act defines a "rule" as "an agency statement of general applicability and future effect that implements, interprets or prescribes law or policy, or describes the organization, procedure or practice of an agency and includes, but is not limited to, the amendment or repeal of a prior rule." Administrative rules specify how an agency operates to carry out its responsibilities.

Examples of state agency administrative rules include contracting procedures, hunting rules and regulations, licensing of electrical inspectors and state Medicaid coverage policies, among many others.

—The Public Policy Center of the University of Arkansas Division of Agriculture Research and Extension

The ballot language for all three legislatively-referred constitutional amendments on the 2014 ballot faced legal issues due to a 2013 act removing the attorney general's authority to write popular names for the measures. For more information on this complication and the possible lawsuits it may incur, see the path to the ballot section.

Text of measure

Ballot title

The official ballot title read as follows:[6]

ISSUE NO. 1

CONSTITUTIONAL AMENDMENT REFERRED TO THE PEOPLE BY THE GENERAL ASSEMBLY

Popular Name

AN AMENDMENT EMPOWERING THE GENERAL ASSEMBLY TO PROVIDE FOR LEGISLATIVE COMMITTEE REVIEW AND APPROVAL OF STATE AGENCIES' ADMINISTRATIVE RULES

Ballot Title

AN AMENDMENT TO THE ARKANSAS CONSTITUTION PROVIDING THAT ADMINISTRATIVE RULES PROMULGATED BY STATE AGENCIES SHALL NOT BECOME EFFECTIVE UNTIL REVIEWED AND APPROVED BY A LEGISLATIVE COMMITTEE OF THE GENERAL ASSEMBLY.

FOR ISSUE NO. 1

AGAINST ISSUE NO. 1

Constitutional changes

Issue 1 amended Article 5 of the Arkansas Constitution by adding a new section to read as follows:[1]

§ 42. Review and approval of administrative rules.

(a) The General Assembly may provide by law:

(1) For the review by a legislative committee of administrative rules promulgated by a state agency before the administrative rules become effective; and
(2) That administrative rules promulgated by a state agency shall not become effective until reviewed and approved by the legislative committee charged by law with the review of administrative rules under subdivision (a)(1) of this section.

(b) The review and approval by a legislative committee under subsection (a) of this section may occur during the interim or during a regular, special, or fiscal session of the General Assembly.[7]

Support

Sen. Dismang, sponsor of SJR 7

Supporters

Officials

Arguments

  • Rep. Deffenbaugh supported SJR 7, saying,

SJR 7 is a good bill because it keeps agencies from making their own rules. It will give more Legislatives oversight.[7]

Rep. Gary Deffenbaugh, [4]

  • Rep. Hobbs said in favor of the amendment,
I was somewhat surprised when I first served on ALC and learned that legislators reviewed rule changes, but did not have the authority to approve or disapprove them. I believe the approval of SJR 7 will be in the best interests of Arkansans, but an explanation will need to be given for voters to understand the importance of it.[7]

Rep. Debra Hobbs, [4]

  • Sen. Lindsey said of the issue,
Over a number of years, the Legislature has chaffed at it's inability to keep contracts, rule and regulations developed by state agencies from going into effect after a simple and almost perfunctory legislative review. SJR-7 would change that to provide legislative approval authority over such issues.

I think that is a good thing, for it provides a check and balance between the executive and legislative branches of government.[7]

Sen. Uvalde Lindsey, [4]

  • According to a report on Issue 1 published by The Public Policy Center of the University of Arkansas Division of Agriculture Research and Extension, arguments in support of Issue 1 included:[5]
What do supporters say?
  • Legislators would be able to make sure that state agency rules follow the intent of the law that the rules are trying to implement.
  • Legislators would have final say over new rules and regulations before they go into effect instead of administrators who are not elected by the people.
  • Legislators would not have to wait until the next legislative session to make changes to rules or reject rules that they believe could cause “a painful situation for anyone involved or impacted.”[7]

—The Public Policy Center of the University of Arkansas Division of Agriculture Research and Extension

SJR 7 "Yes" votes

The following members of the Arkansas Legislature voted in favor of putting SJR 7 on the ballot:[8][9]

Note: A yes vote on SJR 7 merely referred the question to voters and did not necessarily mean these legislators approved of the stipulations laid out in Issue 1.

House

Senate

Opposition

Opponents

  • Arkansas Wildlife Federation[10]
  • Arkansas Chapter of The Wildlife Society

Arguments

According to a report on Issue 1 published by The Public Policy Center of the University of Arkansas Division of Agriculture Research and Extension, arguments in opposition to Issue 1 included:[5]

What do opponents say?
  • The amendment would disrupt the separation of powers between legislators and day-to-day administrators who are charged with carrying out state law and serve the needs of Arkansans.
  • Approval by the General Assembly would make the process to establish rules or change rules more difficult and time consuming while legislators educate themselves about a complicated legal or technical issue in order to approve or disapprove the rule.
  • A few legislators could block implementation of a new law approved by the General Assembly by refusing to accept rules guiding how the law would be implemented.[7]

—The Public Policy Center of the University of Arkansas Division of Agriculture Research and Extension

SJR 7 "No" votes

Note: A no vote on SJR 16 meant that a legislator did not want to refer the question to voters and did not necessarily mean these legislators disapproved of the stipulations laid out in Issue 2.

Sen. Stephanie Flowers (D-25) voted against SJR 7 in the Senate.[3] No members of the House voted against sending the measure to the ballot.[8]

Path to the ballot

See also: Laws governing ballot measures in Arkansas & Amending the Arkansas Constitution

A majority vote is required in both chambers of the Arkansas State Legislature to refer a measure to the ballot, per Section 22 of Article 19 of the Arkansas Constitution.

The Arkansas State Senate voted 32 to 1 in approval of the measure on April 12, 2013. The amendment was then transmitted to the House of Representatives. The House voted unanimously to approve the bill on April 16, 2013, thereby referring the measure to voters. This made SJR 7 the first of three total referrals that voters saw from the legislature in 2014.[3]

Senate vote

April 12, 2013 Senate vote

Arkansas SJR 7 Senate Vote
ResultVotesPercentage
Approveda Yes 32 96.97%
No13.03%

House vote

April 16, 2013 House vote

Arkansas SJR 7 House Vote
ResultVotesPercentage
Approveda Yes 88 100%
No00%

Ballot language legal challenges

All three of the legislatively-referred constitutional amendments for the 2014 ballot faced difficulties due to an apparent mistake made by Senate Bill 821 in the 2013 regular session. The bill, which became Act 1413, was controversial on its own grounds, but directly impacted these measures by removing the requirement that the attorney general write popular names for the amendments put forward by the legislature.[11] While initially appearing to be a minor procedural issue, Arkansas law requires ballot measures to have popular titles to appear on the ballot. Attorney General Dustin McDaniel (D) had endorsed Act 1413 in 2013 without realizing this complication. The matter was brought to attention by the secretary of state's request of opinions on the matter.[12]

On January 23, 2014, the secretary of state's office announced that they would use language provided by the attorney general's office and from the measures themselves to prepare the ballot language. The attorney general had claimed that the secretary of state had the authority to do so, but Martha Adcock, general counsel for the secretary of state's office, expressed some doubt over the process. She said,

Anybody can sue. This is no guarantee by us saying we're going to provide and use the attorney generals' popular name that somebody won't sue and say there's no authority for doing so.[7]

—Martha Adcock, general council to Arkansas Secretary of State Mark Martin, [13]

It appeared that some groups were poised to try and use this legal gray area to challenge the legislatively-referred constitutional amendments. A group opposed to the term limits amendment and another that had dropped its initiated ballot measure for ethics reforms due to the legislatively-referred constitutional amendment on the same issue both expressed the possibility of using a lawsuit to challenge the legality of the measures due to the confusion caused by Act 1413.[13]

See also

External links

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References

  1. 1.0 1.1 Arkansas Secretary of State, "SJR 7 As Engrossed: S3/6/13," accessed June 18, 2014
  2. Times Record Online Edition, "Arkansas Legislature: Two Proposed Constitutional Amendments Clear Senate," April 18, 2013
  3. 3.0 3.1 3.2 3.3 Arkansas State Legislature, "SJR 7 Bill Information," accessed February 7, 2014
  4. 4.0 4.1 4.2 4.3 The City Wire, "Area legislators comment on amendment ideas," April 17, 2013
  5. 5.0 5.1 5.2 5.3 The Public Policy Center of the University of Arkansas Division of Agriculture Research and Extension, "EMPOWERING THE GENERAL ASSEMBLY TO PROVIDE FOR LEGISLATIVE COMMITTEE REVIEW AND APPROVAL OF STATE AGENCIES’ ADMINISTRATIVE RULES," accessed October 14, 2014
  6. Washington County, Arkansas, "Official Ballot, 2014 General Election," accessed October 12, 2014
  7. 7.0 7.1 7.2 7.3 7.4 7.5 7.6 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  8. 8.0 8.1 OpenStates.org, "House Vote on SJR 7 (Apr 16, 2013)," accessed October 13, 2014
  9. OpenStates.org, "Senate Vote on SJR 7 (Apr 12, 2013)," accessed October 13
  10. Arkansas Times, "UPDATE: Arkansas Wildlife Federation opposes Issue 1," October 28, 2014
  11. Arkansas Secretary of State, "Act 1413 of the 2013 Regular Session," accessed June 19, 2014
  12. Arkansas Legislative Digest Nightwriter Blog, "Oops — the three proposed constitutional amendments referred by the 2013 legislature are now in limbo," accessed June 19, 2014
  13. 13.0 13.1 Arkansas Business, "Secretary of State Approves Language for 3 Arkansas Ballot Measures," January 23, 2014