Ali Noland Brian Chilson

After months of delay, the Arkansas Supreme Court has at last ruled on a lawsuit challenging the validity of the state legislature’s practice of voting for both a bill and its emergency clause with a single vote. The Supreme Court reversed a lower court’s ruling and dismissed the case in a 6-1 decision on Thursday, effectively giving its blessing to the legislature’s long-held method of voting for a bill at the same time as the bill’s emergency clause.

But as with its ruling in an earlier phase of the case, the seven justices were divided. Four justices issued three separate concurring opinions expressing disagreement with Justice Barbara Webb’s lead opinion. Chief Justice Dan Kemp dissented.

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An emergency clause is a piece of legal language that allows a new law to take effect immediately, rather than going through a 90-day waiting period. The lawsuit, which began this spring, challenged the effective date of Arkansas LEARNS, the education overhaul law championed by Gov. Sarah Sanders. A group of plaintiffs represented by Little Rock attorney Ali Noland argued that the emergency clause attached to LEARNS was invalid since the legislature didn’t hold two “separate” votes on the bill and the emergency clause, as the Arkansas Constitution explicitly requires.

The lawsuit was of great importance earlier this year, as the state began trying to roll out a voucher program and other initiatives created by LEARNS. If the emergency clause wasn’t valid — as a Pulaski County Circuit Judge Herb Wright said — the law would have to wait until Aug. 1 to go into effect.

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Once the Aug. 1 date passed, however, LEARNS was the law of the land regardless of the outcome of the lawsuit.

But the case remained significant, not least because the emergency clauses attached to other bills could also be affected if the Supreme Court sided with the plaintiffs. A Freedom of Information Act lawsuit recently filed by Blue Hog blogger Matt Campbell against the Arkansas State Police, for example, argues that a FOIA-restricting bill passed in September is not yet in effect because the legislature didn’t hold a separate vote on the bill and its emergency clause.

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Attorney General Tim Griffin said today’s ruling was “a win for the people of Arkansas” and “confirms that all similar challenges fail as a matter of law and must be thrown out.”

The governor struck a characteristically divisive tone.

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“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,” Sanders said in a statement. “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.”

Noland, who had asked the Supreme Court to declare the case moot after the Aug. 1 date passed, said the ruling will make it harder to hold state government accountable.

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“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,” she said.

The case placed the court in a difficult position. The state constitution clearly requires “separate” votes on a bill and its emergency clause, and the legislature clearly has not been holding separate votes for many years, as evidenced by video recordings of thousands of votes taken by both the House and the Senate. But the justices seemed reluctant to retroactively change the effective date of potentially hundreds or thousands of bills, opening the door to new lawsuits.

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In the majority opinion, Justice Webb settled upon a counterintuitive argument made by the attorney general’s office: Even though the video recordings show that only one vote was made, the official journals of the House and Senate say there were two votes. And because the journals are the sole official record of the legislature, there in fact must have been two votes, no matter what the videos show.

Judge Wright, who sided with the plaintiffs earlier this year, shouldn’t have relied on the video recordings to determine what happened in the legislature, Webb said. “The journals are the official record, and it was erroneous for the circuit court to look to parol evidence in reaching its decision,” she wrote (link added).

Noland blasted the convoluted logic, calling it “shocking.”

“Every Arkansan can watch the videos, which are still available on the General Assembly website, and see that the separate votes recorded in the legislative journals did not happen,” she said. “The State’s own witnesses admitted that separate votes were not taken. But unbelievably, the Arkansas Supreme Court now says that none of that matters; the legislature can do whatever it wants as long as it continues to falsify the legislative journals to reflect that two separate votes occurred when only one was really taken.”

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Other justices took a different approach. Justice Rhonda Wood said the case should be dismissed because weighing in on the legislature’s method of conducting votes would violate the separation of powers doctrine. “We cannot resolve a legislative procedure-and-process issue without exceeding our judicial role by answering a political question,” she wrote in a concurring opinion. 

Cory Cox, a special justice whom the governor appointed to hear the LEARNS emergency clause case after the recusal of Justice Cody Hiland, joined Wood’s concurrence.

In a separate concurrence, Justice Shawn Womack said the case should have been dismissed on sovereign immunity grounds. “Without an express constitutional provision to the contrary, the State can never properly be a defendant in any of its courts,” he wrote.

As in an earlier phase of the case, Justice Karen Baker wrote a concurring opinion that focused on what she sees as the adverse impact of the court’s expansive approach to sovereign immunity. When the court overturned decades of precedent on the issue in a 2018 case, Baker was a loud dissenting voice, warning it could have “astounding” consequences to give the state broader legal immunity. Until that precedent is overruled, “any claims that seek to control the actions of the State are barred,” she wrote in today’s concurrence.

Noland said the multiple concurring opinions — despite months of deliberation — indicated the justices “could not agree on any rationale for reversing and dismissing this case; they could only agree on the fact that reversal and dismissal was the outcome they wanted.” They then used “various legal gymnastics to get to that desired outcome,” she said.

The sole dissent was Kemp, the chief justice, who said he would have dismissed the appeal as moot.