Altering constitution gray area, Wills says

LITTLE ROCK — A bill offered in the recently concluded legislative session would have amended the Arkansas Constitution without a vote of the people.

House Speaker Robbie Wills said he was behind the bill, which was aimed at making it easier for governmental bodies to sell bonds.

Despite a half-century-old Supreme Court opinion to the contrary, Wills said the Supreme Court might allow the Legislature to change the constitution on its own, given the right case.

A 1951 Supreme Court decision - arising from a dispute over bounties for wolf "scalps" - found that the Legislature can't change the constitution without a vote of the people.

But former House Speaker Bill Stovall said that opinion is based on flimsy legal reasoning and is ripe for reinterpretation.

Now a House aide, Stovall suggested to Wills that the Legislature try to amend the constitution on its own.

Amendment 7 of the constitution took effect in 1925 and seems to allow the Legislature to change the state's legal and governing foundation with a two-thirds vote.

This was acknowledged by the Supreme Court in the 1951 ruling, a unanimous opinion written by Chief Justice Griffin Smith.

The court found that - taken literally - theamendment says the Legislature could repeal the entire constitution if enough legislators agreed to do it.

But the court found that to be an "inconceivable" purpose of Amendment 7, which set up a process for the people to enact laws and amendments by initiative and referendum and to reject laws enacted by the General Assembly.

The "clear intent" of Amendment 7 was to expand the powers of "the people," said the court, and any intent to let the Legislature undo the will of the people by a two-thirds legislative vote would have been more emphatically stated.

The bill to amend the constitution this legislative session wasHouse Bill 2206 by Rep. Curren Everett, D-Salem, one of Wills' top allies. It would have amended Amendment 65, which sets maximum interest rates for government bonds, by removing the limit.

The House City, County and Local Affairs Committee recommended the bill, but it wasn't presented for a vote in theHouse. (Instead, the Legislature referred a proposed constitutional amendment to the people to vote on in 2010 to address the bond problem.)

Cities and counties and other governmental entities have had trouble selling bonds because of the interest rate limit, said Paul Young, finance director of the Arkansas Municipal League.

"You just cannot issue longterm financed bonds at the current level," Young said.

Investors want a higher rate of return for longer-term bonds, he said.

The proposed constitutional amendment, House Joint Resolution 1004 by Rep. Eddie Cheatham, D-Crossett, would let the Legislature set maximum interest rates on government bonds.

Wills said House leaders briefly considered Everett's HB2206 late in the session.

"It looked like the municipal finance resolution was kind of losing steam," Wills said. "We kind of had [HB2206] on standby. If we weren't able to refer [HJR1004] out, we were really going to be in trouble as far as cities and counties."

How would the public have reacted if the Legislature had gone through with the bill and tried to amend the constitution without a public vote?

"It would depend on the situation," Wills said. "If we were trying to come in and pass a law to overturn the lottery amendment, I don't think that would be popular. It really depends on what exactly the amendment would entail."

It's not the first time the Legislature considered amending the constitution on its own.

In 2001, former Sens. Jodie Mahony, D-El Dorado, and John Riggs, D-Little Rock, asked then-Attorney General Mark Pryor whether the Legislature could do it.

"It is my opinion that the answer to your question is 'no,'" Pryor responded in an opinion prepared by Assistant Attorney General Elana Wills, no relation to the House speaker and now on the Supreme Court.

She cited the 1951 opinion.

Riggs said he couldn't remember for sure but he thoughthe and Mahony wanted to try to change or eliminate term limits that apply to legislators. Amendment 73, a citizen-initiated measure, limited House and Senate terms.

"We just didn't think we could get it changed by a vote of the people because there were so many outside interests outside the state [favoring term limits]," Riggs said.

He acknowledged that there likely would be a "big backlash," if the Legislature tried to change term limits without a vote of the people.

Avoiding a public vote also would make it easier for the Legislature to update the 1874 constitution by removing "antiquated" language, Riggs said.

Late in the 2003 legislative session, then-state Rep. Steve Napper, D-Little Rock, filed HB2803 to amend the constitution to lengthen term limits but didn't pursue it. Former Rep. Marvin Childers, R-Blytheville, was the co-sponsor.

Napper said House leaders urged him to file the bill.

Childers said he didn't remember why he put his name on it.

"I doubt very seriously it would meet constitutional muster," he said. "It's just something that has to be tested."

The issue rests on the interpretation of Amendment 7, which set up a process for the people to amend the constitution and pass initiated acts, as well as reject acts approved by the Legislature.

But a paragraph that begins "Emergency" goes on to give the Legislature a role, saying: "If it shall be necessary for the preservation of the public peace, health and safety that a measure shall become effective without delay ... if ... two thirds of all the members elected to each house, or two-thirds of all members elected to city or town councils, shall vote ... in favor of the measure going into immediate operation, such emergency measure shall become effective without delay."

The amendment defines "measure" as "any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character."

The Supreme Court opinion in 1951 came in the case of Arkansas Game and Fish Commission v. Edgmon, 218 Ark. 207.That case involved Amendment 35, adopted by the voters in 1944 to establish the Game and Fish Commission as an independent state agency, largely outside of legislative control.

The case also involved a state law, Act 183 of 1949, in which the Legislature authorized counties to pay bounties for killed wolves.

The money would have come from the commission's funds. The act was passed on an "emergency" basis because of a legislative finding that farmers were suffering significant losses of cattle and other livestock because of wolf attacks.

The head of the commission refused to pay $105 for seven "wolf scalps" from Boone County.

As justification, the commission argued that it had sole authority to approve the funding, that the public had been "defrauded by the substitution of dog scalps," and that the Legislature had no authority to pass the law because it conflicted with Amendment 35.

The Supreme Court ruled that the General Assembly can't disburse Game and Fish Commission funds.

"If the language [of Amendment 7] should be literally construed, then a constitutional amendment applicable to Little Rock alone, or to any other city, could be repealed by a vote of two-thirds of the members elected to the city council," the court wrote.

Further, it said, "These amendments are spoken of as 'measures,' hence if the definition ... is applied throughout, then any or all of the more than forty amendments [the number has grown to 87 since 1951] to the constitution could be repealed by the required vote of the Legislature. The result would be thatinitiated acts and constitutional amendments would stand on about the same footing."

Nowadays, it's generally accepted that initiated acts - which are laws passed by the people, not the Legislature - can be altered by the Legislature with a two-thirds vote.

"It is inconceivable that in defining constitutional amendment as a measure the purpose was to invest the General Assembly with power (a) to repeal a constitutional amendment, or (b) with authority to amend an amendment - a power that could be exercised to such an extent that the entire meaning of a constitutional provision achieved through amendment could be changed by legislative action," the Supreme Court said.

The court concluded by saying, "The clear intent of the Initiative and Referendum Amendment [Amendment 7] was to give the people enlarged legislative and constitutional powers. Certainly if the purpose had been to take away fundamental security then enjoyed or to be acquired under the Amendment, the right of two-thirds of those elected to the General Assembly to treat amendments as though they had been referred to it would have been expressed in more emphatic terms."

Stovall, the House aide, questioned whether the court had legal justification for ruling the way it did.

"There is a divided opinion in the legal community whether the Legislature can do it," he said. "The Supreme Court said you couldn't do it but didn't give a particular reason. Some say [Amendment 7] says what it says. Others say it's just silly to think the Legislature can amend the constitution."

Bobby Roberts, director of the Central Arkansas Library System, researched the history of Amendment 7 several years ago after becoming concerned about attempts to eliminate the property tax by a voter-initiated proposed constitutional amendment.

"It's really a tangled sort of story," Roberts said.

He said that in the mid-1800s, before the adoption of the current constitution in 1874, the Legislature would amend the state's constitution [Arkansas has had several] on its own after publishing its proposed amendments throughout the state, he said.

Notes in the constitution published by the secretary of state say Amendment 7 passed in 1920 by a vote of 86,360 to 43,662. But the House speaker at the time declared it defeated, setting up a court battle over how many votes were needed for it to pass. In 1925, the Supreme Court finally declared it adopted.

Roberts said he can't figure out why Amendment 7 was written the way it was.

"It was clearly language written by the General Assembly, otherwise, why put it in there?" said Roberts.

He wondered whether it was a "stupid mistake" or whether it was a contemplated provision to provide a way for the Legislature to correct errors approved by voters.

Wills said it's worth putting the issue to the court again, but he won't support an attempt simply for a test case.

"The Supreme Court has enough to do," he said.

Gov. Mike Beebe's spokesman, Matt DeCample, said the governor's office reviewed HB2206 during the session and had "concerns it would run afoul of the constitution."

Lt. Gov. Bill Halter, who led the drive for the lottery amendment that voters adopted last year, believes that only the people should change the constitution, said spokesman Garry Hoffmann.

"Lt. Gov. Halter would oppose any attempt to diminish the people's authority," Hoffmann said.

Even if HB2206 had passed, it wouldn't have done much good, said Young with the Municipal League.

Without an "unqualified opinion" finding that legislative action amending the constitution to facilitate bond sales would be legal, Young said he "would doubt any bond lawyer" would sign off of any such bond sale.