Posted by: Andy Taylor | October 22, 2010

UPDATE: Arkansas Supreme Court Clarifies Original and Appellate Jurisdiction for Constitutional Amendments: Forrester v. Daniels.

UPDATE Below the Jump:

The Arkansas Supreme Court handed down its decision today in Forrester v. Daniels, clarifying that it has original jurisdiction over challenges to constitutional amendments that are initiated by the citizens, but appellate jurisdiction over challenges to constitutional amendments referred by the legislature. Forrester v. Daniels, 2010 Ark. 397.  This has been the rule for many years, but had been called into question after amendment 80 to the Arkansas Constitution became effective on July 1, 2001. See Becker v. McCuen, 303 Ark. 482, 708 S.W.2d 71 (1990).

Because the Court did not reach the merits of the Petitioner’s case, this blog post will not discuss the merits in detail, but will only address them briefly.  The proposed amendment at issue here deals with the maximum interest rate that can be charged by various entities, and also deals with the power of governmental units to issue bonds. Forrester, 2010 Ark. 397, at 2-4.  The gist of the challenge is that the legislature attempted to cover too many issues in a single proposed amendment.  Id. at 3-4.

The importance of this case, however, is more procedural in nature.  Because, as discussed above, the status of the Supreme Court’s jurisdiction (original or appellate) was in doubt after the enactment of Amendment 80, the Petitioner filed nearly identical actions in the Pulaski County Circuit Court and the Arkansas Supreme Court, both on the same day.

A proposed constitutional amendment may appear on the ballot by one of two methods.  The first is by referral from the legislature, the requirements of which are provided in at Arkansas Constitution Article 19, § 22.  The second method is through the initiative and referendum power reserved to the people.  This procedure is outlined at Arkansas Constitution Amendment 7.

Amendment 7, dealing with amendments resulting from initiatives of the people, provides that “[t]he sufficiency of all state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.” Ark. Const. Amend. 7.  Article Nineteen, Section 22 of the Arkansas Constitution has no such provision, so the Arkansas Supreme Court in Becker held that it did not have original jurisdiction, but had only appellate jurisdiction pursuant to Article 7, § 4 of the Arkansas Constitution. See Becker, 303 Ark at 482, 708 S.w. 2d at 71.

The reason this is an issue in Forrester is that Article 7 was repealed by Amendment 80 of the Constitution.  Amendment 80 provides, in part, that “[t]he Supreme Court shall have . . . [o]riginal jurisdiction to determine sufficiency of state initiative and referendum petitions and proposed constitutional amendments.” Ark. Const. Amend. 80, § 2(D)(4).  Because the provision conferring original jurisdiction on the Arkansas Supreme Court includes the phrase “and proposed constitutional amendments,” the Petitioner argued that the Arkansas Supreme Court now has original jurisdiction over all proposed constitutional amendments, and not just those resulting from initiatives. See Forrester, supra.

In a unanimous opinion, the Arkansas Supreme Court disagreed.  The Court held in Forrester that the phrase “and proposed constitutional amendments” must be read in the context of the phrase “to determine sufficiency of.” Forrester, 2010 Ark. 397, at 8-9.  According to the Court, that phrase only makes sense if “proposed constitutional amendments” refers only to amendments that result from initiatives from the people, as those are the only types of amendments subject to a sufficiency challenge. Id.  For proposed amendments referred from the legislature, the only question is “whether the procedures governing the method for the legislature to propose an amendment have been followed.” Id.

In an interesting paragraph at the end of the opinion, the Court then seemed to look at its own rules to help it interpret the constitutional issue.  The Court noted that it had amended its rules to conform to the changes resulting from Amendment 80.  After the changes, Rule 6-5 read as follows:

(a) Original Jurisdiction. The Supreme Court shall have original jurisdiction in extraordinary actions as required by law, such as suits attacking the validity of statewide petitions filed under Amendment 7 of the Arkansas Constitution or, where the Supreme Court’s contempt powers are at issue.

Ark. Sup. Ct. R. 6-5(a) (2010).

In Forrester, the Court held its conclusion was “further bolstered” by the fact that it had amended the rules in response to Amendment 80, but had done so “in a way to indicate that our jurisdiction of the instant challenge is now original.” Id. at 9-10.  Arkansas appellate lawyers should bear this in mind when dealing with procedural issues before the Arkansas Supreme Court, as the Court seems willing to look to its own rules to help it interpret constitutional provisions.

UPDATE: As mentioned in the original post, the Arkansas Supreme Court held that this issue had to be decided by the Circuit Court and then would have to be appealed in order for the Arkansas Supreme Court to review it.  The Circuit Court issued its ruling today, and denied the request for injunctive relief and writ of mandamus.  The Circuit Court rejected all four arguments made by the Plaintiffs in this case.

As was also mentioned in the original post, the Supreme Court made a distinction between acts referred by the legislature and acts that resulted from referendums or initiatives, holding that the Supreme Court had original jurisdiction over the latter but not the former.  For two of the four arguments made by the Plaintiffs, the Circuit Court also recognized a distinction between the two methods of having an act placed on the ballot.


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