Did proposed Arkansas amendment SJR 7 give legislators approval power over Game and Fish or Highway Commission rules?

Plain-English summary

The Arkansas Game and Fish Commission director asked whether SJR 7, a proposed constitutional amendment on legislative review and approval of administrative rules, would cover the Game and Fish and Highway Commissions. He also asked about possible conflicts with those commissions' existing constitutional authority, the ballot information supplied to voters, and publication requirements.

The AG declined to interpret SJR 7 before the vote, following his office's policy on proposed measures. He explained that the people could, by constitutional amendment, give the legislature an approval role over executive agency rules. If SJR 7 passed and the legislature actually asserted such authority over a constitutional commission's rules, a court would likely ask whether the people intended the amendment to reach the commission's core functions. The AG did not predict the court's answer or say that voters had to receive a particular account of lost independence.

He distinguished this potential later question from Chaffin v. Arkansas Game and Fish Commission. That case concerned legislation under the Constitution as it then stood and confirmed that the legislature could not directly or indirectly encroach on the Game and Fish Commission's policy independence. A later constitutional amendment would raise a different question about whether the Constitution itself had changed.

For the ballot-information question, the AG referred to an earlier opinion and said that, absent fraud, a legislatively referred amendment need only be identified on the ballot well enough to distinguish it from others and connect it with the previously published measure. He directed the question about completed publication requirements to the Secretary of State rather than answering it.

What this means for you

Commission officials and legislators

This opinion did not approve or forbid legislative review of either commission's rules under SJR 7. Its suggested judicial inquiry depended on voter adoption, legislative interpretation of the new authority, and an actual exercise of it. The AG left the proposed amendment's effect unsettled at the time of the opinion.

Currency note

This opinion was issued before the November 2014 vote. Check later constitutional text and decisions for any current rulemaking authority.

Common questions

Did the AG say SJR 7 covered the constitutional commissions?
No. He declined to interpret the proposal before the vote and would not predict how a court would read it later.

Could voters grant a legislative approval power by amendment?
The AG said they could. The unresolved question was whether SJR 7, if adopted, would show an intent to grant that power over the commissions' core functions.

Did Chaffin decide the effect of SJR 7?
No. The AG said Chaffin addressed legislative encroachment under the existing Constitution and gave no direct guidance on the effect of a later amendment.

Did the AG verify publication requirements?
No. He said he was not situated to answer and referred the requester to the Secretary of State.

Background and statutory framework

SJR 7 proposed allowing the General Assembly to require committee review and approval of administrative rules before they took effect. The AG distinguished an ordinary statute from a proposed constitutional amendment and described the conditions under which a later court challenge might become ripe. He did not decide whether the amendment would change the commissions' authority.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2014-115
October 13, 2014

The Honorable Mike Knoedl, Director
Arkansas Game and Fish Commission
2 Natural Resources Drive
Little Rock, Arkansas 72205

Dear Mr. Knoedl:

I am writing in response to your request for my expedited opinion regarding the following questions:

1. 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 voters, could the General Assembly enact a law that would require the Arkansas 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?

2. If SJR 7 is approved by the voters, will any of its provisions create legal conflicts with existing provisions in Amendments 35 or 42 to the Arkansas Constitution? If so, how would such conflicts likely be resolved?

3. In light of the decision of the Arkansas Supreme Court in Chaffin v. Arkansas Game and Fish Commission, 296 Ark. 431, 757 S.W.2d 950 (1988), will any provision of SJR 7 conflict with any other provisions of the Arkansas Constitution, such as the separation of powers provisions in Article 4, §§ 1 and 2, or the right to hunt, fish, trap, and harvest wildlife under Amendment 88?

4. Will SJR 7, as it will appear on the November 2014 General Election ballot without any ballot title and/or popular name, adequately inform the voters of the potential conflicts and/or changes that may take place with Amendment 35, Amendment 42, and/or other provisions of the Arkansas Constitution?

5. Have all publication and other requirements in Article 19, § 22 of the Arkansas Constitution been satisfied so that the proposed amendment involving SJR 7 is now qualified for adoption in the general election of November 4, 2014?

RESPONSE

Question 1: 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 voters, could the General Assembly enact a law that would require the Arkansas 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?

Before addressing your specific question, I must note that, 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. As stated by my immediate predecessor with regard to a proposal referred by legislative resolution pursuant to Ark. Const. art. 19, § 22: "[The measure] has not at this date been adopted by the people and the interpretation of such proposed measures is not appropriate in the format of an official Attorney General opinion." Indeed, a court will likewise not entertain a declaratory judgment action to interpret proposed measures prior to enactment. Although 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.

SJR 7, entitled "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," proposes to add the following provision to Article 5 of the Arkansas Constitution:

> § 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.

If the General Assembly were to exercise its option to enact a law containing the provisions of subsection (a)(2), which conditions the effectiveness of "administrative rules" upon the approval of a legislative committee, it would in effect be assigning itself a "legislative veto" over an executive agency's actions.

Nothing, of course, precludes the people from affording the legislature such veto power by constitutional amendment. However, a reviewing court faced with a challenge to any particular exercise of such de facto veto power would in all likelihood address whether and to what extent the people in fact intended to invest the legislature with authority to regulate by veto the core functions of the "constitutionally independent agencies" referenced in your question. In this, as in all instances, the intent of the people is determinative in interpreting a constitutional amendment.

The scope of the AGFC's independence in rulemaking is aptly summarized in the following pronouncement by the Arkansas Supreme Court:

> A majority of this court has determined that the Game and Fish Commission[,] as opposed to the Legislature, is vested with the power to make such rules and regulations as is deemed necessary to protect and conserve the wildlife resources of the state . . . . The Commission has a wide discretion within which it may determine what the public interest demands, and what measures are necessary to secure and promote such requirements. The only limitation upon this power to formulate these rules and regulations, which tend to promote the health, peace, morals, education, good order and welfare of the public[,] is that the rules and regulations must reasonably tend to correct some evil, and promote some interest of the commonwealth, not violative of any direct or positive mandate of the constitution . . . . The commission, as trustee for the people of this state, has the responsibility and is charged with the duty to take whatever steps it deems necessary to promote the interest of the Game and Fish Conservation Program of the state; subject only to constitutional provisions against discrimination, and to any valid exercise of authority under the provisions of the Federal Constitution.

As one of my predecessors has noted, 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. As my predecessor rightly noted in another opinion addressing the constitutionality of proposed legislation extending legislative oversight of administrative rules and regulations: "It is impossible to obtain the 'proof of the pudding' with regard to [the bill], as it has not been enacted or implemented."

In the present case, I will not venture to predict how the legislature would interpret its authority in the event this measure were adopted. 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 likelihood of such a suit would doubtless increase if the AGFC considered its rules as the avenue by which it pursued its core functions as an independent agency. I assume that the primary issue before the court in the event of such a suit would not be whether the people could grant the legislature such a right of approval, they can. Rather, the issue of law would likely be whether the people intended to grant such a right in adopting this amendment.

Given the procedural posture of your request, namely, its occurrence under circumstances where this office would ordinarily decline to opine, I will not speculate further regarding the possible outcome of any such judicial inquiry.

Question 2: If SJR 7 is approved by the voters, will any of its provisions create legal conflicts with existing provisions in Amendments 35 or 42 to the Arkansas Constitution? If so, how would such conflicts likely be resolved?

See my response to your first question.

Question 3: In light of the decision of the Arkansas Supreme Court in Chaffin v. Arkansas Game and Fish Commission, 296 Ark. 431, 757 S.W.2d 950 (1988), will any provision of SJR 7 conflict with any other provisions of the Arkansas Constitution, such as the separation of powers provisions in Article 4, §§ 1 and 2, or the right to hunt, fish, trap, and harvest wildlife under Amendment 88?

In Chaffin, which I referenced in my response to your first question, the court held that the legislature exceeded its constitutional authority, in violation of the separation-of-powers doctrine (set forth in Ark. Const. art. 4, §§ 1 and 2) and Amendment 35, in attempting to control through legislation the AGFC's policy decisions regarding its expenditures on an agency publication. The issue addressed by the court in Chaffin was thus whether legislation conflicted with these provisions of the constitution in its current form. SJR 7, however, is not thus assailable as constitutionally impermissible legislation, given that its adoption would amend the constitution itself. 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, rightly or wrongly interprets the scope of its new authority and acts thereon.

Question 4: Will SJR 7, as it will appear on the November 2014 General Election ballot without any ballot title and/or popular name, adequately inform the voters of the potential conflicts and/or changes that may take place with Amendment 35, Amendment 42, and/or other provisions of the Arkansas Constitution?

This question expresses an apparent concern regarding the absence of "any ballot title and/or popular name" to inform the voters of such possible changes. In this regard, I am attaching for your convenience an earlier opinion in which I addressed what must be disclosed to the voter in the polling booth regarding a measure referred by the legislature. As discussed in detail in my former opinion, 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." I will not here repeat my previous analysis. Rather, I will merely note that the information appearing on the ballot need not go further than that just described. 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.

Question 5: Have all publication and other requirements in Article 19, § 22 of the Arkansas Constitution been satisfied so that the proposed amendment involving SJR 7 is now qualified for adoption in the general election of November 4, 2014?

I am not situated to answer this question. Please contact the Arkansas Secretary of State at the following address in order to obtain this information:

Arkansas Secretary of State
Elections Division
500 Woodlane, Room 026
Little Rock, Arkansas 72201
501-682-5070

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/JHD:cyh

Enclosure (Op. Att'y Gen. 2013-067)