Is the 25% signature requirement for recalling an Arkansas mayor under § 14-42-119 unconstitutional because it exceeds Amendment 7's 15% threshold for local initiatives?

Plain-English summary

Sonya Ryburn, chair of the Drew County Election Commission, asked a constitutional question: Article 5, § 1 of the Arkansas Constitution (Amendment 7) lets city voters initiate local measures by petition of 15% of the votes cast in the last mayoral election. But Ark. Code Ann. § 14-42-119 requires a petition signed by 25% of qualified electors to recall a mayor in a mayor-council form of government. Does the higher statutory threshold violate the constitutional 15% rule?

AG Leslie Rutledge said no. The constitutional 15% threshold applies only to initiated legislation. A mayoral recall election under § 14-42-119 is not legislation. It is the execution of a statutory removal procedure that the General Assembly is constitutionally authorized to enact under Article 12, § 3 (general authority over the organization of cities). The legislature can set its own signature threshold for that election.

The AG drew an explicit parallel to local-option (wet-dry) elections, which the Arkansas Supreme Court has repeatedly held are not "elections provided for by the Constitution" because they merely execute a prescribed statutory scheme rather than enact new legislation (Johnston v. Bramlett, 193 Ark. 71 (1936), Winfrey v. Smith, 209 Ark. 63 (1945), McFerrin v. Knight, 265 Ark. 658 (1979)). The recall procedure in § 14-42-119 follows the same logic.

Because § 14-42-119's 25% threshold is constitutional, a petition with only 15% signatures does not satisfy the statute, and the county clerk cannot certify it.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

§ 14-42-119 and related municipal-recall statutes are amended from time to time, and the recall procedure differs across mayor-council, city-manager (§ 14-47-112), and city-administrator (§ 14-48-114) forms of government. Confirm the current statute and the city's form of government before acting.

Background and statutory framework

Article 5, § 1 (Amendment 7) and what it actually covers

Amendment 7 reserves to the people the power to "propose legislative measures, laws and amendments to the Constitution." It specifically reserves the power to municipal and county voters to enact "all local, special and municipal legislation of every character in and for their respective municipalities and counties." Under it, city voters can initiate local measures (defined as bills, laws, resolutions, ordinances, charters, constitutional amendments, or legislative proposals) by petition of 15% of the vote in the last mayoral election.

The constitutional reserved power, in other words, is the people's power to legislate.

The recall procedure in § 14-42-119

For a person holding an elected office in a municipality with a mayor-council form of government, removal requires a petition signed by 25% of qualified electors. The statute lays out the rest of the procedure: certification by the county clerk, referral to the county board of election commissioners, and the actual recall election.

This is a complete statutory scheme for removing a city officeholder. It is authorized by Article 12, § 3, which empowers the General Assembly to "provide, by general laws, for the organization of cities . . . and incorporated towns."

Why recall is not "legislation"

The Arkansas Supreme Court has repeatedly held that elections held under prescribed statutory schemes (such as wet-dry local-option elections) merely execute the scheme rather than enact new legislation. The classic statement is from Johnston v. Bramlett, 193 Ark. 71 (1936):

While the Legislature cannot delegate the power to make a law, it can make a law to delegate the power to determine certain facts. We are of opinion that in Act No. 108 the Legislature did not delegate the power to make a law and did not intend to do so, but that it made a law and delegated the power to the people of the county to ascertain certain facts upon which the law makes its action depend.

The AG reasons that § 14-42-119 works the same way. The General Assembly made the recall law; the voters are merely executing the statutory removal procedure when they petition and vote. No new legislation is being enacted, so Amendment 7's 15% threshold does not apply.

Removal of state officers is different

A footnote in the opinion flags that removal of state officers is governed by the Arkansas Constitution itself (Speer v. Wood, 128 Ark. 183 (1917)). The General Assembly cannot supplement the constitutional removal mechanisms for state officers, but it can establish removal procedures for municipal officers because the Constitution gives it that specific authority in Article 12, § 3.

Common questions

Q: Why is recalling a mayor harder than initiating a city ordinance?
A: Because they are different procedures with different constitutional bases. Initiated legislation is a power reserved to the people directly by Amendment 7 with a 15% threshold. Recall is a statutory procedure created by the General Assembly under its constitutional authority over municipal organization, and the legislature is free to set a higher signature threshold.

Q: We collected signatures equal to 15% of the last mayoral vote. Can we still file?
A: Under this opinion, no. The county clerk cannot certify a § 14-42-119 recall petition unless it carries signatures equal to 25% of qualified electors. The constitutional 15% threshold does not bail it out.

Q: What if the city has a city-manager or city-administrator form of government?
A: Different statutes apply. Ark. Code Ann. § 14-47-112 governs removal of municipal officers in a city-manager form, and § 14-48-114 governs the city-administrator form. Each has its own procedure, which may not match the 25% mayor-council rule.

Q: Could Arkansas amend its constitution to lower the recall threshold?
A: Constitutionally, yes. The legislature could also lower the statutory threshold. Neither has been done as of the 2016 opinion's writing.

Citations and references

Constitutional and statutory authority:

• Ark. Const. art. 5, § 1 (Amendment 7), the people's initiative and referendum power
• Ark. Const. art. 12, § 3, General Assembly's authority over city organization
• Ark. Code Ann. § 14-42-119, mayor-council recall procedure (25% threshold)
• Ark. Code Ann. § 14-47-112, city-manager form recall
• Ark. Code Ann. § 14-48-114, city-administrator form recall

Cases (all holding that local-option elections are not constitutional initiatives):

• Johnston v. Bramlett, 193 Ark. 71, 97 S.W.2d 631 (1936)
• Mondier v. Medlock, 207 Ark. 790, 182 S.W.2d 869 (1944)
• Winfrey v. Smith, 209 Ark. 63, 189 S.W.2d 615 (1945)
• Brown v. Davis, 226 Ark. 843, 294 S.W.2d 481 (1956)
• McFerrin v. Knight, 265 Ark. 658, 580 S.W.2d 463 (1979)
• Speer v. Wood, 128 Ark. 183, 193 S.W. 785 (1917), removal of state officers governed by constitution

Source

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

Original opinion text

Opinion No. 2016-085
September 19, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Ms. Sonya Ryburn, Chairperson
Drew County Election Commission
127 Leggett Drive
Monticello, AR 71655
Dear Ms. Ryburn:

This is in response to your request for an opinion concerning the computation of
signatures required for removal of a municipal officer pursuant to Ark. Code Ann.
§ 14-42-119(b)(1)(A) and -119(b)(2). In this regard, you have posed the following
questions:

Question 1: Since the 25% requirement provided by Ark. Code Ann. § 14-42-119(b)(1)(A) exceeds the 15% requirement provided by the Arkansas Constitution, is the 25% requirement unconstitutional?

Question 2: If the people present a petition to the county clerk with a number of signatures equal to 15% of the total votes cast for the office of mayor at the last preceding general election, must the county clerk deem the petition sufficient and certify it to the county board of election commissioners as provided by Ark. Code Ann. § 14-42-119(b)(2)?

RESPONSE

These questions appear to assume that petitions filed pursuant to Ark. Code Ann. §
14-42-119 are governed by Ark. Const. art. 5, § 1. In my opinion, that
assumption is misplaced. I believe it is clear that art. 5, § 1 does not apply to the
procedures under section 14-42-119 for removing a municipal officer. It is
therefore my opinion in response to your first question that the 25% petition
requirement under this statute is not unconstitutional. It necessarily follows that
the answer to your second question, in my opinion, is "no." A petition containing
signatures of 15% of the votes cast in the last mayoral election does not satisfy
section 14-42-119's 25% petition requirement.

DISCUSSION

Question 1: Since the 25% requirement provided by Ark. Code Ann. § 14-42-119(b)(1)(A) exceeds the 15% requirement provided by the Arkansas Constitution, is the 25% requirement unconstitutional?

Under section 14-42-119, "[a] person who holds an elected office in a
municipality for a term of four (4) years in a mayor-council form of government"
is subject to removal following the acquisition of a petition signed by 25 percent
of qualified electors. This statute establishes specific procedures regarding
removing certain elected municipal officials. This statute is clearly a permissible
exercise of power by the General Assembly, given the nature of our Constitution.
(This statute is a permissible exercise of the General Assembly's constitutional authority to "provide, by general laws, for the organization of cities . . . and incorporated towns." Ark. Const. art 12, § 3. To be clear, however, the statute only applies to the removal of elected municipal officers in a city with the mayor-council form of government. See also Ark. Code Ann. §§ 14-47-112 and 14-48-114 (Repl. 2013) (regarding removal of municipal officers in cities with the city manager and city administrator forms of government, respectively). The removal of state officers is governed by the Arkansas Constitution. See Speer v. Wood, 128 Ark. 183, 193 S.W. 785 (1917). The Arkansas Constitution has provided the exclusive methods for the removal of state officers, and the General Assembly consequently cannot enact legislation regarding the same.)

Your reference to the 15% requirement under the Constitution presumably refers
to Ark. Const. art. 5, § 1 and the authority thereunder for city voters to initiate
local measures. Your question suggests an assumption that art. 5, § 1 applies to
the signature requirement under section 14-42-119. That assumption is
unwarranted, in my opinion.

Article 5, section 1 reserves to the people the "power to propose legislative
measures, laws and amendments to the Constitution." It further specifically
reserves these powers to the legal voters of municipalities and counties regarding
"all local, special and municipal legislation of every character in and for their
respective municipalities and counties."

But a section 14-42-119 recall election does not enact "legislation." The Arkansas
Supreme Court has confronted similar questions with regard to local option
elections. In the face of such questions, the Court has consistently held that
"Amendment 7 [now codified at Ark. Const. art. 5, § 1] has no application to local
option petitions, which are governed by statute." The Court has reasoned that
elections held under the local option statutes merely execute these prescribed
statutory schemes, and therefore do not enact new legislation that would fall under
art. 5, § 1's purview. The analysis was succinctly stated in one of the earlier
cases:

Amendment No. 7 to the Constitution has no application. This is not
an initiated act as provided for in that amendment. It is merely a
submission to the legal voters of the county on the question of the
sale of liquor, and is more in the nature of a referendum than an
initiative petition. The law requires that the county court, when a
petition containing 35 per cent of the legal voters is signed and filed,
make an order for an election for the purpose of taking the sense of
the legal voters of the county who are qualified to vote at elections
of county officers.

While the Legislature cannot delegate the power to make a law, it
can make a law to delegate the power to determine certain facts. We
are of opinion that in Act No. 108 [the act providing for local option]
the Legislature did not delegate the power to make a law and did not
intend to do so, but that it made a law and delegated the power to the
people of the county to ascertain certain facts upon which the law
makes its action depend. There is no conflict between this law and
the Constitution. This is not an election provided for by the
Constitution, and the provisions of the Constitution cited have no
application.

Akin to the local-option-election statutes, section 14-42-119 does not involve the
enactment of legislation. Section 14-42-119 is complete in and of itself in
establishing the procedure for removing certain elected municipal officials. The
steps taken in accordance with this established procedure are the comprehensive
means of removing these certain elected municipal officials. The qualified voters,
therefore, are merely acting pursuant to the established statutory scheme.

In sum, the city's qualified electors are not proposing any legislation when they
petition for a recall election pursuant to section 14-42-119. As such, the recall
election is not an election provided for by Ark. Const. art. 5, § 1. Therefore, it is
my opinion, with respect to your question, that the 25% requirement under section
14-42-119 is not unconstitutional.

Question 2: If the people present a petition to the county clerk with a number of signatures equal to 15% of the total votes cast for the office of mayor at the last preceding general election, must the county clerk deem the petition sufficient and certify it to the county board of election commissioners as provided by Ark. Code Ann. § 14-42-119(b)(2)?

The answer to this question is "no" because, as explained above, the 15% petition
requirement under Ark. Const. art. 5, § 1 does not apply to petitions filed under
section 14-42-119. This recall statute requires a petition signed by 25% of the
electors who are qualified to vote for the incumbent's successor.

Sincerely,

LESLIE RUTLEDGE
Attorney General