When does an Arkansas legislative act become effective if it lacks an emergency clause and the General Assembly takes a recess longer than 90 days?
Plain-English summary
Arkansas Secretary of State John Thurston needed to know exactly when the acts of the 93rd General Assembly would become effective. Many legislative acts contain an "emergency clause" that makes them effective immediately. Many others contain a specified effective date. But for acts that have neither, the timing comes from Amendment 7 to the Arkansas Constitution.
Amendment 7 (codified at Article 5, § 1) gives the people of Arkansas the right to challenge a legislative act by referendum. Petitions calling for a referendum vote must be filed with the Secretary of State within ninety days of final adjournment, "except when a recess or adjournment shall be taken temporarily for a longer period than ninety days, in which case such petition shall be filed not later than ninety days after such recess or temporary adjournment."
The Arkansas Supreme Court in Fulkerson v. Refunding Board long ago held that Amendment 7 also governs when those acts become effective. The 91st day after recess (or final adjournment) is when the act takes effect, because at that point the referendum window has closed and the act is final.
For the 93rd General Assembly, recess began on April 28, 2021. The day of recess doesn't count, so day one is April 29. Counting forward, day 90 is July 27, and day 91 is July 28. So acts without emergency clauses or specified effective dates become effective on July 28, 2021, assuming the legislature did not reconvene on or before July 27.
The AG also answered the related question about the earliest reconvene date. To trigger the 91st-day rule, the legislature must remain in extended recess longer than 90 days. The earliest reconvene that satisfies that is also July 28, 2021.
Currency note
This opinion was issued in 2021. 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.
Common questions
Why does the referendum process determine the effective date?
The Arkansas Supreme Court in Fulkerson read Amendment 7 to require that an act not be effective until the people's referendum window has closed. Otherwise, the act could go into effect, be challenged, and create a confusing in-and-out-of-effect period. The 91st-day rule provides a clean answer.
What if the General Assembly reconvenes before the 90 days are up?
Then the 91st-day clock restarts on the next adjournment or extended recess. The opinion notes that "if the General Assembly reconvenes on or before July 27, 2021, the effective date would not be until the 91st day after either sine die adjournment or another extended recess."
What if an act has an emergency clause?
Emergency clauses make acts effective immediately upon the Governor's signature (or upon override of a veto). The 91st-day rule does not apply.
What about acts with a specified effective date?
A bill that says "this act becomes effective January 1, 2022" governs by its own terms. The 91st-day rule does not apply.
Did the legislature actually wait until July 28, 2021?
Yes. The 93rd General Assembly remained in recess past July 27, 2021. Acts without emergency clauses or specified dates became effective July 28, 2021.
Background and statutory framework
Amendment 7 to the Arkansas Constitution, codified at Article 5, § 1, establishes the people's right to challenge legislative acts via the referendum vote. The amendment provides that referendum petitions "shall be filed with the Secretary of State not later than ninety days after the final adjournment of the session at which such Act was passed, except when a recess or adjournment shall be taken temporarily for a longer period than ninety days, in which case such petition shall be filed not later than ninety days after such recess or temporary adjournment."
Fulkerson v. Refunding Board, 201 Ark. 957 (1941), is the leading case. The Arkansas Supreme Court read Amendment 7 to control the effective date of acts: an act is not effective until the referendum window has closed.
The mechanics in this opinion: count from the day after recess (April 29 is day one), reach day 90 (July 27), and the act is effective on day 91 (July 28). The day of recess itself doesn't count because it is not a full day available for filing referendum petitions.
The AG cited prior opinions Op. 2004-192, Op. 2004-174, and Op. 79-88 as consistent with this analysis.
Citations
- Ark. Const. amend. 7 (referendum)
- Ark. Const. art. 5, § 1
- Fulkerson v. Refunding Board, 201 Ark. 957 (1941)
- Op. Att'y Gen. 2004-192
- Op. Att'y Gen. 2004-174
- Op. Att'y Gen. 79-88
Source
Original opinion text
Opinion No. 2021-029
May 20, 2021
The Honorable John Thurston
Secretary of State
Arkansas State Capitol, Room 256
Little Rock, AR 72201
Dear Secretary Thurston:
This is in response to your request for my opinion on the effective date of legislation passed during Arkansas's Ninety-Third General Assembly. Your request specifically asks about acts that do not contain an emergency clause or a specified effective date.
In this regard, you have asked the following questions:
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Provided the 93rd General Assembly recesses for longer than ninety (90) days, what is the effective date of those Acts of the 93rd General Assembly [that] were passed prior to the April 28, 2021, recess and [that] did not contain an emergency clause or a specified effective date?
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What is the earliest date the 93rd General Assembly may reconvene while satisfying the requirement that it "remain in extended recess for longer than ninety (90) days" in order for acts passed prior to the April 28, 2021, recess to become effective on the 91st day following the recess?
RESPONSE
This opinion is predicated on the occurrence of future actions by third parties (as presumed in your question) over whom I have no control. Should the scenario you posit in your question change, this opinion will not apply.
Amendment 7 to the Arkansas Constitution, which establishes the people's right to challenge legislative acts via the referendum vote, governs the effective date of Acts of the General Assembly with no emergency clause or specified effective date. Amendment 7 provides that petitions calling for a referendum vote "shall be filed with the Secretary of State not later than ninety days after the final adjournment of the session at which such Act was passed, except when a recess or adjournment shall be taken temporarily for a longer period than ninety days, in which case such petition shall be filed not later than ninety days after such recess or temporary adjournment."
Applying that provision to the scenario described in your question, acts of the 93rd General Assembly will become effective on the 91st day after the legislature temporarily recessed. The day of recess is not counted, as it is not a full day during which referendum petitions may be filed.
Your question states that the 93rd General Assembly recessed on April 28, 2021. Beginning with April 29 (the first full day after recess), the 90th day is July 27, 2021. Therefore, unless the General Assembly reconvenes on or before July 27, 2021, acts with no emergency clause or specified effective date become effective on July 28, 2021. If the General Assembly reconvenes on or before July 27, 2021, the effective date would not be until the 91st day after either sine die adjournment or another extended recess.
Question 2: The earliest date the legislature may reconvene is July 28, 2021. Please see my response to your first question.
Sincerely,
LESLIE RUTLEDGE
Attorney General