When do Arkansas laws passed without an emergency clause take effect after a special legislative session?
Plain-English summary
Secretary of State John Thurston needed to know when 2023 First Extraordinary Session acts (those without an emergency clause or specified effective date) would take effect. The AG calculated the date: December 14, 2023.
The constitutional rule. Under Ark. Const. art. 5, § 1, acts without an emergency clause or specified effective date take effect "the day after the deadline to file a referendum petition." Referendum petitions must be filed within 90 days "after the final adjournment of the session."
The math. The First Extraordinary Session of the 94th General Assembly adjourned sine die on September 14, 2023. The 90-day window starts on the first full day after adjournment (because the day of adjournment itself is not a full day on which one could file a petition). So:
- Day 1 of the 90-day window: September 15, 2023
- Day 90 of the 90-day window: December 13, 2023
- Effective date for unmarked acts: December 14, 2023
This rule applies only to acts that passed without an emergency clause and without a specified effective date. Acts with emergency clauses take effect immediately upon enactment. Acts with a specified effective date take effect on the date specified.
Why this matters. The 90-day window is the time during which voters can attempt to refer an act to the ballot for a referendum vote. By delaying the effective date until the window closes, the constitution preserves voters' opportunity to challenge an act before it takes effect (with some exceptions for emergency-clause acts, which proceed immediately).
The opinion is short, but the calculation is the kind of thing that ripples through every state agency, county, and city that needs to plan for the start date of new legal obligations.
What this means for you
Secretaries of State and election officials
Use December 14, 2023 as the effective date for any First Extraordinary Session acts of the 94th General Assembly that lacked an emergency clause and a specified effective date. Update agency reference materials and the Arkansas Code Revision Commission's annotations.
For petition deadlines: confirm petition filing systems are accepting referendum petitions for these acts through the close of business December 13, 2023. After that date, the petition window has closed and unfiled referendum efforts are time-barred.
State agency administrators
If a First Extraordinary Session act creates new agency obligations or rule-making authority, you cannot start enforcing or implementing the act before December 14, 2023, unless an emergency clause or specified effective date applies. Plan rule-making, hiring, and program implementation around the December 14 start.
Municipal attorneys and county counsel
Local-government implementation timelines for any state-law preemption or new mandate from the special session need to start December 14, 2023. If your municipality wants to challenge an act by referendum (typically only feasible for high-profile measures with broad support for repeal), the petition must be filed by December 13, 2023.
News media
Cite December 14, 2023 as the effective date when reporting on First Extraordinary Session acts. The 90-day referendum window is a small but important constitutional safeguard; coverage that mentions it informs readers about the avenue for challenge.
Lobbyists and civic organizers
If you are tracking specific acts from the special session, the December 14 effective date is your operational hook. For any referendum effort, the November 2023 timeline (well before December 13) is the practical deadline given the time required to gather and submit signatures.
State legislators
When you draft a bill at a special session, decide whether you want immediate effect (emergency clause), a specified delayed effect (statutory effective date), or the default 90-day post-session lag. The default 90-day lag preserves the public's referendum opportunity. Adding an emergency clause requires a two-thirds vote and shortens the window to almost nothing.
Researchers and law students
This is a useful study in how an under-the-radar constitutional provision (Art. 5, § 1's referendum window) shapes state operations. Most states have analogous rules; Arkansas's particular form ties effective date directly to the referendum-filing deadline.
Common questions
Why isn't the day of adjournment counted as Day 1 of the 90 days?
Because the legislature adjourned that day, voters could not have filed a petition challenging an act passed that same day. The AG reads "after the final adjournment" to mean the first complete day on which a referendum petition could be filed.
What's an emergency clause?
A provision in an act stating that the legislature finds the matter to be an emergency requiring immediate effect. Under Arkansas's constitution, an emergency clause requires a supermajority vote (two-thirds in each chamber) and makes the act effective immediately upon the governor's signature (or override of veto). Emergency-clause acts cannot be referred to a referendum for repeal under Art. 5, § 1.
Can voters still refer an emergency-clause act?
Generally no for the act itself. Some narrow constitutional procedures may apply but they are practically rare. For ordinary (non-emergency) acts, the 90-day window is the standard referendum opportunity.
What if the act has a specified later effective date (say, July 1, 2024)?
Then July 1, 2024 controls, not December 14, 2023. The 90-day rule is the default for acts that say nothing about effective date. Specified effective dates supersede the default.
Do regular sessions follow the same 90-day rule?
Yes. The constitutional rule applies to all sessions; regular and extraordinary alike. The math just changes based on each session's adjournment date.
Why hold a First Extraordinary Session in 2023?
Special sessions are called by the governor or by joint legislative request to address specific topics. The First Extraordinary Session of 2023 addressed several specific subjects; this opinion does not enumerate them, just identifies the effective-date question for the unmarked acts that came out of it.
Background and statutory framework
Ark. Const. art. 5, § 1 (under "Referendum") sets the 90-day referendum window for non-emergency acts. The provision reads in part that acts of the legislature take effect 90 days after final adjournment, except for emergency-clause acts and acts with a specified effective date. The intent is to preserve a defined window for voter referendum.
The First Extraordinary Session of the 94th General Assembly adjourned sine die September 14, 2023. The 90-day window: September 15 through December 13. Effective date: December 14.
The opinion is short and contains no case-law citations. The mechanics are constitutional text plus calendar arithmetic, and there is no contested doctrine.
Citations
- Ark. Const. art. 5, § 1 (Referendum) (90-day window)
Source
Original opinion text
Opinion No. 2023-089
September 25, 2023
The Honorable John Thurston
Secretary of State
500 Woodlane Street
State Capitol, Room 256
Little Rock, Arkansas 72201
Dear Secretary Thurston:
I am writing in response to your request for my opinion on the effective date of acts passed without
an emergency clause or other specified effective date at the First Extraordinary Session of the 94th
Arkansas General Assembly, which adjourned sine die September 14, 2023. As explained below,
the effective date is December 14, 2023.
Under the Arkansas Constitution, acts without an emergency clause or a specified effective date
become effective the day after the deadline to file a referendum petition. Referenda petitions must
be filed within 90 days "after the final adjournment of the session." The 90-day window begins
on the first full day after adjournment because the day of sine die adjournment itself is not a full
day on which one could file a referendum petition.
In this case, the 90-day window starts on September 15, 2023 (the first full day after final
adjournment) and concludes on December 13, 2023. Thus, acts without an emergency clause or a
specified effective date become effective on December 14, 2023.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General