Why did the Arkansas AG reject the Arkansas Government Transparency Act ballot title in January 2024?
Plain-English summary
The same sponsors who submitted the constitutional-amendment version (Opinion 2024-005) also submitted a parallel initiated act, called "The Arkansas Government Transparency Act," to make most of the same transparency-reform changes through statute rather than constitutional amendment. The AG rejected the popular name and ballot title.
The single defect was a "preemptive repeal" clause. The proposed act stated that any law enacted by the General Assembly between January 1, 2024 and the date the people adopted the act would be automatically repealed if it "reduces government transparency." This was summarized in the proposed ballot title.
The AG held the clause was misleading for two reasons:
(1) Constitutionally outside the initiative power. Amendment 7 (Ark. Const. art. 5, § 1) gives Arkansas citizens the power to enact new law and to repeal existing law. But it does not authorize voters to repeal laws that do not yet exist. A "preemptive repeal" of laws that may never be enacted is not within the reserved initiative power. The clause therefore promised something that the initiative could not accomplish, and that promise was misleading to voters.
(2) Full-text violation. Amendment 7 and A.C.A. § 7-1-107 require the "full text" of an initiated measure to accompany every petition. Because the set of laws subject to the preemptive repeal would change as the General Assembly continued to legislate during the 2024 session, the "full text" of what voters were repealing was inherently fluid. Voters could unknowingly vote to repeal a law they actually supported, or vote to keep one they opposed. The AG cited the North Dakota Supreme Court's decision in Haugen v. Jaeger (2020), which followed the 100-year-old precedent of Dyer v. Hall (1924), holding that incorporating laws by reference defeats the full-text requirement.
Because the AG cannot rewrite the text of a proposed measure (only the popular name and ballot title), the only path forward was for the sponsors to remove the preemptive-repeal clause and resubmit. The AG promised an expedited response if they did so. (Sponsors did remove the clause; see Opinion 2024-020, which certified the revised act.)
What this means for you
Ballot initiative sponsors
Three lessons:
First, "preemptive repeal" is not a tool available to citizen initiatives in Arkansas. If you want to lock in a policy area against legislative encroachment, you have to use the constitutional-amendment path (which can require voter approval for legislative changes; see Opinion 2024-005's substituted ballot title for an example), not an initiated act with a self-executing repeal of unknown future statutes.
Second, the full-text requirement is more than a formatting rule. It controls what kinds of provisions you can include. Anything that incorporates by reference a body of law that may change between drafting and election violates it. That includes "any law in effect at the time of voting," "the latest version of [federal regulation]," or "any law enacted between [date] and adoption."
Third, the AG cannot fix structural defects in your text. Substitution under A.C.A. § 7-9-107(d)(1) is for the popular name and ballot title. If the text of the proposed measure has a problem, only you can fix it.
Government transparency advocates
The substantive transparency reforms in the act, including a three-day disclosure deadline, civil penalties on noncompliant custodians, attorney's fees recovery, and the new Arkansas Government Transparency Commission, were not the AG's basis for rejection. The fix was narrow: drop the preemptive-repeal clause. The sponsors did that and the act was certified as the "Arkansas Government Disclosure Act of 2024" in Opinion 2024-020.
Attorneys
The opinion is a useful citation for the proposition that Arkansas's full-text requirement (Amendment 7 and § 7-1-107) parallels North Dakota's, and that the Arkansas Supreme Court "likely would agree with Haugen's conclusion and reasoning." If you advise sponsors on initiative drafting, treat any incorporation-by-reference of fluid law as a high-risk drafting choice.
Constitutional law scholars
The AG's reading of Amendment 7's initiative power as not extending to repeal of nonexistent law is a significant interpretive position. The clause is narrow and supported by structure (Amendment 7 contemplates "bills" and existing law) but the AG flagged that the Arkansas Supreme Court has not yet ruled on the question. The AG's reasoning here would be persuasive but not binding in litigation.
Common questions
What is a preemptive repeal?
A clause that automatically repeals laws not yet enacted. The act here would have repealed any 2024 transparency-reducing legislation, even if that legislation was passed after the act itself was being circulated for signatures.
Why is incorporating future laws by reference different from incorporating existing ones?
The Arkansas Supreme Court has not directly ruled on the full-text requirement's reach in this scenario, but the AG argues that voters cannot meaningfully consent to repealing a law they have not seen. The set of laws being repealed is fluid right up to the moment of voting.
Could the General Assembly pass new transparency-reducing laws while a petition was circulating?
Yes. That's exactly the scenario the preemptive-repeal clause was meant to address. The 2023 General Assembly had already passed Act 883 (which the act's sponsors wanted to undo), and the sponsors anticipated more such legislation in 2024. The clause attempted to neutralize that risk, but the AG ruled the mechanism was unconstitutional.
What did the sponsors do next?
They removed the preemptive-repeal clause and submitted the revised act. The AG certified the revised act in Opinion 2024-020 as "The Arkansas Government Disclosure Act of 2024."
Could the act have used a less aggressive form of legislative-protection?
A constitutional amendment can require voter approval for any legislative change to a defined area of law (see Opinion 2024-005's substituted ballot title for an example). An initiated statute generally cannot override later legislation enacted under normal procedures, because the General Assembly retains its constitutional lawmaking power.
Background and statutory framework
A.C.A. § 7-9-107. AG review of ballot titles and popular names. Subsection (e) requires rejection with reasons when a ballot title or measure is misleading.
A.C.A. § 7-1-107. Sponsor's duty to file the "full text" of the proposed measure with the AG.
Ark. Const. art. 5, § 1 (Amendment 7). Reserves the initiative power, including the requirement that the "full text" of the measure accompany petitions.
Haugen v. Jaeger, 2020 N.D. 177, 948 N.W.2d 1. North Dakota Supreme Court holding that incorporation by reference violates a parallel full-text requirement, citing the 1924 decision in Dyer v. Hall as longstanding precedent.
Prior versions. Opinions 2023-116 and 2023-127 addressed earlier versions of this same act. Opinion 2023-113 addressed the parallel constitutional amendment.
Subsequent certified version. Opinion 2024-020 certified the act as "Arkansas Government Disclosure Act of 2024" after the preemptive-repeal clause was removed.
Citations
- A.C.A. § 7-9-107 (AG review of ballot titles)
- A.C.A. § 7-9-107(e) (rejection with reasons; instruct redesign)
- A.C.A. § 7-1-107 (full-text submission)
- Ark. Const. art. 5, § 1 (Amendment 7, full-text requirement)
- Haugen v. Jaeger, 2020 N.D. 177, 948 N.W.2d 1
- Dyer v. Hall, 51 N.D. 391, 199 N.W. 754 (1924)
- Ark. Att'y Gen. Ops. 2023-113, 2023-116, 2023-127, 2024-020 (related opinions)
Source
Original opinion text
Opinion No. 2024-009
January 25, 2024
David A. Couch
1501 North University Avenue, Suite 219
Little Rock, Arkansas 72207
Jen Standerfer
2302 Southwest Nottingham Avenue
Bentonville, Arkansas 72713
Dear Mr. Couch and Ms. Standerfer:
I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the popular name and ballot title for a proposed initiated act. In Opinion Nos. 2023-116 and 2023-127, I addressed prior versions of your proposed initiated act. You have now revised the text of your proposal and submitted it with four different popular names and four different ballot titles. You ask that I certify all four submissions.
My decision to certify or reject a popular name and ballot title is unrelated to my view of the proposed measure's merits. I am not authorized to consider the measure's merits when considering certification.
- Request. Under A.C.A. § 7-9-107, you have asked me to certify the following popular name and ballot title for a proposed initiated amendment to the Arkansas Constitution:
Popular Name
The Arkansas Government Transparency Act.
Ballot Title
An Initiated Measure Amending the Arkansas Code to Create the "Arkansas Government Transparency Act"; To Amend the Freedom of Information Act of 1967 to Protect Citizens' Interest in Government Transparency, To Protect Citizens' Privacy Interests, and To Ensure the Government Shares Information with the Public Freely; To Require That Public Meetings be Conducted in a Manner that Allows the Public to Attend and Hear the Governing Body's Meaningful Discussion and Deliberation on Official Business; To Require Governing Bodies to Publish Notice of Meetings; To Create the Arkansas Government Transparency Commission to Help Citizens Obtain Compliance With, To Issue Opinions Concerning, And to Sanction Violations of Government Transparency Laws; To Repeal the Provision of Law Allowing a School Board of Directors, Superintendent, and Their Attorney From Holding a Meeting Outside of Public Observation to Discuss Pre-Litigation, Litigation, Settlement, Contract Disputes, and Real Property; To Define "Cybersecurity", "Government Transparency", "Minority Party", and "Public Notice"; To Clarify That Public Records Shall Be Disclosed Within Three (3) Days of Their Request, And That the Custodian Must Explain the Reason for Any Nondisclosure and Specify the Date and Time for Compliance; To Clarify that a Communication Between Two (2) or More Members of a Governing Body For the Purpose of Exercising a Responsibility, Authority, Power, or Duty of the Governing Body Concerning Official Action Shall be Open to the Public and Available for Public Attendance; To Clarify That A Series Of Communications Between an Agent, Employee, or Person Paid by the Governing Body and One (1) or More Members of the Governing Body to Poll the Votes or Support of the Governing Body Concerning Official Action Shall Be Open to the public and Available for Public Attendance; To Allow Recovery of Attorneys Fees, Expenses, and Costs by a Plaintiff When the Plaintiff Substantially Prevails in an Action for a Violation of Law Concerning Government Transparency; To Create a Civil Penalty With Personal Liability for a Person who Violates the Freedom of Information Act of 1967; To Require Disclosure of Public Records That Are More Than Three (3) Months Old and Reflect the Planning or Provision of Security Services to Constitutional Officers and Their Families, The Governor's Mansion, and the State Capitol Shall Be Disclosed Unless the Commission Finds that Confidentiality is Essential to the Ongoing Security Service; To Provide for the Qualifications, Procedures, Funding, Authority, and Functions of the Arkansas Government Transparency Commission; To Establish the Arkansas Government Transparency Commission With Five (5) Members Appointed by the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the Minority Leader of the Senate, the Minority Leader of the House of Representatives, and the Lieutenant Governor; To Provide an Appellate Process for Review of Decisions Made by the Arkansas Government Transparency Commission; To Repeal Any Law Enacted by the General Assembly After January 1, 2024 and Before Adoption of this Act by the People that Amends Arkansas Law in a Manner That Reduces Government Transparency Including Without Limitation Reducing the Openness of Public Meetings, Limiting Disclosure of Public Records, or Altering the Time, Place, Manner, Terms, or Medium of Public Notice; And To Provide That the Provisions of the Act are Severable.
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Rules governing my review. In Opinion No. 2023-116, I explained the rules governing popular names and ballot, and the rules governing my review of proposed measures. Rather than repeat those explanations, I incorporate them my reference.
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Application. Having reviewed the text of your proposed initiated act, as well as your proposed popular name, and ballot title, my statutory duty is to reject your popular name and ballot title due to a misleading provision of your text that is also summarized in your proposed ballot title. This provision, which was in your prior submission, was unidentified previously and is the only remaining issue standing in the way of certification. If you resolve this issue and resubmit with no other changes, I will expedite the response.
The text of your proposal contains the following "preemptive repeal" language:
Any law enacted by the General Assembly after January 1, 2024 and before adoption of this initiated acted by the people is repealed if it amends Arkansas law in a manner that reduces government transparency including without limitation reducing the openness of public meetings limitation reducing the openness of public meetings, limiting disclosure of public records, or altering the time, place, manner, or medium of public notice.
Your proposed ballot title summarizes this in nearly identical language:
To Repeal Any Law Enacted by the General Assembly After January 1, 2024 and Before Adoption of this Act by the People that Amends Arkansas Law in a Manner That Reduces Government Transparency Including Without Limitation Reducing the Openness of Public Meetings, Limiting Disclosure of Public Records, or Altering the Time, Place, Manner, Terms, or Medium of Public Notice;
This provision of your proposed measure is misleading in two ways. First, the provision is clearly unconstitutional. Under Amendment 7, the initiative power includes creating new law (as parts of your proposed measure would do) and repealing existing law (as parts of your proposed measure would also do). But nothing in Amendment 7 allows the circulation of petitions asking citizens to support the repeal of a law that does not yet exist. Because such a "preemptive repeal" falls outside the scope of initiatives under Amendment 7, it is misleading to suggest to voters that an initiative could accomplish that goal.
Second, the provision is misleading because it violates the full-text requirement of Amendment 7 and A.C.A. § 7-9-107. In Opinion No. 2023-113, I discussed this requirement's existence, meaning, and application to a related proposed measure you submitted to my office for certification. Rather than repeat that analysis, I incorporate it by reference here. Informing voters about the potential consequences of their votes is at the core of the full-text requirement. The set of laws affected by the "preemptive repeal" language in the text of your proposed initiated act would be fluid at the time petitions were circulated and potentially even at the time of voting. If the "preemptive repeal" language were allowed, voters could unknowingly vote to repeal a law they support or vote not to repeal a law they oppose. As explained in Opinion No. 2023-113, when a measure's full text does not appear, any ballot title summarizing that text is misleading by omission.
Therefore, I cannot certify your ballot title as submitted. And while I have authority to rewrite your ballot title to remove the summary of this misleading provision, any such removal would render the ballot title an inaccurate summary of the measure. The only way to resolve this issue is to remove the misleading provision from the text of your proposal. I am not authorized to modify the text of proposed measures.
Because of the issues identified above, my statutory duty under A.C.A. § 7-9-107(e) is to reject your proposed popular name and ballot title, stating my "reasons therefor," and to "instruct…[you] to redesign your proposed measure and the ballot title…in a manner that would not be misleading."
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General