29th November 2023

The Arkansas Supreme Court on Thursday reversed a lower court’s ruling invalidating the LEARNS Act’s emergency clause and dismissed the case.

The state’s high court was considering Attorney General Tim Griffin’s appeal of Pulaski County Judge Herbert Wright’s June ruling that the emergency clause of the governor’s sweeping education law is invalid because it was not passed with a separate roll-call vote garnering a two-thirds majority, as required by the Arkansas Constitution.

Arkansas LEARNS Act again on hold following court ruling

An emergency clause allows legislation to take effect immediately instead of 91 days after the end of the legislative session. The Legislature’s long-standing practice has been to cast one vote on a measure but record the same vote separately for any emergency clause. 

Writing for the majority, Justice Barbara Webb said the Arkansas Supreme Court recognized in 1918 that the “journal entry [is] the sole evidence of [legislative] proceedings.” 

“Today, we reaffirm this precedent and conclude that the plain language of the constitution designates the journal of each chamber as the official record of the General Assembly’s votes,” Webb wrote.

In a statement, Arkansas Gov. Sarah Huckabee Sanders called the high court’s ruling on her signature education law “a historic victory for Arkansas parents, teachers, and students, and a crushing defeat for the partisan extremists who tried to undermine our kids’ futures.”

Griffin said the court’s decision is a win for the people of Arkansas.

“The Arkansas Supreme Court confirmed that the General Assembly’s long-established procedure for adopting emergency clauses is valid and not subject to challenge,” Griffin said. “This ruling dismisses the lawsuit challenging LEARNS and confirms that all similar challenges fail as a matter of law and must be thrown out. ”

Ali Noland, a lawyer for the Phillips County residents and public education advocates who brought the lawsuit, said Thursday that the court’s decision makes it “much harder for Arkansans to hold their government accountable for willfully violating the Arkansas Constitution.”

“Despite the fact that this lawsuit has now been moot for more than two months, the Arkansas Supreme Court still chose to wade into the issue in order to make clear that, no matter how blatantly the Arkansas legislature violates the Arkansas Constitution, our courts will now be required to look the other way,” Noland said.

Arkansas attorney general disputes claim LEARNS appeal is moot

Webb agreed Thursday that the court’s decision would not impact the implementation of the LEARNS Act, but exceptions to the mootness doctrine include matters involving “a substantial public interest” that’s likely to be litigated in the future. This case falls into the exception because it questions “the decades-long process” of both chambers taking a single vote on a law and its emergency clause, but recording it separately in the legislative journals. 

“To be sure, if the circuit court’s order stands, countless State actions made in reliance on effective emergency clauses will be cast in doubt and potentially be subjected to collateral attacks,” Webb wrote. “The substantial interest of both the public and our coordinate branches of government necessitates that we resolve the issues raised in this appeal.”

In a dissenting opinion, Chief Justice John Dan Kemp disagreed with the majority’s reason for issuing an opinion and said the case should have been dismissed as moot because the normal effective date of the LEARNS Act, Aug. 1, has passed.

“In my view, the public-interest exception does not apply because any future litigation on emergency clauses is speculative. Therefore, I would dismiss the appeal as moot,” Kemp wrote.

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Justices Shawn Womack, Rhonda Wood and Karen Baker issued separate opinions concurring with the decision to reverse the circuit court ruling and dismiss the case, but cited different reasons. 

Womack and Baker disagreed with the lead opinion’s conclusion that the case did not violate the principle of sovereign immunity.

Womack cited Article 5 of the Arkansas Constitution: “Without an express constitutional provision to the contrary, the State can never properly be a defendant in any of its courts,” he wrote.

Baker cited a 2018 ruling in University of Arkansas v Andrews in which “the court held that ‘never means never.’ … Again the State may never be sued.”

In her concurring opinion, Wood wrote that because the LEARNS Act case would require the justices to assess how the General Assembly conducts its proceedings, it would violate the principle of separation of powers.

“We cannot resolve a legislative procedure-and-process issue without exceeding our judicial role by answering a political question,” Wood wrote. “Our analysis should begin and end with the political-question doctrine.”

Special Justice Cory Allen Cox joined Wood’s concurring opinion. Justice Cody Hiland did not participate. Gov. Sanders appointed Cox as a special justice in the case to replace Hiland, who recused himself .

Noting the separate opinions, Noland said: “It is telling that, even after deliberating on this issue for months, the members of the Arkansas Supreme Court could not agree on any rationale for reversing and dismissing this case; they could only agree on the fact that reversal and dismissal was the outcome they wanted.

“So today the Court issued four separate concurring opinions, all using various legal gymnastics to get to that desired outcome.”