Could Arkansas's 2014 SJR 7 amendment let the legislature veto Game and Fish Commission or Highway Commission rules?

Plain-English summary

Mike Knoedl, Director of the Arkansas Game and Fish Commission, asked the AG five expedited questions about SJR 7 (Issue No. 1), a constitutional amendment headed to the November 2014 ballot. SJR 7 proposed adding § 42 to Article 5 of the Arkansas Constitution, authorizing the General Assembly by law to require legislative committee review (and potentially approval) of administrative rules before they could take effect. Knoedl wanted to know whether "state agency" in SJR 7 would include the AGFC and the Highway Commission, both of which derive their authority from constitutional amendments (Amendment 35 and Amendment 42), and how SJR 7 would interact with the existing constitutional structure.

The AG declined to interpret SJR 7 substantively because the office has a longstanding policy against opining on proposed measures before voters consider them. He cited Opinions 2012-132, 2005-127, 97-123, and 94-193 supporting that policy, and noted that A.C.A. § 16-111-104 bars courts from entertaining declaratory judgment actions on proposed measures. He emphasized that any judicial inquiry into SJR 7's effect would only become ripe if (1) voters approved the amendment, (2) the legislature interpreted SJR 7 as authority over commission rulemaking, and (3) the legislature actually exercised that authority.

That said, the AG laid out the legal framework that a future court would apply. Under existing law and the Arkansas Supreme Court's decision in Chaffin v. Arkansas Game & Fish Commission (1988), the legislature cannot encroach on the AGFC's policy-making independence by statute. Amendment 35 vests "control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources" in the AGFC and gives the commission "exclusive power and authority" over licenses, bag limits, and seasons. Amendment 42 gives the Highway Commission the powers necessary for the State Highway Department. Both bodies are "independent constitutional agencies" (per Commission on Judicial Discipline v. Digby).

If SJR 7 passed, the key legal question (according to the AG) would not be whether the constitution could allow legislative review of constitutional-commission rules. It could; the people have ultimate authority. The question would be whether the voters intended SJR 7 to do that. Faubus v. Kinney (1965) holds that "in matters relating to constitutional amendments, the intent of the people is controlling." The AG would not predict the answer.

On Question 4 (whether SJR 7's appearance on the ballot adequately informed voters), the AG referenced his earlier Opinion 2013-067. Under Becker v. Riviere and the Article 19, § 22 framework, a legislatively referred amendment does not require a full ballot title; it needs only enough identification to distinguish it from other amendments and tie it to what was published in newspapers. The AG attached Opinion 2013-067 to his response for context.

On Question 5 (whether all publication requirements were met), the AG directed Knoedl to the Secretary of State, who handles that determination.

Currency note

This opinion was issued in 2014. 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.

Background and statutory framework

Two layers of Arkansas constitutional law shape this question: the doctrine of independent constitutional commissions and the procedural rules for amending the constitution.

Independent constitutional commissions. Amendment 35 created the AGFC in 1944 as a body intended to remove fish and game management from political control. Arkansas Game & Fish Commission v. Stanley (1976) described it as "an act of the ultimate sovereign, the people of Arkansas, and is subject only to constitutional, not legislative or judicial, limitations." Chaffin held that the legislature exceeded its authority when it tried to control AGFC expenditures on an agency publication, violating separation of powers under Article 4, §§ 1 and 2 and Amendment 35. The court was emphatic: "Despite [a legislative review committee member's] testimony that the committee is merely 'advising' an agency to act, the proof of the pudding is in the eating. . . . An unconstitutional encroachment may not always take the form of outright invasion. A subtle coercion exercised by a powerful branch of government can effectively tie the hands of a coordinate branch. . . . The legislature cannot hold the executive branch hostage to its will."

Amendment 42 patterns the Highway Commission similarly: "vested with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department." White v. Hankins (1982) notes that the Highway Commission "is, in a large measure, patterned after the Game and Fish Commission."

Rulemaking independence. Under Op. Att'y Gen. 2000-150, the rulemaking provisions of the Administrative Procedures Act (A.C.A. § 25-15-204) likely do not apply to the AGFC because the APA "necessarily limit an agency['s] discretion to develop rules under whatever procedures it deems appropriate." That kind of constraint cannot constitutionally bind an Amendment 35 commission.

Procedural rules for amendments. Article 19, § 22 allows the General Assembly to propose constitutional amendments (up to three at a time) that go to voters. The Arkansas Supreme Court has repeatedly held that art. 19, § 22 amendments do not require a full ballot title; they need only be distinguishable. Chaney v. Bryant (1976) recognized the lesser standard. Thiel v. Priest (2000) declined to overrule the "manifest-fraud standard" for reviewing § 22 measures. The popular name serves the constitutional submission requirement, per Chaney. By the time SJR 7 reached voters, the statutory framework for popular names had been amended (Act 1413 of 2013); under Opinion 2013-067, the AG concluded that the Secretary of State could prepare a popular name in the absence of explicit legislative direction.

Common questions

What was actually on the 2014 ballot for SJR 7?

The amendment text proposed adding the following to Article 5: "§ 42. Review and approval of administrative rules. (a) The General Assembly may provide by law: (1) For the review by a legislative committee of administrative rules promulgated by a state agency before the administrative rules become effective; and (2) That administrative rules promulgated by a state agency shall not become effective until reviewed and approved by the legislative committee charged by law with the review of administrative rules under subdivision (a)(1) of this section." Subsection (b) said the committee could meet during the interim or any session.

Why was the AG so cautious about pre-vote interpretation?

Two reasons. First, opining on a proposal could appear to favor or oppose it, which the office is institutionally bound to avoid. Second, declaratory judgments on unenacted measures are statutorily barred. The AG's silence is itself a procedural protection for the integrity of the ballot process. The AG also cited the cost of a wasted opinion: if the measure doesn't pass, the opinion analyzes a hypothetical that no longer matters.

Could the legislature have used SJR 7, if it passed, to overturn AGFC bag limits or hunting season decisions?

That's exactly the open question. Subsection 8 of Amendment 35 gives the AGFC "exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish and furbearing animals." A later constitutional amendment (SJR 7) could potentially qualify "exclusive." But under the principles in Chaffin, the legislature would have needed to show that voters knew they were stripping away the AGFC's traditional independence when they approved SJR 7. The amendment's silence on constitutional commissions made that intent unclear.

What's the difference between rulemaking review under the APA and rulemaking review under SJR 7?

The APA review process under A.C.A. § 25-15-204 generally requires notice-and-comment and gives the public an opportunity to participate in agency rulemaking. SJR 7 would add a post-process, pre-effective-date legislative committee gate. Subsection (a)(1) authorized passive review; subsection (a)(2) authorized active approval. The combination would be roughly equivalent to a legislative veto, with all the separation-of-powers concerns flagged in Op. Att'y Gen. 2001-033's review of the constitutional issues around such vetoes.

What ultimately happened with SJR 7?

Voters considered Issue 1 in November 2014. Subsequent legal history sits outside this opinion. For current Arkansas administrative-rule procedures, consult the constitution and current statutes, not this 2014 analysis.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2014-115
October 13, 2014

The Honorable Mike Knoedl, Director
Arkansas Game and Fish Commission
2 Natural Resources Drive
Little Rock, Arkansas 72205

Dear Mr. Knoedl:

I am writing in response to your request for my expedited opinion regarding the following questions:

1. Does "state agency" referenced in Section 1 of SJR 7 include the two constitutional commissions, i.e., the Arkansas Game and Fish Commission and the Arkansas Highway Commission? In other words, if SJR 7 is approved by the voters, could the General Assembly enact a law that would require the Arkansas Game and Fish Commission and the Arkansas Highway Commission to seek legislative committee review and approval of their administrative rules before they could become effective?

2. If SJR 7 is approved by the voters, will any of its provisions create legal conflicts with existing provisions in Amendments 35 or 42 to the Arkansas Constitution? If so, how would such conflicts likely be resolved?

3. In light of the decision of the Arkansas Supreme Court in Chaffin v. Arkansas Game and Fish Commission, 296 Ark. 431, 757 S.W.2d 950 (1988), will any provision of SJR 7 conflict with any other provisions of the Arkansas Constitution, such as the separation of powers provisions in Article 4, §§ 1 and 2, or the right to hunt, fish, trap, and harvest wildlife under Amendment 88?

4. Will SJR 7, as it will appear on the November 2014 General Election ballot without any ballot title and/or popular name, adequately inform the voters of the potential conflicts and/or changes that may take place with Amendment 35, Amendment 42, and/or other provisions of the Arkansas Constitution?

5. Have all publication and other requirements in Article 19, § 22 of the Arkansas Constitution been satisfied so that the proposed amendment involving SJR 7 is now qualified for adoption in the general election of November 4, 2014?

RESPONSE

Question 1: Does "state agency" referenced in Section 1 of SJR 7 include the two constitutional commissions, i.e., the Arkansas Game and Fish Commission and the Arkansas Highway Commission? In other words, if SJR 7 is approved by the voters, could the General Assembly enact a law that would require the Arkansas Game and Fish Commission and the Arkansas Highway Commission to seek legislative committee review and approval of their administrative rules before they could become effective?

Before addressing your specific question, I must note that, as a matter of policy, this office has traditionally declined to issue opinions interpreting proposed acts or amendments prior to those laws being put to a vote of the people. As stated by my immediate predecessor with regard to a proposal referred by legislative resolution pursuant to Ark. Const. art. 19, § 22: "[The measure] has not at this date been adopted by the people and the interpretation of such proposed measures is not appropriate in the format of an official Attorney General opinion." Indeed, a court will likewise not entertain a declaratory judgment action to interpret proposed measures prior to enactment. Although I must accordingly respectfully decline to interpret Senate Joint Resolution 7 ("SJR 7"), I can and will briefly note the issues that I believe a court might address in entertaining a challenge to legislation based upon the authority of SJR 7.

SJR 7, entitled "An Amendment to the Arkansas Constitution Providing that Administrative Rules Promulgated by State Agencies Shall Not Become Effective Until Reviewed and Approved by a Legislative Committee of the General Assembly," proposes to add the following provision to Article 5 of the Arkansas Constitution:

§ 42. Review and approval of administrative rules.
(a) The General Assembly may provide by law:
(1) For the review by a legislative committee of administrative rules promulgated by a state agency before the administrative rules become effective; and
(2) That administrative rules promulgated by a state agency shall not become effective until reviewed and approved by the legislative committee charged by law with the review of administrative rules under subdivision (a)(1) of this section.
(b) The review and approval by a legislative committee under subsection (a) of this section may occur during the interim or during a regular, special, or fiscal session of the General Assembly.

If the General Assembly were to exercise its option to enact a law containing the provisions of subsection (a)(2), which conditions the effectiveness of "administrative rules" upon the approval of a legislative committee, it would in effect be assigning itself a "legislative veto" over an executive agency's actions.

Nothing, of course, precludes the people from affording the legislature such veto power by constitutional amendment. However, a reviewing court faced with a challenge to any particular exercise of such de facto veto power would in all likelihood address whether and to what extent the people in fact intended to invest the legislature with authority to regulate by veto the core functions of the "constitutionally independent agencies" referenced in your question. In this, as in all instances, the intent of the people is determinative in interpreting a constitutional amendment.

The scope of the AGFC's independence in rulemaking is aptly summarized in the following pronouncement by the Arkansas Supreme Court:

A majority of this court has determined that the Game and Fish Commission[,] as opposed to the Legislature, is vested with the power to make such rules and regulations as is deemed necessary to protect and conserve the wildlife resources of the state . . . . The Commission has a wide discretion within which it may determine what the public interest demands, and what measures are necessary to secure and promote such requirements. The only limitation upon this power to formulate these rules and regulations, which tend to promote the health, peace, morals, education, good order and welfare of the public[,] is that the rules and regulations must reasonably tend to correct some evil, and promote some interest of the commonwealth, not violative of any direct or positive mandate of the constitution . . . . The commission, as trustee for the people of this state, has the responsibility and is charged with the duty to take whatever steps it deems necessary to promote the interest of the Game and Fish Conservation Program of the state; subject only to constitutional provisions against discrimination, and to any valid exercise of authority under the provisions of the Federal Constitution.

As one of my predecessors has noted, legislative intrusion into the rulemaking authority of a constitutionally independent commission must be undertaken by constitutional amendment. The fact that SJR 7 proposes a constitutional amendment may suggest that the legislature intends to authorize such an intrusion, but only a court faced with the issue could determine whether the amendment warrants such action. And, of course, whether the issue arises will depend upon an actual exercise by the General Assembly of what it takes to be its newly granted authority following the measure's adoption. As my predecessor rightly noted in another opinion addressing the constitutionality of proposed legislation extending legislative oversight of administrative rules and regulations: "It is impossible to obtain the 'proof of the pudding' with regard to [the bill], as it has not been enacted or implemented."

In the present case, I will not venture to predict how the legislature would interpret its authority in the event this measure were adopted. If this measure were to pass; and if the legislature were to interpret its adoption as authority to condition the rulemaking of constitutional commissions upon obtaining prior legislative approval; and if the legislature elected actually to exercise this purported authority, then, and only then, would a judicial challenge be ripe for adjudication.

The likelihood of such a suit would doubtless increase if the AGFC considered its rules as the avenue by which it pursued its core functions as an independent agency. I assume that the primary issue before the court in the event of such a suit would not be whether the people could grant the legislature such a right of approval, they can. Rather, the issue of law would likely be whether the people intended to grant such a right in adopting this amendment.

Given the procedural posture of your request, namely, its occurrence under circumstances where this office would ordinarily decline to opine, I will not speculate further regarding the possible outcome of any such judicial inquiry.

Question 2: If SJR 7 is approved by the voters, will any of its provisions create legal conflicts with existing provisions in Amendments 35 or 42 to the Arkansas Constitution? If so, how would such conflicts likely be resolved?

See my response to your first question.

Question 3: In light of the decision of the Arkansas Supreme Court in Chaffin v. Arkansas Game and Fish Commission, 296 Ark. 431, 757 S.W.2d 950 (1988), will any provision of SJR 7 conflict with any other provisions of the Arkansas Constitution, such as the separation of powers provisions in Article 4, §§ 1 and 2, or the right to hunt, fish, trap, and harvest wildlife under Amendment 88?

In Chaffin, which I referenced in my response to your first question, the court held that the legislature exceeded its constitutional authority, in violation of the separation-of-powers doctrine (set forth in Ark. Const. art. 4, §§ 1 and 2) and Amendment 35, in attempting to control through legislation the AGFC's policy decisions regarding its expenditures on an agency publication. The issue addressed by the court in Chaffin was thus whether legislation conflicted with these provisions of the constitution in its current form. SJR 7, however, is not thus assailable as constitutionally impermissible legislation, given that its adoption would amend the constitution itself. The issue arising from the adoption of SJR 7 would not be whether the amendment was objectionable as conflicting with the constitutional principles you recite; rather, it would be whether the amendment, as a subsequently adopted constitutional principle, impliedly qualified or repealed such principles.

In my opinion, Chaffin provides no direct guidance on this question. Instead, it confirms only that the Arkansas Constitution in its current form does not allow the legislature to encroach either directly or indirectly on the policy-making independence of the AGFC. The crucial remaining issue, which you raise in your first question, is whether SJR 7 would alter the constitution by amendment in a way that would warrant such legislative intrusion through control over commission rulemaking. This issue will not be ripe for adjudication until the legislature, in the event the voters adopt SJR 7, rightly or wrongly interprets the scope of its new authority and acts thereon.

Question 4: Will SJR 7, as it will appear on the November 2014 General Election ballot without any ballot title and/or popular name, adequately inform the voters of the potential conflicts and/or changes that may take place with Amendment 35, Amendment 42, and/or other provisions of the Arkansas Constitution?

This question expresses an apparent concern regarding the absence of "any ballot title and/or popular name" to inform the voters of such possible changes. In this regard, I am attaching for your convenience an earlier opinion in which I addressed what must be disclosed to the voter in the polling booth regarding a measure referred by the legislature. As discussed in detail in my former opinion, absent fraud, a legislatively crafted constitutional amendment referred to the people pursuant to Ark. Const. art. 19, § 22 need only be identified to an extent that "distinguishes the proposed amendment from others and is recognizable as referring to the amendment that was previously published in the newspapers." I will not here repeat my previous analysis. Rather, I will merely note that the information appearing on the ballot need not go further than that just described. Again, the main issue in any future litigation alleging encroachment on a commission's rights under Amendments 35 and/or 42 will likely be whether, given SJR 7's silence on the issue, the voters intended to abridge such substantive rights in adopting the measure.

Question 5: Have all publication and other requirements in Article 19, § 22 of the Arkansas Constitution been satisfied so that the proposed amendment involving SJR 7 is now qualified for adoption in the general election of November 4, 2014?

I am not situated to answer this question. Please contact the Arkansas Secretary of State at the following address in order to obtain this information:

Arkansas Secretary of State
Elections Division
500 Woodlane, Room 026
Little Rock, Arkansas 72201
501-682-5070

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/JHD:cyh

Enclosure (Op. Att'y Gen. 2013-067)