By Randy Bynum
In its recent decision in Board of Trustees of the University of Arkansas v. Matthew Andrews, the Arkansas Supreme Court gave a literal interpretation to Article 5, § 20 of the Arkansas Constitution which states: “The State of Arkansas shall never be made defendant in any of her courts.” The result of this literal interpretation was that Matthew Andrews could not sue his state employer under the Arkansas Minimum Wage Act, overturning long-standing precedent by the Supreme Court allowing the legislature to waive sovereign immunity by statute. (For a complete analysis of the Court’s ruling see Adrienne Griffis’ commentary)
Now that four of our current Supreme Court justices (and one special justice) apparently have decided to follow the doctrine of literal interpretation of the Arkansas Constitution, one wonders if there are other provisions in our Constitution that, if interpreted literally by this Court, could overturn years of judicial precedent. One such provision comes to mind.
Article 5, § 1 of the Arkansas Constitution addresses initiatives and referendums and gives the people of Arkansas the power to propose constitutional amendments and laws. A recent example of this is the Medical Marijuana Amendment approved by over 53% of the voters in the 2016 election. The people of Arkansas proposed the amendment by signing petitions and voting in favor of it at the polls.
So the people of Arkansas have spoken and we now have the right to legally possess and use Medical Marijuana, within the terms of the amendment, and that right cannot be taken away unless the people of Arkansas choose to repeal it by another vote. Right? Maybe not, given our current Supreme Court’s literal bent in interpreting the constitution and willingness to overturn years of its own precedent.
While Article 5, § 1 gives the people of Arkansas the right to propose constitutional amendments, it also states:
No measure approved by a vote of the people shall be amended or repealed by the General Assembly… except upon a yea and nay vote on roll call of two-thirds of all the members elected to each house of the General Assembly…
The definition of measure in Article 5, § 1 includes a constitutional amendment. Accordingly, a literal interpretation of this provision would allow the Arkansas General Assembly to repeal the Medical Marijuana Amendment by two-thirds majority vote in each house. However, the Arkansas Supreme Court has not always been as prone to literal interpretation as it seems to be now. A 1951 case, Arkansas Game & Fish Com. v. Edgmon, 218 Ark. 207 (1951) held otherwise stating:
It is inconceivable that in defining constitutional amendment as a measure the purpose was to invest the General Assembly with power (a) to repeal a constitutional amendment, or (b) with authority to amend an amendment – a power that could be exercised to such an extent that the entire meaning of a constitutional provision achieved through amendment could be changed by legislative action.
Based on Arkansas Game & Fish Com. v. Edgmon, for 67 years the Supreme Court has held that the General Assembly may not repeal a constitutional amendment. However, with a conservative legislature and a literal interpretation leaning Supreme Court, it is not inconceivable that the General Assembly could vote to repeal the Medical Marijuana Amendment and have its actions upheld by this Supreme Court. However, hopefully, the Arkansas General Assembly will respect the will of the people of Arkansas and not test its “literal” power.
This article was published in Arkansas Business on February 12, 2018.