591 S.W.3d 293
Ark.2019Background
- The 2019 General Assembly passed Act 376, which (among other changes) required sponsors to submit paid canvassers' sworn statements to the Secretary of State before canvassers could solicit signatures; the act included an emergency clause purporting to make it immediately effective.
- The Legislature also passed Act 579 (permitting optometrists to perform certain surgeries); Safe Surgery Arkansas (SSA) sought a referendum on Act 579 and submitted titles and a petition with tens of thousands of signatures in June–July 2019.
- The Secretary of State refused to certify most signatures, concluding some canvassers began collecting signatures before their sworn statements were filed with the Secretary as required by Act 376.
- SSA filed an original-action petition for a writ of mandamus asking the Court to require the Secretary to count the signatures under the pre-Act 376 rules, arguing (1) Act 376’s emergency clause was defective so the act was not yet effective when SSA filed, and (2) Act 376 was unconstitutional (state and federal).
- The Court held Act 376’s emergency clause defective under Ark. Const. art. 5, § 1 (an emergency clause must state the fact constituting an emergency that threatens public peace, health, or safety), and therefore the act did not take immediate effect.
- The Court granted mandamus in part, directing the Secretary to process SSA’s referendum filings under the pre-Act 376 legal framework; the Court did not rule on Act 376’s constitutionality nor certify the referendum to the ballot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Act 376's emergency clause satisfied Ark. Const. art. 5, § 1 | The legislature's emergency language ("to avoid confusion in petition circulation") justified immediate effect to prevent inconsistent rules in the same election cycle | The Legislature's stated basis sufficed; immediate effect prevented confusion and ensured uniform treatment; courts should defer | The emergency clause was defective: "avoid confusion" is not a constitutionally cognizable emergency affecting public peace, health, or safety; reasonable people could not disagree, so clause set aside |
| Whether mandamus should compel the Secretary to process SSA's referendum under pre-Act 376 rules | Secretary's duty to count and verify signatures is ministerial; because Act 376 was not effective when SSA filed, SSA has a clear right to pre-Act 376 processing and no adequate remedy at law | Secretary acted within his understanding of Act 376 in refusing certification; processing under Act 376 was appropriate if the act were effective | Writ issued in part: Secretary must address SSA's filings under the pre-Act 376 framework; court declined to decide title adequacy or order immediate ballot certification |
Key Cases Cited
- Burroughs v. Ingram, 319 Ark. 530 (1995) (articulates emergency-clause test: uphold only if reasonable people might disagree whether stated fact is an emergency)
- Cunningham v. Walker, 198 Ark. 926 (1939) (emergency clause must state the fact constituting the emergency)
- Jumper v. McCollum, 179 Ark. 837 (1929) (legislation must state the fact which constitutes such emergency)
- Gulledge v. Barclay, 350 Ark. 98 (2002) (courts should give deference to legislature's determination of emergency when reasonable minds may differ)
- Mann v. Lowry, 227 Ark. 1132 (1957) (establishes that if reasonable people might disagree, emergency clause is upheld)
- Brown v. Gibson, 2012 Ark. 285 (2012) (describes mandamus prerequisites and purpose)
- Lonoke County v. City of Lonoke, 2013 Ark. 465 (2013) (mandamus standards: ministerial duty, clear right, no adequate remedy)