1951 Court Decision Wrong - Legislators Can Amend Citizen Initiatives, Attorney General Says

by Kristin Higgins - November 22, 2024

Legislators can amend citizen-initiated constitutional amendments despite a 1951 Arkansas Supreme Court ruling saying otherwise, Arkansas Attorney General Tim Griffin said in a Nov. 15 opinion to an Arkansas senator seeking his interpretation of Amendment 7.

Griffin's opinion falls opposite to what Attorney General Mark Pryor told legislators in 2001 in a separate AG’s opinion on the same question. 

“Amendment 7’s plain language gives the General Assembly power to amend initiated constitutional amendments,” Griffin wrote in Opinion No. 2024-024, which was prepared by Deputy Attorney General Noah P. Watson. “In my opinion, if the Supreme Court were faced with your question today, it would most likely hold that Edgmon was wrongly decided, employed a form of reasoning that is now rejected, and should thus be overturned.”

The AG’s opinion comes as legislators are filing bills for the 2025 General Assembly, which is set to start Jan. 13. Arkansas is one of 15 states where citizens can place constitutional amendments, state laws and veto referendums on the ballot for citizens to decide. Legislators can also refer up to three constitutional amendments.

The opinion also comes less than a month after the Arkansas Supreme Court stopped votes on Issue 3, the Arkansas Medical Marijuana Amendment of 2024. Along with changes to the state’s medical marijuana program, the citizen initiative would have prevented legislators from making any changes to constitutional amendments without referring the changes to voters to decide. 

The ability of legislators to make changes to citizen initiatives has been a legal gray area since a Jan. 15, 1951 Arkansas Supreme Court opinion in Arkansas Game and Fish Commission v. Edgmon.

The lawsuit involved a dispute over payment for wolf scalps and whether the legislature could direct how the commission could spend its funds. The lawsuit opened a deeper question about the ability of the legislature to change constitutional amendments, including one that made the Arkansas Game and Fish Commission an independent agency.

Amendment 7 to the Arkansas Constitution reaffirmed citizens ability to refer ballot measures to voters. The amendment defines “measure” as including any bill, law, resolution, ordinance, charter, constitutional amendment, or other legislative proposal or enactment of any character.

The 1951 Arkansas Supreme Court said it was “inconceivable” that Arkansans meant to give legislators the ability to repeal or change constitutional amendments in the very amendment that allowed them to refer measures to the voters to decide.

“These amendments are spoken of as "measures," hence if the definition in Amendment and Repeal is applied throughout, then any or all of the more than forty amendments to the constitution could be repealed by the required vote of the legislature,” the 1951 opinion states.

“The clear intent of the Initiative and Referendum Amendment was to give the people enlarged legislative and constitutional powers. Certainly if the purpose had been to take away fundamental security then enjoyed or to be acquired under the Amendment, the right of two-thirds of those elected to the General Assembly to treat amendments as though they had been referred to it would have been expressed in more emphatic terms,” the court opinion states.

Mark Pryor, who served as Arkansas Attorney General in 2001, was also asked to weigh in on the interpretation of Amendment 7 and whether legislators could change constitutional amendments referred by the voters. His Feb. 1, 2001 opinion cited the Edgmon decision.

“It is my opinion that the answer to your question is “no,” stated Opinion 2001-025 to Senators Jodie Mahony of El Dorado and John A. Riggs of Little Rock

Based on search results of the Arkansas Attorney General’s opinion website, it doesn’t appear there were other requests made to the office for interpretation of this section until the recent request from Sen. Jim Dotson of Bentonville.

Griffin said the plain language of Amendment 7 should be respected and that the 1951 court was wrong to have strayed from a plain language interpretation.

“Amendment 7’s grant of power to the General Assembly is not so absurd that no person could have intended it,” Opinion No. 2024-024 states. “For example, it could be that this power was intended to allow the General Assembly to change the Constitution by a supermajority vote if a ratified amendment failed to include necessary provisions or if, in application, it became clear that the amendment was unworkable.”

AG opinions are not legally binding but they provide a window into the legal arguments of the state's attorney and provide officials with some legal footing. Legislators now have this new opinion in hand as they prepare for the 2025 session. We will be monitoring what’s filed to see if any proposals seek to change or repeal any of Arkansas’ 104 amendments.

In the statewide election this month, Arkansans approved one constitutional amendment from the legislature that expands lottery scholarship proceeds to vocational schools, and a citizen-initiated amendment that removes Pope County from the Arkansas Constitution as a location for casino gaming. Opponents of the casino measure (Issue 2) have since sued the state and want the judge to find the amendment unconstitutional.

The casino amendment approved by voters in 2018 allowed gaming in Hot Springs, West Memphis, Jefferson County and Pope County. In the session following the statewide vote, several legislators flied bills to change the casino amendment despite the 1951 court case, the Arkansas Democrat-Gazette reported in April 2019. Those bills died in session.

An interim study proposal from legislators in 2023 also sought to firm up the stance that legislators can make changes to citizen initiatives with a two-thirds vote.  

An intervenor's brief in the Issue 3 lawsuit over the Arkansas Medical Marijuana Amendment of 2024 also raised issues with Edgmon, saying it was wrongly decided.