Pulaski County Circuit Court Judge Herbert Wright said Tuesday that he’ll issue a ruling in a week or two on the effective date of the LEARNS Act, the governor’s signature education legislation.
The plaintiffs in a lawsuit challenging the law argue it is not yet in effect due to a defective emergency clause. An emergency clause allows legislation to take effect immediately instead of 91 days after the end of the legislative session.
They also argued the Legislature failed to establish that an emergency existed that made immediate implementation of the law necessary.
During a hearing in Little Rock Tuesday, the plaintiffs argued lawmakers did not take two separate votes on the LEARNS Act and its emergency clause, as required by the Arkansas Constitution.
Recently retired Senate Parliamentarian and attorney Steve Cook said it’s been a longstanding practice to vote on a bill and an emergency clause in a single vote but record two votes in the legislative journal. However, Cook said he expressed his concerns over the years that “the vote is troublesome” due to the language in the Constitution.
Cook said he had discussed being proactive by informing members of the requirement for “staff to cover our you know what” so members couldn’t say they didn’t know in the event of a lawsuit.
With 100 members, Cook said the House has more structure than the smaller, 35-member Senate. While the House speaker typically tells members they’re voting on a bill and the emergency clause with one vote, the lieutenant governor doesn’t do the same in the Senate.
“I thought we needed to tighten up the Senate in a lot of the things we do,” Cook said.
The legal battle over when the law can be implemented began in May after the state Board of Education authorized the pursuit of a “transformation contract” between the Marvell-Elaine School District and Friendship Education Foundation, a charter management organization. A provision of the LEARNS Act, a transformation contract allows a struggling district to partner with a third party in lieu of a state takeover.
Little Rock lawyer Ali Noland filed a lawsuit on May 8 arguing the board’s action was unconstitutional. The complaint contends the LEARNS Act is not yet in effect because the legislation’s emergency clause wasn’t passed by a separate roll-call vote garnering a two-thirds majority, as required by the state Constitution.
Judge Wright issued a temporary restraining order on May 26 that paused implementation of the law. Education Secretary Jacob Oliva said Tuesday that following the order, he immediately met with leadership and told them “we have to ground all planes.”
Under the transformation contract, Marvell-Elaine was scheduled to pay the Friendship Education Foundation $25,000 in May and another $25,000 in June, Oliva said. Due to the restraining order, no payments have been made, he said.
The state appealed the restraining order, and the Arkansas Supreme Court vacated the restraining order on June 15, allowing the law to once again go into effect.
Arguing for the state Tuesday, Assistant Attorney General Justin Brascher said they weren’t debating what separate means, but rather what vote means. A vote is entering into the journal itself because no entry means there wasn’t a vote, he said.
House Parliamentarian Buddy Johnson said the legislative journal is the official record of lawmaker’s votes. When questioned about the hierarchy of rules in the Arkansas Legislature, Johnson said the Arkansas Constitution is at the top, followed by the joint rules of the House and Senate and then House rules.
When asked if any of those rules can alter what’s in the Arkansas Constitution, Johnson said he was hesitant to answer the question because he thought that’s what the court case is about. Eventually, he said “House rules do not override the Constitution.”
Brascher asked Johnson about batching bills, a process where lawmakers vote on multiple bills with a single vote. Johnson said House membership is explicitly asked if they object to batching bills. If a lawmaker does, a bill can be pulled from the batch and voted on separately.
The House also contains two electronic boards where a bill’s title is displayed as well as the intent to declare an emergency, he said.
At the end of the hearing, Wright said he would make a decision as quickly as he can, depending on his docket.
Noland told reporters following the hearing that she and her clients “feel very confident in this process.”
“The evidence today unequivocally showed that the emergency clause was not passed with a separate roll-call vote as required in the constitution,” she said.
Arkansas Attorney General Tim Griffin also expressed his confidence in a statement, saying “I am aggressively and proudly defending the LEARNS Act and the constitutionality of the process by which it and countless other pieces of legislation have been passed by the General Assembly.”
If Wright rules in favor of the plaintiffs, the LEARNS Act would not go into effect until Aug. 1. That decision could again be appealed to the Arkansas Supreme Court.
