By David Ferguson
Governor Sarah Huckabee Sanders tried to assert some control over the running of the state prisons by getting a law passed to say the Secretary of Corrections serves at the pleasure of the Governor, not the Corrections Board. When the board didn’t like decisions of the Secretary, they fired him despite the new law saying the Secretary serves at the pleasure of the Governor. They filed a lawsuit seeking to nullify the new law. The lawsuit argued the new law was invalid because their authority over the prisons is protected by Amendment 33 to the Arkansas Constitution.
I became quite familiar with Amendment 33 during my thirty-two years of working for the Arkansas General Assembly. Decades ago, when legislators talked about Amendment 33, the issue they were interested in was: Can legislation rein in colleges and universities or does Amendment 33 stand in the way? Amendment 33 also came up a time or two when some legislators wanted to split the Deaf School and the Blind School to address complaints from their constituents. The conclusion in all of those discussions was that Amendment 33 is a big hurdle to overcome.
WHAT IS AMENDMENT 33?
Amendment 33 was ratified in 1942. It protects and provides stability to boards and commissions that manage or control a charitable, penal, or correctional institution, or an institution of higher learning. Prior to Amendment 33, boards and commissions over such institutions were frequently subject to legislation making wholesale change.
In part, the Amendment protects board members. It prevents the terms of board members from being changed. It prevents the number of members on a board from being changed. It also protects the members by saying a member can only be removed for cause.
The Amendment also protects the powers of the boards of the institutions. That is the part of the Amendment that was the subject of the litigation.
Amendment 33 says in part:
“The board or commission of any institution, governed by this amendment, shall not be abolished nor shall the powers vested in any such board or commission be transferred, unless the institution is abolished or consolidated with some other State institution.”
The board in its lawsuit said the 2023 legislation changing the status of the Secretary from serving at the pleasure of the board to serving at the pleasure of the Governor is a prohibited transfer of power under Amendment 33. As expected, the Board of Corrections won the lawsuit. Yes, there is still an effort to get the Supreme Court to hear the matter again, but that possibility is remote.
There has long been a desire by some elected officials to find a way to limit (finesse their way around) Amendment 33, but the board’s victory in court shows that finessing the issue does not work.
An End or a Beginning?
Is this where the Governor and Legislature just throw their hands up and say, “Don’t blame us if you don’t like what the unelected Board of Corrections does!”? What if someday a rogue board closes prison units to force Arkansas into being a catch-and-release state for criminals? (Yes, that is an extreme example, but it illustrates the potential power.)
In crafting future public policy on state institutions, there is much to be considered and many questions to be answered.
- Arkansas has relied heavily on independent boards and commissions for running various parts of state government, and not just those over institutions. Who do you trust the most, appointed members or elected officials, or neither? I think it is likely people have at least a bit more trust in elected officials than in appointed board members. Consider this, when the idea of having appointed judges of courts has been promoted, the answer from Arkansans has been “No, we want elected judges who are responsive to us though election.”
- Did Amendment 33 go too far in setting the powers of boards and commissions in stone? If so, should the powers of some or all the boards be subject to change by legislation? If you think their powers should be subject to change by law, what vote would you want? A majority? A four-fifths vote?
- If you think the powers section of Amendment 33 needs to be modified, would you apply the change to all of the boards and commissions over state institutions or only apply the change to a select few? Why does that make a difference? It makes a difference because messing with the powers of colleges and universities would bring the wrath of the powerful higher education lobby.
Much time and effort went into the lawsuit. Much time and effort would also be required to promote an effective change to Amendment 33 because it would require an amendment to the Arkansas Constitution. If the Governor and the Legislature came to a consensus that Amendment 33 needed to be tweaked in some way, the next time the Legislature could propose a constitutional amendment would be during the Legislature’s regular session in 2027, and the proposal would not be voted on by the people until November 2028.
In 2027, the Legislature can refer three constitutional amendments to a vote of the people. There is always a lot of competition for which amendments will be referred, and some powerful interests already have some on their wish list.
Unless the Board of Corrections makes some big mistake between now and 2027, I think it is unlikely that a change to Amendment 33 will be proposed. I do not have a position on whether a change should be made, but I am very interested in the possibility of change after listening to the frustrations of legislators for decades. Guess you can add the Governor to the list of officials who are frustrated with Amendment 33.
Board of Corrections Fight with Governor
David Ferguson is a former Director of Arkansas’ Bureau of Legislative Research, having a thirty-two-year career as an attorney for the Arkansas legislature. After retirement from state service, his primary focus has been beef cattle farming. He is also a former officer of Conduit for Action.
