By David Ferguson
If you are confused as to when new Arkansas laws become effective, don’t feel like the Lone Ranger. Friday morning, I read an article in the Arkansas Democrat-Gazette by a veteran reporter and saw the article misstated the rule. I was not surprised by the error because nobody seems to get it right. In previous decades there were even a couple of Attorney General Opinions that got the rule wrong and had to be corrected.
Why so much confusion? First, the rule is not easy to find in the Arkansas Constitution. Second, the rule has exceptions. Third, some of the words used are words we do not use in everyday conversation. Fourth, the calculation of the effective date uses a starting point that can be hard to find.
I will explain how the rule works. My primary goal is to explain why there is a delay on most laws becoming effective. As for my explanation of how you calculate the effective date, probably only a few people will want to dig that far. But I have included the details so this can be used as reference material for those who want to calculate dates for future legislative sessions.
SEARCHING FOR THE RULE
If you look for a section of the Arkansas Constitution with a heading of “effective dates of laws” you will not find the anything. You must look for the section of the Constitution on referendum petitions. The effective date rule is actually about referendum petitions to try to stop a law from becoming effective.
A new law must wait until after the referendum petition deadline has passed.. If a referendum petition is filed against the law and has enough signatures the law in question does not become effective until after a vote on the referendum at the next general election.
The purpose of the rule is to give the people an opportunity to file a referendum petition prior to the new law becoming effective.
The deadline for filing a referendum petition is: “not later than ninety days after the final adjournment of the session at which such Act was passed, except when a recess or adjournment shall be taken temporarily for a longer period than ninety days, in which case such petition shall be filed not later than ninety days after such recess or temporary adjournment.”
This rule is found in Article 5, Section 1 of the Arkansas Constitution. I’ve added the text on referendum and Emergency Clauses in the notes. I will discuss Emergency Clauses in a bit.[i]
Referendums do not happen very often. One example is the referendum on Act 7 of the 2nd Extraordinary Session of 1992 which imposed a soft drink tax on the soft drink industry. The money from the new tax was dedicated to helping fund Medicaid in Arkansas. The soft drink industry got enough signatures to put the tax on the next general election which was November 1994. The referendum did not pass which meant the tax then went into effect. Because the tax was approved by a vote of the people, any amendment or repeal of the tax now takes a two-thirds majority vote of the Senate and House. Why is this important? Earlier this year HB1546 was filed proposing to repeal the soft drink tax. A majority of the members of the House of Representatives voted for the repeal but the bill fell short of the two-thirds vote needed and therefore the repeal failed.
EMERGENCY CLAUSE EXCEPTION
If the new law has an Emergency Clause the law does not have to wait the normal period before becoming effective.
What is an Emergency Clause? It is a section at the end of a bill stating there is an emergency necessitating the law to become effective before the normal timeline. When an Emergency Clause is used, it is common for the bill to say the law becomes effective immediately upon being signed by the governor or if the governor lets the bill become law without the his signature then the date it was automatically approved.. For budget bills the effective date is always July 1 because that is the date of Arkansas’s fiscal year and an earlier or later date would leave agencies without funding for part of the fiscal year.
The effective date in an Emergency Clause is easy to find. It will either state the date or if it says immediately the date of approval will appear on the on the copy of the new law (Act) posted by the legislature on its website.
But before you rely on the effective date stated in the Emergency Clause, there is one more step. You need to confirm the Emergency Clause passed. Sometimes the Act posted by the legislature will include a note if the Emergency Clause failed.
For an example, I looked at SB590 (Act 1002) on which I knew the Emergency Clause failed. It did not yet have such a note about the failure. So to be sure, you need to look at the bill history which is also on the legislature’s website.
For SB590 the bill and its Emergency Clause initially passed both the Senate and House but the House added an amendment to the bill which meant the Senate had to vote on concurring in the amendment. The amendment passed but the Emergency Clause failed on that vote.
BEGINNING PLACE FOR THE CALCULATION
To start calculating the effective date of new laws without an Emergency Clause, you must know the date the legislature adjourned or went into an extended recess of more than ninety days.
Eventually the legislature will add a note on its main webpage stating when the legislature adjourns sine die. What is “sine die”? It is just legalese meaning they adjourned without coming back, final adjournment.
This year there is an extended recess which is planned for more than ninety days. That means instead of starting with a sine die adjournment date you use the recess date.
Do you know when the legislature recessed? It was not simple to find.
An extended recess is an uncommon occurrence, and as I write that date has not been added to the legislature’s main webpage. Perhaps it will be added later. Perhaps it appears somewhere else on the legislature’s website but I did not find it and I worked for the legislature for thirty-two years!
Luckily, 1 found a May 5, 2021 Senate news release on the Senate website which says: “Both the Senate and the House finalized action on HB 1957 after midnight, in the early hours of April 28. Each chamber then went in an extended recess, bringing this year’s regular session to an end.”[ii] The recess date can also be inferred from an Arkansas Democrat-Gazette article.[iii]
WHEN TO START COUNTING
Once you have the adjournment date, or extended recess date, when do you start counting? You do not count the day of adjournment or recess. Day 1 is the day following adjournment or recess.
IS IT 90 DAYS OR 91 DAYS?
Often people mistakenly say a bill becomes effective ninety days after final adjournment or the date an extended recess began. This is wrong. It is the ninety-first day.
Ninety days comes from the deadline for filing a referendum petition. Laws without an Emergency Clause become effective on the day following the referendum petition deadline. That makes it the effective date the ninety-first day after adjournment or extended recess. And, again, you start the counting with Day 1 being the day after adjournment or recess.
Even once a new law becomes effective, some provisions or all of the law may not “apply” until later. If there is a delay in application of the law, it will be stated in the legislation. For example, some tax laws phase in changes over several years and a lower rate may not apply until some future year.
WHAT IS THE EFFECTIVE DATE THIS TIME?
Because the legislature went into extended recess you use the recess date to calculate the effective date for new laws already passed. The legislature recessed on April 28, 2021. Then you count ninety-one days starting with the day after the recess. April 29 would count as Day 1. The ninety-day deadline for referendum petitions would be July 27 which makes the ninety-first day July 28, 2021.
So, by my count July 28, 2021 is the effective date of laws without an Emergency Clause.
But there is a catch. It is possible, but very unlikely, that the legislature could reconvene the regular session before ninety days has passed and that would wipe out all the calculations. But I wouldn’t worry about that happening, it is extremely unlikely.
If you have made it this far you deserve a medal. Again, my main purpose was to explain why there is a delay in effective dates, which is waiting past the deadline on referendums. And my secondary purpose was to clarify the rules for those few who have been trying to calculate the date on their own.
And now you know….
[i] Article 5, Section 1 reads in part:
“Referendum. The second power reserved by the people is the referendum, and any number not less than six per cent of the legal voters may, by petition, order the referendum against any general Act, or any item of an appropriation bill, or measure passed by the General Assembly, but the filing of a referendum petition against one or more items, sections or parts of any such act or measure shall not delay the remainder from becoming operative. Such petition shall be filed with the Secretary of State not later than ninety days after the final adjournment of the session at which such Act was passed, except when a recess or adjournment shall be taken temporarily for a longer period than ninety days, in which case such petition shall be filed not later than ninety days after such recess or temporary adjournment. Any measure referred to the people by referendum petition shall remain in abeyance until such vote is taken. The total number of votes cast for the office of Governor in the last preceding general election shall be the basis upon which the number of signatures of legal voters upon state-wide initiative and referendum petitions shall be computed.
Upon all initiative or referendum petitions provided for in any of the sections of this article, it shall be necessary to file from at least fifteen of the counties of the State, petitions bearing the signature of not less than one-half of the designated percentage of the electors of such county.
Emergency. If it shall be necessary for the preservation of the public peace, health and safety that a measure shall become effective without delay, such necessity shall be stated in one section, and if upon a yea and nay vote two-thirds of all the members elected to each house, or two-thirds of all the members elected to city or town councils, shall vote upon separate roll call in favor of the measure going into immediate operation, such emergency measure shall become effective without delay. It shall be necessary, however, to state the fact which constitutes such emergency. Provided, however, that an emergency shall not be declared on any franchise or special privilege or act creating any vested right or interest or alienating any property of the State. If a referendum is filed against any emergency measure such measure shall be a law until it is voted upon by the people, and if it is then rejected by a majority of the electors voting thereon, it shall be thereby repealed. The provision of this sub-section shall apply to city or town councils.”
[iii] Legislators work late to pass gun bill: After wee-hours session, assembly adjourns til fall, Arkansas Democrat Gazette, 04/28/2021