With Arkansas LEARNS in effect, should the Supreme Court rule on emergency clause case?

The Arkansas Supreme Court now must choose whether to decide once-and-for-all if the state Legislature’s process for voting on emergency clauses is constitutional.

That is one of several questions that have been put before the high court in the appeal of a case that delayed implementation of the LEARNS Act.

The Phillips County residents and public education advocates who brought the lawsuit now argue that the Supreme Court should not decide the appeal because the matter became moot on Aug. 1 when the LEARNS Act took effect without its emergency clause.

That would leave the question unanswered and the door open for future litigation over bills with emergency clauses.

“Were the Court to decide the appeal, it would effectively be providing an advisory opinion aimed at shaping future litigation, not changing any outcome in the present case,” the plaintiffs wrote in their appellee brief late last week. “The Court should, therefore, dismiss this appeal as moot.”

Arkansas Attorney General Tim Griffin has until Friday to respond to the argument.

The state’s initial appellate brief argued that the Supreme Court must toss a Pulaski County circuit judge’s order that overstepped the judicial branch’s authority when it decided that the General Assembly was not taking separate votes — as required by the Arkansas Constitution — under the historical practice of voting on bills and their emergency clauses at the same time.

“Thus, to avoid violating the separation of powers — the ‘basic principle upon which our government is founded’ — courts must not entertain these so-called political questions,” Griffin’s brief reads.

The current appeal is the latest volley in the legal ping-pong over when Gov. Sarah Huckabee Sanders’ education law should take effect. 

Circuit Judge Herb Wright first blocked the law with a temporary restraining order in May.

The ruling was overturned three weeks later by the Supreme Court.

Two weeks after the restraining order was tossed, Wright again struck down the law.

Griffin’s appeal of that order is now under consideration.

Meanwhile, the LEARNS Act is in full effect, with the Marvell-Elaine School District entering the first-of-its-kind “transformation contract” and the first year of the state’s new private school voucher program underway.

The legal dispute is all about how the Legislature enacts emergency clauses, which allow legislation to take effect immediately rather than 91 days after the end of a legislative session.

The Arkansas Constitution includes two requirements for lawmakers proposing emergency clauses: They must establish an emergency, and they must obtain “yea” votes from two-thirds of the members of each chamber.

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The plaintiffs claim that the House and Senate fell short of those requirements when voting on the LEARNS Act earlier this year. 

But Griffin and Republican lawmakers point to the longstanding practice of taking both votes simultaneously while recording them separately in the chambers’ official daily journals. 

That process should be left to the Legislature, and overturning it could cause problems, Griffin said in court filings.

“Deferring to historical practice also has another benefit: it prevents chaos,” the state said in a brief. “Endorsing the circuit court’s approach would upend settled understandings and undisputedly render decades of emergency clauses invalid.”

The plaintiffs, though, say the lower court got it right.

“Longstanding practice cannot and should not be used to subvert the plain requirements of the constitution,” they wrote in a brief. “Here, after the legislature abused the emergency designation, the people of Arkansas passed Amendment 7 in 1920, intentionally making it more difficult for the legislature to pass an emergency clause.”