Wells v. Riviere, 80-100

• Citation: 269 Ark. 156,599 S.W.2d 375
• Decision Date: 02 June 1980
• Docket Number: No. 80-100,80-100
• Parties: John F. WELLS et al., Appellants, v. Paul RIVIERE, Secretary of State of the State of Arkansas, Appellee, Robert Harvey, Intervenor.
• Court: Supreme Court of Arkansas

Page 375

599 S.W.2d 375

269 Ark. 156

John F. WELLS et al., Appellants, v. Paul RIVIERE, Secretary of State of the State of Arkansas, Appellee, Robert Harvey, Intervenor.

No. 80-100.

Supreme Court of Arkansas.

June 2, 1980.

James F. Lane, Little Rock, for appellants.

Wright, Lindsey & Jennings, Steve Clark, Atty. Gen., by W. Russell Meeks, III, Deputy Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

The question presented by this appeal concerns the constitutional authority of the Arkansas General Assembly to act after a regular 60-day session. In order to properly examine that issue, it is necessary to relate in detail the proceedings in the trial court and the undisputed facts.

This suit began in the Chancery Court of Pulaski County. John F. Wells filed a taxpayers lawsuit, individually and on behalf of the Independent Voters of Arkansas, Inc., against Paul Riviere, the Arkansas Secretary of State. Wells sought an injunction to prevent Riviere from proceeding to place three proposed constitutional amendments on the ballot in the General Election of November, 1980.

The three proposed constitutional amendments relate to the assessment of property and taxation (Senate Joint Resolution 1), usury (House Joint Resolution 9), and the jurisdiction and venue of Arkansas courts (House Joint Resolution 10).

Robert Harvey, a taxpayer, was allowed to intervene in support of the validity of the property assessment and taxation amendment, Senate Joint Resolution 1.

The parties stipulated to the relevant facts, and all parties filed motions for summary judgment. The chancellor found that the three proposed amendments to the Constitution had been properly adopted by the General Assembly and denied the request for an injunction.

There are no procedural problems with this case. The appellants have the right to sue as taxpayers to prevent an illegal exaction. Ark. Const. art. 16, § 13. The chancellor also had jurisdiction.

The question to us is one of the constitutional authority granted to the legislative branch of Arkansas government. The General Assembly is authorized by Ark. Const. art. 19, § 22 to propose amendments to the Constitution. However, the proposed amendments cannot exceed three in number and must be approved by a majority of the members of each house at a regular session of the General Assembly.

The appellants argue that since the proposed amendments were not approved at a regular session, they were not legally proposed and should not be certified to the voters for approval or rejection.

There are only two kinds of sessions of the General Assembly in Arkansas. A regular biennial session of the General Assembly is provided for in Ark. Const. art. 5, §§ 5 and 17.

The only other session of the General Assembly authorized by the Arkansas Constitution is one convened by the governor on extraordinary occasions. Ark. Const. art. 6, § 19. Purcell v. Jones, 242 Ark. 168, 412 S.W.2d 284 (1967). It is agreed the General Assembly was not in a special session when it approved the three proposed amendments.

The facts are that the Seventy-Second General Assembly of Arkansas convened at its regular session on January 8, 1979. After it convened, Senate Concurrent Resolution 14 was adopted extending the sixty-day regular session. The resolution provided that the General Assembly found that it would be impossible to consider all the measures introduced within sixty days and, therefore, an extension of the regular session was necessary. There was no time limit to the extension.

On April 4, 1979, the General Assembly recessed; it reconvened on April 20, 1979. On April 20th, by Senate Concurrent Resolutions 91 and 92, the regular session recessed for 20 months until January, 1981.

Senate Concurrent Resolution 91 actually provides five things. First, it confirmed that the General Assembly had extended itself indefinitely. Second, it says that it may reconvene on May 9, 1979, for limited purposes. Third, it says it may reconvene the second Monday in January, 1980. Fourth, it says, notwithstanding these other three provisions, the regular session of the Seventy-Second General Assembly is extended until the second Monday in January, 1981. That is the same day that the next General Assembly, the Seventy-Third, convenes. The resolution concludes by providing that the Speaker of the House of Representatives and the President pro tem of the Senate may reconvene the Seventy-Second General Assembly at any time by their joint proclamation.

The actual language of the resolution in each regard is as follows:

First, regarding the indefinite extension,

WHEREAS, the regular session of the Seventy-Second General Assembly has been extended indefinitely in the manner authorized in the Arkansas Constitution . . . (Emphasis added.)

Second, regarding the reconvening of the General Assembly in May:

SECTION 3. Notwithstanding other provisions of this Resolution, the Seventy-Second General Assembly may be reconvened on the Wednesday, May 9, 1979 by joint proclamation of the Speaker of the House of Representatives and the President Pro Tem of the Senate declaring the need for such reconvened session. In the absence of such proclamation, the Seventy-Second General Assembly shall continue in recess as provided in this Resolution. (Emphasis added.)

Any session reconvened pursuant to this Section 3 shall be for the sole purpose of:

(1) correcting errors going to the validity of bills passed prior to the recess,

(2) appropriate action on fiscal matters including but not limited to appropriation bills, revenue bills, purchasing and accounting procedures, and revenue classification and allocation,

(3) reconsideration of bills or parts of bills disapproved by the Governor,

(4) referral of matters to standing, select, or special committees or to the Joint Interim Committees for action or study, or

(5) matters of rules and procedures.

Upon recess of a session reconvened pursuant to this Section 3, all business then pending in committee or on the calendar shall become a nullity, except a proposed amendment of the Arkansas Constitution previously adopted by both houses and except matters of rules and procedures.

Third, relating to the reconvening in January, 1980:

SECTION 4. Notwithstanding other provisions of this Resolution, the Seventy-Second General Assembly shall reconvene on the second Monday in January, 1980, unless the Speaker of the House of Representatives and the President Pro Tem of the Senate by joint proclamation declare that there are no substantive matters requiring the attention of the Seventy-Second General Assembly. In the event that the Speaker of the House and President Pro Tem of the Senate determine that there is no need for reconvening of the Seventy-Second General Assembly on the second Monday in January, 1980, the Seventy-Second General Assembly shall continue in recess as otherwise provided herein. (Emphasis added.)

Fourth, Section 1 declares that the General Assembly is recessed until the same day that the Seventy-Third General Assembly is convened. It reads:

SECTION 1. At the close of business on a day mutually agreed to by the House of Representatives and the Senate pursuant to this Resolution, the Seventy-Second General Assembly shall stand in recess until the second Monday in January, 1981, at which time, prior to the convening of the Seventy-Third General Assembly, the Speaker of the House of Representatives and the President Pro Tem of the Senate of the Seventy-Second General Assembly shall adjourn their respective bodies sine die, unless the Seventy-Second General Assembly shall, at an earlier session thereof, decide on a earlier date for sine die adjournment. (Emphasis added.)

Fifth, the language of the resolution regarding reconvening at any time reads:

SECTION 5. The Seventy-Second General Assembly, standing in recess, may be reconvened at any time by joint proclamation of the Speaker of the House and President pro tem of the Senate or by joint address of a majority of the members elected to each house of the Seventy-Second General Assembly. (Emphasis added.)

Apparently the General Assembly did not reconvene in May as provided for in Section 3.

It did reconvene in January, 1980, and at that "session" adopted the three proposed amendments in question. After adopting these proposals, it recessed again, still not adjourning sine die. It is still in an "indefinite recess" or "indefinitely extended" until January 1981. Was the "session" in January, 1980 a regular session, a lawful extension of a regular session? If it was not, the proposed amendments were not properly adopted because a legislature cannot enact legislation after the expiration of its session. State, ex rel. Heck's Discount Center, Inc. v. Winters, 147 W.Va. 861, 132 S.E.2d 374 (1963). See also, Dillon v. King, 87 N.M. 79, 529 P.2d 745 (1974).

The Arkansas Constitution provides only for biennial sessions of the General Assembly. Ark. Const. art. 5, § 5.

Section 5. Time of meeting The General Assembly shall meet at the seat of government every two years on the first Tuesday after the second Monday in November (second Monday in January) until said time be altered by law.

The duration of such a session is controlled by Article 5, § 17, which reads:

Section 17. Duration of sessions. The regular biennial session shall not exceed sixty days in duration, unless by a vote of two-thirds of the members elected to each house of said General Assembly. . . .

A fair reading of the Constitution cannot mean that the General Assembly can legally extend a session indefinitely for no valid legislative purpose, nor indefinitely go into a recess so that it may later reconvene itself and conduct its business as though it were in a regular session.

On the other hand, there is no doubt, that by two-thirds vote of the members of the General Assembly, a regular session can be lawfully extended beyond the sixty days of a regular session....