Opinion No. ( 2003 )

The Honorable Jay Bradford State Representative P.O. Box 8367 Pine Bluff, Arkansas 71611

Dear Representative Bradford:

I am writing in response to your request for an opinion on the vote required in the General Assembly to amend Initiated Act 1 of 2000, also known as the "Tobacco Settlement Proceeds Act." See A.C.A. §§ 19-12-101 to -118 (Supp. 2001). Specifically, you state that ". . . since the passage of Initiated Act 1 of 2000 . . . questions have arisen regarding the requisite vote of the General Assembly that is necessary to amend the Act. In accordance with Ark. Code Ann. 25-16-706, I am requesting an opinion from your office concerning the above referenced question."

RESPONSE

In my opinion, the amendment or repeal of an initiated act in Arkansas requires a two-thirds vote of all the members elected to each house of the General Assembly.

Initiated Act 1 of 2000 was proposed by initiative petition and adopted by the people at the general election on November 7, 2000. See Op. Att'y. Gen. 2000-137, Walker v. Priest, 342 Ark. 410, 29 S.W.3d 657 (2000) and A.C.A. §§ 19-12-101 to -118 (Supp. 2001).

Amendment 7 to the Arkansas Constitution, the "Initiative and Referendum" Amendment, governs the initiation of acts and constitutional amendments by the people. The pertinent provision of Amendment 7 provides as follows:

Amendment and Repeal — No measure approved by a vote of the people shall be amended or repealed by the General Assembly or by any City Council, except upon a yea and nay vote on roll call of two-thirds of all the members elected to each house of the General Assembly, or of the City Council, as the case may be.

The Arkansas Supreme Court has applied and interpreted this provision. InCarter v. Reamey 232 Ark. 211, 335 S.W.2d 298 (1960), the court addressed a legislative act amending an initiated liquor law:

The records of the General Assembly, of which we take judicial notice, [footnote omitted] disclose that the Act No. 359 of 1957 was H.B. No. 459, and that the measure passed the House of Representatives by a vote of 52 to 30, and passed the Senate by a vote of 18 to 11. To validly amend the Initiated Act No. 1, the Legislative Act No. 359 would have been required to receive 67 votes in the House and 24 votes in the Senate — being two-thirds of all elected members of each House: Section 8 of Constitutional Amendment No. 7 so prescribes. The Act No. 359 did not receive the required number of votes to amend Initiated Act No. 1 of 1942 so as to allow a municipality in a "dry" County to have a separate vote on the sale of beer in such municipality.

232 Ark. at 215 (Emphasis added).

As a general matter, therefore, an act initiated by the people may not be amended by the General Assembly without the two-thirds vote mentioned above.

Deputy Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB:ECW/cyh