The opinion
Cite as 2025 Ark. 207
SUPREME COURT OF ARKANSAS
No. CV-24-704
Opinion Delivered: December 11, 2025
STATE OF ARKANSAS; ARKANSAS
DEPARTMENT OF FINANCE AND APPEAL FROM THE PULASKI
ADMINISTRATION; AND COUNTY CIRCUIT COURT
ARKANSAS DEPARTMENT OF [NO. 60CV-22-931]
FINANCE AND ADMINISTRATION,
ALCOHOLIC BEVERAGE CONTROL HONORABLE MORGAN E. WELCH,
DIVISION JUDGE
APPELLANTS
REVERSED AND DISMISSED.
V.
GOOD DAY FARM ARKANSAS, LLC;
AND CAPITAL CITY MEDICINALS,
LLC
APPELLEES
CODY HILAND, Associate Justice
This appeal concerns the General Assembly’s authority to amend voter-initiated laws
and the constitutional limits on the germaneness of such amendments. On appeal, the State
of Arkansas, the Arkansas Department of Finance and Administration, and its Alcoholic
Beverage Control Division (collectively, the “State”), ask us to decide two questions: first,
whether authority to amend exists under article 5, section 1 of the Arkansas Constitution;
and second, whether the word “section” in section 23(a) of amendment 98 should be read
as “amendment” for the purpose of applying its germaneness requirement? The Pulaski
County Circuit Court held that the General Assembly has no such authority under article
5, section 1, as Arkansas Game & Fish Commission v. Edgmon, 218 Ark. 207, 235 S.W.2d 554
(1951), controls, and that the use of the term “section,” rather than “amendment,” limits
the application of section 23(a)’s germaneness requirement. We disagree and therefore
reverse and dismiss.
I. Background
In November 2016, the people of Arkansas voted to approve the Arkansas Medical
Marijuana Amendment of 2016, which became amendment 98 to the Arkansas
Constitution. Amendment 98 authorizes the possession and prescribed use of marijuana for
medicinal purposes and establishes a framework for the cultivation, dispensing, and
prescription of medical marijuana within Arkansas.
Section 23 of amendment 98 provides that the General Assembly of Arkansas “may
amend the sections of this amendment” “in the same manner as required for amendment of
laws initiated by the people,” a reference to article 5, section 1 of the Arkansas Constitution.
Under article 5, section 1, the General Assembly may “amend or repeal” a measure approved
by the people only “upon a yea and nay vote on roll call of two-thirds of all members elected
to each house.” At the same time, amendment 98 imposes limits on that power, including
section 23(a)’s requirement that any legislative amendment be “germane to this section and
consistent with its policy and purposes.” Section 23(b) further prohibits the General
Assembly from amending specific portions of amendment 98, including section 23 itself.
Since 2016, the General Assembly has enacted twenty-eight amendments to
amendment 98 over the course of four legislative sessions, each approved by a two-thirds
2
vote of both houses.1 These legislative amendments were not referred to the people of
Arkansas for a vote.
Good Day Farm Arkansas, LLC (“GDFA”), a licensed medical marijuana cultivator,
and Capital City Medicinals, LLC (“CCM”), a licensed medical marijuana dispensary, are
subject to amendment 98 and its subsequent amendments. GDFA and CCM filed a
complaint against the State in the Pulaski County Circuit Court seeking declaratory
judgment. In Count I, they alleged that the General Assembly’s twenty-eight amendments
to amendment 98 were unconstitutional as they were not submitted to the people for
approval under article 19, section 22 of the Arkansas Constitution. GDFA and CCM argue
this process is required by this court’s 74-year-old precedent arising out of Arkansas Game
& Fish Commission v. Edgmon, 218 Ark. 207, 235 S.W.2d 554 (1951). In Count II, they
1
Act 4 of 2017 (amending Ark. Const. amend. 98, §§ 4, 8 & 9); Act 5 of 2017
(amending Ark. Const. amend. 98, §§ 2, 5 & 10); Act 438 of 2017 (amending Ark. Const.
amend. 98, § 2); Act 479 of 2017 (amending Ark. Const. amend. 98, §§ 2 & 6); Act 544 of
2017 (amending Ark. Const. amend. 98, § 2); Act 545 of 2017 (amending Ark. Const.
amend. 98, §§ 4, 8 & 9); Act 587 of 2017 (amending Ark. Const. amend. 98, § 8); Act 593
of 2017 (amending Ark. Const. amend. 98, §§ 2 & 3); Act 594 of 2017 (amending Ark.
Const. amend. 98, §§ 8 & 9); Act 638 of 2017 (amending Ark. Const. amend. 98, § 19);
Act 639 of 2017 (amending Ark. Const. amend. 98, §§ 4, 8 & 9); Act 640 of 2017 (amending
Ark. Const. amend. 98, § 8); Act 641 of 2017 (amending Ark. Const. amend. 98, § 8); Act
642 of 2017 (amending Ark. Const. amend. 98, §§ 8 & 11–13 and adding §§ 24 & 25); Act
670 of 2017 (amending Ark. Const. amend. 98, § 17); Act 740 of 2017 (amending Ark.
Const. amend. 98, §§ 4 & 6); Act 948 of 2017 (amending Ark. Const. amend. 98, §§ 5 &
8); Act 1022 of 2017 (amending Ark. Const. amend. 98, § 11); Act 1023 of 2017 (amending
Ark. Const. amend. 98, §§ 4 & 8); Act 1024 of 2017 (amending Ark. Const. amend. 98, §§
3 & 8); Act 1098 of 2017 (amending Ark. Const. amend. 98, § 17); Act 1099 of 2017
(amending Ark. Const. amend. 98, § 6); Act 1100 of 2017 (amending Ark. Const. amend.
98, § 8); Act 1 of 2017 (1st Extraordinary Sess.) (amending Ark. Const. amend. 98, §§ 2, 4,
6, 8 & 17); Act 8 of 2017 (1st Extraordinary Sess.) (amending Ark. Const. amend. 98, §§ 2,
4, 6, 8 & 17); Act 694 of 2019 (amending Ark. Const. amend. 98 by adding § 26); Act 1004
of 2019 (amending Ark. Const. amend. 98, § 8); Act 666 of 2021 (amending Ark. Const.
amend. 98, §§ 4 & 8).
3
challenged Medical Marijuana Commission rules restricting advertising by cultivators and
dispensaries, arguing those rules violated the First Amendment. According to GDFA and
CCM, declaratory judgment was necessary to render the legislative amendments
unconstitutional, null, and void, which in turn would allow the original text of amendment
98, as initially adopted by the people of Arkansas in 2016, to remain in full effect without
the twenty-eight subsequent legislative amendments.
The State opposed the complaint, and the parties filed competing motions for
summary judgment. In the State’s cross-motion for summary judgment, it asserted that the
General Assembly acted within its constitutional authority under article 5, section 1, and
that it was entitled to dismissal of the complaint under sovereign immunity.2 GDFA and
CCM subsequently amended their complaint and incorporated into their motion for
summary judgment an additional claim: that the legislative amendments were
2
Below, the State asserted the defense of sovereign immunity to GDFA and CCM’s
claims. Arkansas’s sovereign immunity originates in article 5, section 20 of the Arkansas
Constitution, which provides that “[t]he State of Arkansas shall never be made defendant in
any of her courts.” Ark. Const. art. 5, § 20. This doctrine bars a suit if a judgment for the
plaintiff “will operate to control the action of the State or subject [the State] to liability.”
Ark. Dep’t of Fin. & Admin. v. Carpenter Farms Med. Grp., LLC, 2020 Ark. 213, at 7, 601
S.W.3d 111, 117 (quoting Bd. of Trs. of Univ. of Ark. v. Andrews, 2018 Ark. 12, at 5, 535
S.W.3d 616, 619). But in Martin v. Haas, we reiterated that “our sovereign immunity
[jurisprudence] allow[s state] actions that are illegal, unconstitutional, or ultra vires to be
enjoined.” 2018 Ark. 283, at 7, 556 S.W.3d 509, 514 (cleaned up). Thus, allegations of
illegal state action remain an exception to sovereign immunity. Carpenter Farms Med. Grp.,
LLC, 2020 Ark. 213, at 7–8, 601 S.W.3d at 117 (citing Monsanto Co. v. Ark. State Plant Bd.,
2019 Ark. 194, at 9, 576 S.W.3d 8, 13; Ark. Game & Fish Comm’n v. Heslep, 2019 Ark. 226,
at 6, 577 S.W.3d 1, 5; Ark. State Plant Bd. v. McCarty, 2019 Ark. 214, at 7, 576 S.W.3d
473, 477). Here, GDFA and CCM allege that the General Assembly acted illegally by
amending amendment 98 twenty-eight times since its adoption. Because they claim
constitutional violations and seek declaratory and injunctive relief, not monetary damages,
this action falls within the exception and is not barred by sovereign immunity. Thus, we
are not barred from reaching the merits of this case.
4
unconstitutional because they were not “germane to this section” as required by section
23(a) of amendment 98.
After a hearing on the matter, the circuit court granted partial summary judgment
for GDFA and CCM on Count I. The circuit court held that Edgmon controlled under the
principle of stare decisis and required that any amendment to amendment 98 be submitted
to the people of Arkansas for approval under article 19, section 22. It further concluded
that the twenty-eight subsequent amendments were not germane to section 23 of
amendment 98 and were therefore unconstitutional and void. The circuit court denied the
State’s later motion to vacate or modify that order. Following this ruling, GDFA and CCM
voluntarily dismissed Count II of their complaint, thereby rendering the circuit court’s
earlier orders appealable. A final order incorporating those rulings was entered, and the
State now appeals.3 The State seeks reversal of the circuit court’s order granting summary
judgment in favor of GDFA and CCM.
II. Law & Analysis
This appeal presents two questions on constitutional interpretation: (1) whether the
General Assembly has the authority under article 5, section 1 to amend amendment 98; and
(2) whether the word “section” in section 23(a) of amendment 98 should be read as
“amendment” for purposes of applying amendment 98’s germaneness requirement.
3
The State appeals from the circuit court’s order that granted GDFA and CCM’s
motion for summary judgment on Count I and motion for voluntary dismissal on Count II
of their complaint. That order was final. Cherokee Nation Bus., LLC v. Gulfside Casino
P’ship, 2023 Ark. 153, at 4, 676 S.W.3d 368, 371; see also Ark. R. App. P.–Civ. 2(a)(1). As
this is an appeal from a final order on both Counts I and II, and involves the interpretation
of the Arkansas Constitution, we have jurisdiction. Ark. Sup. Ct. R. 1-2(a)(1).
5
A. Standard of Review
Our law is clear that summary judgment is to be granted only when there are no
genuine issues of material fact to be litigated, and the movant is entitled to judgment as a
matter of law. See Ark. R. Civ. P. 56(c)(2); see also Boyle Ventures, LLC v. City of Fayetteville,
2025 Ark. 71, at 4, 711 S.W.3d 280, 283; Cherokee Nation Bus., LLC v. Gulfside Casino
P’ship, 2023 Ark. 153, at 4, 676 S.W.3d 368, 371. When parties file cross-motions for
summary judgment, which is what happened here, they agree that there are no disputes as
to the facts of the case and that summary judgment is an appropriate means of resolving the
dispute. Cherokee Nation Bus., LLC, 2023 Ark. 153, at 5, 676 S.W.3d at 371–72. Thus,
we simply determine whether GDFA and CCM were entitled to judgment as a matter of
law. Id. at 5, 676 S.W.3d at 371. When issues of law are presented on appeal, including
the interpretation of constitutional provisions, our review is de novo. Corbitt v. Ark. State
Univ., 2024 Ark. 44, at 3, 685 S.W.3d 901, 903; Cherokee Nation Bus., LLC, 2023 Ark. 153,
at 5, 676 S.W.3d at 372.
B. The Historical Backdrop of Arkansas Game & Fish Commission v. Edgmon
In Arkansas Game & Fish Commission v. Edgmon, the court considered whether the
General Assembly could enact Act 183 of 1949, which appropriated Commission funds for
wolf-bounty payments. See generally Edgmon, 218 Ark. 207, 235 S.W.2d 554 (1951). The
Commission refused to disburse the funds, arguing in part that Act 183 was constitutionally
invalid as it conflicted with amendment 35 and because the General Assembly lacked
authority to amend or alter an initiated constitutional amendment. Id., 235 S.W.2d 554.
The challengers relied on the fact that Act 183 had received the two-thirds vote of the
6
General Assembly contemplated by article 5, section 1, which provides that “no measure
approved by a vote of the people shall be amended or repealed” except by a two-thirds vote
of both houses. Id. at 210, 235 S.W.2d at 556. Thus, the central question in Edgmon was
whether this provision allowed the General Assembly to amend a citizen-initiated
constitutional amendment. Id. at 209, 235 S.W.2d at 556.
The Edgmon court answered “no.” Id. at 211, 235 S.W.2d at 556–57. Despite article
5, section 1’s plain language—including its definition of “measure” as including a
“constitutional amendment”—the court rejected the possibility that the General Assembly
could amend or repeal a constitutional amendment initiated by the people. Id., 235 S.W.2d
at 556–57. It reasoned that such a conclusion was “inconceivable,” declaring: “It is
inconceivable that in defining constitutional amendment as a measure the purpose was to
invest the General Assembly with the power (a) to repeal a constitutional amendment, or
(b) with authority to amend an amendment.” Id., 235 S.W.2d at 556. The court concluded
that article 5, section 1’s definition of “measure” could not be applied to constitutional
amendments in this context, holding that the General Assembly had no authority to amend
or alter an initiated constitutional amendment, despite article 5, section 1’s express text to
the contrary. Id., 235 S.W.2d at 557. As a result, Act 183 was held void.4
C. Article 5, Section 1 and Its Grant of Power to the General Assembly
We first turn to the scope of the General Assembly’s authority to amend or repeal
laws initiated and approved by the people. Section 23(a) of amendment 98, entitled
4
Edgmon was decided 74 years ago, long before this court’s modern line of cases
interpreting article 5, section 1, and reflects the era’s limited engagement with the initiative-
and-referendum process.
7
“Amendment by General Assembly,” authorizes the General Assembly to amend the
Arkansas Medical Marijuana Amendment of 2016. It provides, in pertinent part, that
the General Assembly, in the same manner as required for
amendment of laws initiated by the people, may amend the sections
of this amendment . . . .
Ark. Const. amend. 98, § 23(a) (emphasis added). Amendment 7 amended article 5, section
1’s amendment-and-repeal provision to state
[n]o 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.
Ark. Const. art. 5, § 1 (emphasis added). The term “measure,” as used above, includes any
“bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal
or enactment of any character.” Ark. Const. art. 5, § 1. This court previously interpreted
this language to mean that “laws initiated by the people may be amended through a two-
thirds vote of both houses of the General Assembly.” See Martin, 2018 Ark. 283, at 10, 556
S.W.3d at 516.
In Martin v. Haas, we reviewed a challenge to Act 633 of 2017, a legislative
amendment to amendment 51, the Voter Registration Amendment. Id. at 1, 10, 556
S.W.3d at 511, 516. Like amendment 98, the Voter Registration Amendment was proposed
by initiative petition and approved by the voters. And like amendment 98, the Voter
Registration Amendment contains a provision setting forth the rules for future amendments.
That provision reads,
[t]he General Assembly may, in the same manner as required for
amendment of laws initiated by the people, amend Sections 5
8
through 15 of this amendment, so long as such amendments are
germane to this amendment, and consistent with its policy and
purposes.
Ark. Const. amend. 51, § 19 (emphasis added). As noted above, we interpreted this
language—“in the same manner as required for amendment of the laws initiated by the people”—
to invoke article 5, section 1’s two-thirds legislative amendment procedure. The operative
language in amendment 98 is not only materially identical, but the context and purpose of
amendment 98 appear to be consistent with that of amendment 51.
We generally interpret identical language consistently, even across different
provisions and especially where the context and purpose are consistent, so as to not give
one provision a meaning at one point in time only to interpret it differently later. See Kelley
v. USAA Cas. Ins. Co., 371 Ark. 344, 348, 266 S.W.3d 734, 738 (2007); State Farm Mut.
Auto. Ins. Co. v. Henderson, 356 Ark. 335, 342, 150 S.W.3d 276, 280 (2004); Foster v.
Jefferson Cnty. Quorum Ct., 321 Ark. 116-A, 116-G, 901 S.W.2d 809, 817 (1995) (where
“[t]his court has made it clear that constitutional provisions should receive a consistent and
uniform interpretation and when one interpretation has been followed for a number of
years, it should not be changed.”); see also Antonin Scalia & Bryan Garner, Reading Law:
The Interpretation of Legal Texts: Presumption of Consistent Usage Canon, 170 (2012) (whereas
a word or phrase is presumed to bear the same meaning throughout a text, such as our state
constitution).
Accordingly, the analysis in Martin v. Haas controls here. To hold otherwise would
interpret the same constitutional phrasing differently in two substantially identical contexts.
9
In sum, this court effectively set Edgmon aside seven years ago, and nothing persuades us to
chart a different course now.
Against this backdrop, the parties offer sharply divergent views of the General
Assembly’s authority. The State urges us to overrule Edgmon and hold that the plain text
of article 5, section 1 confers upon the General Assembly the authority to amend or repeal
laws initiated and approved by the people with a two-thirds vote of both houses. GDFA
and CCM counter that overruling Edgmon would give the General Assembly broad,
unchecked authority to amend or repeal any of the constitution’s amendments—whether
initiated by the people or by the General Assembly—thus upsetting the equilibrium among
Arkansas’s coordinate branches of government and the people of Arkansas. Thus, GDFA
and CCM would have us preserve Edgmon, thereby reaffirming its posture that article 19,
section 22 imposes a constitutional limitation, as was done below in this case, on legislative
power when amending citizen-initiated acts, thereby protecting the balance between the
General Assembly and the people’s reserved lawmaking authority.
Article 19, section 22 provides, in pertinent part, that
[e]ither branch of the General Assembly, at a regular session
thereof, may propose amendments to this Constitution; and if
the same be agreed to by a majority of all members elected to
each house, such proposed amendments shall be . . . submitted
to the electors of the State, for approval or rejection; and if a
majority of the electors voting at such election adopt such
amendments, the same shall become a part of this Constitution.
But no more than three amendments shall be proposed or
submitted at the same time.
Ark. Const. art. 19, § 22. However, this provision governs the General Assembly’s authority
to propose its own constitutional amendments to the constitution, three per regular session,
10
and submit them to the people for ratification; it does not govern the more specific process
of legislatively amending the laws initiated by the people pursuant to article 5, section 1.
See Kimbrell v. Thurston, 2020 Ark. 392, at 3–4, 611 S.W.3d 186, 189; see also Steele v.
Thurston, 2020 Ark. 320, at 8, 609 S.W.3d 357, 362; Martin v. Humphrey, 2019 Ark. 295, at
1–2, 7, 8, 558 S.W.3d 370, 372, 375, 376; Forrester v. Martin, 2011 Ark. 277, at 7, 383
S.W.3d 375, 380; cf. Martin, 2018 Ark. 283, at 10, 556 S.W.3d at 516. GDFA and CCM
overreach in claiming that overruling Edgmon would grant the General Assembly the broad
and unchecked power to amend any constitutional provision by a two-thirds vote of both
houses. This is not the case. Overruling Edgmon would allow the General Assembly to
exercise its constitutional authority to amend the laws initiated by the people according to
the plain text of article 5, section 1. Overruling Edgmon would not allow the General
Assembly to circumvent the constitutional process for amending all other constitutional
provisions governed by article 19, section 22.
Additionally, any perceived tension due to the coexistence of article 5, section 1 and
article 19, section 22, is resolved comfortably by our standard principles of constitutional
construction. When construing constitutional language, we must consider the entire text
of the constitution, including the structure and placement of its clauses. Scalia & Garner,
supra at 167 (the “Whole-Text Canon”). And where two provisions conflict, the more
specific controls. Id. at 183. Article 19, section 22 governs legislatively initiated
amendments to the constitution as a whole; article 5, section 1 governs legislative
amendments to citizen-initiated measures, including citizen-initiated amendments, solely.
11
The latter is the more specific provision here and therefore governs to the exclusion of
article 19, section 22.
As to Edgmon, we agree that it must be overruled. The Edgmon court refused to
follow the plain text of article 5, section 1. At its most in-depth analysis of the conflict
between article 5, section 1 and article 19, section 22, the Edgmon court acknowledged that
article 5, section 1 authorizes legislative amendment of citizen-initiated constitutional
amendments by two-thirds vote, but rejected that interpretation as purely “inconceivable.”
Edgmon, 218 Ark. at 210–11, 235 S.W.2d at 556–57 (“It is inconceivable that in defining
constitutional amendment as a measure the purpose was to invest the General Assembly with
the power (a) to repeal a constitutional amendment, or (b) with authority to amend an
amendment . . . .”) (emphasis added). Far from “inconceivable,” the General Assembly’s
authority on this question plainly and unambiguously resides in article 5, section 1. It is
perfectly conceivable that the authors of said provision provided yet another opportunity
for further diffusion of power that is emblematic of our system of checks and balances.
While the wisdom of this particular grant might be questioned and while such authority
may be perceived as inconvenient given one’s perspective on the role and power of the
legislative branch, such public policy arguments underlying these criticisms appropriately lie
outside the scope of this court’s prerogative. We remain steadfast in rejecting any effort to
substitute our own judgment for that of the plain, unambiguous constitutional language,
especially when that judgment has the effect of achieving a preferred public policy outcome
reserved to the people and their elected representatives.
12
The Edgmon court’s reasoning substituted judicial preference for plain constitutional
text, and thus contravened the interpretive obligation imposed upon the Edgmon court at
the time, just as it would on this court now. See Ellison v. Oliver, 147 Ark. 252, 264, 227
S.W. 586, 589 (1921) (“The first rule of construction is that, where the language used in a
Constitution is plain and unambiguous, the court cannot seek other aids of interpretation.”);
State ex rel. Att’y Gen. v. Irby, 190 Ark. 786, 789, 81 S.W.2d 419, 420 (1935); see also
Cherokee Nation Bus., 2023 Ark. 153, at 5, 676 S.W.3d at 372 (where we give plain and
unambiguous language in a constitutional provision its obvious and common meaning and
do not apply the rules of construction or the rules of interpretation to defeat the clear and
certain meaning of a constitutional provision).
Substituting the plain and unambiguous language of a constitutional provision to
achieve a preferred judicial outcome is not within the province of an appellate court. See
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 984 (1992) (Scalia, J., concurring in
part and dissenting in part) (criticizing the Court for abandoning its role of interpreting law
and exercising raw political power and invoking Justice Curtis’s “warning” from the Dred
Scott decision)5; Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 271, 279 (2022)
(highlighting the importance of basing constitutional interpretation on established sources
5
“[W]hen a strict interpretation of the Constitution, according to the fixed rules
which govern the interpretation of laws, is abandoned, and the theoretical opinions of
individuals are allowed to control its meaning, we have no longer a Constitution; we are
under the government of individual men, who for the time being have power to declare
what the Constitution is, according to their own views of what it ought to mean.” See Dred Scott
v. Sandford, 60 U.S. 393, 621 (1857) (Curtis, J., dissenting) (emphasis added).
13
and principles rather than judicial preference). Such an approach is incompatible with our
basic constitutional-interpretation principles as stated earlier. See Cherokee Nation Bus., supra.
Therefore, contrary to GDFA and CCM’s argument that stare decisis controls and
Edgmon should be upheld, we find that decision subordinate to legal reason and justice. As
Justice Thomas observed, “The true irony of our modern stare decisis doctrine lies in the
fact that proponents of stare decisis tend to invoke it most fervently when the precedent at
issue is least defensible.” Gamble v. United States, 587 U.S. 678, 724–25 (2019) (Thomas, J.,
concurring). And we “should not invoke stare decisis to uphold precedents that are
demonstrably erroneous[,]” as we have explained above. Id. at 726. To do so would be to
depart from “our judicial duty . . . because it elevates demonstrably erroneous decisions—
meaning decisions outside the realm of permissible interpretation—over the text of the
Constitution[.]” Id. at 711.
There is no cognizable reason to keep Edgmon on the shelves of Arkansas case law.
It is singularly relied upon for the very reasons asserted by GDFA and CCM as its posture
rests on a demonstrably erroneous premise.6 Departing from Edgmon’s precedent is therefore
6
The following six cases cite Edgmon for purposes that do not support GDFA and
CCM’s position on appeal: Pritchett v. Spicer, 2017 Ark. 72, at 8–9, 513 S.W.3d 252, 257;
Dockery v. Morgan, 2011 Ark. 94, at 11–12, 380 S.W.3d 377, 385; Chaffin v. Ark. Game &
Fish Comm’n, 296 Ark. 431, 437, 757 S.W.2d 950, 953 (1988); Ark. State Game & Fish
Comm’n v. Stanley, 260 Ark. 176, 180, 538 S.W.2d 533, 535 (1976); Farris v. Ark. State
Game & Fish Comm’n, 228 Ark. 776, 781, 310 S.W.2d 231, 234–35 (1958); State Game &
Fish Comm’n v. Hornaday, 219 Ark. 184, 187, 242 S.W.2d 342, 344 (1951). Hampton v.
Ark. State Game & Fish Comm’n, 218 Ark. 757, 764 n.3, 238 S.W.2d 950, 954 n.3 (1951),
is the only decision that cites Edgmon for the proposition that the General Assembly lacks
authority to “amend or repeal” constitutional amendments initiated by the people.
14
justified to “avoid the perpetuation of pernicious error.” See Brickhouse v. Hill, 167 Ark.
513, 522, 268 S.W. 865, 868 (1925) (quoting 7 R.C.L. 1008 (1915)).
Accordingly, we now make explicit what Martin v. Haas made implicit and overrule
Arkansas Game & Fish Commission v. Edgmon, 218 Ark. 207, 235 S.W.2d 554 (1951), in its
entirety as “more good than harm would result from changing it at this time[.]” Nooner v.
State, 2014 Ark. 296, at 12, 438 S.W.3d 233, 241 (quoting Brickhouse v. Hill, 167 Ark. 513,
519, 268 S.W. 865, 867 (1925)). We therefore reverse the circuit court’s ruling declaring
the twenty-eight legislative amendments to amendment 98 null and void, as that conclusion
rested on a clearly erroneous interpretation of article 5, section 1 and section 23(a) of
amendment 98.
D. Amendment 98, Section 23(a) and its Germaneness Requirement for Amendments
For its second point on appeal, the State contends that the word “section” in section
23(a) of amendment 98 should be construed to mean “amendment,” asserting that the use
of “section” was merely a drafting error. GDFA and CCM argue that “section” means what
it says. While we agree with the State that the use of “section” was likely a scrivener’s error
as the provision functions sensibly only when “section” is read as “amendment,” we reach
that conclusion by looking at the public’s understanding of amendment 98 at the time of
adoption, interpreting the text in harmony with similar constitutional provisions, and by
applying established canons of construction. We acknowledge the tension between our
adherence to the constitution’s plain text in holding—when explicitly overruling Edgmon—
that article 5, section 1 authorizes the General Assembly to amend laws initiated by the
people, and our use of interpretive principles here. But the inoperability of section 23(a) of
15
amendment 98 leaves us no choice to avoid running headlong into an inoperable and absurd
result. Curry v. Pope Cnty. Equalization Bd., 2011 Ark. 408, at 10, 385 S.W.3d 130, 136;
Buonauito v. Gibson, 2020 Ark. 352, at 7 n.1, 609 S.W.3d 381, 386 n.1. There is no such
obstacle in article 5 section 1, whose plain meaning is clear and unambiguous, and operates
harmoniously with other provisions of the Arkansas Constitution. Therefore, to give
section 23(a) coherence and effect, we are compelled to employ established canons of
constitutional construction.
Section 23 of amendment 98 of the Arkansas Constitution provides
(a) Except as provided in subsection (b) of this section, the
General Assembly, in the same manner as required for
amendment of laws initiated by the people, may amend the
sections of this amendment so long as the amendments are
germane to this section and consistent with its policy and
procedures.
(b) The General Assembly shall not amend the following
provisions of this amendment:
(1) Subsections (a), (b), and (c) of § 3;
(2) Subsection (h), (i), and (j) of § 8; and
(3) Section 23.
Ark. Const. amend. 98, § 23. At the outset, we agree with the circuit court and the parties
that the General Assembly is barred from amending certain portions of amendment 98,
including section 23 itself, as expressly stated in section 23(b). See Ark. Const. amend. 98,
§ 23(b).
The dispute lies in section 23(a), which provides that “so long as the [General
Assembly’s] amendments are germane to this section and consistent with its policy and
16
purposes.” See Ark. Const. amend. 98, § 23(a) (emphasis added). GDFA and CCM
interpret this provision to mean that any legislative amendment must be germane specifically
to section 23, rather than to amendment 98 as a whole. The State, however, contends that
such a reading renders the provision superfluous, meaningless, and inoperative because
section 23—entitled “Amendment by General Assembly”—cannot itself be amended. The
State further argues that this interpretation would absurdly require the General Assembly to
make any and all amendments “germane to [the] Amendment by General Assembly”
provision but would then codify them elsewhere within amendment 98. We agree that
such a result would render the provision superfluous, meaningless, and inoperative.
1. The voters’ understanding at adoption
We find it prudent to start by looking at the public’s understanding of amendment
98 at the time that it was adopted in 2016. This has been a cornerstone of this court’s
constitutional interpretation since 1925. See generally Brickhouse, 167 Ark. 513, 268 S.W.
865. In Rose v. Martin, we quoted the original ballot title of the Arkansas Medical Marijuana
Amendment of 2016. 2016 Ark. 339, at 3, 500 S.W.3d 148, 151. In pertinent part, the
ballot title stated
An amendment to the Arkansas Constitution . . . permitting the
General Assembly by two-thirds vote to amend the sections of the
amendment, except that the General Assembly may not amend
the sections legalizing the medical use of marijuana and setting
the number of dispensaries or cultivation facilities allowed.
Id., 500 S.W.3d at 151 (emphasis added). The plain language of the ballot title underscored
the General Assembly’s power to amend nearly all sections of amendment 98.
Contemporaneous reporting at the time of adoption further supports this understanding.
17
The Arkansas Democrat-Gazette noted that “[w]ith two exceptions, the amendment would
give the [General Assembly] broad authority to change any aspect of the law by a two-thirds
vote.”7 KARK likewise reported that “[t]he measure lays out procedure for allowing
lawmakers to change the amendment with a two-thirds vote.”8
Section 23 solely concerns the process of amending amendment 98. Under GDFA
and CCM’s interpretation, an amendment would be “germane” to section 23 only if it
addressed the process of amending amendment 98. That reading would render the General
Assembly unable to do what the ballot title expressly stated it could do, and what the public
understood at the time of adoption that it could do, which is amend any portion of
amendment 98 not protected by section 23(b). GDFA and CCM argue, essentially, that the
General Assembly can only amend section 23 because it says, “germane to this section” instead
of “germane to this amendment.” We believe that when Arkansans stepped into the voting
booth to cast their votes on adopting or rejecting amendment 98, they would likely
understand from the ballot title that the General Assembly could amend any portion of
amendment 98 except for the provisions relating to the legalization of marijuana for medical
purposes9 and the number of dispensaries or cultivation facilities that could exist. 10 This
understanding directly contradicts GDFA and CCM’s argument that section 23 says that the
7
Brian Fanney & John Moritz, “Issue 6 legalizes, sets rules on medical ‘pot’,” Ark.
Democrat-Gazette, Nov. 6, 2016.
8
KARK, Issue 6 Paves Path for Medical Marijuana in Arkansas (Nov. 6, 2016), available
at https://www.kark.com/news/issue-6-paves-path-for-medical-marijuana-in-arkansas/.
9
Ark. Const. amend. 98, § 23(b)(1).
10
Ark. Const. amend. 98, § 23(b)(2).
18
General Assembly can only functionally amend section 23. Therefore, we have no choice
but to construe “section” to function as “amendment,” otherwise, the people’s
understanding of amendment 98 at the time of adoption would be undermined.
2. Parallel constitutional provisions
Second, the Arkansas Constitution must be considered as a unified document, and
each provision must be interpreted in harmony with other provisions relating to the same
subject matter. See Cherokee Nation Bus., LLC, 2023 Ark. 153, at 5, 676 S.W.3d at 372;
Pritchett v. Spicer, 2017 Ark. 82, at 3, 513 S.W.3d 252, 254; Kelly v. Martin ex rel. State, 2014
Ark. 217, at 4, 433 S.W.3d 896, 899; see also Scalia, supra at 167 (where the whole-text
canon requires that the text of a document must be construed as a whole), 180 (where the
harmonious-reading canon requires that the provisions of a text should be interpreted in a
way that renders them compatible, not contradictory). Accordingly, to understand the
operation and scope of section 23(a)’s germaneness requirement, we look to constitutional
provisions employing similar language.
As discussed in our analysis of the first issue on appeal, amendment 51, which
concerns voter registration in Arkansas, provides
The General Assembly may, in the same manner as required for
amendment of laws initiated by the people, amend Sections 5
through 15 of this amendment, so long as such amendments are
germane to this amendment, and consistent with its policy and
purposes.
Ark. Const. amend. 51, § 19 (emphasis added). Likewise, amendment 89, which relates to
interest rates on governmental bonds, states
The General Assembly may by a three-fourths vote of each
house of the General Assembly amend the provisions of this
19
amendment so long as the amendments are germane to this
amendment and consistent with its policy and purposes.
Ark. Const. amend. 89, § 11(a) (emphasis added). Among the more than one hundred
constitutional amendments, only amendments 51, 89, and 98 contain this distinctive
germaneness framework, and all three were proposed and adopted by the people of
Arkansas. Yet amendments 51 and 89 use the phrase “germane to this amendment,” while
amendment 98 uniquely employs “germane to this section.” Given the striking similarity of
structure, purpose, and context, we are unable to identify any persuasive textual, structural,
or historical basis for construing section 23(a) differently from its constitutional counterparts.
Reading “section” as “amendment” is therefore necessary for section 23(a) to function
coherently within the scheme of amendment 98, and the constitution as a whole.
3. Syntactic and structural inoperability
Lastly, there is a syntactic argument that the text of the provision reveals an internal
inconsistency and functional impossibility that leads to an absurd result. This court will not
engage in interpreting provisions such as to defy common sense and produce absurd results.
See Walther v. FLIS Enters., Inc., 2018 Ark. 64, at 9–10, 540 S.W.3d 264, 270 (quoting Clark
v. Johnson Reg’l Med. Ctr., 2010 Ark. 115, at 8, 362 S.W.3d 311, 316); see also Scalia, supra
at 234 (where the absurdity doctrine requires us to disregard, or judicially correct, an error
in a provision, when such correction is textually simple, if failing to do so would result in a
disposition that no reasonable person could approve). The pronoun “its” must refer back
to something, and here “its” refers back to “section.” Ark. Const. amend. 98, § 23(a). But
“section” cannot be the correct antecedent, because section 23 itself contains no “policy
and purposes.” See generally Ark. Const. amend. 98, § 23. However, amendment 98, as a
20
whole, does. Compare Ark. Const. amend. 98, §§ 2–19, 21 & 24–25, with Ark. Const.
amend. 98, § 23. Reading “section” as “amendment” therefore allows the provision to
function grammatically, coherently, and according to its intended design while avoiding the
absurd result that GDFA and CCM would have us reach.
All three strands of analysis lead us to conclude that the word “section” in section
23(a) is a drafting error. Reading “section” as written cannot be reconciled with the people’s
understanding that the General Assembly may amend all permissible sections of amendment
98. That understanding would be thwarted if section 23(a) were interpreted to limit
amendment authority to a single section. Moreover, section 23(a)’s companion provisions
elsewhere in the constitution use “amendment,” not “section,” in nearly identical contexts.
Finally, the phrase as written is syntactically inoperable, confirming that “section” cannot
be given its plain and unambiguous meaning without rendering the provision unworkable.
And though we have cautioned that we are hesitant to construe constitutional text in a
manner that departs from its express language, evidence of a clear drafting error that frustrates
the provision’s intended operation permits and, in fact, necessitates such departure. See
Simpson v. Cavalry SPV I, LLC, 2014 Ark. 363, at 3–4, 6–7, 440 S.W.3d 335, 338, 339
(recognizing that where a drafting error or omission in a legislative act circumvents the
legislature’s intent, this court may correct the error). While Simpson involved a statute, the
principles applied there provide a sufficiently close analogue here: the intent of the people,
the parallel constitutional provisions, and the syntactic inoperability of section 23(a)
collectively demonstrate sufficient evidence that the use of “section” was an evident drafting
mistake—and one that must be corrected.
21
Therefore, upon reviewing amendment 98 in its entirety, it is clear that the intent of
section 23 was to permit the General Assembly to amend the sections of amendment 98 that
are unrestricted so long as any such amendment is germane to amendment 98 as a whole;
not merely to section 23 itself. Such reading respects the understanding of the people of
Arkansas when they voted for or against amendment 98, aligns amendment 98 with parallel
constitutional provisions of the same subject matter, and brings harmony within the
constitutional framework of amendment 98 itself. Accordingly, we construe section 23(a)
of amendment 98 to read as follows
Except as provided in subsection (b) of this section, the General
Assembly, in the same manner as required for amendment of
laws initiated by the people, may amend the sections of this
amendment so long as the amendments are germane to this
[amendment] and consistent with its policy and purposes.
Ark. Const. amend. 98, § 23(a) (emphasis added). Therefore, we reverse the circuit court’s
ruling that the twenty-eight legislative amendments to amendment 98 are null and void, as
that conclusion rested on a clearly erroneous interpretation of section 23(a)’s germaneness
requirement for amendments to amendment 98.
IV. Conclusion
In accordance with this court’s precedent in Martin v. Haas, the plain text of article
5, section 1 grants the General Assembly the authority to amend the laws initiated by the
people of this state by a two-thirds vote of both houses of the General Assembly, which is
what section 23(a) of amendment 98 expressly allows. Additionally, Arkansas Game & Fish
Commission v. Edgmon, 218 Ark. 207, 235 S.W.2d 554 (1951), is hereby overruled in its
entirety. Further, we construe the word “section” to function as “amendment” for the
22
purposes of applying the germaneness requirement of section 23(a) of amendment 98.
Therefore, we reverse and dismiss.
Reversed and dismissed.
Special Justices BARBARA HALSEY and DON CURDIE join.
BAKER, C.J., and WOOD and WOMACK, JJ., concur.
HUDSON and BRONNI, JJ., not participating.
RHONDA K. WOOD, Justice, concurring. I agree that the General Assembly has
the power under section 23 of amendment 98 to make legislative amendments to
amendment 98. Because I believe that overruling Arkansas Game & Fish Commission v.
Edgmon1 is an unnecessary and advisory resolution of this case, I respectfully concur.
The question before us is whether the General Assembly has the authority to modify
amendment 98. The answer is yes. The text of amendment 98 tells us how the amendment
may be changed. Section 23 of amendment 98 specifies the proper procedure for, and the
limits on, the General Assembly’s power to modify amendment 98. It says the General
Assembly may make amendments to amendment 98 in “the same manner as required for
amendment of laws initiated by the people[.]”2 We have decided how this process works.
In Martin v. Haas, we held that the language “manner as required for amendment of laws
1
218 Ark. 207, 235 S.W.2d 554 (1951).
2
Ark. Const. amend. 98, § 23(a).
23
initiated by the people” is the process set out in article 5, section 1.3 It resolves our question,
and that is where I would end the inquiry.
Overruling Edgmon goes a step too far. We need not decide and, per the doctrine of
constitutional avoidance, should not decide4 whether other constitutional amendments
initiated by the people may be amended by the General Assembly. In Martin v. Haas, we
were interpreting amendment 51 which, like amendment 98, specifies in its own text the
process for legislative amendment. The majority’s suggestion that we implicitly overruled
Edgmon in Haas is misplaced. Edgmon was not on point in Haas because the issues were
different. Edgmon dealt with whether the General Assembly could amend a constitutional
amendment––amendment 35––that did not contain a provision for such amendment.
Amendment 98, like amendment 51 in Haas, does have that provision.
The prudent course is to refrain from overruling precedent when resolution of the
inquiry before us does not require it. While I suggest no opinion as to whether Edgmon was
decided correctly, we did not reach Edgmon in Haas, and we should not reach it here.5
I respectfully concur.
3
Martin v. Haas, 2018 Ark. 283, at 9-10, 556 S.W.3d 509, 515-16; see also Ark. Const.
article 5, § 1.
4
See, e.g., Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, at 17, 431 S.W.3d 858, 869
(“It is our duty to refrain from addressing constitutional issues if or when the case can be
disposed of without determining constitutional questions.”).
5
The appropriate time to revisit Edgmon is when we have a challenge to the General
Assembly’s amendment that does not contain a provision allowing it.
24
SHAWN A. WOMACK, Justice, concurring. I agree with the majority that
legislative amendments to measures approved by a vote of the people are authorized under
the plain text of article 5, section 1 and that the language therein requires this court to
overturn our atextual decision in Arkansas Game & Fish Commission v. Edgmon, 218 Ark.
207, 235 S.W.2d 554 (1951). Likewise, I agree that section 23 of amendment 98 contains
an obvious scrivener’s error and that to avoid an absurd result, the phrase “germane to this
section” must be read as “germane to this amendment.” The majority therefore reaches the
correct disposition: reversing and dismissing the circuit court’s order granting summary
judgment to the Appellees. However, I write separately because the constitution requires
that we reverse and dismiss on the basis of sovereign immunity alone.
Article 5, section 20 of the Arkansas Constitution provides that “[t]he State of
Arkansas shall never be made defendant in any of her courts.” 1 This prohibition is
jurisdictional and absolute unless a specific constitutional provision waives it.2 Suits seeking
declaratory or injunctive relief against the State or its agencies are generally barred. 3
Although article 5, section 1 carves out a narrow exception to sovereign immunity, that
exception is limited: it grants this court exclusive jurisdiction to review the sufficiency of
1
Ark. Const. art. 5, § 20.
2
Bd. of Trs. of the Univ. of Ark. v. Andrews, 2018 Ark. 12, at 6, 535 S.W.3d 616, 620;
Thurston v. League of Women Voters of Ark., 2022 Ark. 32, at 17, 639 S.W.3d 319, 327
(Womack, J., dissenting).
3
Id.
statewide and local initiative petitions and nothing more. It authorizes no broader exercise
of judicial power.4
Here, the Appellees sued the State, the Department of Finance and Administration,
and the Alcoholic Beverage Control Division, seeking a declaration that legislative acts are
unconstitutional and asking the court to reinstate prior law. That relief operates directly
against the State and its instrumentalities. Because this lawsuit concerns the validity of
legislative amendments—not the sufficiency of an initiated petition—it falls outside the sole
article 5, section 1 exception to sovereign immunity. Sovereign immunity therefore
deprives both the circuit court and this court of jurisdiction, requiring reversal and dismissal.
For these reasons, I respectfully concur.
Tim Griffin, Att’y Gen., by: Jordan Broyles, Sr. Ass’t Att’y Gen., for appellant.
Wright, Lindsey & Jennings, LLP, by: Stephen R. Lancaster, Gary D. Marts, Jr., and Erika
Gee, for appellee.
Friday, Eldredge & Clark, LLP, by: Elizabeth R. Murray, Kevin A. Crass, Martin A.
Kasten, and Kathy McCarroll, brief of amicus curiae Arkansas State Chamber of Commerce.
4
See, e.g., Cowles v. Thurston, 2024 Ark. 121, at 3, 695 S.W.3d 60, 62; Stilley v.
Thurston, 2024 Ark. 124, at 3 (per curiam).
26