The opinion
Cite as 2023 Ark. 140
SUPREME COURT OF ARKANSAS
No. CV-23-468
Opinion Delivered: October 12, 2023
ARKANSAS DEPARTMENT OF
EDUCATION; JACOB OLIVA, IN HIS
OFFICIAL CAPACITY AS ARKANSAS APPEAL FROM THE
SECRETARY OF EDUCATION; PULASKI COUNTY CIRCUIT
RANDY HENDERSON, JEFF WOOD, COURT, FOURTH DIVISION
ADRIENNE WOODS, STEVE [NO. 60CV-23-3267]
SUTTON, O. FITZGERALD HILL,
OUIDA NEWTON, SARAH MOORE, HONORABLE HERBERT WRIGHT,
KATHY MCFETRIDGE, AND LISA JUDGE
HUNTER, IN THEIR OFFICIAL
CAPACITIES AS MEMBERS OF THE
REVERSED AND DISMISSED.
ARKANSAS STATE BOARD OF
EDUCATION; FRIENDSHIP
EDUCATION FOUNDATION; AND
MARVELL-ELAINE SCHOOL
DISTRICT
APPELLANTS
V.
DORIS IVY JACKSON; LAVERNE
SIMS; JESSELIA MAPLES;
DIAMACIOUS SIMS; DARRYL
HARRIS; SYLVIA MOORE;
DANIELLE WRIGHT; DERASHAUN
MCGHEE; VIVIAN DAVIS; JAMES
CARRUTH; IOLA HOSKINS;
STEVEN GRAPPE; VERONICA
MCCLANE; AND CITIZENS FOR
ARKANSAS PUBLIC EDUCATION
AND STUDENTS (CAPES), A BALLOT
QUESTION COMMITTEE
APPELLEES
BARBARA W. WEBB, Justice
Appellants Arkansas Department of Education, Jacob Oliva, in his official capacity as
Arkansas Secretary of Education, Randy Henderson, Jeff Wood, Adrienne Woods, Steve
Sutton, O. Fitzgerald Hill, Ouida Newton, Sarah Moore, Kathy McFetridge, and Lisa
Hunter, in their official capacities as members of the Arkansas State Board of Education
(collectively, “State appellants”), Friendship Education Foundation, and Marvell-Elaine
School District, appeal the circuit court’s declaratory judgment in favor of appellees Doris
Ivy Jackson, Laverne Sims, Jesselia Maples, Diamacious Sims, Darryl Harris, Sylvia Moore,
Danielle Wright, DeraShaun McGhee, Vivian Davis, James Carruth, Iola Hoskins, Steven
Grappe, Veronica McClane, and Citizens for Arkansas Public Education and Students
(“CAPES”), a ballot-question committee. At issue is the circuit court’s finding that the
emergency clause contained within Act 237 of 2023 (the “LEARNS Act”) did not receive
a separate roll-call vote as required by the Arkansas Constitution, rendering the clause
procedurally invalid. For reversal, appellants argue (1) this case presents a nonjusticiable
political question; (2) the LEARNS Act emergency clause received a separate roll-call vote;
and (3) sovereign immunity bars appellees’ complaint. We reverse the circuit court’s ruling
and dismiss the case below.
This case has been before this court in Arkansas Department of Education v. Jackson,
2023 Ark. 105, 669 S.W.3d 1 (“Jackson I”), wherein we provided a full recitation of the
facts. The relevant facts are as follows. During the 2023 legislative session, the Arkansas
General Assembly passed the LEARNS Act. The legislation was then sent to the Governor,
who signed it into law on March 8, 2023. Because section 73 of the LEARNS Act contained
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an emergency clause, certain provisions became effective on the date of the Governor’s
approval.
Appellees thereafter filed a complaint against appellants seeking a declaratory
judgment that the LEARNS Act’s emergency clause was invalid and ineffective under the
Arkansas Constitution. They also requested a temporary restraining order (“TRO”) or,
alternatively, a motion for preliminary injunction. Appellees’ claims were brought under
the Administrative Procedure Act, Ark. Code Ann. §§ 25-15-201 et seq. (Repl. 2014 &
Supp. 2021), the Uniform Declaratory Judgments Act, Ark. Code Ann. §§ 16-11-101 et
seq. (Repl. 2016 & Supp. 2021), and article 16, section 13 of the Arkansas Constitution.
Appellees alleged that the emergency clause was defective under article 5, section 1 of the
Arkansas Constitution on three separate grounds. First, the General Assembly failed to pass
the emergency clause by a separate roll-call vote. Second, the emergency clause fails to state
facts sufficient to establish an emergency. Third, the emergency clause attempts to declare
an emergency as to certain provisions of the Act, rather than the Act as a whole.
On May 26, 2023, the circuit court entered an order granting appellees’ motion for
TRO pending a full hearing scheduled for June 20, 2023. The circuit court concluded that
appellees would suffer irreparable harm absent injunctive relief and had demonstrated a
likelihood of success on the merits of their claims. Appellants then brought an interlocutory
appeal pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(6). In Jackson I, we
reversed the circuit court’s order, vacated the TRO, and remanded. We concluded that
appellees had failed to demonstrate irreparable harm as their claims could be either
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compensated by money damages or redressed in a court of law and were speculative in
nature. Id. at 8–9, 669 S.W.3d at 12–13.
On remand, the circuit court held a full hearing on the merits of appellees’ claims.
The circuit court heard witness testimony on the General Assembly’s voting procedures for
bills with emergency clauses as well as testimony on the LEARNS Act adoption itself. Those
witnesses included State Senator Clarke Tucker, State Representative Tiffany McCullough,
former Senate Parliamentarian Steve Cook, and then-current House Parliamentarian Finos
B. Johnson. State appellants also submitted witness affidavits and journals of the Arkansas
House of Representatives and Arkansas Senate, which reflected that the LEARNS Act and
its emergency clause were passed by separate roll call. Over State appellants’ objections,
appellees introduced video recordings of each chamber voting on the LEARNS Act and its
emergency clause simultaneously.
Following the hearing, the circuit court entered an order on June 30, 2023, declaring
the LEARNS Act emergency clause invalid because it did not receive a separate roll-call
vote. The circuit court concluded that it was not required to treat the legislative journals as
dispositive of two separate votes having occurred and instead could “look beyond the text
of the journals of the legislature to determine whether an act has been duly passed.” The
circuit court in turn observed that “the video of the proceedings . . . clearly show[s] that
only one vote was taken” and that “testimony from sitting [legislators] . . . corroborated the
video and testified that it accurately reflected the proceedings in each chamber, regardless
of what was recorded in the journals.” Accordingly, the circuit court held that the LEARNS
Act and its emergency clause were not voted on by separate roll call in either chamber as
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required under the Arkansas Constitution and, as a result, all provisions of the Act purported
to be effective immediately were now effective on the default date for legislation of this
session, August 1, 2023. Having found the emergency clause was not properly enacted, the
circuit court declined to reach appellees’ remaining arguments regarding the sufficiency of
the emergency or the Act’s varying effective dates. This appeal followed.
As a threshold matter, we must first address appellees’ contention that this court lacks
jurisdiction over this appeal because the circuit court’s order is not final. They claim that
the order is not final because the circuit court did not resolve their remaining arguments for
finding the emergency clause unconstitutional. Arkansas Rule of Appellate Procedure–Civil
(2)(a)(1) provides that an appeal may only be taken from a final judgment or decree entered
by the circuit court. For an order to be final and appealable, “it must . . . conclude [the
parties’] rights to the subject matter in controversy.” Convent Corp. v. City of North Little
Rock, 2016 Ark. 212, at 5, 492 S.W.3d 498, 502. In contrast, an order that contemplates
further action by a party or the court is not a final, appealable order. Ark. Dep’t of Fin. &
Admin. v. Naturalis Health, LLC, 2018 Ark. 224, at 6, 549 S.W.3d 901, 905.
Appellees brought an action for declaratory judgment, seeking an order invalidating
the LEARNS Act emergency clause. The circuit court recognized that although appellees
advanced distinct legal theories in their complaint, “the deciding factor” for each would be
the emergency clause’s validity. The circuit court then declared the emergency clause invalid
because it was passed without a separate roll-call vote. As such, the circuit court pointed out
that it was unnecessary to rule on appellees’ remaining arguments. The circuit court’s order
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concluded the controversy by granting appellees declaratory relief, and it contemplated no
further action. This appeal is now properly before this court.
Appellees also assert that this case should be dismissed as moot now that the default
date of August 1, 2023, has passed and the LEARNS Act is effective regardless of the
emergency clause. A case is moot when any judgment rendered would not have any practical
legal effect upon a then-existing legal controversy. Ark. Dep’t of Hum. Servs. v. Ledgerwood,
2019 Ark. 100, at 2, 571 S.W.3d 1, 2. We agree with appellees that, given the timing of
this appeal, our decision would have no effect on the underlying controversy of this case––
the effective date of the LEARNS Act.
Nevertheless, we may still review the issues on appeal if a recognized exception to
the mootness doctrine applies. One such exception is for matters involving a substantial
public interest that are likely to be litigated in the future. Gray v. Thomas-Barnes, 2015 Ark.
426, at 5, 474 S.W.3d 876, 879. We have held that when “[g]uidance is needed for the
public in pursuing litigation against the State” and “for the legislative and executive branches
in conducting their business,” the substantial-public-interest exception obliges our court to
address the issues raised in an otherwise moot case. Protect Fayetteville v. City of Fayetteville,
2019 Ark. 28, at 4–5, 566 S.W.3d 105, 108. The present matter falls squarely within this
exception because it calls into question the decades-long process of both the House and the
Senate for voting on emergency clauses. To be sure, if the circuit court’s order stands,
countless State actions made in reliance on effective emergency clauses will be cast in doubt
and potentially be subjected to collateral attacks. The substantial interest of both the public
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and our coordinate branches of government necessitates that we resolve the issues raised in
this appeal.
On appeal, the State argues this case presents a nonjusticiable political question that
our courts may not decide. Alternatively, it argues that the LEARNS Act emergency clause
received a separate roll-call vote as required under the Arkansas Constitution and, as a result,
appellees’ claims are barred by the doctrine of sovereign immunity.1 Sovereign immunity is
jurisdictional immunity from suit, and jurisdiction must be determined entirely from the
pleadings. Ark. Oil & Gas Comm'n v. Hurd, 2018 Ark. 397, at 9, 564 S.W.3d 248, 253. The
pleadings in this case sufficiently raised factual allegations of illegal and unconstitutional State
action, and the suit sought only declaratory and injunctive relief. Consequently, this matter
is not barred by sovereign immunity. See Osage Creek Cultivation, LLC v. Ark. Dep’t of Fin.
& Admin., 2023 Ark. 47, at 6, 660 S.W.3d 843, 847 (noting that lawsuits seeking declaratory
or injunctive relief against the State for ultra vires, unconstitutional, or illegal acts can
surmount sovereign immunity).
At issue is whether the General Assembly complied with article 5, section 1 of the
Arkansas Constitution when it enacted the LEARNS Act emergency clause. In considering
this question, we look to our constitutional text. It is our responsibility to decide what a
provision of the Arkansas Constitution means, and we have said that provisions that are plain
and unambiguous will be given their obvious and common meaning. See, e.g., Zook v.
Martin, 2018 Ark. 293, at 4, 557 S.W.3d 880, 883. Neither rules of construction nor rules
1
Separate appellants Friendship Education Foundation and Marvell-Elaine School
District adopt State appellants’ arguments on appeal.
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of interpretation may be used to defeat the clear and certain meaning of a constitutional
provision. Id.
To enact an emergency clause, the constitution requires “two-thirds of all members
elected to each house . . . shall vote upon separate roll call in favor of the measure going
into immediate operation.” Ark. Const. art. 5, § 1. However, the roll-call vote does not
become law until “the names of the persons voting for and against the same be entered on
the journal; and a majority of each house be recorded thereon as voting in its favor.” Ark.
Const. art. 5, § 22. And in a separate provision, the constitution mandates that “[e]ach house
shall keep a journal of its proceedings.” Ark. Const. art. 5, § 12. In consideration of these
constitutional commands, this court recognized over a century ago that the “journal entry
[is] the sole evidence of [legislative] proceedings.” Niven v. Road Improv. Dist., 132 Ark.
240, 242, 200 S.W. 997, 997 (1918). Today, we reaffirm this precedent and conclude that
the plain language of the constitution designates the journal of each chamber as the official
record of the General Assembly’s votes.
In this instance, the legislative journals reflect that the LEARNS Act and its
emergency clause were adopted by separate votes. The House Journal indicates a separate
roll call and vote for the emergency clause. Likewise, the Senate Journal indicates a separate
roll call and vote for the emergency clause. Thus, according to the official record, the
emergency clause was passed in compliance with article 5, section 1 of the Arkansas
Constitution.
In reaching the opposite conclusion, the circuit court ignored the face of the record
and instead relied on parol evidence––video recordings of House and Senate proceedings–
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–to find that the General Assembly’s process for adopting emergency clauses is
constitutionally infirm. As explained, the journals are the official record, and it was
erroneous for the circuit court to look to parol evidence in reaching its decision. Because
the plain text of our constitution supports the General Assembly’s adoption of the LEARNS
Act, we need not consider the validity of internal legislative procedures or whether such
review presents a political question. We therefore reverse the circuit court’s order and
dismiss the case.
Reversed and dismissed.
BAKER, WOOD, and WOMACK, JJ., and Special Justice CORY COX concur.
KEMP, C.J., dissents.
HILAND, J., not participating.
KAREN R. BAKER, Justice, concurring. While I concur in the majority’s decision
to reverse and dismiss, I write separately for the reasons stated in my concurrence in Arkansas
Department of Education v. Jackson, 2023 Ark. 105, at 9, 669 S.W.3d 1, 8 (“Jackson I”) (Baker,
J., concurring). The lead opinion’s limited sovereign-immunity analysis conflicts with the
broad language of Board of Trustees of University of Arkansas v. Andrews, 2018 Ark. 12, 535
S.W.3d 616, and until Andrews is overruled, suit against the State is barred. In the present
case, the lead opinion states,
The pleadings in this case sufficiently raised factual allegations of illegal and
unconstitutional State action, and the suit sought only declaratory and
injunctive relief. Consequently, this matter is not barred by sovereign
immunity. See Osage Creek Cultivation, LLC v. Ark. Dep’t of Fin. & Admin.,
2023 Ark. 47, at 6, 660 S.W.3d 843, 847 (noting that lawsuits seeking
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declaratory or injunctive relief against the State for ultra vires,
unconstitutional, or illegal acts can surmount sovereign immunity).
However, as I explained in my dissent in Arkansas Oil & Gas Commission v. Hurd,
2018 Ark. 397, at 18–19, 564 S.W.3d 248, 258–59,
In Andrews, the court held that “never means never,” therefore . . . suit is
barred based on the broad language in Andrews . . . because Andrews did not
identify exceptions, exemptions or the like. Again, the State may never be
sued[.]
This appeal stems from the circuit court’s order declaring the emergency clause
contained within the LEARNS Act invalid because the General Assembly failed to pass the
emergency clause by a separate roll-call vote in either chamber as required under the
Arkansas Constitution. A review of the General Assembly’s voting procedures constitutes a
review of State action, and as I stated in my concurrence in Jackson I, any claims that seek
to control the actions of the State are barred pursuant to Andrews. Jackson I, 2023 Ark. 105,
at 10, 669 S.W.3d at 8.
For the reasons stated in my discussion above, I concur with the result reached by
the majority to reverse and dismiss.
RHONDA K. WOOD, Justice, concurring. I agree that we should reverse and
dismiss, but my analysis differs from the lead opinion. The lawsuit below challenged how
the General Assembly voted, not where it kept its records. Because assessing how the
General Assembly conducted its proceedings would violate separation of powers, I would
decline to answer this political question.
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The circuit court explained that the appellees sued, challenging “the constitutionality
of the Act’s enaction” because they contended the emergency clause was invalid because
there was not a separate roll-call vote. The circuit court agreed and ruled that “the
Emergency Clause of the LEARNS Act was not enacted pursuant to the requirements of
that Constitution.” Thus, the issue is not whether the official records of the General
Assembly’s proceedings are journals or videos. Rather, the issue is how the General
Assembly procedurally operates and conducts its voting. The journal and videos are evidence
used to determine the issue of whether the vote was proper.
We cannot resolve a legislative procedure-and-process issue without exceeding our
judicial role by answering a political question. The Arkansas Constitution gives each house
authority to determine its own rules and procedures.1 Answering a political question about
how the legislature conducts its proceedings would violate separation of powers. We cannot
usurp the legislative branch’s core functions or threaten its independent institutional
integrity.2 The only way to decide this issue would be to pass judgment on the legislative
branch’s internal procedural method of voting. This is not our role.
Like the eight other state courts that have considered challenges based on the legality
of internal legislative processes, we should conclude that this issue presents a nonjusticiable
political question.3 I would end our review here. The circuit court did not rule on the
1
Ark. Const. art. 5, § 12.
2
Ark. Const. art. 4; see also Baker v. Carr, 369 U.S. 186 (1962); Ark. State Bd. of Elec.
Comm’rs v. Pulaski Cty. Elec. Comm’n, 2014 Ark. 236, 437 S.W.3d 80.
3
See, e.g., Sumner v. New Hampshire Sec’y of State, 136 A.3d 101, 106 (N.H. 2016);
Brown v. Owen, 165 Wash. 2d 706, 722 (2009); Jefferson Cty. Comm’n v. Edwards, 32 So. 3d
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remainder of the emergency-clause claims. Our analysis should begin and end with the
political-question doctrine. Nor should we address any illegal-exaction claim because the
appellees did not cross-appeal from the denial of their illegal-exaction claim.
Special Justice CORY ALLEN COX joins.
SHAWN A. WOMACK, Justice, concurring. I agree with the majority’s disposition
to reverse and dismiss. While for reasons I have stated previously in this case, I agree with
its conclusion as to the validity of the adoption of the emergency clause and the recognition
of the journal as the official record, I would not have reached the merits.1 I write separately,
because dismissal of the case is proper pursuant to article 5, section 20 of the Arkansas
Constitution.2
Without an express constitutional provision to the contrary, the State can never
properly be a defendant in any of its courts.3 There are few clearer commands in our
constitution than article 5, section 20. For these reasons, I would reverse and dismiss the
572, 584 (Ala. 2009); Smigiel v. Franchot, 978 A.2d 687, 701 (Md. 2009); Brady v. Dean, 790
A.2d 428, 433 (Vt. 2001); Mayhew v. Wilder, 46 S.W.3d 760, 773 (Tenn. Ct. App. 2001);
Philpot v. Haviland, 880 S.W.2d 550, 552 (Ky. 1994); Sweeney v. Tucker, 375 A.2d 698, 705
(Pa. 1977).
See Ark. Dep’t of Educ. v. Jackson, 2023 Ark. 105, at 20–21, 669 S.W.3d at 14
1
(Womack, J., concurring, in which Webb, J., joins).
2
See Thurston v. League of Women Voters of Ark., 2022 Ark. 32, at 17, 639 S.W.3d 319,
327 (Womack, J., dissenting).
3
Id.
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case and base the disposition solely on article 5, section 20 of the Arkansas Constitution. I
respectfully concur.
JOHN DAN KEMP, Chief Justice, dissenting. The Arkansas LEARNS Act—Act
237 of 2023—became operative law on August 1, 2023. Because that date has passed and
the LEARNS Act has since been implemented, the present appeal is now moot. For this
reason, I respectfully dissent.
As a general rule, this court will not review issues that are moot. Terry v. White, 374
Ark. 387, 391, 288 S.W.3d 199, 202 (2008). A case becomes moot when any judgment
rendered would have no practical legal effect upon a then-existing legal controversy. Id.,
288 S.W.3d at 202. In other words, a moot case presents no justiciable issue for
determination by the court. Id., 288 S.W.3d at 202. We also do not issue advisory opinions
in anticipation of future litigation. Walker v. McCuen, 318 Ark. 508, 516, 886 S.W.2d 577,
582 (1994). Courts do not sit for the purpose of determining speculative and abstract
questions of law or laying down rules for future conduct. Flow Doc, Inc. v. Horton, 2009 Ark.
411, at 6, 334 S.W.3d 865, 870.
We have, however, recognized two exceptions to the mootness doctrine. Lott v.
Langley, 2013 Ark. 247, at 2. The first exception involves issues that are capable of repetition,
yet evading review, and the second exception concerns issues that raise considerations of
substantial public interest which, if addressed, would prevent future litigation. Id.
I am convinced that the issues presented in this case are moot, that the lead opinion
issued on the merits is wholly advisory, and that this case does not fall within one of our
recognized exceptions. After this court reversed and remanded in Arkansas Department of
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Education v. Jackson, 2023 Ark. 105, 669 S.W.3d 1, the circuit court entered an order, dated
June 30, 2023, ruling,
The Court finds that the Emergency Clause of the LEARNS Act was
not enacted pursuant to the requirements of the Constitution. Since that
provision of the law is not effective, all provisions of the Act purported to be
immediately effective due to the invalid clause are now effective as of the
default date the Act would be effective—August 1, 2023.
Throughout this litigation, both the parties and the circuit court have limited this case to
the time frame before August 1, 2023. Because that date has passed and the LEARNS Act
has remained in effect since August 1, this court now renders an advisory opinion on the
Act’s emergency clause. In my view, the public-interest exception does not apply because
any future litigation on emergency clauses is speculative. Therefore, I would dismiss the
appeal as moot.
Tim Griffin, Att’y Gen., by: Nicholas J. Bronni, Solicitor Gen.; Dylan L. Jacobs, Dep.
Solicitor Gen.; and Michael A. Cantrell, Ass’t Solicitor Gen., for State appellants.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Devin R. Bates, for
appellant Friendship Education Foundation.
Bequette, Billingsley & Kees, P.A., by: W. Cody Kees and Phillip M. Brick, Jr., for
appellant Marvell-Elaine School District.
Nolan Law Firm, PA, by: Ali Noland, for appellees.
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