The 'emergency' in Amendment 19

Legislators have been receiving some e-mail over the past week regarding the special session and a phrase in Amendment 19 to the Arkansas Constitution. Specifically, some are raising the concern that an emergency is required to raise the severance tax, and that no emergency currently exists. Here's the relevant part of Amendment 19:

None of the rates for property, excise, privilege or personal taxes, now levied shall be increased by the General Assembly except after the approval of the qualified electors voting thereon at an election, or in case of emergency, by the votes of three-fourths of the members elected to each House of the General Assembly. (emphasis added)

This emergency requirement has been taken up and considered by the Arkansas Supreme Court in a couple of different cases. In ACW, Inc. v. Weiss, a 1997 case regarding the imposition of the corporate income tax in Arkansas, the Court held that the legislation giving rise to the suit did contain an emergency clause sufficient to meet the requirements of Amendment 19 to the Arkansas Constitution, although it was ultimately not required in that specific case (see the opinion by clicking the comments section below). The court held that it will give great deference to legislative determination whether an emergency exists. Emergency clauses are routinely attached to general legislation, mainly to make the legislation effective as of the governor's signature rather than 90 days after the adjournment of the session.

Bill needs an emergency clause

In the event the Legislature's passage of the severance tax is challenged, it is my belief that an emergency clause should be added to the legislation to give the court a set of reasons that include the need for the legislation and the intent of the Act. Otherwise, neither a trial court nor the Arkansas Supreme Court will have any basis on which to judge whether an emergency exists. The governor's Proclamation won't satisfy a court as to the legislative intent for increasing the severance tax. Here's a link to the initial draft of the severance tax legislation, and here's a copy of the 1933 Act, which was adopted by Arkansas voters in 1934 by a vote of 99,223 for and 25,496 against, thereby becoming Amendment 19 to the Arkansas Constitution.