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Several new state laws likely to face legal challenges

Posted: May 13, 2013 - 12:05pm

LITTLE ROCK — State lawmakers said creating jobs was one of their goals for this year’s legislative session, and although it’s too soon to say how well they achieved that goal, it’s safe to say they did create a good deal of work for lawyers.

A number of measures passed over opponents’ objections that they were legally suspect, including three that Gov. Mike Beebe vetoed because of concerns about their constitutionality. Lawmakers overrode those vetoes. A few new laws are already in court.

The American Civil Liberties Union and the Center for Reproductive Rights have already filed a federal lawsuit challenging Act 301, which bans abortions at 12 weeks or later into a pregnancy, with exceptions for rape, incest, medical emergencies endangering the life of the mother and fetal anomalies that would not allow the child to live after birth.

The suit alleges that the law — one of the measures Beebe vetoed — violates established case law. The U.S. Supreme Court has said states cannot ban abortions before a fetus becomes viable, or able to survive outside the womb, which doctors generally consider to occur about 23 or 24 weeks into a pregnancy.

Holly Dickson, legal director for the Arkansas chapter of the ACLU, said the organization also expects to file a lawsuit challenging Act 595, which requires voters to show photo ID at the polls. Act 595 is another measure that Beebe vetoed.

“It does require more of the voter we see at the polls than it does of the voter we never see,” Dickson said. “The voter who registers by mail, votes by mail, can send in a Xerox copy of a utility bill, but the voter who comes to the polls in person doesn’t have the same alternatives.”

Also enacted this session was Act 171, which bans abortions at 20 weeks except in cases of rape, incest and pregnancies that endanger the mother’s life or could cause irreversible physical impairment. Dickson said the ACLU will challenge the act, another that Beebe vetoed, unless the outcome of pending challenges to 20-week bans in other states makes a lawsuit in Arkansas unnecessary.

Dickson said other bills that are likely to be challenged, not necessarily by the ACLU, include Act 1490, which allows people under 18 to be sentenced to life in prison with the possibility of parole for a capital offense. The law is a response to a U.S. Supreme Court ruling that said mandatory sentences of life without parole are unconstitutional when applied to juveniles, but whether the new law would satisfy the high court is unknown.

Also likely to end up in court, Dickson said, is Senate Joint Resolution 16, which the Legislature has referred to the November 2014 general election ballot. If approved by voters, the measure would amend the state constitution to require that a group collecting signatures for a ballot initiative submit a number of valid signatures equal to 75 percent of the total number of signatures required in order to qualify for an extra 30 days to collect more signatures.

Critics say the proposed amendment would put an undue burden on the public’s right to petition the government.

Glen Hooks, associate regional director for the Sierra Club, said the environmental organization is considering filing lawsuits challenging two new laws that loosen standards for air and water quality.

Act 1302 prohibits the state Department of Environmental Quality from conducting its own computerized modeling to determine the air quality impact of a new factory or plant. Under the new law, ADEQ must rely solely on air pollution monitoring stations across the state. There are 15 such stations in Arkansas.

Act 954 removes the presumption that any Arkansas waterway that is not being used as a drinking water source is a potential drinking water source, loosening the regulations protecting that type of waterway from pollution.

“It’s a pretty safe bet that they’re going to be challenged, because they’re clear violations of the of the Clean Air Act and the Clean Water Act,” Hooks said.

Arkansas was already in court on the issue of school choice when lawmakers enacted Act 1227, which removes race as a factor in student transfers between districts. The law is a response to a federal judge’s ruling that struck down the old school choice law because it made race a factor in transfers, but that ruling has been appealed to the 8th U.S. Circuit Court of Appeals in St. Louis. The appeals court has not yet issued a ruling but has asked lawyers in the case to provide it with information about Act 1227.

Six death-row inmates have filed a lawsuit challenging Act 139, which permits the state Department of Correction to use an anti-anxiety drug and phenobarbital, a slow-acting barbiturate, in executions. The law is a response to a state Supreme Court ruling that struck down the old lethal-injection law because it gave the department too much discretion in execution procedures. The inmates allege that under the new law executions would be unnecessarily slow and painful.

Act 746, which allows a person to carry a handgun while on a journey, defined as travel outside of one’s home county, has been interpreted in different ways, with some saying it effectively makes Arkansas an open-carry state and some saying it merely clarifies an old law that allowed handguns to be taken on journeys but did not define what a journey was. A test case likely will be needed to determine which interpretation is correct.

Then there is the most hotly contested piece of legislation to come out of the session, the private option for extending health insurance to about 250,000 of Arkansas’ working poor, using federal Medicaid money made available through the federal Affordable Care Act. The legislation is contained in Acts 1496, 1497 and 1498.

A court challenge is certainly possible, but the first challenge to the private option may be at the polls: A group called Arkansans Against Big Government is seeking to place a referendum on the health care expansion on the November 2014 ballot.

Hooks said he believed several of the new laws enacted this year were the result of legislators being more interested in scoring points with the voters back home than in passing legislation that would meet constitutional muster.

“The voters back home might not be so pleased when they see the amount of money it’s going to cost the state to defend these ridiculous laws,” he said.

Senate President Pro Tem Michael Lamoureux, R-Russellville, said he believed legislators took constitutional issues seriously during the session. He also said lawmakers know that people often complain that a bill they dislike is unconstitutional.

“In the 10 years I’ve been in the Legislature I’ve heard a lot more people say that bills were unconstitutional than I have seen (bills) declared unconstitutional,” he said. “I don’t think there’s anything unusual about this session.”

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Igor Rabinowitz
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Igor Rabinowitz 05/13/13 - 04:45 pm
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Here's what this means

Right now, the laws of Arkansas are in flux. Not all of them, granted, but enough -- I'm sure we all agree -- to, as the article states, get things tied up in court for some time to come (Internets Constitutional law scholars notwithstanding).

So you're a company looking over locations, do you choose the state with the legal structure subject to judicial review? Especially when this judicial review often bleeds over into other areas? Or do you choose a state with a more stable legal clime so as to put lower risk for your company?

Which is the point: However you feel about these laws, even if you feel they are/not pandering, they have created an unstable legal environment which in turn stifles growth.

You could even argue this was the intent of the radical conservatives who funded this environment, since "stifles growth" and "let's old money grow without threat" mean the same thing. This cost, for example, the Koch brothers of few million, but is paying off in spades, many dollars above the investment.

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