September 29, 2021
Griffin [00:17:54] The Senate will come to order, Madam Secretary, please call the roll.
Cornwell [00:17:58] [roll call; all present]
Griffin [00:18:38] Everyone please stand, including those in the gallery. Before I pray, I’d just like to mention the passing of Larry Lowe. I’m sure you all heard about Larry passing in his sleep and just, I just ask that you keep his family who continues to grieve in your prayers. Larry was often right there and always smiling. And so Larry is missed. And we will continue to think about Larry and his family. Please bow with me in a word of prayer. Dear Heavenly Father, thank you for life. Thank you for allowing us to be here and serve. Lord, we thank you for all of our many blessings. Thank you for the ability to live in a country where we can be free. We praise you, Lord. We praise you as the only God, the God of love, the God of mercy, the God of justice. Lord, we thank you for your son, Jesus, for dying on the cross and saving us from our sins. We ask that you lead, guide, and direct us here as we do your work. We ask that you be with us. And Lord, we ask that you give us guidance over the coming days to know exactly, exactly what you would have us do. Forgive us of our sins. Be with us throughout the day. In Jesus name, amen.
[00:20:28] [Pledge of Allegiance].
Griffin [00:20:29] [to Cornwell] Is Senator Johnson going to move? Is Senator Johnson going to move to dispense with the journal? OK, OK. [to Senate] Pursuant to House concurrent resolution number 1015 of 2021, the Senate of the 93rd General Assembly entered an extended recess on Wednesday, April 28, 2021. Pursuant to the following proclamation, the President Pro Tempore, the Speaker of the House of Representatives reconvene and regular session of the 93rd General Assembly on Wednesday, September 29, 2021, at 10 a.m. to begin day 109 of legislative business.
Cornwell [00:21:04] State of Arkansas Legislative Department proclamation. Whereas House concurrent resolution 1015 of the regular session of the 90 third General Assembly provides for an extended recess of the 93rd General Assembly until such time as the 93rd General Assembly is able to complete its work and congressional redistricting. And whereas the 93ird General Assembly entered into extended recess on April 28, 2021. And whereas HCR 1015 authorizes the speaker of the House of Representatives and the President Pro Tem of the Senate by Joint Proclamation to reconvene the General Assembly at any time. And now therefore, we, the undersigned speaker of the House of Representatives and President Pro Tempore of the Senate, hereby direct that the regular session of the 93rd General Assembly of the State of Arkansas shall convene at 10 a.m. Wednesday, September 29, 2021, and that during that time the General Assembly may conduct its business related only to the following as provided in HCR 1015; a) considering vetoes; b) correcting errors and oversights; c) completing its work on Congressional Redistricting; d) considering legislation related to the COVID 19 Public Health Emergency and distribution of COVID relief funds, and considering the need for further extension of the regular session of the 93rd General Assembly, and that the 93rd General Assembly shall adjourn sine die as soon as practicable after completion of its work on redistricting. In witness whereof we have unto set our hands and caused the great seal of the state of Arkansas to be affixed at the State Capitol in Little Rock on this 29th day of September, year of the Lord 2021. Signed, Representative– Speaker of the House Matthew Shepherd and president Pro Tem of the Senate Jimmy Hickey.
Griffin [00:23:12] Sen. Hickey, before I recognize you, I want to recognize Senator Hendren for an introduction of some visitors. Sen. Hendren’s recognized.
Hendren [00:23:19] Thank you, Mr. President. We’ve got a special group here today. Joseph Mason with the Fulbright program has got 20 international teachers from 17 different countries. They’ve been touring the capitol. They worked the governor over with a bunch of questions. Many of them are up here in the gallery. Would you welcome them here to Arkansas?
Griffin [00:23:48] Senator Hickey wishes to be recognized.
Hickey [00:23:57] Thank you, sir. Members, I would make a motion that we resolve ourselves to the committee of the whole.
Griffin [00:24:04] Without objection.
Hickey [00:24:07] And if it’s Okay, I’d like Senator Dismang to take the chair. I think it’s going to be more appropriate if I speak from down here.
Griffin [00:24:14] Sen. Dismang will take the chair during the committee of the whole.
Dismang [00:24:26] Sir, you’re recognized.
Hickey [00:24:27] Thank you, sir. Members, sorry for the late notice on this committee of the whole. Actually, I thought about this last night late. And I know there’s been a lot of talk going on about the bills that have been filed, what we’re supposed to do while we’re in extended recess. The thing is is I’m not going to say that we’re in uncharted waters with an extended recess, but we are in unfamiliar waters with an extended recess. It has been done before and there is actually, there’s actually a court case that’s going to have some precedent that goes along with that. Mrs. Garrity’s going to be here if any of you have any questions as we go through it. What I’m going to try to do, you know, instead of us just sitting down here trying to say, Well, what are we going to do while we’re trying to do this business of the redistricting with the maps– because as we’ve all seen, that in itself is going to be monumental for us to get done. So I don’t want everybody to just be talking about, What are we going to do, what’s going to come, I just want to get it out in the open. If you think that you’ve got any questions or any issues, voice them. Let’s, let’s hear what they are. Let’s work through this. And at the end, if I can gauge what the majority is, I’ll try to make a motion to that effect because we cannot vote in the committee of the whole. So that we’ll operate that way. So that’s the way this body is supposed to operate. I ask that we stay cordial. Also ask if you come down and speak on something, don’t speak on what your resolution may be or what your bill may be. This is just about the operations and whether or not we should be hearing something, how somebody considers something to be, to be germane. So I think the best thing for me to do, and I had staff to put it on your desk. Every one of you should have the resolution, which is HCR 1015, which the speaker and myself ran during the last– or before we adjourned for an extended recess. So I think I’m going to give you a little bit of background about how this, how this come, come in play. There was actually two things, of course, that was on here that are of significance. One was the congressional redistricting. The reason that the speaker and I on that part had decided that we wanted to stay and try to go into an extended recess is because we wanted to maintain the Legislature’s independence. We know that the executive branch is supposed to do the redistricting that they do. So what we did not want to happen is for this redistricting, the congressional redistricting that we’re supposed to do, that we would have to wait for the executive branch to call us back in. So that was our reasoning for that. And that actually fits in perfect with what our Bureau had actually studied, looked into, analyzed of why we could stay in, in this extended recess. Because what that is, is that is an item that we were supposed to do, but for whatever reason, we were not able to do it. And as I’ve told everybody time and time again it’s actually a perfect example. Because we’re constitutionally required to do that, but because of COVID, the federal government had not give us that census data yet. So that is perfect for what that was. Now the next item, I personally asked for that to be put on there. What that, the next item was as it relates to COVID and the funding– and if you read the resolution, it mentions the American Rescue Act. If you all remember, remember, whenever we were in, in session, the federal government had just come out and said that these funds were going to be available to the states. And of course, I think everybody here is going to say that the state of Arkansas was going to take their billions of dollars in those funds. What had not happened at that point is the U.S. Treasury, and they were saying this, that they were not– they had not given us any guidance on what might be required, on what other statutes we might have to do. I did go ahead and even file an appropriation bill. We filed an appropriation bill to try to, you know, halfway get there. Whenever we go into the special session, we’re probably going to have to increase that because we didn’t know. So, but we did not know all the specifics of what was going to be required. So in my conversations with the bureau, you know, I said, Look, we know that we’re supposed to get these funds, but we don’t know what we’re supposed to do. Do we think that that would fall in with what we can do with an extended recess? And we all thought that that was prudent and that that’s the way that it should happen. Now where we’re at today with some of these bills that have been filed, there are some of them, of course, that personally, I don’t think that they are germane, germane to this at all. And that’s why I want us to go over, go over this. There possibly could be one that could be. And whenever I say could be, I want to remind you all of the court case that was out there. The court case that was– and again, I’d rather Marty and them to discuss that further– but the court case that was there had to deal with unfinished business. What they had said is that what we take up is supposed to be unfinished business like I just told you about, such as the congressional redistricting. So whether or not that if we pass any of these bills that are filed, and I’m not talking about the congressional maps we’re going to– that’s OK– these other bills is it’s, it’s a high likelihood– it’s almost guaranteed that it’s going to get challenged. Because we all know ho, controversial this Covid has become. So it’s probably, it probably will be challenged. And the decision before you today is not whether or not you agree with what’s in there, whether you don’t agree with what’s in there, whether you agree with something that the federal government is doing, or whether you don’t. It is whether or not from a business decision that you all need to look at– and that’s why we’re in a committee of the whole because you’re like board members and this is a business. Do we want to go forward with these other things with all the obstacles that we know are out there? That is your decision as a majority, and I just want you to know everything that is, is in there. I would like, if it’s OK, to allow Mrs. Garrity to come forward and just kind of speak to the court case, and you all can ask her any questions if that’s okay.
Dismang [00:31:35] Ask for leave? You’re recognized.
Garrity [00:31:52] Do I introduce myself?
Dismang [00:31:53] Yes, ma’am.
Garrity [00:31:54] Okay, sorry. Marty Garrity, director of the Bureau of Legislative Research. Sen. Hickey asked me to just provide a general summary of the case law that’s on extended sessions and the powers of the General Assembly during those extended sessions. The biggest case that we have relied upon is Wells v. Riviere. And in this case, the General Assembly back in 1980, they passed a resolution extending the regular session until January 1 of 1981. So the ’79, in 1979, the General Assembly passed a resolution extending their session pretty much until the next regular session. During that time, they took up– they went ahead and entered, after several months, into an extended session. They met and they took up three constitutional amendments. One of the constitutional amendments was hold over business or what the court considered unfinished business, and that was a property tax constitutional amendment. There were two new constitutional amendments that were proposed during that extended session. So the court held various things as part of that case. So it held that the General Assembly cannot recess for an indefinite period of time. There needs to be a set period of time. And the reason is that in doing so, it tramples upon other provisions of the Constitution, primarily the authority of the governor to call the General Assembly into a special session. So if y’all were able to extend your regular session for two years or even a year, it would trample upon the governor’s authority to call that special session. It says that the court held that the General Assembly can reserve the power to call itself into a regular session– into an extended session, but not for any purpose and not for any period of time. It needs to be limited to time and the purpose, again, towards unfinished business. And finally, again, it can reconvene to take up its original and unfinished business. So the decision was three– with that one constitutional amendment that was upheld as unfinished business because it was introduced during the original regular session, it was a 3-3 vote, and one judge voted with the majority to determine that that unfinished business constitutional amendment could be considered and was valid. There were three judges in the minority opinion that said all of the business taken up during that unlawful extended session should have been held unconstitutional and not valid. So that’s the decision of the Wells v. Riviere case, and I’d be more than happy to take any questions on that.
Dismang [00:34:48] Thank you, members. Members, first, I think, if we can, just to make sure there’s any questions on process of what what we’re going to discuss here and the fact that we’re not going to, you know, litigate the bills today, but we’re going to just talk about process. And if there’s any questions on that, let’s take those real quick and then we’ll get into questions about the court case and kind of where we are. So do we have any questions on process? Because if you get off track and you go down the road of, you know, full out presenting your bills, you’re not going to be recognized. If that’s understood, with that, I think, Senator Hendren, you’re recognized and we’re just doing questions at this point.
Hendren [00:35:23] Yeah. Thank you, Mr. Chairman. So and I don’t know whether you want to answer this or Senator Hickey, but I know that a lot of the decision about what we can or cannot do is based on the resolution that Senator Hickey and Speaker Shepherd explained in the well and we voted on in the well, and then, I think, also explained as we adjourned, what was the intent of that, which was, as Senator Hickey said, to deal with the unfinished business of redistricting, which could not be finished. And again, a perfect example, as Senator Hickey said, of an appropriate extension because of the inability to do it. But the other thing was, and I think this is where there’s the debate and the contention about the emergency relief funds and the access to those. And I guess what I would say is at least the way I recall it being presented to this body was that. That this was about one thing and that was the ability to deal with federal funds that we had not had those procedures aligned with. Is that an accurate representation of how that was presented to this body and adopted?
Garrity [00:36:30] I would leave that up to Senator Hickey to answer.
Hickey [00:36:33] I had actually had staff to go back and look at the live streaming. As far as the way that I had done it down here is just, you know, said what it was. We didn’t go into any specifics. I think in the House, the speaker actually did, did say that it was tied back to the funding. So in his testimony with the House, that will become an issue if something comes up.
Hendren [00:36:55] But haven’t we read– I mean, I think you did make some comments at the end of the session. I know I’ve seen media reports that that was the intent was it was regarding the–.
Hickey [00:37:04] Yes, sir. But as far as when I was standing in the well, yes– I mean, multiple members, I believe in this chamber, whenever they were asking me about it, everybody knew that this was related to, to that. And yes, I’ve been quoted in the media multiple, multiple times. I mean, that was the intent. That, that goes without saying, and I’ll never vary from that.
Hendren [00:37:26] Thank you.
Hickey [00:37:26] Yes, sir.
Hendren [00:37:27] And then one, one more question for director Garrity, I guess. You know, with regard to extended recess, as we look at what issues we can consider, I know some of the legislation that has been filed for consideration during this, whatever we call it, reconvening, has been similar legislation debated during the regular session, some of it defeated and some of it on the other end. I mean, does that not make it clear that this is not unfinished business, this is new business or business that we’ve already rehashed?
Garrity [00:38:02] Senator, I think with regards to that, that’s going to have to be a decision made here in the Senate, in the House, and then ultimately with the courts of whether something is unfinished business or not. They would look at whether bills similar to or exactly like were discussed during the regular session.
Hendren [00:38:22] Thank you.
Dismang [00:38:25] Senator Elliott, you’re recognized for a question.
Elliott [00:38:28] Thank you, Mr. Chair. This is for Senator Hickey. Sen. Hickey, in the event that we do add other issues to the agenda, would the anticipation be that we would go through the regular procedure of notice to the public and, or allow for these hurry up, let’s meet twice today and so forth kind of process? Because I know that for anybody sitting out there listening and for me, too, I’d like to know if we add something, what does that mean for the length of time we are going to be here?
Hickey [00:39:06] I do have a motion in my pocket that’s going to come up after we after we go back in to ask you all to, as we normally would, to suspend the, suspend the rules so that we can hear those items on the same day. So I do have that motion in my pocket. Because I mean it, you know, everybody here, you know, we hope, we’re hopeful, you know, that we’re going to get out of here in three days. You know, I called Senator Hammer the other day not joking and said, you know, at least from my standpoint, and if the majority of you want to do that, I want us to stay. I asked him that, to be prepared that he would even have a little service here at eight o’clock Sunday morning if we still needed to be here so that we could go straight into business. So from, from my standpoint, it’s getting late, it’s getting late in the process. No fault of this General Assembly, it’s just the way that the census data come and we need to, need to get through it. So yes, ma’am, I would say that it would be one of those things that we would just be hearing them and, and rolling if that’s what the majority of this body wants to do.
Elliott [00:40:14] All right. Thank you.
Hickey [00:40:15] Yes, ma’am.
Dismang [00:40:16] All right, Senator Pitsch, and then I’m going to go to Tucker, then Clark.
Pitsch [00:40:21] This is probably for Mrs. Garrity. It goes to process. We’re sitting here at this time and we’ve seen a spectrum of bills. But at some level, I think I heard you and I know I heard Senator Hickey say that this will probably be adjudicated. It’s going to that branch of government. Is there any way to get a ruling, almost an attorney general or someone’s opinion, that we are or we are not going in violation of what the citizens of Arkansas have allowed us to do, which is meet? Because the reality of it is we’re getting ready to do things and we’ve already kind of been notified this is going to be a bad legal situation and there’s no way to get an opinion or anything along that line?
Garrity [00:41:08] I don’t– I can’t speak for the Attorney General’s Office, but they may offer an opinion on the validity of legislation, but the courts would not– I do not give opinions in advance on a legal issue that might be before them.
Pitsch [00:41:23] I mean, we do things all the time that get in a court of law. I get that. We got several bills that are there from this current session now that we’re reconvened. I guess, I just, if we don’t want to waste taxpayer money on a lawsuit in the time we’re down here, if in fact we have a very good constitution that says we can’t be doing this, this and this. And I’d like an opinion, I guess, from you or whoever where we’re headed.
Garrity [00:41:52] I’m sorry, I didn’t understand your question– hear your question.
Pitsch [00:41:55] Well, I guess–
Dismang [00:41:56] I think if I’m hearing things right, you’re asking her to provide a legal opinion and they do not provide–
Pitsch [00:42:01] Yeah, maybe not even a legal opinion. I mean, I think I heard your opinion. We’re going to a court of law.
Garrity [00:42:09] I think there are– there’s a case and, you know, it talks– it sets out certain parameters for having an extended session. I think that, you know, any person can argue any side, and if there’s legislation that you know someone doesn’t like, there is an avenue for a lawsuit. Again, I don’t know what the outcome would be. But it’s not necessarily clear cut on what the answer is.
Dismang [00:42:38] OK, thank you. All right. Up next is Tucker, Clark, Hammer, Ballinger, Rapert, Irvin.
Tucker [00:42:48] Thank you. Thank you, Mr. Chair. This question is for Mrs. Garrity. Before we came in this morning, I was personally analyzing this from the standpoint of whether the bills that have been filed that I’ve seen are germane to the language in the resolution. But what I’m– think I’m hearing from you and what I’m learning this morning is there’s a really a separate analysis from that as well, which is whether the items constitute unfinished business from the regular session. Am I understanding that correctly?
Garrity [00:43:14] Yeah, the courts really looked at the unfinished business component of the extended sessions, and I know that when we worked with the leadership on drafting this language, we wanted to make it as tight as possible. I do have a memo from a previous director who also talks kind of about the uncertainty of having the extended session and the validity of it, and documented several points of, you know, if there is an extended session, these are kind of the, the, the issues that should be considered only.
Tucker [00:43:47] Okay. And so not to throw a hypothetical at you, but if the resolution had said the General Assembly can take up whatever it wants, that would be a problem from the constitutional perspective that the court outlined in that case you cited. Is that fair?
Garrity [00:44:00] I think there would be some significant concerns with that just based on the Wells case that the General Assembly can’t meet at any time for any reason.
Tucker [00:44:09] Thank you.
Dismang [00:44:12] Senator Hammer, you’re recognized for a question.
Hammer [00:44:16] Thank you, Mr. Chair. The question is going to be on the content of the resolution. Acceptable? Ok. Listening to, listening to the discussion that is focused around the intent was to come back in to take up matters related to redistricting, why would the resolution then include the line that says consider legislation related to the COVID 19 public health emergency and distribution of COVID 19 relief funds? I’m trying to understand the connection between why that would have even been included because there is no federal funding that would be associated with the redistricting maps. So why, why would that not create the opportunity to take up bills germane using that statement?
Garrity [00:45:03] Are you asking if the redistricting needs to be tied into the rescue plan funds?
Hammer [00:45:09] Well, I think the conversation I hear is this is all about the reason why we’re back here is redistricting. But the way the resolution is written, it leaves open the door to take up matters that would deal with the COVID 19 funding. I’m trying to make the connection between if the intent is to be down here for redistricting, why was it even written into the resolution that we would even take up anything related to those funding? I’m trying to connect those dots.
Garrity [00:45:38] Senator Hammer, if you look at Page two, beginning on Page two, going– starting on lines 25 through the next Page three, line three. That’s where it talks about the COVID public health emergency and specifically on line 35, the whereas language where it talks about the United States Treasury is tasked with promulgating rules under the American Rescue Plan Act and that that’s going to provide the states guidance on how the funds are distributed under these acts, and those regulations are not expected to be available until after the General Assembly recesses on April 30th, 2021. So that would be the unfinished business with regards to those rescue plan funds.
Hammer [00:46:20] Follow up, Mr. Chair. Then, on the basis that we have created the opportunity for the door to remain open because of the uncertainty of what would happen, why would that preclude any bills that could be tied in to the resolution from being heard? And how would that affect us in court?
Garrity [00:46:44] I don’t know. I don’t think I’m saying that.
Hammer [00:46:49] We have it written into the resolution that we anticipated the possibility that we would have to take up matters related to the COVID funding. So why would that not allow us to deal with legislation that would be directly tied to that funding as, as made possible by this resolution?
Hickey [00:47:18] May, may I?
Hammer [00:47:21] Yes, to either one. Thank you.
Hickey [00:47:23] Yes, yes, Sen. Hammer. And I believe, of course, the redistricting is an item by itself. And this was the second one. And this is, this was in my statement whenever I first started that the intent was is that we were going to take those funds, and whenever you look at this resolution in its entirety, what Mrs. Garrity is doing is she is, she’s going back and saying that the American Rescue Plan, that that was the item that was, that we were looking to get the funds from, but that we were waiting on Page two on line 35 and 36 that the Treasury was the one that was tasked with that. And as I said in my statement, that was the part where I was saying that it was unfinished business as far as us just getting that money itself. Because from my standpoint at that time, they had said we were going to get the money, the states were going to get that money, but they had not provided that guidance. And that, that guidance was to be provided by the Treasury. And the Treasury, of course, was out there making that statement, that they didn’t have what, what was going to be required for us to get them. So that, that is why that, that is in there because it was relating to just getting the funds themselves.
Hammer [00:48:39] Is there any bearing that the state of emergency in Arkansas has expired because the letter did not get turned into ALC in time? So is there, what, is there any relevancy to that as it pertains to this resolution?
Hickey [00:48:55] From my standpoint, no. I heard about that two days ago was the first time that I had heard about it. Whether or not there was some intent with that, I think there is a possibility that there could be. But that’s not, it’s not anything that I’m involved in or anything else. So, you know, I’m not gonna sit down here and say that that, that that thought process hasn’t occurred out there with everything that’s taking place.
Hammer [00:49:19] All right. Thank you.
Hickey [00:49:20] Thank you, sir.
Dismang [00:49:21] All right, Senator Clark, you’re recognized for a question.
Clark [00:49:23] Thank you, Mr. Chair. This question is for both of you and the– you know, no matter– I know myself, we have carefully crafted legislation several times, got into committee and other places, and it has been pointed out that our language did things that we didn’t intend for it to do. And also one person’s intent is not necessarily another person’s intent. And I would point out to both of you Act 746 of 2013, open carry, which was referred to as travel. But there were a number of us, including me, who knew exactly what the bill did. And then there was a number of people who did not know what the bill did, including the governor and the state police who would have opposed it and not signed it. But what it came down to was the language of the bill. What the language actually did was no criminal intent, which we knew was in there. They missed. And so when I voted on the bill, I voted on the language, not on Senator Hickey’s intent. That was my intent. So does that not– will that not come down when it’s– when it comes down to a court case is the Legislature’s intent, not just Senator Hickey’s intent.
Hickey [00:50:53] Just, just one thing that I would say as far as the legislation that you’re talking about, and you’re right, somebody on the intent part, I think the way that you have to look at this and differentiate between it is that what you’re talking about, of course, is just, just a bill. And I know, you know, you’re going to say this is a resolution. But I think you have to take this in the context that this was what was actually allowing, allowing for the extended recess itself. So this, this went further and that was the intent of what we were doing. And again, we tried to craft that within whenever you look at the entire document,
Clark [00:51:32] But, but I’m saying, Mr. Pro Tem, that my intent and your intent may have been two different things.
Hickey [00:51:37] Yes, sir. Fair enough. Thank you, sir.
Dismang [00:51:39] [00:51:39]And if I can just get clarification– I know, Sen. Garner, you keep raising your hand, but I got about four or five people in front of you. And so I’ll, I’ll get to you in just a sec.
Garner [00:51:48] [00:51:48]Yes, sir, you just never acknowledged me. Acknowledge everybody else. Just want to make sure.
[00:51:51] OK. All right. So, Director Garrity, if I’m understanding his question, intent and that sort of thing, you know, there’s a summary of what the intent is. But inside the resolution itself, it goes into greater detail about that intent, where it specifically talks about needing to implement rules or whatever related to ARPA or, you know, that type of thing. Is that– I mean, I think, and I don’t want to put words in your mouth, but I think what you’re saying is that’s where we spelled out intent for what that summary is that most of us, that’s the only thing that we read if we’re going to be real honest with ourselves.
Clark [00:52:26] I think Senator Clark is right. The courts will look at the document itself primarily to look at the intent of the Legislature. You know, testimony here, you know, testimony in committees will be used by the attorneys on both sides to argue one way or the other.
Dismang [00:52:44] Senator Ballinger, you’re recognized for a question.
Ballinger [00:52:48] Thank you, Mr. Chair. And actually, that answered the first part of my question. The second part of my question is courts typically, when it comes to legislative matters, will give broad deference to the Legislature in determining such things. So. So if we’re trying to determine what the intent was of that, that resolution, they’re– you know, they’ll look at this, they’ll look at how the way we act and they will typically give us deference because of us being a separate, co-equal branch of government. Is that correct?
Garrity [00:53:19] I can’t answer that definitively. I mean, they do give deference, but they’ll look at the document itself.
Ballinger [00:53:25] OK, thank you.
Dismang [00:53:26] All right. And then Senator Rapert, you’re recognized for a question?
Rapert [00:53:30] [00:53:30]Yes. Marty, I recall when we had the discussions about whether we can have an extended special session or not in the first place there was, there was a meeting called and I know that leadership was all in the meeting. Some of us were in the meeting as well. And I don’t recall that there was a problem at that point because, if I’m not mistaken, didn’t you all lay out the reasoning why we could even do the extended special session? Is that correct?
Garrity [00:53:59] Yes. So what we talked about was, again, a limited time having– making sure that, you know, and I think the language of the resolution talks about, you know, as soon as practicable, you know, after the census data comes in. So an extended session maybe in March of next year tying it to specific reasons. And we looked at Wells. That’s– I mean, we really took from Wells the language in the resolution. So the unfinished business of redistricting, the COVID funds, the public emergency all tied in together and then the normal language that we have in there, which are the vetoes and the correction of errors.
Rapert [00:54:40] And, and also, do you recall when the, when the resolution was put together then we even put this together and voted on it in the first place, I don’t recall any objections to the resolution that is before us that’s brought us back today. Do you recall any objections being made at that time?
Garrity [00:54:59] Sir, I don’t know that I was watching, so I can’t speak to that. I think Senator–
Rapert [00:55:03] But as far as the different aspects of it– Sen. Hickey, you’re welcome–
Hickey [00:55:08] No, sir. No, sir. From my standpoint, of course, I was presenting it the way that I presented it here today as far as the intent. So I don’t believe, and again, we’ve got that on film so we can, we can check back to make 100 percent sure. But I remember nobody even having a question on it.
Rapert [00:55:27] That’s right. And so where we find ourselves at today, since there was no objection, there was no argument at the time that the decision was made to put forth the resolution which allowed us to even come back at this point, I’m puzzled a little bit about all the consternation on handling business that’s clearly described in the resolution when there wasn’t an objection made to it in the first place.
Hickey [00:55:55] Well, in my opinion, you would have to look at the session as a whole because as Mrs. Garrity said, you know– or maybe she didn’t say it, but we were in session. So I believe that everybody, although I heard what Senator Clark said about his intent, I believe that the majority of the people took this at face value of what it actually was, that it was for redistricting and that we were going to come back for the American rescue funds. We all know that some of these other items that are out there, there was legislation that was already in place that was being ran and trying to be passed, you know, throughout the session. So that business, I think, was actually already in those other bills. So I don’t– I think that’s why there wasn’t, you know, any objection to this.
Rapert [00:56:46] Well, I guess I would say just to make– it’s a good point to say it, I guess that–
Dismang [00:56:51] Now, let’s wait if we’re gonna make a point. Questions, great. Points, not right now. We’re trying to avoid that part of the, part of the deal. So that if you’re going to lead it into a question, it’s fine. But let’s just– there’s going to be plenty of time to come up, I think, and have a discussion about your intent in that sort of thing.
Rapert [00:57:08] Well, can I finish my thought and end with a question, Mr. Chair?
Dismang [00:57:13] Well, I think you said it was a good time to make a point. So that’s the reason I responded.
Rapert [00:57:18] Well, maybe I misstated that. Sorry about that. In terms of of the resolution, again, the clear language of the resolution, if there is a bill that clearly speaks to an aspect that’s listed in the resolution, why would that not be germane?
Hickey [00:57:35] From, from my standpoint, again, it was drafted just the way that I think I keep saying is that it was specifically for acquiring those $1.6 billion or however much it was in those rescue funds that we didn’t know if there was going to be statutes or other types of appropriations. As I stated, we did do one appropriation, you know, to try to get there. It’s not enough to, not enough to cover it all, so we’re going to have to deal with that at some point. So I think that’s– I think what I’m saying is, is I have no doubts that, that that is the way, what everybody should have been intending for this whenever they were reading it. And as you said, there wasn’t any objection. So I believe that’s the way it is. Thank you.
Dismang [00:58:24] Alright. Thank you. And members, just real quick when we’re in here, I mean, it’s being recorded, let’s not use first names because I think that’s going to get confusing. Let’s use titles. I think it shows a little bit more respect. I know there’s not a big deal to you. But, but I think it, you know, for what we’re doing here, I think we need to utilize titles. Next up, Senator Irvin, you’re recognized.
Irvin [00:58:43] Thank you. Director Garrity, so it’s your testimony that HCR 1015, this was drafted based on the Wells vs. Riviere case?
Garrity [00:58:56] Yes.
Irvin [00:58:57] That language was drafted based on that case. In that case, it states that– there’s, there’s a line that states, “there is no doubt that the General Assembly sees its duty in these modern times as requiring to be available at all times to handle the business of the state. But that belief cannot be realized by circumvention of the Arkansas 1874 Constitution.” And so they found that it would be unconstitutional and violate the Arkansas Constitution to take up matters that were not germane or pertinent to what was in an extended session as unfinished business. Is that correct?
Garrity [00:59:38] In the Wells v. Riviere, I don’t think there was a resolution that set out what they could meet on when they came back in. I think it was– from what I understand, it was just an open ended, we’re extending until December of 2021 or whatever. So based on the Wells v Riviere case, you know, they wanted again a definite period of time and for definite reason. Otherwise, you start looking at violating the Constitution and usurping the governor’s authority to call special sessions.
Irvin [01:00:10] So I’m looking at the language of this, which is defined as the funding, which is also part of this, that you can go back in for appropriation, but that you can’t just open up an open ended book to determine or to consider anything you want to consider. It has to be tied to certain things. And some of those, and those things are clearly outlined in this case.
Garrity [01:00:35] So you all know the bureau, we’re always going to err on the side of caution. You know, we’re not going to go out there and say something unless we’re certain. We knew with the redistricting that there was, you know, that was a valid reason. The funding, again, the ARPA funds and the COVID public emergency. If there, for example, is a bill that’s outside of what’s stated in the resolution, I would have– I think there would be a legal argument for challenging that legislation.
Irvin [01:01:03] OK. And then last question, if I may, when you wrote in this proclamation, “considering vetoes, correcting errors and oversights,” that’s because that is also part of what this court case said was authorized. Is that correct?
Garrity [01:01:21] The court case didn’t say it’s authorized, but again, it could be unfinished business. So the General Assembly recesses, the governor may take– may veto a bill. The general sense– that would be unfinished business, allowing the General Assembly to come back in and override the veto. If there’s an error correction that the Clerk or the Secretary of the Senate realizes after y’all have gone home, that would allow the General Assembly to come back in and correct that error as unfinished business.
Irvin [01:01:50] So those those are the clear– there are clear criteria and clear definitions of what consists of unfinished business.
Garrity [01:02:00] I don’t know that there’s clear criteria, but the reasoning has to be there for, for that declaration.
Irvin [01:02:08] Thank you.
Dismang [01:02:10] All right, thank you, Senator Garner, you’re up.
Garner [01:02:13] Thank you, I have a question for Director Garrity, then Senator Hickey. Director Garrity, in the case that we’re citing, what was the final decision? What was the breakdown of it?
Garrity [01:02:22] The decision was that the two resolutions–
Garner [01:02:25] Yes, ma’am. I’m talking about what was the final judge? Was it a four to three decision?
Garner [01:02:29] It was a four to three decision.
Garner [01:02:30] And can you summarize the dissent’s opinion on both them cases?
Garrity [01:02:34] Pardon me?
Garner [01:02:35] Can you summarize the dissent’s opinions in that case?
Garrity [01:02:41] I–
Garner [01:02:46] Well, let me let me put this way. In both dissents, does it not say, in essence, that the legislator is a separate and co-equal branch of government that has powers that are separate from the judicial branch and that we act within that power within our constitution, that it is it even the preview of the court itself to interject in whether we have a session or not or the constitutionality of those decisions we make as a separate, co-equal branch of government? Is that a good summary of what both those dissents said?
Garner [01:03:15] Senator, I’d have to reread it again. I, I didn’t delve that far into it.
Garner [01:03:19] Okay, thank you, ma’am. Senator Hickey, if I may.
Hickey [01:03:23] Yes, sir.
Garner [01:03:24] Sen. Hickey, I think that was extremely close decision in 1980 that you’re relying on. I think that we have a brand new court now, and I think I agree with the dissent and it’s the right time to have this discussion. The court in the dissent basically said that we are a separate and co-equal branch of government and that the legislator– that the judicial system itself cannot make a determination on if we are in session or not. We alone have that power and we should exercise it as needed. So you, as a leader of one of the two branches of the General Assembly, shouldn’t we exercise that power as a separate and co-equal branch of government and determine what we have business done before us instead of being shackled by a potential court case that could come? And if we do act in that capacity, similar to how the executive branch has taken multiple steps during a pandemic to stretch its power as far as possible, similar to how the judicial branch has change, multiple procedural issues were laid out in the Constitution? Shouldn’t we, as a legislative branch, flex and use that power entrusted to us in that constitution by the people of Arkansas to pass pertinent legislation that is important dealing with the COVID 19 pandemic?
Hickey [01:04:34] Well, I think everybody here knows that I ran for this office and you all put me here based upon that I wanted the Legislature to reacquire what I thought some of its power had, had went by the wayside. And so also in my opening statement, I said that one of the reasons that myself and the speaker in the item number one is that we wanted to maintain that independence on that, on the congressional redistricting. So I’d have to say yes, partly to what you say, but I’d also have to say this, the truth is what I’ve stated. The truth is, is whenever this resolution was written and the way it’s written, whenever you take it in its entirety with the whereas’es the American rescue funds, what has been said over and over again, that was the intent of it. Now I understand if somebody wants to try to manipulate the words of it or twist and turn it. But, you know, me as a man with, you know, the character of what I meant, that’s what I’ve said here today. So I think that also has to be taken into account, although that, that dialog there about the constituents of the state of Arkansas and all that, I mean, that may sound real shiny. And I apologize, I’m not real shiny. But one thing I do is I do have character, and that was what the resolution which has my name on it was meant to be.
Garner [01:06:08] May I respond very briefly? I’m not questioning your character, Senator Hickey. I’m questioning the black letter written resolution that specifically says COVID 19 emergency. If we’re going to be a legislative branch that write laws, we should be bound by what it says, not by intent, not these other factors. I think a clear reading of that allows us to hear other resolutions and bills. Thank you, sir.
Hickey [01:06:30] I disagree. I think the reading’s the other way. Thank you, sir.
Dismang [01:06:35] All right. Again, members, let’s try to keep it out of comments and keep it on questions. I thought that’s where we were going, Sen. Garner, is a simple question. Senator Mark Johnson, you’re recognized.
M Johnson [01:06:46] Thank you, Mr. Chairman. I’m, I’m not quite sure exactly where to place this question. I’m going to start with Director Garrity. It may be a question for Mr. Cook. We’re here at this moment and correct me if I’m wrong, Mr. Chairman, to discuss process and how we get through this. And as I see process, we could be here till midnight tonight second guessing what some judge is going to say. I mean, I won’t go into all the what ifs, but I think everybody understands that. But the regular order would be that a bill introduced is deemed to be germane until such time that the chairman of committee or chairman or the presiding officer of the Senate rules that it’s not germane. And at that point in time, someone could, any member could appeal the ruling of the chair. At that time, and again, I think I got my number’s right, Mr. Cook, 18 votes would decide whether the chair’s ruling was upheld or overturned. Now I, I think– I respect Senator Hickey. I know when he said this is what I meant by this, that’s what he meant by that. Not a question in my mind. And as Senator Clark pointed out, words mean things, and once they’re printed and codified, then, you know, my thoughts and your thoughts don’t matter. It’s all a matter of what’s in the law. But procedurally, would it not be regular order that we would proceed and under a, I guess, a rebuttable presumption that any legislation brought forth is germane. The– if it was clearly way outside the bounds of this resolution, then the presiding officer would make a proper ruling that whether again, whether it’s in the committee or on the floor, that the legislation is just not germane to the call. If it were clear, I think the body would rule ok, you know, Presiding Officer, Mr. Chairman, Lieutenant Governor, your ruling is correct and we agree with that. But ultimately, the arbiter under our current rules is the Senate body, the full body. Now, am I missing something or is there some changes to that that maybe we need to discuss? Again, I’ll start with you, Marty, and I’ll let Steve, and, and if Sen. Hickey needs to weigh in, too. I just, to me, that seems to keep us back on process.
Garrity [01:09:40] I’ve got to defer to either Steve or Senator Hickey on the process within the Senate and your, your rules here.
Cook [01:09:55] Sen. Johnson, what you said is correct. The process is we’re going– we’ve got a stack of bills here to read with numbers and when they’re read the first and second time, the presiding officer whosever in the chair is going to assign it to a committee. It’s going to be presumed germane to the call. Now any member, when that bill is referred, can make a motion to the chair, presiding officer, that that bill is not germane to HCR 1015. And the presiding officer is going to issue a ruling that it is germane or is not germane. If he rules that it is germane, then you or anybody else on this floor can be recognized for a motion to appeal the ruling of the chair. The body will debate that motion and at the end, call the vote. And if 18 people out here decide that it, that the chair– the ruling of the chair is correct, then it is germane. And that’s the bottom line. And then we proceed to hear the bill. And it’s sent over to the House, and they may have a different feeling about that issue. But, but the Senate has, has decided that bill is germane to the call like any other bill. So you are correct in your process.
M Johnson [01:11:26] Well, and if I could follow up, Mr. Chairman. My only question beyond that is what we do and what happens after that point and under presumption that the House followed suit with us and said, yes, it is germane, whether it’s with the speaker’s ruling or by an appeal of his, his ruling that was overturned, that the House and Senate passed the bill. The governor signs it or he doesn’t sign it, but it becomes law. Then we’re done. Then the courts can come in and do the things that have been discussed previously here. And we may lose, we may win, but we’ll never be here again, not trying to quote a song. But is that correct?
Cook [01:12:08] I think that’s exactly right. If what we do here is not valid in the eyes of an Arkansas taxpayer, he has the right to file a lawsuit to invalidate the action of the General Assembly and the court will decide– the court will ultimately decide, as they did in Wells v. Riviere in 1980, that what was done in ’79 was was beyond what the Legislature could do.
M Johnson [01:12:39] [01:12:39]But regardless, I assume we would then see some clarity to the limits or expansion of the legislative power.
Cook [01:12:49] That’s correct.
M Johnson [01:12:50] Thank you, sir. Thank you, Mr. Chairman.
Dismang [01:12:52] Senator Ingram, you’re recognized for a question.
Ingram [01:12:58] That question, Senator Flowers, had a question, but that question had been previously asked and answered. Thank you.
Dismang [01:13:04] All right, thank you. We’re going to circle back. Senator Clark, you’re recognized for a question. If you don’t mind, Sen. Clark, Sen. Sturch hasn’t been recognized yet. I’m going to go through folks and I didn’t see you. I’m sorry. Senator Sturch, you’re recognized.
Sturch [01:13:16] Thank you, Mr. Chair. This question will be for Director Garrity. Director Garrity, I want to make sure that I heard you correctly when you were going over the history of the Wells case. You said that the Legislature of 1979, when they did reconvene, they had three constitutional amendments that they were considering. One was the property tax one that was previously introduced. Two more came up. Was those two more then struck down as not being valid? Or during that reconvening, whatever bills or whatever things were introduced, were they considered valid or not valid?
Garrity [01:13:47] They considered those constitutional amendments that were newly introduced during that extended session invalid.
Sturch [01:13:54] OK, so anything new then that came up out of that reconvening, was there any bills they were introduced or just those constitutional amendments?
Garrity [01:14:01] I believe– I need to look real quick. I know that the only item that they upheld was the constitutional amendment that was introduced during the regular session, the original regular session, if that answers your question.
Sturch [01:14:26] Yes, ma’am, it does. Thank you, Mr. Chair.
Dismang [01:14:27] All right. Thank you. Senator Chesterfield.
Chesterfield [01:14:32] Thank you, Mr. Chair. And this is for either Senator Hickey or director Garrity. I just want to refresh my own memories. It says, “Whereas the United States Treasury secretary is tasked with promulgating rules under the American Rescue Plan of 2021 that will provide states with guidance on how the funds distributed under the Act may be spent, and those regulations are not expected to be available until after the General Assembly recesses on April 30, 2021.” Are those rules ready now?
Garrity [01:15:07] Yes, they’ve submitted their, their rules.
Chesterfield [01:15:10] And Senator Hickey, were those rules that you wished for this body to consider?
Hickey [01:15:17] No, ma’am.
Chesterfield [01:15:18] I mean to promulgate our rules based, predicated on those ones.
Hickey [01:15:22] What, what I was wanting to make sure of is that, that those guidelines that are now in place, that there was not some statute that we needed to pass so that we could acquire the funds because we didn’t know what they were going to say at that time. As we know now, we are acquiring those funds. DFA is requesting those through the steering committee and Peer, so those funds are coming in so that, that has been satisfied from my standpoint.
Chesterfield [01:15:48] So it is now non germane to the call as far as you are concerned.
Hickey [01:15:51] In my opinion, yes, ma’am.
Chesterfield [01:15:52] Thank you.
Dismang [01:15:54] All right. And then I’ve got Senator Clark and Senator Ballinger. Does anybody have a question that hasn’t had a chance to ask a question? Alright, with that, Senator Clark, you’re recognized for a question.
Clark [01:16:03] Thank you, Mr. Chair. Senator Hickey, I don’t think it will surprise anybody that you meant exactly what you said about the intent of the resolution. I don’t think it will surprise anybody that at the time that I fully intended when I voted to come back and handle anything that had to do with COVID that we needed to take care of. That being said, I just want this on the record. I do understand having been a member of this body as long as I have that if we objected to everything said from the well that we didn’t completely agree with, we would never get out of here. Even things that’s spoken in behalf of our own bills, correct? So somebody saying something and us not objecting to it doesn’t mean that we necessarily agree with it?
Hickey [01:16:58] Is that a question, sir?
Clark [01:16:59] That’s a question.
Hickey [01:17:01] I’d have to say you’re, you’re correct.
Dismang [01:17:07] All right, Senator Ballinger, you’re recognized for a question.
Ballinger [01:17:11] My question has been answered, thank you.
Dismang [01:17:13] Senator Hendren, you’re recognized for a question.
Hendren [01:17:16] Yeah, thank you, Mr. Chairman. And I guess this is– I don’t know whether it’s Senator Hickey or Director Garrity, but I guess what I want, would like to know is we’ve spent a lot of time talking about the intent of the resolution versus the black and white words of the resolution. But at the end of the day, we can’t pass a resolution that is contrary to the Constitution, correct?
Hickey [01:17:41] I know that we shouldn’t.
Hendren [01:17:44] We shouldn’t? Okay, I would, I would agree. Because we’ve proven we can, we can do it. So whether or not your intent was for the way that was worded with the “and rescue funds” to include anything related to COVID is not as important as whether or not the Constitution gives the General Assembly the right to go into extended recess and consider something that it thinks it may want to address at a later date for whatever reason. Because again, this isn’t, the COVID issue is not like the redistricting issue. We could not do redistricting. No way. No how. Because we had no data. COVID, we spent three months addressing. So certainly they followed the different categories, and the important thing is whether or not it is unfinished business under the way the Constitution and the courts have interpreted it more than what we heard from you or what we read in the resolution. Would you agree?
Hickey [01:18:41] I would. And what you said, the key, in my opinion and I think from our legal, legal staff, the unfinished business is the key to this. So it’s, you know, if, if it’s something again that we were required to do or we’re supposed to do and couldn’t take it up, that’s going to be key.
Dismang [01:19:00] All right. Thank you. Do we have any other questions? All right. Seeing none, I think at this point, we’re going to move to a discussion phase, is what I’m assuming. And so if you’ve, if you’ve got something you’d like to say on the matter, where we’re headed, as far as, you know, the legalities back and forth, whatever it may be, just make yourself available as well and then just come on down and then be available for questions, I guess, if you’ve got some points that members will have questions about. So if you’d like to make a statement or make some points. Kick things off, Senator Ballinger.
Ballinger [01:19:43] Thank you. I, I’ll keep this short. There’s no reason to drag this on, but essentially, if– I would be shocked if a court doesn’t start with the language of the resolution in determining what’s unfinished business. Because they don’t have to guess. They don’t have to look at discussion from the well. They don’t have to do that. They can look at what the resolution– we say we want to come back for unfinished business and this is our unfinished business. That’s what we say. And if you, if you look at it, you read it, you know, considering vetoes, correcting errors, oversights, completing its work on congressional districts, and then it says, considering legislation related to COVID 19 health emergency and distribution of COVID 19 relief funds, semi-colon, then considering the need for further da da da. So, you know, the truth is, you know, I think that there is no question that some of the bills– now, like we can, we can– there will be some discussion. Like, each bill, we have the ability to decide whether it’s germane or not. But some of the bills that we’re going to talk about outside of redistricting, it’s just black and white. It is germane. And so I just think that, you know, when we look at it, I think the real question is, is really it’s going to be about whether or not it fits into the resolution. The– what the– and that’s consistent with, with previous precedent. In fact, we’ve talked to the AG’s office. They say they’ll have no trouble defending some of the bills as consistent with the resolution as constitutional. So in the end, I really feel like, you know, the– I appreciate the discussion. We should all be well, well aware. This makes us better people for knowing, knowing more. But ultimately, it’s going to be a choice of whether or not this body believes this is germane or not. Thank you.
Dismang [01:21:24] Senator Hill. I think Sen. Hill’s got a question.
Hill [01:21:29] Will you take a question?
Dismang [01:21:29] You’re recognized, Sen. Hill
Hill [01:21:43] I’ve just got a question on what, what you just alluded to when you mentioned the one two three four five, five reasons why we’re back here. Looking at this with the statement that was made earlier by Senator, Senator Hickey, says “considering legislation related to the COVID 19 public health emergency.” Did that not expire 24,48 hours ago that we were discussing earlier?
Ballinger [01:22:07] No, we’re still in the federal emergency. So we’re still–.
Hill [01:22:10] It was the state that was expired, correct?
Ballinger [01:22:12] Yeah, last night they– last night the governor ended the, the, the local Arkansas state of emergency, but we’re still under a federal state of emergency.
Hill [01:22:20] But are we here with a state issue or a federal issue?
Ballinger [01:22:22] I mean, yes, both. But we’re passing state law, so.
Hill [01:22:25] Okay, thank you, sir.
[01:22:26] [01:22:26]But there is still a Covid health– there’s still a emergency, so.
Dismang [01:22:30] Sen. Garner, you’re recognized for a question if Senator Ballenger will have it.
Garner [01:22:33] Thank you. Senator Ballinger, should we base our legislative action on any kind of executive order or anything done by the governor as a separate, co-equal branch of government? Or should we tell the governor that he can stay in his lane over there and we’ll stay in ours?
Ballinger [01:22:45] Yeah, I mean, honestly, it, it really is pretty shocking to me how so often– we, we don’t like things to be messy, so we pull ourself and constrain ourself in rather than deal with things that our constituents are hollering us about. You know, from my standpoint, I don’t understand why we do that. Like as a legislate– like, one of our jobs as a legislative body is to try to protect the authority that we’re given, not because there’s not anything good about us. I mean, I like you guys, but frankly, it’s not about you. It’s not about me. It’s about the people we represent and them having a voice in the process. And the more we constrain ourselves, the less those people get a voice in the process. So I really think it’s– I mean, it, it seems counterproductive to, to try to interpret this stuff as narrow as possible to make us do as little as possible for the people we represent.
Dismang [01:23:30] All right, thank you. Senator Hendren, you’re recognized for a question.
Hendren [01:23:34] Thank you, Mr. Chairman. So, Senator Ballenger, you’re relying on the resolution. We haven’t talked about the constitutional requirement. You continue to come back to the resolution. As I said earlier, I think the ultimate test is we can’t write a resolution that’s contrary to how the courts have interpreted the Constitution. Do you agree?
Ballinger [01:23:51] That is– and that’s why the resolution–
Hendren [01:23:53] I mean, as Sen. Hickey said, we can write it and we can even pass it, but it’s not constitutional.
Ballinger [01:23:56] And, and, and, and you may be a superior legal mind than, than the BLR and Marty and the, the Attorney General’s Office and, and all the other people who said we’ve drafted this resolution consistent with, with Arkansas case law, Arkansas Constitution. I’m going to, I’m going to rely on this resolution and all the other individuals who said it is consistent with it as being consistent with it and not interpret it as narrows to stop us from doing work.
Hendren [01:24:22] So, yeah, I certainly don’t claim to be superior in any legal mind to very many people at all. But let me just ask this, would you agree, though, that we can– for instance, could we put in this resolution that “or to continue to address tax relief based on economic indicators that may dictate such relief is warranted?”
Ballinger [01:24:43] If we would have put that in the resolution– talking about in April when we voted on it?
Hendren [01:24:49] Right, if we had put that in the resolution, would you be OK with us coming down here and having tax cut bills?
Ballinger [01:24:53] Yes. Yeah, if we had put it in the resolution.
Hendren [01:24:55] So in other words, you’re saying that the General Assembly has the authority to do exactly what the court said they don’t have the authority to do in 1982, to write a resolution that says they can come back for any reason, basically that they put in the resolution.
Ballinger [01:25:07] Correct. So, so what I would not have advised the, the BLR to do, even though I don’t know that this court would, would hold that same precedent is to, is to draft just an open resolution saying we’ll come back whenever. I, I, I think that like the smart move, which BLR did is they put time constraints and they put limitations on what we can hear when we come back. And so if we would have put tax cuts on the, on the, the– we could have come back in and dealt with tax cuts, whatever we decided was unfinished business. I think tax cuts would have been a great thing now in hindsight, great thing to put on because there was a lot of information we didn’t have. We knew we wanted to cut taxes. We should have put it on there. I think that would have been good. It would have been upheld as constitutional. We didn’t put it on there. So, you know, we’ll, we’ll be relying upon the governor’s call. But from my standpoint, it’s pretty easy to, to look at the plain– the court is going to say, what was unfinished business? Oh, they told us what unfinished business was and is it consistent with that. And that’s all– that’s as far as their consideration will go.
Hendren [01:26:05] So again, to be clear, your position is that any time this Legislature decides to adjourn, rather than what we’ve done for 200 years and sine die for a week and come back and address vetoes and errors and omissions, we can write a resolution that says we can come back anytime we want for anything we want?
Ballinger [01:26:19] No. The supreme– well, let me say this. Maybe. You know, it depends on what this current court would do, but I wouldn’t recommend doing that because we have precedent set in 1980. So we can’t. What we’d have to do is say specifically, we’ll come back at some given time and with some given, given thing that we’re going to handle because this is what we’re saying is unfinished business. And that would be, I mean, it would be really hard for me to see how a court, how state court would interpret that as, as outside of our purview as a separate, co-equal branch of government.
Hendren [01:26:50] But it’s completely contrary to the notion of a biennial session for 60 days extended up to 90 days that’s been written in our constitution and practiced for 200 years.
Ballinger [01:26:59] No. I mean, no, it’s not. Not if it’s done this way, it’s not. And that’s why BLR did it this way. That’s why Attorney General’s Office says they’ll have no trouble–
Dismang [01:27:07] Senator Clark, you’re recognized for a question.
Clark [01:27:11] Yes. I, I want to be sure that this is not confused. Senator Hendren’s first question was about this being unconstitutional because of the court decision in 1980 and specifically address tax cuts because they did tax cuts and that was addressed as being unconstitutional. But they did not address that in their resolution, correct?
Ballinger [01:27:34] Yeah, they didn’t. And actually, I– if I’m remembering right in that case, the tax cuts that– or the tax– I don’t know if it’s cuts, but the, the tax provision, constitutional provision was actually the one that was upheld. I don’t know about the other two. I think, if I’m remembering right. But, but yeah, so they didn’t have anything– to your point, they didn’t have anything specific in the resolution saying what their unfinished business was.
Clark [01:27:56] So what the court– the court, if I remember right, and I haven’t studied it that well, is they ruled that part of what they did was constitutional because they had addressed doing that. And that part of what they did was not constitutional because they had not addressed doing that is unfinished business.
Ballinger [01:28:12] Yeah, I, I think the– I think the wisdom of providing to the courts, Hey, this is what’s unfinished business is, I think, I think it was a– such a good idea because it makes it where, where the court doesn’t have to start digging into the– that was a good move by BLR.
Clark [01:28:24] So it appears that what’s in the resolution follows that court decision extremely well.
Ballinger [01:28:29] I, I– that’s what I would say.
Clark [01:28:30] Thank you.
Dismang [01:28:31] All right. Thank you. And members, I didn’t get the chance to do this. But from the chair, if it’s OK, I’d like to– I have a question for Director Garrity back on the resolution. I think it pertains a lot to what Senator Ballinger was alluding to. But so, Director Garrity, if you don’t mind, my question is and so when we pass a law, you know, lots of times there’s contingencies. So it’s, you know, A and B have to both be accomplished, or B, you know, factors before you can get to C. And so the way that I read the line related to– if you just pretend like the remaining part of the resolution doesn’t exist, the way that I read it is the first has to be related to the COVID public health emergency and it has to be related to the distribution of COVID 19 funds. So both of those factors have to be prevalent or exist before it would be considered germane to the extension. Is that a fair way to read that or have I misinterpreted that?
Garrity [01:29:32] So our convention of bill drafting is “and” means “and.” It means both. It doesn’t mean “or.” And we had discussions, and I just asked Senator Hickey if I could talk a little bit about this because there was also a discussion of whether the proclamation to reconvene into this extended session could be limited only to redistricting and not take up all of the other issues. So being consistent, you know, the “and” in the purposes to bring back everybody for the extended session included the word “and.” So it had to be all of those things. I didn’t feel, and it was my opinion at the time, for what it’s worth, that the pro tem could only call you back in to take up redistricting because “and” meant all of those things. So taking that same reasoning and applying it to the language in that provision of “for COVID related purposes and the COVID funding.” Again, it’s both of those things. It’s not one or the other. That’s the general interpretation. And then the bill drafting mechanism that we use when we use the word “and,” it means both and not “or.” Again, it will be up for consideration by the court to determine. At the end of the day, they’ll be the ones to decide, though.
Dismang [01:30:56] All right. Thank you. Senator Ballinger, I think you had a question. You’re good? All right. Do we have any other questions related to that? Senator Elliott, you’re recognized.
Elliott [01:31:06] Thank you. Mrs. Garrity, when I look at E, for example, “considering the need for further extension,” we go on and we get to “or.” We have two issues in this construction, just like we do with the one with “and.” So with the style that we use in the bureau, and also just grammatically, one of these things has to happen in E. One of these things may happen. We don’t– we’re not going to do both those things in E because there are clear choices here. We’re going to consider the need for extension or we’re going to adjourn. That meets with what you’re saying. We have a choice here. But when we go back to D, where we use “and,” we don’t get a choice. We have to do both. Both those things have to be met. Am I– is that making sense?
Garrity [01:32:04] That’s how– again, our rules of drafting would be that “and” means both, not an “or.” And again, and being consistent with, you know, the reason that Senator Hickey could call you back into this extended recess, whether he could limit it to just taking up vetoes or just redistricting, the “and” kind of was an inference that means all of those things.
Elliott [01:32:28] And further, if I were to say to the two of you standing there, I need to see you and Senator Hickey in my office right now. We don’t got a choice about that. I’m not saying I want to see one of you. So under D, I want to see you and I want to see Senator Hickey. We’re going to have to do both those things. When I get to E, I don’t need both of you. I need to see either you or Senator Hickey is the meaning of that sentence that I think provides some clarity for something that seems like a technicality. But in reality, it is not a technicality. It is, as somebody said before, means what it says as a black letter that’s on the page here. Am I– is that correct?
Garrity [01:33:20] I think the courts look at the words, you know. That’s our drafting rules. At the end of the day, as I said, the court’s going to have to decide what that “and” means.
Elliott [01:33:29] Well, I would– well, that’s fine. But I was just thinking in the world of meaning where you put stuff on paper “and” and “or” do not mean the same thing. And we have a clear delineation of that, I think, right here in D and E. That’s it. Thank you, Mr. Chair.
Dismang [01:33:46] All right, Sen Rapert, then Senator Stubblefield. Sen. Rapert first.
Rapert [01:33:55] There we go. Mr. Chairman, thank you. And, and I’m sorry earlier, director Garrity– we become friends around here and I said Marty. I apologize for that.
Garner [01:34:05]Thank you, Senator. Thank you.
Rapert [01:34:05] That’s a good thing about Arkansas, we are trying to be friends. My question is, especially related to the discussion here, because we are trying to find process here and what is allowable and what’s not allowable based upon the construction and the visit that we’ve just had about Item D and having to take up two things. If a member were to propose a bill that actually dealt with the, the COVID vaccine mandate and also distributing $1,000 each to all first responders and law enforcement officers out of relief funds, that sounds to me like it would be germane. Is that not correct?
Garrity [01:34:42] I think a good argument could be made that that’s germane. As–.
Rapert [01:34:45] Thank you.
Garrity [01:34:47] Can I add one more?
Rapert [01:34:48] Yes.
Garrity [01:34:48] Looking at unfinished business also, so that the original purpose wasn’t something taken up during the regular session.
Rapert [01:34:54] [01:34:54]Right. And I, I guess in the form of of a question, I would say, is it not fair to say that there’s a good number of members up here that we when dealt with the idea of handling mandates and preventing those mandates during the session, that it would be easy to assume or to conclude that many of us would feel that that is unfinished because it had not been fully concluded to our own satisfaction.
Garrity [01:35:24] Senator, I can’t answer that question.
Rapert [01:35:26] I know it’s hypothetical. Thank you.
Dismang [01:35:29] Alright, Sen. Stubblefield, you’re recognized for a question.
Stubblefield [01:35:31] Thank you, Mr. Chairman. Marty, let me make sure I understand this correctly. Are you, are you saying that the loss of tens of thousands of jobs by individuals whose either medical or religious exemptions are not being accepted at a time when we have one of the largest labor shortages in the state because of COVID– are you saying that all those are not germane to the considering legislation related to COVID 19 public health?
Garrity [01:36:04] Senator, I’m not saying that at all. What I’m saying is that I don’t have an opinion on the specific legislation and whether it applies to the resolution. That’s going to be a decision at the end of the day by this body and ultimately by the courts.
Dismang [01:36:16] Yeah, I think just members, so we understand– at least, this is my perspective. We can disagree. But I mean, we’ve got a stack of bills here in front of us. And what we’re trying to do right now is have a conversation about what is– you know, so we all understand the background and the basis and everything else for determining our own opinion when these bills come up, whether or not they meet– they’re going to be germane or they’re part of this resolution or whatever. That’s all we’re doing at this point. And BLR will not take a position on policy, which is ultimately what that’s going to be. So we’re trying to give you the background on the facts of where we are, what this resolution says, what the history says related to court cases. And then it’s going to be up to each one of us to make that determination with a vote on whether or not we believe that’s germane to the extension of the session. She cannot give an opinion on if this is germane. I think Senator Hammer had a question.
Hammer [01:37:17] Thank you, Mr. Chair. I just needed clarity on something I think was said a minute ago. Is unfinished business part of the resolution? Is, is unfinished business part of the resolution, part of the resolution?
Garrity [01:37:33] It’s part of the Wells case and it’s referenced in the resolution.
Hammer [01:37:39] All right. I think I heard you say yes. Is that–
Garrity [01:37:41] Yeah, it’s part of the Wells case. So and then it’s referenced in the resolution with regards to the redistricting and the Covid funds in terms of why the Legislature couldn’t take up those items by the time you recessed.
Hammer [01:37:55] OK. And when it comes to the definition of unfinished business, does that include bills that were filed but were not heard because we adjourned prior to them going through the committee process? Would that meet the definition of unfinished business? Or Senator Hickey– whoever wants to answer.
Garrity [01:38:15] Senator, I don’t know the answer to that. You know, would the courts determine whether, you know, the General Assembly had the opportunity to take it up and it didn’t and let it die? Or would they say, you know, there was a reason why they couldn’t take up that bill? So I don’t know the answer to it, but that would be probably the court’s examination of the issue.
Hammer [01:38:41] All right. Thank you.
Dismang [01:38:46] All right, members, do we have anybody else? Any of the questions? I don’t, I don’t see any. Senator Hickey, did you have anything that you want to respond to?
Hickey [01:38:54] Just, just one thing, members. I hope you take this for what it is. Everybody in this room needed to know all aspects of this because this is not a regular session. You know, we all know that we’re coming back from the regular session. It’s still the 93rd, but it is the extended recess. It’s not a special session. The rules are different within that. There is a court case and we just have to take that– we have to take that all into consideration as we, as we make these votes. And it’s something that I felt that this membership as a whole had to have the whole story with where we’re at to be able to do that. And I hope that you feel like that’s been done today. Thank you.
Dismang [01:39:36] All right. Thank you, members. With that, we’ve got– yeah. Okay. All right. And if you’re on the glass, you cannot lean on the glass, just because it’s glass. So just to– staff just pointed that out. So just, just for your own well-being. And so with that, members, I think– Senator Hickey, are we going to conclude the committee of the whole? We’re finished with the committee of the whole, is that right? No other comments? Does anybody else want to come down? All right, I move that Senate rise, report progress, and I’ll turn things back over to the lieutenant governor.
Griffin [01:40:40] Madam Secretary, any items at the desk?
Cornwell [01:40:45] Senate Resolution 30 by Senator Garner to condemn President Joe Biden’s poor execution of the United States withdrawal from Afghanistan. Senate resolution 30.
Griffin [01:40:55] State agencies. OK. You may be recognized. One, one second, senator. The Senator is recognized.
Hickey [01:42:03] Yes, I have an objection to this. And just to let the body know, any bills other than congressional redistricting, I would like to make the motion that I’ll be objecting to those.
Griffin [01:42:14] So you’re, you’re asking for an opinion of the chair as to what specifically?
Hickey [01:42:20] Sir? What was your question again, sir?
Griffin [01:42:23] So you’re not asking opinion of the chair as to germaneness, you’re objecting because it’s not in the–
Hickey [01:42:30] I’m, I’m objecting to the germaneness of it because it’s not in the original resolution that we would, that we would hear that type of resolution.
Griffin [01:42:38] Okay. You’re seeking a ruling from the chair as to germaneness.
Hickey [01:42:42] Yes, sir.
Griffin [01:42:43] The resolution is not mentioned in– resolutions are not mentioned in the resolution. And the resolution before us, which I think is Number SR 30 is not germane. Senator Johnson.
M Johnson [01:43:06] Would that ruling, if you are to remain consistent, also prohibit any congratulatory resolutions, memorial resolutions or such that would be considered during this extended session or–.
Griffin [01:43:24] There’s not an objection before the, the presiding officer at this time. So. We’ll–.
M Johnson [01:43:31] It would be a case by case basis?
Griffin [01:43:32] We’ll take a look at that when we get there. We may even, may even take a little break if we need to really take a look at it.
M Johnson [01:43:41] OK, but I guess my question really is–
Griffin [01:43:44] I don’t anticipate an objection or, or– but I don’t know hypothetically. I think I know which one you’re talking about here.
M Johnson [01:43:53] Well, I’ll only– my only question is that while something may not be able to be considered, is a question of being introduced. For example, I have a simple resolution congratulating a Paralympian in my district. Would that– which would normally, normally, Mr. President, go to the calendar–.
Griffin [01:44:14] Senator–
M Johnson [01:44:14] Would that be something that would– I mean, I’m not going to waste my time–.
Griffin [01:44:17] Well, the senator asked for– as to resolutions generally, and I gave an opinion. Now 18 of y’all can overrule what I say, or you can get down here and talk about the people you love and not make a resolution. There’s a lot of options available to you. But resolutions– I’m– yeah, I love Justice Scalia, so I read the text and words have meaning and resolutions aren’t mentioned in there.
M Johnson [01:44:45] Thank you, Mr. President.
Griffin [01:44:49] Senator Clark.
Clark [01:44:50] Ask a question of Mr. Cook?
Griffin [01:44:56] Sure.
Clark [01:44:58] I don’t even know what’s in this [unintelligible], but how do resolutions as a part of our business, if they’re not law, how, how do they– are– how are they affected by germaneness?
Griffin [01:45:16] Let me say this, Steve, before you speak. My ruling is internal to this body. OK, so what I’m supposed to do is figure out the rules of this body and you’ve got to lay those against, in some cases, the law and the Constitution, right? And we may have that opportunity a little later today. In this particular case, there are some rules that govern what this body does, and I was asked for an opinion as to those rules. That’s the opinion I gave. So some of the things that I may speak on as to germaneness are only limited to the body’s rules, and some of them may, we may have to reach out and look at other things such as the Riviere case or statutory law or whatever to get a good sense. I mean, I ultimately could do what I want, and you all can do what you want. You can override me with 18 people, whether you’re right or wrong. So does that answer your question?
Clark [01:46:16] Well, no. My question is for Mr. Cook. But–
Griffin [01:46:18] Ok, well–.
Clark [01:46:19] I understand, Mr. Chair.
Griffin [01:46:20] That’s his answer. But go ahead, Steve.
Clark [01:46:22] I’m caught cold this morning. I don’t know whether you are or not. And our discussion on germaneness of the bills, I understand. Our discussion on germaneness of resolutions, I’m not sure I understand. And so I would like to have an understanding of that.
Cook [01:46:42] Resolutions filed– like in a special session, we have we have the governor’s call, 10 items. Historically, if the Senate wants to file a resolution on any matter, we have always allowed the introduction of that resolution because it’s not, it’s not challengeable. It’s the sense of the Senate at this moment in time. A court doesn’t look at it. It’s not appealable. So therefore, the Senate has always taken the posture, we’re going to allow a resolution. But usually they’re, they’re non-contro. The House, historically, has not allowed. I’m just– in my years here, we have always allowed senators, even if it’s not on the call of the governor, to allow a resolution to be filed. And that’s what it is. Again, it’s not challengeable by a taxpayer. It’s not challengeable. It’s not on appeal of the court. It’s just a sense of the Senate at this moment in time.
Griffin [01:47:49] And let me, let me add– let me add one thing to my ruling as a caveat. The resolutions that I were considering when he made that are the three I’ve got before me. I can think of a resolution that may come in one of the– if, for example, if there was a resolution on redistricting, you may get a different answer. But that’s not what I have.
Clark [01:48:14] If, if I, if I may clarify.
Griffin [01:48:20] Senator.
Clark [01:48:22] If I may clarify, Mr. Chair.
Griffin [01:48:24] Senator.
Clark [01:48:25] But the, the answer was resolutions have always been allowed.
Cook [01:48:29] Yes, historically the [unintelligible]. And again, like a special session, we’ve allowed resolutions over here. The House does not. I don’t know if they still do that much, but that’s their posture.
Clark [01:48:43] OK, and let me be clear, Mr. Chair, I don’t know the resolutions are or whether I like them or not. I just wanted an answer to that question. Thank you.
Griffin [01:48:49] Well, I’m also not commenting on what I like or what I don’t like. Senator.
M Johnson [01:48:54] Motion, Mr. President.
Griffin [01:48:55] Senator’s got a motion.
M Johnson [01:48:58] Mr. President, I move that the Senate accept introduction of any Senate resolution during the remaining part of the extended session, however, not extend that same privilege to joint resolutions or concurrent resolutions.
Griffin [01:49:19] You’ve heard, you’ve heard the motion. Debatable. Requires a majority vote.
[01:49:24] Could you restate the motion please?
Griffin [01:49:27] The Senator has moved that we accept resolutions during this session, notwithstanding the fact– correct me if I’m wrong– notwithstanding the fact that it’s not mentioned in the resolution from the spring except for joint resolutions.
M Johnson [01:49:47] Senate resolutions only.
Griffin [01:49:48] So basically honorary resolutions and the type of thing that I just ruled not germane, he’s saying, let’s make an exception and a majority vote will do that. Anyone, anyone else? Senator Clark.
Clark [01:50:03] So what resolutions does that leave out, Senator Johnson?
M Johnson [01:50:06] If it is a Senate resolution only, Senator Clark. Not a joint resolution or a concurrent resolution that requires any action by the other body or the governor. It is, as Mr Cook described, a sense of the Senate only.
Clark [01:50:21] Thank you.
Griffin [01:50:24] All those in favor say aye. Opposed. The ayes have it. Resolution– the motion’s carried. Ok. Any items at the desk? Sen. Dismang.
Dismang [01:50:41] So it’s a question on process. Going back to some of the comments by Senator Johnson earlier, these items are going to be read across the desk and then at some point we’re going to decide– what, at what point do you make the objection? Because my concern is none of us have read the bills. There’s a stack of I don’t know how many there and the question that we’re going to have as each one of these come across is, are they germane to the call? Now some of us may not care. Some of us may just say, Hey, we’re going to let the court challenge it all day long. But some are going to say there’s not much point in passing legislation that the court’s not even going to allow in whatever. So my question is. Like, at what point is that objection made?
Cook [01:51:22] [unintelligible] the motion to delay consideration of referring the bill to committee for an hour.
Dismang [01:51:29] OK, well, so what I would like to do is make a motion to have any of the bills read across the dash that are related to redistricting. And then we would recess and reconsider those others at a later date at the call the pro tem or whatever it needs to be. But at this point, I mean, if I could just make a motion to limit that any of the items right across the desk are going to be strictly limited to those related to redistricting. I mean, I would like the chance to read these bills that I have not seen at all before I’m able to say, these are germane or they’re not germane. And I’m happy to take a discussion on that.
Griffin [01:52:10] So is that, is that your motion? This is a debatable motion if I understand your motion. We’re going to have you re– we’re going to have you reiterate it here in a second. Let me ask Sen. Irvin– recognize Sen. Irvin.
Irvin [01:52:23] Question. Sometimes this body is not present when items are read across the desk. Is that the purpose of your–
Dismang [01:52:30] That’s the purpose of this, yes.
Griffin [01:52:31] Okay. Anybody else have a question? OK? OK, Senator Garner, you have a question. Or do you want to make a comment?
Garner [01:52:41] Yes, sir. Typically, bills are read across the desk all the time in a regular session, and they are filed with the proper committee. There’s no discussion on the merits of the bill until you get to that committee making process. So why would there be any objection on the germaneness of these bills when essentially file them has no legal recourse or matters outside of them just being within our body for a future debate?
Dismang [01:53:04] Well, I, I think I’d pointed that out just a second ago. Because the point at which you object to it being germane to the resolution is when it’s being read across the desk if I’m understanding things right. So if it’s read across the desk and assigned to a committee and none of us are in this room, then there is at no point that anyone could object.
Griffin [01:53:24] Senator, just to clarify, you can object then, but, but you can object subsequently as well. It’s not like a magic time where if you don’t get your objection in, you’re out of luck, right? You got a– you’ve got, you’ve got leeway. If you weren’t here and were here later, you could do it. So let’s just be clear about that.
Dismang [01:53:46] But if the bill leaves– this is my question, then. But if the bill leaves this chamber and is assigned to a committee, then the control of that bill is with the chair and the member of that committee, not this full body. And so the time and proper place for us to object to the germaneness of a bill is as it’s being read across the desk. Because if not, it’ll be up to the eight members of that committee only. And so what I’m asking and again, just to restate, I’ve not seen 90 percent of these bills and none of you in this room have. And we just spent an hour and a half debating and discussing what does it mean to be able to be placed on the agenda? You know, what’s germane was not germane? What does it say specifically? And we’re supposed to apply that then as we determine whether or not they’re germane and object or don’t object. I just need time personally to read to understand that. I don’t want to pass a bunch of bills that have no chance in the world of going anywhere because they’re not germane to what we’re supposed to be doing to conclude our business. That’s, that’s the reason for the–
Griffin [01:54:49] Very clear– also though, when it comes back from committee, the third reading. Senator Ballinger wishes to be recognized to speak against the motion.
Ballinger [01:55:06] The truth is, we had bills read across the desk. Most of us don’t read a bill until it comes before our committee or is coming to the floor. That’s the way regular order happens. In this case, we’ve got a lot more of attention to it. My guess is they’re about ready to be read across the desk and assigned to committees just like that resolution just was, just like we had that discussion. We’ll have the opportunity to do that upon each bill, but we haven’t– you haven’t read all the congressional maps either. Right? We won’t until we actually get an opportunity to, to have those ran and we’ll review them. That’s the way regular order happens. I, I think that it is wrong to try to put new procedural areas, things in the place, you know, try to pass resolutions to make it harder for us to go out and, and get business done. If you don’t like the bill, object to it and we’ll have a vote on that objection. But otherwise, like, let’s deal with the bills as they come.
Griffin [01:56:03] Sen. Hickey wishes to be recognized.
Ballinger [01:56:09] Oh, well, as I– I don’t– did you have a question, Senator Rapert?
Rapert [01:56:14] I have a question. I was waiting for it to just come out, but Mr. Chair, my question is, at what point is there going to be a reading of these bills across in the future? I don’t know of any other time in the session, frankly, where any of us have had more attention than right now. I’m just, so I just wondered. But I do wonder if that is a motion that is it going to be made, then please advise us when you planning to do it so we can all be here again.
Griffin [01:56:46] Well, he’s right there.
Ballinger [01:56:48] Yeah, I think that– I think Sen. Rapert makes, makes a point– is that, you know, this is the thing is if we’re going to get out of here in three days, then we need to start having, dealing with business today. You put this off, I, I mean, I can’t say anything, but it’s an attempt to kill everything else besides the redistricting bills. That’s just the truth of the matter. And that’s what we’re voting on right now.
Griffin [01:57:08] Senator Hickey. Please keep quiet in the gallery. Sen. Hickey.
Hickey [01:57:14] And this is exactly why we just spent the last two hours doing this. If what was just stated was correct, if it was a regular session, and that’s the way that we would normally do it, and there wasn’t a court case, a precedent out there that might have an effect on this body, then that’s the way that we would proceed. I think I was very specific in saying that we may not be in unchartered waters, but we’re definitely in, in unfamiliar waters. I said that at the very start, and that is what I’m saying. We’re all sitting here saying what we normally do, what we normally do, what we normally do. This isn’t normal and I want to make sure that we get it right. And to get it right, we’re going to have to consider each one of these bills that it was never the intent that that would be, that these bills would get filed. We are going to have to look at them as this body as they come across to make sure that they don’t get sent to the committee and then that committee waste their time hearing those things. Then they come to the floor and I make an objection or somebody else does, and then it’s declared not germane. There’s no sense of it. We have a lot of work to do with these, these maps and these– this congressional redistricting. So that’s the way– that’s the reason it needs to be done like that. Thank you.
Griffin [01:58:33] Sen. Irvin, you have a question? Then Sen. Clark wants to speak against.
Irvin [01:58:39] I have a question of Mr. Cook. I mean, the desk, and for the matter of the public, the desk can be open until seven o’clock, eight o’clock at night. And there’s no real senators in here when bills are read across the desk and assigned into committee. Is that correct? So I mean–.
Cook [01:58:58] That’s– historically, we–
Irvin [01:58:58] That’s historically what we do.
Cook [01:59:00] Especially in special sessions like this, we try to expedite and sometimes do have to read bills late at night. Yes. The answer’s yes.
Irvin [01:59:12] Right. Yes. And so I mean, but the purpose of what we’re trying to do here is make sure that the public has adequate time and notice, and sometimes that precludes them from actually having that public time and notice. So we have rules in place that prevents any quick action to be taken by this body so that the public has adequate time and notice for that. So again, you know, I just wanted to ask that question because we have to be able to understand the context of what we’re dealing with with the resolution, the extended recess. Thank you.
Griffin [01:59:56] Sen. Clsrk is recognized to speak against the motion. And before you speak against the motion, per the senators in the back and some other folks I’ve heard, would you restate your motion, please, for the record? Thank you, Sen. Dismang.
Dismang [02:00:24] I mean, I understand the concern that we’re not going to circle back to these. We all know that that’s not going to be the case. You’re going to read them across the desk. I think what I would like to see is that we have a predetermined time that those are going to be read across the desk so that all of us can be here and participate in that process. And if we need to make objections, we can also be knowledgeable about the bill. And so nine o’clock tomorrow, would that be fine? So as part of the motion– so my motion would be that we limit the bills being read across the desk to those that are just related to redistricting, congressional redistricting, today. And tomorrow at nine o’clock, we will consider, or the remaining bills will be read across the desk tomorrow at nine o’clock. That way, again– that’s the motion.
Griffin [02:01:11] OK, that is the motion. In the middle of the discussion. So we’re going to go to you to speak, Sen. Clark, but I want to make sure Sen. Beckham gets his question answered.
Beckham [02:01:24] As part of that motion, no more bills can be filed. Is that correct?
Dismang [02:01:28] No.
Beckham [02:01:29] No. We can still file bills?
Dismang [02:01:31] Yes. Bills can be filed, but we have a stack of bills that– we make fun of people on the DC level all the time for not reading bills, right? Raise your hand if you’ve read all these bills coming across the desk today.
Beckham [02:01:46] If we file a bill tomorrow morning and it’s read across the desk–
Dismang [02:01:50] If you file it this afternoon, it’s going to be a batch of bills to be read across the desk.
Griffin [02:01:57] So your question is, what if at 10 o’clock tomorrow you want a bill filed?
Beckham [02:02:02] Yes.
Griffin [02:02:03] OK.
Dismang [02:02:05] Then I think we need to discuss that at that point. I think as long as we have enough lead time to have reviewed and understand what’s in the bill, then that’s fine. I don’t care when they’re read across the desk after that. But today there are a number of bills that are just now being filed that we were fixing to read across the desk in a matter of minutes. OK? That none of us have read that we’re all being asked to– we just spent an hour or whatever, you know, making sure we understand how to read them to know if they’re germane or not to the extension of the session. That, that’s the point of what we’re trying to do.
Griffin [02:02:39] I’ve got a couple of quick questions for Senator Dismang if he’ll take them. Senator Mark Johnson.
M Johnson [02:02:44] Thank you, Mr. President. Senator Dismang, is the purpose of your motion to allow state agencies committee to move forward with their work right away.
Dismang [02:02:52] Yes, I would like to– state agencies needs to move forward. We need to hear those bills. We need to get them read across the desk, assigned to committee, let that debate begin. In the meantime, the rest of us that are not on state agencies can be reviewing the number of other bills that have been filed. That way we know what we’re talking about. That way we know what we’re looking at. And if I’m being honest, you know, my motion is directly related to some of the questions you had about process earlier.
M Johnson [02:03:16] I think it’s– thank you.
Griffin [02:03:17] Senator Ballinger has a question. Everybody else, please be quiet.
Ballinger [02:03:22] I, I understand. Like I totally want transparency and for people to, to, to see that. And I think that may be the correct recourse if that’s what we’re wanting is not to vote for the motion that’s going to come that allows us to basically waive the regular order of the time that, you know, maybe, maybe we need a plan on being here a little bit longer. But, but my, my argument is you’ve not read any of the bills that, unless they’ve been filed, you know, prior to us coming into session and congressional redistricting is just as important I think as a lot of other things that may be taken up. And so if what we’re talking about is having time to review or the public to see or whatever, then the correct recourse is not to set aside some bills or whatever as a collective. The correct recourse would be don’t vote for the motion in order to, to expedite things and allow time for the public to see this.
Dismang [02:04:13] That’s apples and oranges, at least in my opinion, because the redistricting bills are clearly germane to the extension of the session. There are a number of other bills, and hence the reason we didn’t debate and talk about understanding, you know, the resolution earlier because of redistricting bills. We did it because of the number of other items that have been filed. And so, I mean, to me, it’s apples and oranges. I understand that if you file a bill to draw a map that it’s about drawing a map and it’s going to go to state agencies and it’s germane to the call. And so that’s the difference to me personally. And again to back up to why, you know, the why is because the point at which Senator Johnson had pointed out earlier that you object to the germaneness of a bill is as they’re being read across the desk. That was fixing to take place, that was about to take place. And when– and I haven’t read the other bills and granted, I haven’t read all the redistricting bills either. But again, I’m not concerned about them not being germane. And so I would like time to be able to take the information that we just learned, and we’re all going to apply it differently and that’s all fine, and make sure that I understand how to apply it to the bills that I haven’t seen.
Griffin [02:05:29] Senator Clark.
Clark [02:05:34] Thank you, Mr. Chair. I very much appreciate Sen. Dismang and Sen. Hickey’s objections and their points. Having said that, there are several flaws in that process. Let me start with, you know, my dad’s an English teacher and I have pretty good reading comprehension. In fact, compared to most people, really good, except when it comes to technical manuals and legislative bills. And I have found that until it goes through the committee process and a lot of times until I ask somebody on the floor a specific question about a bill, I don’t know what the bill said. And so the idea that I’m going to read all these bills and know for sure the germaneness of every bill by nine o’clock in the morning is very flawed. Let me go further because y’all know how plain I am. The fact that a number of you that I’m looking at are going to read these bills before 9:00 in the morning is a lie. That ain’t happening. So we’re talking about a way of mass rejecting bills that you’re not even going to read. And so that comes back to the committee process, which may be a little more messy, but it works. And that’s a way of finding out whether bills are germane or not, because we’ve talked about a number of things. Is it, you know– that discussion– were they– were they stuck in committee? Is that going to be a way of– is that going to be a way of determining? Or they– is it something that’s specifically in this resolution? Is that going to be a way of determining? And so just this that that everybody’s going to read them, which is not going to happen, and then we’re going to have a vote as each bill comes through, I don’t really want to, you know– I, I think the vast majority of these bills are not going to be germane. And so going through that part, I appreciate. I very much do, Sen. Dismang and Sen. Hickey, having to go through the committee process. But I also don’t want to shortchange the way things ought to happen. We’re here to do the work. And I think we ought to do the work, and I don’t see a way to not do it and do it correctly. Thank you. I’ll be happy to take any questions.
Griffin [02:08:07] For? Against? Okay. Senator Rapert. Against or for?
Rapert [02:08:17] Against the motion. I actually– not going to plow the same ground that’s already been plowed, but I think there’s only four other members that’s been down long– I think there’s only four other members down here who’s been been here longer than I have. I’ve never seen a motion to stop a bill from being read across the desk and put it into the process like this. And I don’t think we need to start that process now. I think we need to get on with the business of the state. We’re down here to represent the interests of the people. Let these bills be assigned as they should be and then fight them if you want to. But I’ve just never seen that done. And I would appreciate a vote against the motion.
Griffin [02:08:57] Senator Hickey has a question.
Hickey [02:09:02] Thank you. Thank you, Senator Rapert. Have you ever been here during a extended recess?
Rapert [02:09:07] No extended recess, but many special sessions, many of them that ended at midnight.
Griffin [02:09:14] Senator Hendren.
Hendren [02:09:16] Thank you, Mr. Chairman. And kind of along that same line, I’ve been through a few special sessions, too. Have you ever seen a deluge of bills like this that were not on the call, specifically on the call in a special session?
Rapert [02:09:29] Well, there’s many attempts when people file bills seeking to have bills added that are not specifically on the call.
Hendren [02:09:36] Have you ever seen it added and passed, a bill that was not on the call?
Rapert [02:09:40] I’d have to go back and look at that. We’ve had a lot of special session since I’ve been down here since 2010. But I’m just saying, senators, and I get it, people have opposition to even taking up some of the bills. They don’t even want to vote on them. I understand that. But I just have never seen that this, this– a motion be made for the process to stop the reading. And I can assuredly tell you that there has never been a motion made since I’ve been here in 2010 that said you could not read a bill across the desk and get it so that the public can have an opportunity to see that. And again, fight it out as we may, but what we’re about to do is we’re creating such a clog in the system, we may never get out of here. I want us to do the business of the people and go home. So vote or don’t vote.
Griffin [02:10:30] All those– let me restate–
Dismang [02:10:32] Yeah, I mean, I’d like to close on that. Number one, this is not a regular session. We need to stop saying we’re in a regular session. We’re on an extended part of a regular session due to a resolution that we passed that requires us to find whether or not bills are germane to that particular resolution. That’s my opinion. I’m not trying to slow anything down. This isn’t about debating the merits of a particular bill. There are plenty of bills I’m sure that are going to be filed that are not germane to the resolution. Those are two separate things. I mean, when Senator Ballinger presents his bill, and if it’s germane to the call, at that point, I can’t make an objection that it’s not germane. Now, there are others that I can and maybe should, mainly because why would we send a bunch of stuff to the judicial branch just for them to say it wasn’t germane? And so that’s the reason as far as the opportunity, Sen. Clark. I can’t help it. There are plenty of people that don’t engage in this chamber. You are absolutely right. I try not to be one of them. And I want to be engaged, but I can’t be engaged if I can’t read the bills. And to your point, Sen. Rapert, these are all online right now, within the last few minutes. That does not prevent the public from being able to see them when they’re not read across the desk. All it does is allow us to do our job that we just spent an hour and a half or whatever it was talking about. But I can’t do my job if I can’t read the bills. That’s the reason for the motion. So let’s get out of the weeds, and we’re not trying to slow things up or whatever it may be. But I’ve got a responsibility before we– Sen. Hester has filed a bill that’s related to taxation. Nowhere in the resolution does it say anything about taxes. It’s not a bad bill, but it’s not germane. I need to be able to see the bills. I’m asking for the time to be able to do that. I hope that we all take the opportunity, Sen. Clark, to do our job. And I’m sorry if some choose not to. It will not be me. With that, I’d appreciate a good vote.
Griffin [02:12:40] The motion is to allow the bills on this desk to proceed now if they’re related to redistricting. If they’re not related to redistricting, tomorrow at 0900. Roger? All those in favor say aye. Opposed. That’s a close one. Can I see five hands? Let’s do it again. My ruling is it was a close one. All those in favor say aye. Opposed. Ayes have it. Five votes? Please, we got enough noise down here, and I’m hard of hearing. OK, we got five hands. Please call the roll.
Cornwell [02:13:33] Ballinger, no. Beckham, no. Bledsoe, yes. Caldwell, Caldwell. Chesterfield, yes. Clark, no. Davis, no. Dismang, yes. Eads. Elliott, yes. English, yes. Flippo, no. Flowers, Flowers. Garner, no. Gilmore, no. Hammer, no. Hendren, yes. Hester, no. Hickey, yes. Hill, yes. Ingram, yes. Irvin, yes. Blake Johnson, no. Mark Johnson, no. Leding, yes. Pitsch, yes. Rapert, no. Rice, no. Sample, yes. Stubblefield, no. Sturch, yes. Sullivan, no. Teague, Teague, aye. Tucker, aye. Wallace, no.
Griffin [02:14:56] Anyone wish to vote or change their vote? Oh, those. 16 yeas, 16 nays, I get the tie breaking vote. Not on a– We’re going to remove you if you keep talking. You talk, you’re getting out of here. We don’t have tie breaking votes on motions. Motion didn’t carry. Madam Secretary, continue. Yep, the resolutions are exempted. Yep.
Cornwell [02:15:44] Senate Bill 719 by Sen. Ballinger to establish a right of privacy concerning COVID 19 vaccination status, to establish a grant program for distribution from COVID 19 relief funds and declare an emergency. Senate Bill 719.
Griffin [02:16:03] Public health.
Cornwell [02:16:05] Senate bill 720 by Senator Mark Johnson to amend the four congressional districts of Arkansas. Senate Bill 720.
Griffin [02:16:13] State agencies.
Cornwell [02:16:14] Senate bill 721 by Sen. Hester to amend Arkansas law regarding the four Congressional Districts. Senate bill 721.
Griffin [02:16:23] Let me say this. If I hear anything– if I hear anybody mention anything about elections or campaigns and stuff from up there, you’re going to be gone regardless, but you’re really going to be gone if you mention that. Please continue. State agencies.
Cornwell [02:16:40] Senate Bill 722 by Sen. Clark concerning the four congressional districts in Arkansas. Senate Bill 722.
Griffin [02:16:52] State agencies.
Cornwell [02:16:54] Senate Bill 723 by Sen. Clark concerning the establishment of the four congressional districts. Senate Bill 723.
Griffin [02:17:02] State Agencies.
Cornwell [02:17:04] Senate Bill 724 by Sen. Leding to amend Arkansas law concerning the establishment of the four congressional districts. Senate bill 724.
Griffin [02:17:13] State agencies.
Cornwell [02:17:15] Senate Bill 725 by Sen. Davis to establish the 2021 2030 congressional districts in Arkansas and declare an emergency. Senate bill 725.
Griffin [02:17:26] State agencies.
Cornwell [02:17:29] Senate Bill 726 by Sen. Davis to establish four congressional districts in Arkansas and declare an emergency. Senate bill 726.
Griffin [02:17:36] State agencies.
Cornwell [02:17:38] Senate Bill 727 by Sen. Clark concerning the federal decennial census and the boundaries of congressional districts. Senate Bill 727.
Griffin [02:17:45] State agencies.
Cornwell [02:17:48] Senate Bill 728 by Sen. Elliott Concerning the establishment of four congressional districts in Arkansas based upon the most recent census data. Senate Bill 728.
Griffin [02:17:58] State agencies.
Cornwell [02:17:59] Senate Bill 729 by Senator Mark Johnson an act to change the four congressional districts as a result of the most recent federal decennial census data and declare an emergency. Senate Bill 729.
Griffin [02:18:12] State agencies.
Cornwell [02:18:13] Senate Bill 730 by Senator Garner to amend the Division of Workforce Services Law to authorize unemployment benefits, benefits for an individual who is terminated solely due to the refusal to be vaccinated against COVID 19. Senate Bill 730.
Griffin [02:18:31] Public Health.
Cornwell [02:18:32] Senate Bill 731 by Senator Ballinger to establish a right of privacy concerning COVID 19 vaccination status to establish a grant program from COVID 19 Relief Funds or American Rescue Plan Act of 2021 funds and declare an emergency symbol. Senate Bill 731.
Griffin [02:18:56] Public Health
Cornwell [02:18:57] Senate Bill 732 by Senator Blake Johnson to prohibit coercion of persons to receive the vaccine or immunization for COVID 19 and declare an emergency. Senate Bill 732.
Griffin [02:19:11] Public Health.
Cornwell [02:19:13] Senate Bill 733 by Sen. Garner to modify the powers of quarantine, isolation and control of infectious, contagious and communicable diseases. Senate Bill 733.
Griffin [02:19:25] Public Health.
Cornwell [02:19:26] Senate Bill 734 by Senator Garner to treat natural immunity due to COVID 19 the same as a vaccine or immunization for COVID 19. Senate Bill 734.
Griffin [02:19:36] Public Health.
Cornwell [02:19:38] Senate Bill 735 by Sen. Garner to require the Department of Health to establish rules regarding the administration of therapeutic treatments for COVID 19 when a person tests positive for COVID 19. SB 735.
Griffin [02:19:52] Public health.
Cornwell [02:19:53] SB 736 by Sen. Ballinger to address mandates related to COVID 19, to provide exemptions for employees from mandates related to COVID 19 and declare an emergency. SB 736.
Griffin [02:20:08] Public Health.
Cornwell [02:20:10] SB 737 by Sen. Clark to prohibit private employers and public accommodations from discriminating based– discriminating based on a person’s vaccination status or possession of a vaccine passport and from mandating vaccines for COVID 19. SB 737.
Griffin [02:20:29] Public health.
Cornwell [02:20:30] SB 738 by Sen. Clark to prohibit private employers and public accommodations from discriminating based on a person’s vaccination status or possession of a vaccine passport, and for mandating vaccines for COVID 19. SB 738.
Griffin [02:20:48] Public Health.
Cornwell [02:20:48] SB 739 by Sen. Hammer to provide employee exemptions from federal mandates and employer mandates related to COVID 19, to authorize unemployment benefits and declare an emergency. SB 739.
Griffin [02:21:04] Public health.
Cornwell [02:21:05] SBl 740 by Sen. Clark to prohibit private employers and public accommodations from discriminating based on a, on a person’s vaccination status or possession of a vaccine passport, and from mandating vaccines for COVID 19 and declare an emergency. SB 740.
Griffin [02:21:28] Public Health.
Cornwell [02:21:29] You want me to read Senate resolution again?
Griffin [02:21:32] Two Senate resolutions and we’re done.
Cornwell [02:21:37] Senate Resolution 31 by Senator Ballinger to honor coach Tom Harrell as the longest tenured active high school football coach in the state of Arkansas. Senate Resolution 31.
Griffin [02:21:49] Calendar.
Cornwell [02:21:50] Senate Resolution 32 by Senator Mark Johnson to recognize Georgia Gaffney for earning two bronze medals in swimming at the Tokyo 2020 paraplegic Olympic Games. Senate Resolution 32.
Griffin [02:22:11] Calendar. Any announcements?
Hickey [02:22:27] Members, we, we do need to make a motion so that we can hear the redistricting bills because of the 24 hour rule that we have. I mentioned it a minute ago. So that’s Senate Rule 7I. I’m making a motion to suspend Senate Rule 7I, which says that no bill or resolution introduced and referred to a committee may be, may be considered by a committee until at least one intervening day occurs between the day of the referral and the day the committee meets to, to conduct business.
Griffin [02:22:55] Questions. Sen. Irvin.
Irvin [02:22:56] [unintelligible]
Hickey [02:22:59] It’ll be for all.
Griffin [02:23:02] All in favor say aye. Opposed. The ayes have it. The motion’s carried. I love the enthusiasm in that. Any other announcements? Sen. Rapert.
Rapert [02:23:15] It looks like that maybe at least some of our, some of our members are not on the floor, Mr. Chair, but definitely state agencies will attempt to meet at 1:30 p.m. I believe– let me, if the chair would allow, I would entertain a question from Senator Garner about the Code Revision Commission. I believe there may be a conflict with the time. So is there going to be a problem with the members that are on our committee from being able to come back?
Garner [02:23:44] I know it’s at the same time. I’ll be at the state agencies meeting, so I have no problem.
Rapert [02:23:48] So we will meet at 1:30 p.m.. Thank you.
Griffin [02:23:51] Anything else? Senator Hammer.
Hammer [02:23:57] Can we hear determination from the public health chair as to whether we’re meeting or not today? Thank you.
Griffin [02:24:16] Sen. Bledsoe. Senator Hickey, are we, we’re going to adjourn to 0900 tomorrow? 9 o’clock tomorrow. Sen. Bledsoe’s recognized. She’s got an important announcement. Senator Bledsoe.
Bledsoe [02:24:30] The public health committee will meet in 30 minutes.
Griffin [02:24:35] Did that answer your question?
M Johnson [02:24:36] Thank you.
Griffin [02:24:37] All good? Everybody? She’s right, right there. Can you tell them where? The Senate’s adjourned until 9 a.m. tomorrow.