When the legislature acts unconstitutionally, do citizens have recourse? | Arkansas Blog

When the legislature acts unconstitutionally, do citizens have recourse?

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BILLBOARD MAN: Sen. Bart Hester provided a huge tax break for billboard owners. It was improperly passed, but the state says  nobody can sue over it.
  • BILLBOARD MAN: Sen. Bart Hester provided a huge tax break for billboard owners. It was improperly passed, but the state says nobody can sue over it.
Emma Pettit of the Arkansas Democrat-Gazette wrote today about developments on the lawsuit over the improperly approved and unconstitutional law passed by the 2015 legislature at the behest of Sen. Bart Hester to give a huge tax break to the billboard industry.

Hester passed a law to prevent application of an assessment process in wide use around the country that assesses billboard property for taxation on the basis of value — just as your home is assessed. Instead, the law sets the tax based on cost of the board, with no regard to the fact that billboards at certain locations — along an interstate, say — rent for much more than a rural location. Some billboard land is, in other words, far more valuable. People on Chenal Valley Circle or Edgehill would like their property valued at cost rather than value, too.

Hester, who says he no longer has property with billboard interests that he once had, said he was simply working to prevent a tax increase for the billboard industry.  Two problems: 1) the Constitution requires equal treatment in taxation and requires use of market value (except for agricultural land) and 2) the Constitution also says changes in tax procedures require a three-fourths vote. The value argument aside, it's indisputable that Hester's bill didn't get the required number of votes in either House or Senate. It got the bare minimum of 18 in the Senate because there was a strong pushback to the bill precisely because it was so clearly a sop to a special interest to the detriment of, particularly, school districts.

The lawsuit initially named the Assessment Coordination Division as a defendant, but the director claimed sovereign immunity. The division was dropped and the plaintiffs worked out a consent agreement with the Pulaski County assessor, no doubt happy to see a rational and equal valuation method put in place for billboard property. The judge in the case had signed the order declaring the act unconstitutional when she discovered the attorney general had asked to be heard on the constitutionality question. So Judge Mary McGowan put the judgment aside and will hear further arguments from the state.

The state indicates it will challenge the standing of the plaintiffs to sue. They are residents in the Little Rock School District and argue taxes that support the schools are reduced by this unconstitutional law.



So the question: Can the legislature  — by argument of lack of standing or sovereign immunity — pass anything it wants, no matter how patently in violation of the Arkansas Constitution and deny citizens recourse in court?

The legislature would like that, of course, and typically operates in that fashion. It is moving on many fronts in that direction, such as with the amendment to limit awards and attorney fees in damage lawsuits. That amendment also strips the court of rule-making power, giving it to the legislature.

Attorney General Leslie Rutledge's decision to defend the indefensible is no surprise. She's been dodging the obvious question of illegal passage of this law since 2015.

I look forward to the legal opinion on the argument by Sylvester Smith, billboard lobbyist/lawyer, that he has a right to intervene in this lawsuit because his clients' taxes would go up.  Just remember: Those whose schools will be harmed do NOT have standing, the state in the person of the attorney general believes. The billboard is almost as mighty in Arkansas as the gun and burning coal.



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