Separation of powers eroding, governor warns

FAYETTEVILLE — The separation of powers is eroding in Arkansas, Gov. Asa Hutchinson warned Washington County Bar Association members on Monday.

A 2014 state constitutional amendment gives the Legislature approval power over executive department regulations.

“That process slows everything, and writing rules was a long process already,” the governor said during his remarks at a lunch meeting. He cited the amendment as one of several examples of blurring powers between the branches of government.

Administrative rules by any state agency cannot take effect until reviewed and approved by legislative committees under the provisions of the amendment.

“If a department wants to hire a consultant, it requires approval,” Hutchinson said.

“It makes it difficult to run the departments.”

Hutchinson declined to say if he supports Issue 1, which critics call a major breach in the separation of powers principle. The proposed amendment on the Nov. 6 general election ballot would give the Legislature authority to write court rules.

Hutchinson said the association opposes the amendment and wants to know his stance on it. As governor, Hutchinson may have to appoint special justices to the state Supreme Court who will decide the amendment’s fate. Therefore, it would be inappropriate for him to comment, he said. A lower court ruling that disqualified the amendment from the ballot is on appeal.

“I’ve appointed 12 special associate justices in the last 30 days” on various cases before the Supreme Court, Hutchinson said.

Hutchinson assured the association he will give his position on the amendment before the election.

Don Elliott, a Fayetteville lawyer and bar member, said he’s glad the governor will declare his position, and understands why he won’t now.

The governor also addressed the federal and state public corruption investigations into the Legislature. Those investigations have convicted five former lawmakers, two former lobbyists, a private college president, a health care executive and a consultant. Another former lawmaker, who is the governor’s nephew, and two health care executives face charges.

“There should be a debate over pensions,” Hutchinson said. “If an elected official abuses the privileges of his office and is convicted of a crime, we have got to look into taking away a pension.”

The state should increase the potential penalties such as fines imposed by the state Ethics Commission.

“The state Plant Board, which gives penalties if a farmer sprays too much insecticide on one of his fields, has greater fine authority than the Ethics Commission,” Hutchinson said. “The commission’s fine authority is minuscule.”

Zoe Naylor, association president, said her group along with the state bar opposes Issue 1. “Politics did not matter,” Naylor said. “Being a defense attorney or a litigant’s attorney did not matter. Nearly everyone was against it.”

Hutchinson