Deletion of ‘not’ in marriage-age law knotted up
Posted on Friday, August 17, 2007
A dispute over a law intended to set a minimum marriage age boils down to whether changing “not pregnant” to “pregnant” in the law is a “technical” correction.
The argument is expected to come to a head in today’s meeting of the Arkansas Legislative Council. It focuses on a clause intended to allow pregnant teenagers to marry if they have parental permission.
But the bill was drafted and passed with an extraneous “not,” lawmakers say.
It authorized women “not pregnant” to obtain parental consent to marry. That would remove from Arkansas law any minimum marriage age, allowing even infants to marry if their parents OK it.
“It is a technical error,” said Rep. Will Bond, the Jacksonville Democrat who sponsored the bill. “The intent was to establish a floor to marry at 18 years of age.”
Bond and co-sponsor Sen. Jim Luker, D-Wynne, wrote to the Arkansas Code Revision Commission seeking a fix. The commission handles publication of the hefty red volumes of law found in libraries and attorneys’ offices. State law authorizes the commission to correct spelling and grammar, incorrect word use, typographical mistakes, and certain other errors.
The law spelling out the commission’s duties and powers says it “shall not change the substance or meaning of any provision,” but allows it to “correct word usage.” Aside from that and a number of other exceptions, the law states “the wording, punctuation” and formatting of the code shall be “exactly as enacted by the General Assembly.”
Legislators, attorneys and legal experts sit on the commission, headed by Sen. Sue Madison, D-Fayetteville.
Last month the commission deemed the error within its authority to correct and voted to excise the word “not” from the act and have it inscribed that way into the code. A new edition of the code, just published, contains the altered version.
But Sen. Dave Bisbee, a Rogers Republican, maintains it’s more than a technical error.
“Did your mother explain to you the difference between being pregnant and not being pregnant ? It’s not technical,” he said in an interview.
If it’s an error, and if the error is technical, then commission may correct it.
Otherwise the law stands until the Legislature changes it. The next session of the Legislature isn’t set to start until January 2009. The governor has authority to call a special session before then.
The new law is Act 441 of 2007. Before it was enacted, girls could with their parents’ permission marry at 16, boys at 17. At the urging of the Judicial Council, a statewide group of judges, Bond sought to make the age 18 for both. Lawmakers say the judges, not legislative staff, drafted the bill.
But Bisbee maintains the commission lacks the authority to so drastically change the meaning of a legislative act, regardless of the bill’s initial effect. He said the integrity of the legislative process is at stake.
“I do not want unelected people changing our acts,” he told Madison during a lively discussion in the Senate offices Thursday afternoon. “‘ Not’ is never a drafting error.”
Imagine, he said, if he were to draft a bill saying Arkansans “shall not jaywalk,” then begged the commission after the bill’s passage to remove “not.” Bisbee said that today he’ll ask the Legislative Council, the body of lawmakers that handles the state’s business between sessions, to have the attorney general seek a court order preventing county clerks from enforcing the codified law, which would lack the “not” because of the commission’s action. Whether that changes the law to allowing 16- and 17-year-olds to marry or to Bond’s initial bill, he said he doesn’t care. He said the problem came to his attention when the father of a boy told him a county clerk wouldn’t give the boy’s 17-year old fiancee a marriage license because she wasn’t pregnant.
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