Attorney General's May Opinions Digest
Arkansas district judges salaries. State’s retention of surplus proceeds from a property sale. Bail bondsmen. And more!
To better communicate with the public, press, and interested parties, Arkansas Attorney General Tim Griffin publishes a monthly digest of recently issued opinions. This month’s digest includes all opinions issued during May 2024.
Clicking on the opinion numbers in this digest will take you to the full opinion. To find other opinions, please visit our opinions search page here.
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OPINION 2023-114
Requested by State Senator Bryan B. King
Question 1: Does Act 757 of 2023 conflict with federal laws or regulations? If so, please explain in detail the conflicts.
Brief Response: No. In my opinion, Act 757 does not conflict with federal laws or regulations. Federal law prohibits unlawful users of a controlled substance from possessing firearms, and marijuana is a controlled substance. Although Act 757 prohibits the Director of the Division of Arkansas State Police from considering a person’s status as a medical-marijuana qualifying patient or designated caregiver under Amendment 98, § 2, in determining whether the person is eligible to obtain a concealed-carry license, Arkansas law still requires the Director to deny a permit to individuals who are legally prohibited from possessing firearms, which includes medical-marijuana users, in compliance with federal law.
Question 2: Do you recommend any changes regarding Act 757 of 2023?
Brief Response: No, because, in my opinion, Act 757 is consistent with federal law.
OPINION 2023-122
Requested by State Representative Lanny Fite
Question 1(a): Is the state required to pay the salaries of Arkansas district judges under Amendment 80 and Amendment 94 to the Arkansas Constitution?
Brief Response: Amendments 80 and 94 do not require the state to be solely responsible for funding the salaries of state district court judges. Amendment 80 is silent about funding the salaries of district court judges, and while Amendment 94 requires district court judges to be paid from the Constitutional Officers Fund, it does not require that fund to be replenished by state revenue alone.
Question 1(b): If so, is A.C.A. § 16-17-1106(b) unconstitutional and unenforceable to the extent that it requires counties and cities to pay a portion of district judge salaries?
Brief Response: Because the answer to Question 1(a) is “no,” this question is moot.
Question 1(c): Is the word “pay” under Amendment 94 of the Arkansas Constitution or A.C.A. § 16-17-1106(b) ambiguous?
Brief Response: No, I do not believe the text of Amendment 94 or A.C.A. § 16-17-1106(b) is ambiguous.
Question 2: Is it reasonable to conclude that the intent of Amendment 80 and Amendment 94 of the Arkansas Constitution (and the intent of the voters) sought to create:
a) An independent state judiciary with salaries?
b) Set by an independent commission?
c) Paid by the State of Arkansas general revenues (without appropriation)?
d) Without control or interference by the General Assembly?
e) Does Amendment 94 reference or authorize payment of the salaries of the state district court judges from a different funding source, such as the general revenues of local governments, cities, and counties?
f) Does reference to payment of salaries of the state constitutional officers, district court judges’ salaries, from the state constitutional officers fund, adopted by the voters under Amendment 94, imply funding from the state?Brief Response: “[I]ntent” beyond “the plain meaning of the language used” is irrelevant, unless the language is ambiguous. Looking at the text, Amendment 80 and Amendment 94 cumulatively create an independent, unified judiciary with the salaries of justices and judges set by an independent commission. These salaries are not subject to appropriation by the General Assembly and must be paid from the Constitutional Officers Fund. Amendment 94 does not reference state district court judges’ salaries being paid from any source other that the Constitutional Officers Fund. There is no requirement for the fund to be replenished by state general revenue alone. Amendment 94 does not reference state district court judges’ salaries being paid from any source other that the Constitutional Officers Fund. When Amendment 94 was passed, the fund was composed of state general revenue and city and county general revenues that were deposited into the fund, as required by A.C.A. § 16-17-1106(b). Amendment 94 did not alter these funding sources.
Question 3: Is the continued payment of salaries of state district court judges by cities and counties under A.C.A. § 16-17-1106(b) contemplated, authorized, or consistent with Amendment 94, Article 19, § 31 of the Arkansas Constitution? Is it consistent with the spirit or intent of Amendment 94, Article 19, § 31 of the Arkansas Constitution? Would a court conclude that continued payment of salaries of state district court judges by cities and counties under A.C.A. § 16-17-1106(b) violates Amendment 94 or the spirit or intent of Amendment 94?
Brief Response: The continued partial payment of state district court judges’ salaries by cities and counties under A.C.A. § 16-17-1106(b) does not conflict with the text of Amendment 94, Article 19, § 31 of the Arkansas Constitution. I cannot definitively say how a court would rule if presented with this question, but I do not believe a court would find that A.C.A. § 16-17-1106 violates Amendment 94. As for the “spirit” and “intent” of Amendment 94 and A.C.A. § 16-17-1106(b), courts “will not search for…intent” beyond “the plain meaning of the language used,” unless the language is ambiguous. Neither Amendment 94 nor A.C.A. § 16-17-1106(b) is ambiguous.
Question 4: In interpreting the Arkansas Constitution, does the law of the State of Arkansas remain as follows:
a) That the courts must ascertain the plain meaning of the words used? See Brewer v. Fergus, 348 Ark. 577, 583, 79 S.W.3d 831, 834 (2002).
b) That the goal is to effectuate the intent of the people in passing the measure, “keep[ing] in mind the object sought to be accomplished by [an amendment’s] adoption, and the evils, if any, sought to be prevented or remedied”? Bailey v. Abington, 201 Ark. 1072, 1078–79, 148 S.W.2d 176, 180 (1941). A court does that by giving effect to “the purpose [of the amendment],” as “indicated by a fair interpretation of the language used.” Id.
c) If there is a conflict between A.C.A. § 16-17-1106(b) contemplated, authorized, or consistent with Amendment 94, Article 19, § 31 of the Arkansas Constitution, which law controls?Brief Response: Both of the cases you cite remain good law. In more recent cases, the Arkansas Supreme Court has confirmed that, although interpretation is aimed at effecting the intent of the adopters of the provision, that intent is determined by “the plain meaning of the language used.” As explained above, I believe that A.C.A. § 16-17-1106(b) is consistent with the text of Amendment 94.
Question 5: If Amendment 94 was adopted first, would a subsequent Act adopted by the General Assembly containing the text of A.C.A. § 16-17-1106(b) be constitutional? If so, how would the continued compliance and enforcement of AC.A. § 16-17-1106(b) occur or transpire?
Brief Response: I take your question to be asking whether A.C.A. § 16-17-1106(b) would be constitutional if its and Amendment 94’s enactment dates were switched. Switching the order of ratification and enactment would not change the analysis.
OPINION 2024-001
Requested by State Representative Trey Steimel
Question 1: In Tyler v. Hennpein County, the U.S. Supreme Court held that a state’s retention of surplus proceeds from a property sale to satisfy a tax lien, without giving the owner the opportunity to obtain the surplus, is an unconstitutional taking under the Fifth Amendment to the U.S. Constitution. Arkansas law allows former property owners to obtain surplus proceeds if they file an application with the Commissioner of State Lands within two years of the surplus being placed in escrow. Is this statutory process constitutional under Tyler?
Question 2: If this Arkansas law is unconstitutional under Tyler, what additional steps, if any, must former property owners take to claim or obtain any surplus proceeds from the sale of their tax-delinquent property?
Brief Response: Arkansas’s statutory process to recover unpaid property taxes on real property is likely, in part, constitutional and, in part, unconstitutional in certain circumstances. Under Tyler, an unconstitutional taking may occur when the Arkansas Commissioner of State Lands issues a donation deed and the former property owner lacks the opportunity to receive funds equal to the surplus of the property value (if any) over the amount owed. In this rare situation, a former property owner could seek just compensation in the proper venue, alleging an unconstitutional taking.
OPINION 2024-025
Requested by State Senator Alan Clark
Question 1: Does Arkansas law allow a bail-bond company or its owner to own an interest in a company that finances premiums?
Brief Response: Bail bondsmen and bail-bond companies cannot themselves finance premiums. They may, however, own an interest in a premium-financing company if they are not involved in the operation of the company.
Question 2: Does Arkansas law allow a bail-bond company to accept a financed premium?
Brief Response: Yes. I have not found any law that prohibits a bail-bond company from accepting a premium that has been financed.
OPINION 2024-035
Requested by State Senator Clarke Tucker and State Representative Vivian Flowers
Question 1: Does Act 633 of 2023 apply to the return of the Pine Bluff School District to local control?
Brief Response: No. Laws are presumed to apply prospectively, not retroactively, unless the text requires otherwise. The relevant actions that Act 633 requires of the State Board would have had to have happened almost three years before Act 633’s effective date. Thus, Act 633 does not apply because it is not retroactive.
Question 2: If your answer to the first question is no, under the law as it existed before the enactment of Act 633, did the State Board of Education have the authority to reinstate control of a school district to a school board consisting of some members who are popularly elected and some members who are appointed by the Education Commissioner?
Brief Response: As fully explained in the opinion, I am unable to opine on this question because the relevant law is unclear and insufficient facts have been presented.
Question 3: If your answer to the first question is no, under the law as it existed before the enactment of Act 633, did the State Board of Education have the authority to dictate the schedule by which elections would be held for the seats on a school board of a school district being returned to local control, or would that authority rest solely with the newly reinstated school board, regardless whether the school board members were appointed or elected?
Brief Response: As fully explained in the opinion, I am unable to opine on this question because the relevant law is unclear and insufficient facts have been presented.
Question 4: If your answers to either the second or third questions are yes, will those answers change once Act 633 has been in effect for a long enough period of time such that the timing requirements of that Act apply?
Brief Response: My analysis will not change because Act 633’s trigger is the State Board’s assumption of authority over a public-school district and is not connected to Act 633’s effective date.
Question 5: Once the State Board of Education has returned a school district to local control, when is the soonest that the State Board of Education would then be able to assume authority over that same district again under A.C.A. § 6-15-2916? If some or all members of a school board were put in place by appointment of the Education Commissioner rather than by popular election, would the starting point for the timeline for the State Board of Education to again assume authority over that school district be tolled until after all members of the school board were popularly elected by the local community?
Brief Response: If a public-school district is classified as in need of Level 5 – Intensive support, there is no time restriction on the State Board’s ability to assume authority of the district.
OPINION 2024-044
Requested by State Representative Marcus E. Richmond
Question: Arkansas Code § 21-5-107(a) prohibits someone holding more than one public office from receiving “compensation” for more than one of those offices. Arkansas Code § 21-5-107(b) defines “compensation” to include “all salaries, retirement allowances, group insurance, medical benefits, and anything else of value that a governmental entity provides in return for the services of its officers.” Under A.C.A. § 21-5-107, may a current city alderman, who was previously the mayor, receive compensation for being an alderman while also receiving a retirement allowance for being the former mayor?
Brief Response: Arkansas Code § 21-5-107 does not prohibit a public official who holds only one elected office from simultaneously receiving his or her (1) retirement allowance from a formerly held elected office and (2) compensation from a currently held elected office.
OPINION 2024-059
Requested by Ms. Vanessa Adams, Library Director
Request for review and approval of an interlocal cooperation agreement between Craighead County, Arkansas, and Poinsett County, Arkansas, entitled “Interlocal Agreement for Library Services Between the Counties of Poinsett and Craighead, State of Arkansas.”
Brief Response: It is my opinion that the agreement does not meet the requirements of the Interlocal Cooperation Act, and, therefore, I do not approve the interlocal agreement submitted.
OPINION 2024-060
Requested by Mr. David E. Johnson
Request for review and approval of an interlocal cooperation agreement between the cities of Little Rock, North Little Rock, Jacksonville, Sherwood, and Maumelle; Pulaski County for the benefit of its Public Works department; Central Arkansas Water; Little Rock Water Reclamation Authority; and North Little Rock Wastewater Utility, entitled “Pulaski Area Geographic Information System Interlocal Agreement (Sixth Restatement & Amendment).”
Brief Response: Having reviewed the agreement, I find that it meets the requirements of the Interlocal Cooperation Act. Thus, I approve the agreement as submitted.
OPINION 2024-062
Requested by Deputy Da’Vonti A. Armant
Question: Is the custodian’s decision to release the requested records as redacted consistent with the Arkansas Freedom of Information Act (FOIA)?
Brief Response: In my opinion, the custodian has correctly classified the personnel records and has properly redacted the employee’s phone number, address, personal email address, date of birth, social security number, employee number, marital status, and information about dependents. But the custodian’s redactions of the employee’s emergency contact information, change-of-status records for an FMLA absence, and designations of beneficiary for the employee’s retirement account and final paycheck are inconsistent with the FOIA. In addition, the custodian has properly classified the employee-evaluation records, except for the request for verification of employment. That request is better classified as a personnel record because it does not detail the employee’s performance or lack of performance on the job. As a personnel record, the request should be disclosed because the public’s interest in it outweighs the employee’s privacy interest. The custodian’s decision to withhold the correctly identified employee-evaluation records is consistent with the FOIA.