Who prosecutes misdemeanors, traffic tickets, and city ordinance violations in an Arkansas city, the prosecuting attorney or the city attorney?

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

A prosecuting attorney asked the Attorney General to clarify a recurring dispute with a local district judge over who is responsible for three kinds of cases arising inside city limits: misdemeanor violations of state law, traffic violations not covered by the state Criminal Code, and violations of city ordinances.

The opinion concluded that a prosecuting attorney may choose to prosecute misdemeanor violations of state law occurring within a city, but is never required to, and has no authority at all to prosecute city ordinance violations or local traffic violations. The city attorney, by contrast, is responsible by default for prosecuting all three categories, misdemeanors, traffic violations, and ordinance violations, unless the prosecuting attorney affirmatively elects to take over the misdemeanor cases. The opinion traced this allocation to a 1993 statutory change that shifted responsibility for city misdemeanors from prosecuting attorneys to city attorneys, correcting what had been the rule under earlier law.

Background and analysis (as of 2013)

The opinion worked through three interlocking statutes: A.C.A. § 16-21-103, requiring a prosecuting attorney to "commence and prosecute all criminal actions in which the state or any county in his district may be concerned"; § 16-21-115, allowing a prosecuting attorney to designate a city attorney to prosecute state misdemeanor violations occurring within a city, if the city attorney agrees; and § 16-21-150, providing that no prosecuting attorney shall prosecute "city misdemeanor cases" unless the prosecuting attorney consents to do so.

Drawing on a chain of prior Attorney General opinions going back to 1995, the opinion explained that § 16-21-150's enactment effectively flipped the earlier default: rather than city attorneys having the option to decline city misdemeanor cases (as under the old version of § 16-21-115), city attorneys are now obligated to prosecute them unless the prosecuting attorney consents to take the case instead. The opinion emphasized that this rule exists to prevent a scenario where neither official wants a case and it simply goes unprosecuted, the prosecuting attorney's preference controls in a standoff, which is why earlier opinions described the city attorney's duty as "mandatory." On ordinance and local traffic violations, the opinion found prosecuting attorneys have never had jurisdiction, since § 16-21-103 limits their authority to state and county matters, leaving city attorneys with sole responsibility for enforcing municipal ordinances under their separately granted statutory powers.

Citations and references

Statutes (as they stood in 2013):

• A.C.A. § 16-21-103, defining the prosecuting attorney's jurisdiction over state and county criminal matters
• A.C.A. § 16-21-115, allowing (with consent) delegation of state misdemeanor prosecution within a city to the city attorney
• A.C.A. § 16-21-150, barring a prosecuting attorney from prosecuting city misdemeanor cases absent consent, understood to obligate city attorneys to handle them by default
• A.C.A. § 5-1-105, defining "misdemeanor"
• A.C.A. § 9-27-303(29), defining "prosecuting attorney" for juvenile court purposes to include city attorneys
• A.C.A. §§ 14-55-501, -502, -601, granting cities authority to prescribe and prosecute penalties for ordinance violations

Cases:

• State ex rel. Bryant v. McCleod, 318 Ark. 781 (1994), primary object of statutory interpretation is legislative intent
• City of Ft. Smith v. Tate, 311 Ark. 405 (1993), courts may consider subject matter and purpose in determining legislative intent
• Ragland v. Alpha Aviation, 285 Ark. 182 (1985), statutes should be read as a whole to avoid absurd or unjust results
• Death and Permanent Total Disability v. Whirlpool Corp., 39 Ark. App. 62 (1992), courts should not presume the legislature enacted a meaningless law

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2013-096
November 13, 2013
STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
Ian W. Vickery, Prosecuting Attorney
13th Judicial District
307 American RD, Suite 114
El Dorado, Arkansas 71730
Dear Mr. Vickery:
I am writing in response to your request for my opinion on several questions you
have posed relating to the following expressed concerns:
Our office is attempting to clear up perceived ambiguities regarding
the duties of the Prosecuting Attorney as to offenses/violations of
state and/or city laws occurring within the limits of an incorporated
city. Our office's position is that Ark. Code Ann. § 16-21-103 does
not require us to commence and prosecute, at the very least, traffic
violations and municipal ordinance violations, as neither the state
nor county are "concerned" with these classes of cases. Our office
does recognize that misdemeanor violations of state statutes
occurring within municipal limits may concern the state and, thus, be
prosecutable by our office.
With regard to these concerns, you have posed the following questions:

1. Which, if any, of the following types of cases occurring within
   the boundaries of a municipality within a prosecuting attorney's
   judicial district is the prosecuting attorney required by law to
   commence and prosecute: a) misdemeanor violations of state
   statutes; b) traffic violations not defined by the Arkansas
   Criminal Code; and/or c) violations of ordinances enacted by a
   municipality?
   323 CENTER STREET, SUITE 200. LITTLE ROCK, ARKANSAS 72201
   TELEPHONE (501) 682-2007 •FAX (501) 682-8084
   INTERNET WEBSITE. http://www.ag.state.ar.us/ Ian W. Vickery, Prosecuting Attorney
   13th Judicial District
   Opinion No. 2013-096
   Page 2
2. Conversely, is the city attorney of the municipality required by
   law to commence and prosecute any of the three classes of cases
   referenced in question one above?
   RESPONSE
   With respect to your first question, a prosecuting attorney may, at his election,
   prosecute city misdemeanors, but he is not obliged to do so. A prosecutor is not
   authorized to prosecute violations of municipal ordinances or traffic laws not
   defined by the Criminal Code. With respect to your second question, a city
   attorney is charged with the responsibility to commence and to prosecute all three
   types of cases listed, subject only to the condition that the prosecuting attorney
   may, at his election, pursue the prosecution of a city misdemeanor.
   Question 1: Which, if any, of the following types of cases occurring within the
   boundaries of a municipality within a prosecuting attorney's judicial district is
   the prosecuting attorney required by law to commence and prosecute:
   a) misdemeanor violations of state statutes; b) traffic violations not defined by
   the Arkansas Criminal Code; and/or c) violations of ordinances enacted by a
   municipality?
   As an initial matter, I must address your suggestion that your questions relate to "a
   difference of opinion between our office and the local District Judge as to the
   demarcation of the respective duties of the Prosecuting Attorney of a particular
   judicial district and the city attorney of a city therein." I have no details regarding
   the precise nature of this disagreement, nor does it fall within the scope of an
   Attorney General's opinion to explore such a dispute. I will merely note that I am
   neither authorized nor situated to second-guess judicial officials in the exercise of
   their discretion. Accordingly, the following analysis should be read only within
   the context in which it is offered, namely, as a general exposition of the
   prosecutorial duties, assigned by statute to prosecuting attorneys and city
   attorneys, respectively, relating to the recited offenses committed within cities.
   Subject to this proviso, in my opinion, a prosecuting attorney may elect to
   commence and to prosecute city misdemeanors, but he is not obliged to do so. He
   is foreclosed, however, from commencing and prosecuting actions involving
   alleged violations of city ordinances or traffic violations. Ian W. Vickery, Prosecuting Attorney
   13th Judicial District
   Opinion No. 2013-096
   Page 3
   Section 16-21-103 of the Code, which you cite in your request, provides as
   follows: "Each prosecuting attorney shall commence and prosecute all criminal
   actions in which the state or any county in his district may be concerned."1 For
   purposes of addressing all three parts of your question, I will consider this statute
   in conjunction with two others. First, A.C.A. § 16-21-115, cited elsewhere in your
   statement of background facts, provides as follows:
   A prosecuting attorney may designate the duly elected or appointed
   city attorney of any municipality within the prosecutor's district to
   prosecute in the name of the state in the district and city courts
   violations of state misdemeanor laws, which violations occurred
   within the limits of the municipality, if the city attorney agrees to the
   appointment.2
   Secondly, A.C.A. § 16-21-150 provides as follows: "No prosecuting attorney
   shall prosecute city misdemeanor cases or appeals to circuit or appellate courts
   unless the prosecuting attorney consents to do so."3
   As reflected in the underscored phrase in your question, you are concerned to
   determine what cases arising within municipal boundaries your office is required
   to commence and prosecute for violations of laws designated as misdemeanors,
   traffic violations and city ordinance violations.
   With respect to the prosecution of misdemeanor violations occurring within city
   limits,4 this office has found numerous occasions to discuss the interaction of the
   statutes quoted above, specifically focusing on the allocation of responsibilities
   between a prosecuting attorney and a city attorney. The following excerpt
   summarizes the consensus regarding this issue:
   1 A.C.A. § 16-21-103 (Repl. 1999).
   2 A.C.A. § 16-21-115 (Supp. 2011).
   3 A.C.A. § 16-21-150 (Repl. 1999).
   4 A "misdemeanor" is one variety of offense "for which a sentence to a term of imprisonment or fine or
   both is authorized by statute." A.C.A. § 5-1-105 (Repl. 2006). A "city misdemeanor" is one committed
   within the boundaries of a municipality, see Ops. Att'y Gen. Nos. 2001-298, 2000-069; and 95-235. Ian W. Vickery, Prosecuting Attorney
   13th Judicial District
   Opinion No. 2013-096
   Page 4
   This office recently opined that the phrase "city misdemeanor
   cases," as used in A.C.A. § 16-21-150, means cases involving
   violations of state misdemeanor laws occurring within the limits of
   the municipality. See Op. Att'y Gen. 95-235.5 . . . That opinion
   also stated that city attorneys are required, due to the enactment of
   A.C.A. § 16-21-150, to prosecute city misdemeanor cases, whether
   in corporate or juvenile courts, and appeals of city misdemeanor
   cases to circuit courts, unless, in each case, the prosecutor
   "consents" to prosecute such cases.
   As explained in Op. Att'y Gen. 95-235, the enactment of A.C.A. §
   16-21-150 effected two changes in the law. First, it relieved
   prosecutors of the responsibility of prosecuting city misdemeanor
   cases. Under prior law, prosecutors had that responsibility, but
   could delegate it, to the extent such prosecutions occurred in
   municipal or other corporation courts [now district courts, see Ark.
   Const. Amend. 80], to city attorneys under A.C.A. § 16-21-115 if the
   city attorney consented. As interpreted by Op. Att'y Gen. 95-235,
   the enactment of A.C.A. § 16-21-150 relieved prosecutors of the
   responsibility of prosecuting city misdemeanor cases by implicitly
   repealing the last clause of A.C.A. § 16-21-115, which formerly
   permitted city attorneys to decline to be designated to prosecute city
   misdemeanor cases. As stated in the opinion, city attorneys are now
   responsible for prosecuting city misdemeanor cases, whether in
   municipal or other corporation courts, or in juvenile courts.6
   Another of my predecessors elaborated on this summation by addressing as
   follows the situation in which the prosecuting attorney and the city attorney might
   disagree regarding who bears responsibility to proceed:
   [N]umerous Attorney General opinions, in addressing the respective
   duties of the prosecuting attorney and the city attorney, have made
   statements to the effect that city attorneys are "required" or are
   5 Because of its direct pertinence to the issues you have raised, I have attached this opinion for your
   convenience.
   6 Op. Att'y Gen. No. 95-243 (emphasis added; brackets in original); accord Ops. Att'y Gen. Nos. 2001-298
   and 2001-272. Ian W. Vickery, Prosecuting Attorney
   13th Judicial District
   Opinion No. 2013-096
   Page 5
   "charged with the responsibility" of handling misdemeanor cases,
   including appeals of these cases to circuit court. See, e.g., Ops.
   Att'y Gen. Nos. 2003-002; 2001-298; 2001-272; 2000-291; 2000-
   069; 97-226; 95-243; 95-235. These opinions for the most part were
   addressing questions of ultimate responsibility, that is, whether the
   prosecuting attorney or the city attorney can ultimately be required
   to handle the cases in question regardless of his or her preference.
   The referenced statements in these opinions seem to have arisen out
   of factual situations in which both the prosecuting attorney and the
   city attorney preferred not to handle the cases. In such a scenario,
   the prosecuting attorney's preference will prevail. It was in that
   sense that the opinions stated that the city attorney was "required"
   to handle the cases.7
   In the opinion just quoted, my predecessor opined that "the enactment in 1993 of
   A.C.A. § 16-21-150 was clearly intended to charge the city attorney with the
   responsibility of prosecuting city misdemeanors as defined above unless the
   prosecuting attorney consented to do so instead."8 In accordance with this
   conclusion, my predecessor opined, and I fully concur, that A.C.A. § 16-21-150
   repealed by implication the provision in A.C.A. § 16-21-115 providing that a city
   attorney might decline to undertake the prosecution of a city misdemeanor.9
   7 Op. Att'y Gen. No. 2004-207 (emphasis added); accord Op. Att'y Gen. Nos. 2003-002 ("[T]he legislature
   has imposed upon city attorneys the responsibility for prosecuting misdemeanor state law violations that
   occur within city limits, see A.C.A. § 16-21-150.") In Opinion 2004-207, my predecessor further offered
   the following regarding this office's prior formulations:
   These opinions were not addressing scenarios in which both the prosecuting attorney and
   the city attorney preferred to handle the cases in question. It is my opinion that in such a
   scenario, the prosecuting attorney's preference will again prevail over the city attorney's,
   because, as discussed above, the language of the pertinent statutes plainly grants the
   prosecuting attorney the discretion to decide whether to handle these cases or to
   delegate them to the city attorney.
   Id. (emphasis added).
   8 Accord Op. Att'y Gen. No. 2000-069 (addressing the legislative history of A.C.A. § 16-21-150 as
   reflecting an intention to impose "a duty to prosecute misdemeanor violations of state law that occurred
   within city limits ... upon the city attorney").
   9 See Op. Att'y Gen. No. 95-363 (opining that "the legislative intent of A.C.A. § 16-21-150 was to relieve
   prosecuting attorneys of the responsibility of prosecuting misdemeanor state law violations that occur Ian W. Vickery, Prosecuting Attorney
   13th Judicial District
   Opinion No. 2013-096
   Page 6
   within city limits ... and to impose that responsibility upon city attorneys"). As my predecessor noted in
   Opinion No. 95-243, "few, if any, prosecutors have consented, under A.C.A. § 16-21-150, to prosecute all
   city misdemeanor cases in all forums."
   Consequently, as one of my predecessors has pointed out, "the city cannot simply
   'shift the burden' to prosecute violations of state law that occur within the city's
   limits."10
   You have further asked whether a prosecuting attorney is required to commence
   and to prosecute cases involving violations of municipal ordinances and/or local
   traffic laws not defined by the Criminal Code. In my opinion, a prosecutor is
   neither required nor authorized to pursue such cases. As one of my predecessors
   aptly observed:
   [P]rosecutors have never had authority to prosecute violations of city
   ordinances. The jurisdiction of prosecuting attorneys is explicitly set
   forth in A.C.A. § 16-21-103.... The unambiguous language of that
   statute clearly indicates that prosecuting attorneys' jurisdiction . . .
   encompasses only state and county matters. Moreover, in practice,
   prosecutors have never prosecuted or attempted to prosecute
   violations of city ordinances.11
   I agree in all respects with this summation, which applies to violations of all city
   ordinances, including local traffic laws.12
   Question 2: Conversely, is the city attorney of the municipality required by law
   to commence and prosecute any of the three classes of cases referenced in
   question one above?
   As reflected in my response to your first question, in my opinion, a city attorney is
   obligated to commence and to prosecute city misdemeanors unless the prosecuting
   attorney elects to do so. A city attorney is further obligated to commence and to
   prosecute the latter two varieties of cases recited in your question, namely, traffic
   10 Op. Att'y Gen. No. 97-226, citing Op. Att'y Gen. No. 95-235.
   11 Opinion No. 95-235.
   12 See Op. Att'y Gen. No. 98-215 (opining that cities are empowered "to prescribe penalties for violations
   of city ordinances, and to prosecute to enforce those ordinances."). As my predecessor pointed out, these
   powers are expressly granted by A.C.A. §§ 14-55-501, -502 (Repl. 1998) and -601 (Supp. 2011). Ian W. Vickery, Prosecuting Attorney
   13th Judicial District
   Opinion No. 2013-096
   Page 7
   violations not defined by the Criminal Code and violations of municipal
   ordinances.
   Assistant Attorney General Jack Druff prepared the foregoing opinion, which I
   hereby approve.
   Sincerely,
   DUSTIN McDANIEL
   Attorney General
   DM:JHD/cyh
   Enclosure

The following 1995 opinion was enclosed with the foregoing letter as directly pertinent background:

Winston Bryant
Attorney General
Opinion No. 95-235
September 6, 1995
STATE OF ARKANSAS
Office of the Attorney General
The Honorable Jimmie Don McKissack
State Representative
3418 Highway 65 South
Pine Bluff, Arkansas 71601
Dear Representative McKissack:
Telephone:
(501) 682-2007
This letter is a response to your request for an opinion regarding the respective
duties of prosecuting attorneys and city attorneys. You have presented the
following specific questions:
RESPONSE
(1) What are "city misdemeanor cases" for purposes of
A.C.A. § 16-21-150, taking into consideration the
provisions of A.C.A. §§ 16-21-103 and -115, and
taking into consideration Attorney General Opinions
Nos. 85-72, 92-211, and 93-010?
(2) What is the city attorney's obligation to appear and
prosecute in juvenile court?
(3) Do city attorneys have an obligation to appear and
prosecute violations of state misdemeanor laws?
Question 1 -- What are "city misdemeanor cases" for purposes of A.C.A. § 16-21-
150, taking into consideration the provisions of A.C.A. §§ 16-21-103 and -115,
and taking into consideration Attorney General Opinions Nos. 85-72, 92-211, and
93-010?
200 Tower Building, 323 Center Street, Little Rock, Arkansas 72201-2610 The Honorable Jimmie Don McKissack
State Representative
Opinion No. 95-235
Page 2
Before responding to your question, I will set forth the provisions of the statutes
about which you have inquired, and will summarize the Attorney General
Opinions to which you have cited.
A.C.A. § 16-21-150 states:
No prosecuting attorney shall prosecute city
misdemeanor cases or appeals to circuit or appellate
courts unless the prosecuting attorney consents to do
so.
A.C.A. § 16-21-103 states:
Each prosecuting attorney shall commence and
prosecute all criminal actions in which the state or any
county in his district may be concerned.
A.C.A. § 16-21-115 states:
A prosecuting attorney may designate the duly elected
or appointed city attorney of any municipality within
the prosecutor's district to prosecute in the name of the
state in municipal or other corporation courts
violations of state misdemeanor laws, which violations
occurred within the limits of the municipality, if the
city attorney agrees to the appointment.
In Attorney General Opinions Nos. 85-72, 92-211, and 93-010, this office took the
position that city attorneys have no statutory authority to prosecute appeals to
circuit court of municipal violations of state law, and that the responsibility of
doing so is upon the prosecuting attorney.
It is my opinion that the phrase "city misdemeanor cases," as used in A.C.A. § 16-
21-150, quoted above, refers to cases involving the misdemeanor violation of state
law within a city's limits. The Honorable Jimmie Don McKissack
State Representative
Opinion No. 95-235
Page 3
The primary object of statutory interpretation is to ascertain and give effect to the
intent of the legislature. State ex rel. Bryant v. McCleod, 318 Ark. 781, 888
S.W.2d 639 (1994). There appear to be two possible readings of the phrase "city
misdemeanor cases." One such reading is the one that I have chosen: A reading
that means cases involving misdemeanor violations of state law that occur within a
city's limits. Under that reading, A.C.A. § 16-21-150 would have the effect of
relieving prosecuting attorneys of the responsibility of prosecuting misdemeanor
state law violations that occur within city limits. The other reading is one that
interprets the phrase to mean cases involving violations of city ordinances. Under
that reading, the statute would have the effect of prohibiting prosecuting attorneys
from prosecuting cases involving the violation of city ordinances. The pertinent
question, therefore, in interpreting the phrase "city misdemeanor cases," is whether
the legislature, in enacting A.C.A. § 16-21-150, intended to relieve prosecuting
attorneys of the responsibility of prosecuting misdemeanor state law violation
cases that arose within a city's limits, or whether it intended to prohibit them from
prosecuting city ordinance violation cases. I have concluded that the legislature
intended the former: To relieve prosecutors of the responsibility of prosecuting
misdemeanor state law violation cases that arose within a city's limits. I have
reached this conclusion by applying the Arkansas Supreme Court's rule of
statutory interpretation which states that in determining legislative intent, it is
appropriate to consider not only the language of the act in question, but also the
subject matter, the object to be accomplished, the purpose to be served, and other
appropriate matters that throw light on the issue. City of Ft. Smith v. Tate, 311
Ark. 405, 844 S.W.2d 356 (1993).
Two factors are particularly enlightening in addressing the question of the
legislative intent behind A.C.A. § 16-21-150. The first factor is that prosecutors
have never had authority to prosecute violations of city ordinances. The
jurisdiction of prosecuting attorneys is explicitly set forth in A.C.A. § 16-21-103,
quoted above. The unambiguous language of that statute clearly indicates that
prosecuting attorneys' jurisdiction, as stated therein, encompasses only state and
county matters. Moreover, in practice, prosecutors have never prosecuted or
attempted to prosecute violations of city ordinances. By contrast, city attorneys
have made a practice, in certain localities, of prosecuting misdemeanor violations
of state law that occurred within the city limits of their municipalities, under the
authority of A.C.A. § 16-21-115. This is particularly true in instances where the
violation of a city ordinance was also the violation of a state law. See, e.g., A.C.A. The Honorable Jimmie Don McKissack
State Representative
Opinion No. 95-235
Page 4
§ 12-41-506 and Att'y Gen. Op. No. 93-174. Therefore, to interpret the phrase
"city misdemeanor cases", as used in A.C.A. § 16-21-150, to mean cases involving
the violation of city ordinances would be to render the statute useless. That is,
such an interpretation would give the statute the function of prohibiting
prosecuting attorneys from prosecuting cases that they have no authority to
prosecute anyway. The Arkansas Supreme Court has held that it in interpreting
statutory language, it is inappropriate to presume that the legislature enacted a vain
or meaningless law. Death and Permanent Total Disability v. Whirlpool
Corp., 39 Ark. App. 62, 837 S.W.2d 293 (1992). Under my interpretation of
A.C.A. § 16-21-150, the statute would have a meaningful function: To relieve
prosecuting attorneys of the responsibility of prosecuting certain cases that city
attorneys already have authority to prosecute under A.C.A. § 16-21-115.
The second factor that bears upon the legislative intent of A.C.A. § 16-21-150 is
the fact that according to the previously cited Attorney General's opinions,
prosecutors rather than city attorneys have had the responsibility of prosecuting
misdemeanor violations of state law that occurred within a city's limits.
Moreover, under the position taken in those opinions, although the prosecuting
attorneys could delegate the original prosecution of such cases to city attorneys
with their consent, city attorneys have had no statutory authority to prosecute the
appeals of such cases to circuit court. Thus, A.C.A. § 16-21-150 can reasonably
be read as an attempt to change that reading of the law. In this regard, it is notable
that A.C.A. § 16-21-150 was enacted and went into effect shortly after the most
recent reiteration of that position by the Attorney General. Att'y Gen. Op. No. 93-
010 was issued on February 10, 1993, and A.C.A. § 16-21-150 was enacted during
the regular legislative session of 1993, going into effect on August 13, 1993.
Taking these factors into consideration, I have determined that the intent of the
legislature in enacting A.C.A. § 16-21-150 was to change the law. More
specifically, it is my opinion that the intent was to relieve prosecuting attorneys of
the responsibility of prosecuting appeals to circuit court of misdemeanor violations
of state law that occurred within a city's limits. The statute accomplishes this
purpose by creating an exception to the provisions of A.C.A. § 16-21-103, which
impose an obligation upon prosecuting attorneys to prosecute all state law
violations. The practical effect of this change in the law is to impose the
responsibility of prosecuting such cases upon city attorneys. This is so because The Honorable Jimmie Don McKissack
State Representative
Opinion No. 95-235
Page 5
A.C.A. § 16-21-150, as I interpret it, impliedly amends the provisions of A.C.A. §
16-21-115, so as to remove the last phrase. Again, that statute states:
A prosecuting attorney may designate the duly elected
or appointed city attorney of any municipality within
the prosecutor's district to prosecute in the name of the
state in municipal or other corporation courts
violations of state misdemeanor laws, which violations
occurred within the limits of the municipality, if the
city attorney agrees to the appointment.
A.C.A. § 16-21-150 impliedly amends the foregoing language so as to remove the
phrase "if the city attorney agrees to the appointment." The conclusion that
A.C.A. § 16-21-115 has been impliedly amended in this way is necessary, because
if the statute were not so amended, a gap would be created under which neither the
prosecutor nor the city attorney would be responsible for prosecuting the cases
addressed therein. Those cases would go unprosecuted. The Arkansas Supreme
Court has held that in interpreting statutory language, it is appropriate to look to
the whole act and reconcile its different provisions so as to make them consistent,
harmonious and sensible, and to avoid an interpretation that results in an absurdity
or injustice, that leads to a contradiction, or that defeats the purpose of the law.
Ragland v. Alpha Aviation, 285 Ark. 182, 686 S.W.2d 391, supplemented, reh'g
denied, 285 Ark. 182, 688 S.W.2d 301 (1985). The provisions of A.C.A. §§ 16-
21-103 and 115 both indicate that the legislature intended that state law violations
that occur within a city's limits be prosecuted. Therefore, a statutory interpretation
that would allow them to go unprosecuted, in my opinion, would be one that is less
than sensible and just, and that, in effect, would defeat the legislative intent. I
therefore conclude that, in order to assure that some cases do not go unprosecuted,
the provisions of A.C.A. § 16-21-150 must be read impliedly to amend the
provisions of A.C.A. § 16-21-115 so as to remove the city attorneys' ability to
refuse to prosecute violations of state law that occur within the city's limits.
Question 2 -- What is the city attorney's obligation to appear and prosecute in
juvenile court?
The statutes do not specifically address this question. However, in accordance
with my response to Question 1, it is my opinion that because of the enactment of The Honorable Jimmie Don McKissack
State Representative
Opinion No. 95-235
Page 6
A.C.A. § 16-21-150, the city attorney is obligated to appear and prosecute in
juvenile court if the violation under consideration, whether a violation of a city
ordinance or a misdemeanor violation of state law, occurred within the city's limits
(assuming that the prosecuting attorney has not "consented" to prosecute the case
under A.C.A. § 16-21-150). This conclusion is bolstered by the fact that the
juvenile code defines "prosecuting attorney" (i.e., the attorney who appears and
"prosecutes" in juvenile court) to include city attorneys. See A.C.A. § 9-27-
303(29).
By the same token, the prosecuting attorney must appear and prosecute in juvenile
court if the violation under consideration is a violation of state law or county
ordinance that did not occur within a city's limits, or is a non-misdemeanor
violation of state law that occurred within the city's limits. The reasoning
supporting this conclusion is the same as that set forth in the discussion responding
to Question 1.
Question 3 -- Do city attorneys have an obligation to appear and prosecute
violations of state misdemeanor laws?
In accordance with my response to Question 1, it is my opinion that city attorneys
have an obligation to appear and prosecute violations of state misdemeanor laws if
the violation in question occurred within the city's limits. The reasoning
supporting this conclusion is the same as that set forth in the discussion responding
to Question 1.
The foregoing opinion, which I hereby approve, was prepared by Assistant
Attorney General Suzanne Antley.
Attorney General
WB:SA/cyh