Can a city in Arkansas leave one county judicial district and join the adjacent one, and is the state's wet/dry local option law constitutional?

Plain-English summary

Representative Charlotte Vining Douglas asked Attorney General Dustin McDaniel two questions, both prompted by the City of Barling. Sebastian County is the only Arkansas county with two judicial districts (Greenwood and Fort Smith), each with its own county seat and court system. Barling sits in the Greenwood District but is contiguous to the Fort Smith District. The AG concluded that, because A.C.A. § 16-17-905(a)(2)(A) requires one department of the Greenwood District court to be located in Barling, the General Assembly had impliedly fixed Barling inside the Greenwood District. Only the legislature could move it. On the second question, about A.C.A. § 3-8-305 (Arkansas's wet/dry local option law that allows cities within wet counties to go dry but does not allow cities within dry counties to go wet), the AG reaffirmed an earlier conclusion that the asymmetry survives equal protection review under the Twenty-first Amendment's broad grant of state authority over alcohol.

Currency note

This opinion was issued in 2014. 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.

What the AG concluded, question by question

Q1: Can Barling move from the Greenwood District to the Fort Smith District?
Only the General Assembly could move it. The state constitution permits but does not require Sebastian County to have two districts, and it does not fix the boundary. Acts 31 and 54 of 1875 created the districts. Statutory references like A.C.A. § 16-17-905(a)(2)(A), which directs one Greenwood District court department to be located in Barling, treat Barling as part of the Greenwood District. The AG read that as an implied prohibition on local officials or local voters moving the boundary. The opinion was expressly limited to Barling and the AG cautioned it should not be read as a general rule about other cities.

Q2: Is A.C.A. § 3-8-305 (the local option statute) unconstitutional on equal protection grounds because it permits some cities to vote wet/dry but not others?
No. The AG reaffirmed Op. Att'y Gen. 88-199, which concluded that the asymmetric scheme survives constitutional review. Under California v. LaRue, the Twenty-first Amendment grants the states unusually broad authority over alcohol regulation, and the statute would only fail if it were "irrational." A rational basis can be supplied by law-enforcement concerns: a wet city in a dry county is harder to police than a dry city in a wet county.

Common questions

Q: Why does Sebastian County have two judicial districts when no other Arkansas county does?
The arrangement dates back to 1875 (Acts 31 and 54) and is recognized in the state constitution, which permits the county to "have two districts and two county seats."

Q: Could the county itself, instead of the legislature, change the boundary between the two districts?
The AG raised this as a different question that "may not have a clear answer," noting that Act 31 of 1875 authorized the Sebastian County Court to define the boundaries "at said term" (the April 1875 term). For Barling specifically, the AG was clear that the legislature's later recognition of Barling as part of the Greenwood District precluded local action.

Q: Does the wet/dry rule mean a town inside a dry county is permanently locked into being dry?
Under the statute and the cases cited (Denniston v. Riddle; Tabor v. O'Dell; Carter v. Reamy), once a county votes dry, subdivisions within the county cannot then vote wet. The reverse is permitted, and that asymmetry was what prompted the equal protection question.

Q: What standard does an equal protection challenge to a state alcohol regulation have to clear?
A very deferential one. The AG quoted California v. LaRue: the Twenty-first Amendment confers "something more than normal state authority over public health, welfare, and morals," and the challenger must show the regulation is "irrational." The opinion cited Parks v. Allen for the proposition that the Fourteenth Amendment "admits of the exercise of a wide scope of discretion" in this regard.

Background and statutory framework

The Barling question turned on the interplay of three things: the Arkansas Constitution (art. 13, § 5 and art. 18 "Fifth Circuit") which permits, but does not require, the two-district structure; the 1875 acts that created the districts and authorized the county court to set the boundary "at said term"; and the modern statutes that name Barling within the Greenwood District. A.C.A. § 16-17-905(a)(2)(A) and § 16-17-1110(3)(B) (regarding pilot state district courts) both place a department of the Greenwood District court "in Barling." A.C.A. § 14-14-201(e) authorizes the two-district structure. The AG concluded those modern provisions amount to an implied legislative determination that Barling belongs in the Greenwood District.

The local-option question turned on A.C.A. § 3-8-305, which the AG read in light of three Arkansas Supreme Court decisions (Denniston, Tabor, Carter) confirming the wet-then-dry-only direction of subdivision-level votes. The equal protection analysis applied federal Twenty-first Amendment doctrine from California v. LaRue and Hostetter, plus Fifth Circuit reasoning from Parks v. Allen, all of which support broad state discretion over alcohol policy.

The 1988 predecessor opinion (Op. Att'y Gen. 88-199 by then-AG Steve Clark), which the 2013-149 opinion reaffirms and reproduces, is included in the original text below.

Citations

Statutes

• Ark. Code Ann. § 3-8-305 (local option wet/dry elections)
• A.C.A. § 14-14-201(e) (two Sebastian County districts)
• A.C.A. § 16-13-2002 (terms of circuit courts)
• A.C.A. § 16-17-108(a)(84), (85) (salaries of district court personnel)
• A.C.A. § 16-17-1110(3) (pilot state district courts)
• A.C.A. § 16-17-905(a)(2)(A) (Greenwood District court department in Barling)
• Ark. Const. art. 13, § 5
• Ark. Const. art. 18, "Fifth Circuit"
• Acts 31 and 54 of 1875

Cases

• Bates v. Mickles, 309 Ark. 551, 832 S.W.2d 225 (1992) (Arkansas Supreme Court)
• Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002) (Arkansas Supreme Court)
• Denniston v. Riddle, 210 Ark. 1039, 199 S.W.2d 308 (1947) (Arkansas Supreme Court)
• Tabor v. O'Dell, 212 Ark. 902, 208 S.W.2d 430 (1948) (Arkansas Supreme Court)
• Carter v. Reamy, 232 Ark. 211, 335 S.W.2d 298 (1960) (Arkansas Supreme Court)
• Yarbrough v. Bearden and Phillips v. Foreman, 206 Ark. 553, 177 S.W.2d 38 (1944) (Arkansas Supreme Court)
• California v. LaRue, 409 U.S. 109 (1972) (U.S. Supreme Court)
• Hostetter v. Idlewild Liquor Corp., 377 U.S. 324 (1964) (U.S. Supreme Court)
• State Board v. Young's Market Co., 299 U.S. 59 (1936) (U.S. Supreme Court)
• Parks v. Allen, 426 F.2d 610 (5th Cir. 1970) (Fifth Circuit)

Source

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

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2013-149

April 29, 2014

The Honorable Charlotte Vining Douglas
State Representative

5315 Ridge Road

Alma, Arkansas 72921-8254

Dear Representative Douglas:
This is my opinion on your questions:

1. Can a city in one district within a county, and contiguous to the other district, leave the one district and become a part of the other and, if so, by what procedure and/or mechanism?

2. Whether Ark. Code Ann. § 3-8-305, which allows some cities to vote wet/dry, but denies that right to other cities, is unconstitutional as being violative of the equal protection clauses of the state and federal constitutions?

It is my understanding that your questions concern the City of Barling, whose situation with respect to your first question may be unique and is at the very least extraordinary. My answer to that question is accordingly limited to Barling and should not necessarily be relied upon in instances involving other municipalities.

RESPONSE

In my opinion, only the General Assembly may remove Barling from Sebastian County's Greenwood District and place it in the County's Fort Smith District, and the local option law's distinction between cities does not give rise to an equal protection claim.

Question 1 — Can a city in one district within a county, and contiguous to the other district, leave the one district and become a part of the other and, if so, by what procedure and/or mechanism?

The state constitution provides that Sebastian County "may have two districts and two county seats, at which county, probate and circuit courts shall be held as provided by law. . . ." The constitution merely permits — it does not require — there to be two Sebastian County districts, so it does not establish the districts' boundary.

Statutory law provides for and recognizes the County's division into the Fort Smith District and the Greenwood District. The General Assembly's enactments do not provide for the City of Barling to change the boundary.

Whether Sebastian County itself may change the boundary is a different question, one that may not have a clear answer. But whatever the County's general authority to change the boundary in instances not involving Barling, it is my opinion that only the General Assembly may change the boundary to include Barling in the Fort Smith District. Statutory law provides that the Greenwood District shall have one district court with three departments, one of which is to be "located in Barling. . . ." The General Assembly has thus recognized Barling as part of the Greenwood District and, in my opinion, impliedly prohibited local officials and local voters from taking any action that would place Barling in the Fort Smith District.

Because the constitution does not establish the boundary, the General Assembly may of course change it at will.

Question 2 — Whether Ark. Code Ann. § 3-8-305, which allows some cities to vote wet/dry, but denies that right to other cities, is unconstitutional as being violative of the equal protection clauses of the state and federal constitutions?

As your question suggests, courts have interpreted the law you cite as meaning that local option elections may be held in political subdivisions within wet counties, but not in political subdivisions within dry counties.

A predecessor in this office considered your question and answered it in the negative. Applicable law has not changed significantly since my predecessor's opinion was issued. I accordingly agree with and reaffirm my predecessor's conclusion that the statute does not give rise to an equal protection claim under the state or federal constitution.

Assistant Attorney General J. M. Barker prepared this opinion, which I approve.

Sincerely,

Attorney General

DM:JMB/cyh

Enclosure

[Predecessor opinion follows]

STATE OF ARKANSAS
OFFICE OF THE ATTORNEY GENERAL
STEVE CLARK
ATTORNEY GENERAL

Opinion No. 88-199
August 25, 1988

The Honorable James C. Scott
State Senator
Route 1, Box 82-A
Warren, AR 71671-9705

Dear Senator Scott:

This is in response to your request for an opinion concerning Arkansas local option laws. Specifically you have asked whether A.C.A. § 3-8-305, which provides in essence that territorial subdivisions in "wet" counties may hold local option elections to eventually become "dry", and which conversely prohibits territorial subdivisions in dry counties from holding local option elections to become "wet", is unconstitutional. For the reasons that follow, it is my opinion that this provision would in all likelihood be deemed constitutional upon challenge.

Sections (2) and (3) of A.C.A. § 3-8-305 provide:

(2) when an election is held in an entire county and a majority of all the legal votes cast at the election are against the sale, barter or loan of spirituous, vinous, malt, or other intoxicating liquors, then it shall not be lawful to sell, barter, or loan any liquors in any portion of the county.

(3) If, at an election for the entire county, the majority of the legal votes cast are in favor of the sale, barter, or loan of any liquors, the election shall not operate to make it legal to grant license to sell, barter, or loan such liquors in any territorial division of the county from which the sale, barter, or loan has been excluded by an election held under this subchapter, but the statutes of the territorial division shall remain as if no election had been held.

It has been repeatedly held that under these provisions, once a county votes "dry", a subdivision within the county cannot thereafter vote "wet". Denniston v. Riddle, 210 Ark. 1039, 199 S.W.2d 308 (1947); Tabor v. O'Dell, 212 Ark. 902, 208 S.W.2d 430 (1948); Carter v. Reamy, 232 Ark. 211, 335 S.W.2d 298 (1960). The converse is expressly permitted by the statute.

It should be noted, initially, that there is no Arkansas constitutional provision prohibiting the legislative local option scheme which is set out above. In fact, the Arkansas Supreme Court has struck down at least some Arkansas constitutional challenges to the local option laws. Yarbrough v. Bearden and Phillips v. Foreman, 206 Ark. 553, 177 S.W.2d 38 (1944).

We must therefore determine whether the statute offends some provision of the United States Constitution. In constitutional analysis, the test to be applied, and the degree or level of scrutiny required of state legislation, is crucial. Long-standing judicial doctrine holds that state action in the realm of liquor control is subject to very lenient review in the courts, due primarily to the existence of the Twenty-first Amendment. It was stated in California v. LaRue, 409 U.S. 109 (1972) that:

The broad sweep of the Twenty-first Amendment has been recognized as conferring something more than normal state authority over public health, welfare, and morals. In Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 330, 12 L.Ed. 2350, 84 S.Ct. 1293 (1964), the Court reaffirmed that by reason of the Twenty-first Amendment 'a state is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.' Still earlier, the court stated in State Board v. Young's Market Co., 299 U.S. 59, 64, 81 L.Ed. 38, 57 S.Ct. 77 (1936):

'A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth.'

These decisions do not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations. But the case for upholding state regulation in the area covered by the Twenty-first Amendment is undoubtedly strengthened by that enactment.

409 U.S. at 114-15.

The court in LaRue upheld the state legislation in that case upon a finding that it was not "irrational". Other language encompassing the test for review of state legislation over liquor is found in Parks v. Allen, 426 F.2d 610 (5th Cir. 1970) where the Fifth Circuit stated:

It is firmly established that the state through the Twenty-first Amendment has a broad right to regulate traffic in intoxicating liquors in the valid exercise of its police power [citation omitted].

Moreover, the Fourteenth Amendment admits of the exercise of a wide scope of discretion in this regard. It only prohibits what is done when it is without any reasonable basis and therefore is purely arbitrary [citations omitted]. Moreover, the exercise of the power in connection with the liquor industry particularly allows the widest discretion and is subject to minimal demands of the Fourteenth Amendment's due process and equal protection requirements.

426 F.2d at 613.

Thus, it is apparent that any constitutional challenge to A.C.A. § 3-8-305 will not succeed unless the statute is deemed "irrational", and no valid reason can justify its existence. Laws are rarely struck down under this standard. If the state has any rational justification for structuring this local option statute as written, it is constitutional.

The facilitation of law enforcement activities is often advanced to justify similar laws. See, Hall v. Marcin, 7 Ill. Dec. 388, 49 Ill. App. 3d 528, 364 N.E.2d 549 (1977), (local options laws only applicable to cities with population over 200,000); and McMullin v. Richmond City Council, 312 Ky. 430, 227 S.W.2d 975 (1950), (law allowed cities of the first four classes to exercise local option power both ways irrespective of county vote). This reason could also be advanced to justify A.C.A. § 3-8-305. It is conceivable that significantly more law enforcement problems would be created by the existence of a "wet" city within a dry county, than would occur with a "dry" city located in a "wet" county. It is therefore my opinion that A.C.A. § 3-8-305 will withstand constitutional scrutiny.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.

Sincerely,

STEVE CLARK
Attorney General

SC:arb