Can an elected Arkansas Court of Appeals judge also serve as a part-time elected district court judge, and does the answer change if the city and county pay the salary?

Plain-English summary

State Representative Tommy Thompson asked the AG three connected questions about whether a Court of Appeals judge could moonlight in another government role. AG Dustin McDaniel answered:

1. Court of Appeals judge serving as a part-time district court judge? No. Section 16(F) of Amendment 80 to the Arkansas Constitution bars "Circuit, District, and Appellate Court Judges and Justices" from holding "any other office of trust or profit under this state ... except as authorized by law." The provision identifies both judgeships as offices under the state, and no statute authorizes an appellate judge to simultaneously serve as a district judge.

2. Does it matter who pays the district judge's salary? No. The dual office-holding ban turns on whether the position is an "office of trust or profit under this state," not on the funding source. Amendment 80 § 16(E) gives the General Assembly authority over how judges are paid, but that funding determination has nothing to do with the § 16(F) prohibition. A district judge is "under this state" regardless of whether the salary comes from city, county, or state funds.

3. What about teaching as an adjunct law school or college professor with state funds? Allowed. A professor's position is not an "office" within the meaning of § 16(F). Drawing on Op. Att'y Gen. 95-210, which addressed virtually identical pre-Amendment 80 language, the AG applied the Maddox v. State characteristics test: an office is indicated by exercise of sovereign power, tenure/compensation/duties fixed by law, an oath of office, a formal commission, and the giving of a bond. Law professors check at most one of those boxes (compensation by legislative appropriation), and even that is typically a function of contract rather than statute. A professor is therefore a position, not an office, and the dual office-holding ban does not apply. Separation of powers under Article 4, Sections 1 and 2 likewise does not bar a judge from teaching, because the prohibition runs against members of one branch exercising powers belonging to another, and a professor exercises no governmental power at all.

The opinion is technical, but the practical upshot is clean: an Arkansas appellate judge cannot pull double duty as a district judge under any funding arrangement, but can lawfully teach a college or law school class as an adjunct.

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.

Common questions

Why does Amendment 80 § 16(F) matter for sitting judges?
Because it is a direct constitutional bar on judges holding "any other office of trust or profit under this state or the United States, except as authorized by law." The General Assembly can authorize specific exceptions, but absent that authorization, judges cannot hold a second governmental office.

What's the difference between an "office" and a "position"?
The Arkansas Supreme Court in Maddox v. State set out a multi-factor test: (1) the holder exercises some part of the state's sovereign power; (2) the tenure, compensation, and duties are usually fixed by law; (3) the holder takes an oath of office; (4) the holder receives a formal commission; (5) the holder gives a bond. A district court judgeship meets all five. An adjunct teaching post meets at most one (and even that one is more contract than statute).

Is there any way an appellate judge could legitimately serve in another role?
Yes, under § 16(F)'s "except as authorized by law" clause if the General Assembly enacted a specific authorization. Amendment 80 § 16(d) already contains one statutory-style exception, allowing a district judge to serve in a contiguous county when no qualified candidate resides there. Absent a similar authorization, the dual-office bar holds.

Why didn't the funding source matter?
Because the bar is structural, not financial. The text identifies district court judges as offices "under this state" regardless of which government writes the paycheck. Amendment 80 § 16(E) addresses how judges are paid, but it is silent on dual office-holding. The two provisions sit independently of each other.

Could the General Assembly statutorily authorize an appellate judge to sit as a district judge?
That would be the only path. The opinion treats the absence of such authorization as dispositive. The General Assembly has chosen the opposite direction at the district level: A.C.A. § 6-17-1102(6) (Supp. 2013) imposes additional restrictions specific to full-time state district judges.

Could a sitting judge teach a course for compensation?
Yes. The opinion is explicit that a law or college professor is not an officer and the dual office-holding ban does not reach the teaching role. Separation of powers under Article 4, Sections 1 and 2 also does not bar the arrangement because a professor exercises no governmental power.

Background and statutory framework

Amendment 80 modernized Arkansas's judicial article. § 16(F) preserved a long-standing dual office-holding prohibition for circuit, district, and appellate judges and justices. § 16(E) addressed the legislature's authority to determine the amount and method of payment for justices and judges. § 16(d) carved out one narrow exception for district judges in contiguous counties when no qualified resident candidate is available. § 22(A) repealed the old Article 7, including the predecessor dual office-holding language in Article 7, § 10.

A.C.A. § 6-17-1102(6) (Supp. 2013) supplied a specific prohibition for full-time state district court judges, further restricting their secondary employment.

Maddox v. State, 220 Ark. 762 (1952), is the Arkansas Supreme Court anchor for the office-versus-position distinction. The five characteristics it identified have framed AG opinions on dual office-holding for decades.

Op. Att'y Gen. 95-210, written under the pre-Amendment 80 text, addressed the same questions about a law professor versus an office and reached the same conclusion. The AG here treated 95-210 as fully applicable to the modernized Amendment 80 text because the operative phrase ("office of trust or profit under this state") was carried over essentially unchanged.

The separation-of-powers analysis under Article 4, Sections 1 and 2 turned on whether the second role exercised power belonging to another branch. Since a professor exercises no governmental power, the constitutional separation-of-powers concern was not triggered.

Citations

• Ark. Const. amend. 80, § 14 (judges generally barred from private practice, district judges excluded from that ban)
• Ark. Const. amend. 80, § 16(d) (district-judge contiguous-county exception)
• Ark. Const. amend. 80, § 16(E) (legislature determines judicial payment)
• Ark. Const. amend. 80, § 16(F) (dual office-holding prohibition)
• Ark. Const. amend. 80, § 22(A) (repeal of prior Article 7 provisions)
• Ark. Const. art. 4, § 1 (separation of powers)
• Ark. Const. art. 4, § 2 (no person in one branch may exercise power of another)
• Ark. Const. art. 7, § 10 (1987) (predecessor language, repealed by Amendment 80)
• A.C.A. § 6-17-1102(6) (Supp. 2013) (additional restrictions on full-time state district court judges)
• Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952) (office vs. position characteristics test)
• Op. Att'y Gen. 95-210 (law professor is not an officer)
• Op. Att'y Gen. 92-050 (law professors do not exercise sovereign power)
• Op. Att'y Gen. Nos. 2003-341, 2001-264 (contiguous-county exception explained)

Source

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

Original opinion text

Opinion No. 2014-076
August 11, 2014

The Honorable Tommy Thompson
State Representative
15 Ashley Drive
Morrilton, Arkansas 72110-2287

Dear Representative Thompson:

You have requested my opinion on the following questions:

1. Is there any constitutional or statutory authority that would prohibit an elected Judge on the Court of Appeals from also serving as an elected judge in a part-time position for a District Court?

2. If the District Court position is funded fully by the City and the County and no state funds are used for the Judge's salary, would this violate any constitutional or statutory rules?

3. If yes to the above, is there a distinction between an elected Judge that teaches law school and college courses as an adjunct professor and paid with state funds?

RESPONSE

In response to your first question, Section 16(F) of Amendment 80 to the Arkansas Constitution prohibits circuit, district, and appellate court judges and justices from holding "any other office of trust of profit under this state ...." In my opinion, this constitutional provision bars a court of appeals judge from serving as a district court judge, whether on a full or part-time basis. It is my opinion in response to your second question that this dual office-holding prohibition is unaffected by the source of funding for the position. With regard to your third question, there is a distinction because in my opinion even if the professor's compensation is fixed by law, the position of professor does not constitute an office.

Question 1 - Is there any constitutional or statutory authority that would prohibit an elected Judge on the Court of Appeals from also serving as an elected judge in a part-time position for a District Court?

The answer to this question is found in Section 16 of Amendment 80 to the Arkansas Constitution, which addresses the qualifications of justices and judges and provides in relevant part:

Circuit, District, and Appellate Court Judges and Justices shall not be allowed any fees or perquisites of office, nor hold any other office of trust or profit under this state or the United States, except as authorized by law.

This provision by its very terms identifies both a court of appeals judgeship and a district court judgeship as "office[s] of trust or profit under this state," and it prohibits the respective justices and judges from holding another such office, "except as authorized by law." Having found no authority in law for an appellate judge to serve as a district judge, it is my opinion in response to your specific question that this general constitutional proscription against dual service bars a court of appeals judge from serving as a district court judge, whether on a full or part-time basis.

Question 2 - If the District Court position is funded fully by the City and the County and no state funds are used for the Judge's salary, would this violate any constitutional or statutory rules?

I interpret this question as suggesting that the prohibition under Ark. Const. amend. 80, § 16(F) might not apply if the state does not fund the district judge's salary. I have found no support for that suggestion. On the face of Amendment 80, it is evident that district court judges are identified as holding an office under the state: they "shall not ... hold any other office of trust or profit under this state." In my opinion, a district judge is subject to this dual office-holding proscription regardless of how he or she is paid. The General Assembly determines the "amount and method" by which district judges are paid: "The General Assembly shall by law determine the amount and method of payment of Justices and Judges." But this funding determination is in no way connected to the proscription against holding another office under the state, a proscription that on its face generally precludes an appellate justice from serving as district judge.

Question 3 - If yes to the above, is there a distinction between an elected Judge that teaches law school and college courses as an adjunct professor and paid with state funds?

This question requires a determination whether the position of adjunct professor constitutes an "office" within the meaning of Amendment 80's dual office-holding prohibition which, as discussed above, applies to an "office of trust of profit under this state." One of my predecessors had occasion to address this question under virtually identical previous constitutional language. Prior to its repeal by Amendment 80, Article 7, section 10 of the Arkansas Constitution stated in relevant part that Arkansas Supreme Court judges "shall not ... hold any office of trust of profit under the State or the United States." After noting that there were no cases construing this language, my predecessor observed that our court has construed the term "office" in other dual office-holding contexts and has applied the same analysis in each, an analysis that focuses on certain characteristics:

[T]he Arkansas Supreme Court has taken the position that an "office" is indicated by the following characteristics:

(1) The holder of the position exercises some part of the State's sovereign power;
(2) The tenure, compensation, and duties are usually fixed by law;
(3) The holder of the position takes an oath of office;
(4) The holder of the position receives a formal commission;
(5) The holder of the position gives a bond.

See, e.g., Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952). By contrast, in a position that is not an "office," some or all of the characteristics listed above are lacking.

My predecessor concluded based on this analysis that a law professor does not hold an office:

The only one of the listed characteristics that could even be considered indirectly descriptive of the position of law professor is part of the second one: Compensation fixed by law. The compensation of law professors, as a group, is determined by legislative appropriation. However, it is my understanding that the individual professors' compensation is determined by contract. Therefore even the second listed characteristic may not be considered applicable to law professors. Clearly the remaining four are not: Law professors do not exercise the State's sovereign power (see Op. Att'y Gen. No. 92-050); they do not take an oath of office; they do not receive a formal commission; and they do not give a bond.

I therefore conclude that the position of law professor does not constitute an "office" within the meaning of that term as discussed by the Arkansas Supreme Court.

I fully concur with this analysis and conclusion, which in my opinion apply equally to the dual office-holding prohibition under Ark. Const. amend. 80, § 16(F). Even if the adjunct professor's compensation is established by state appropriation, the position is not an "office" within the meaning of this constitutional prohibition, in my opinion.

I believe this conclusion is also determinative of any separation of powers issue that might arise out of the question you have presented regarding an elected judge teaching as an adjunct professor paid with state funds. Article 4, Section 1 divides the powers of the state's government into three distinct branches. Article 4, Section 2 then states:

No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Having determined that a law professor is not an "officer," I conclude that the separation of powers doctrine does not operate to prohibit an elected judge from teaching as an adjunct professor.

In sum, with regard to your specific question, there is a distinction because the position of professor does not constitute an office, in my opinion.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

DUSTIN MCDANIEL
ATTORNEY GENERAL
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