Does Arkansas's Act 985 of 2013 limit on quorum court committees larger than a quorum apply to a Washington County committee of the whole that existed before the Act?

Plain-English summary

Senator Uvalde Lindsey asked the AG to address a Washington County dispute over quorum-court committee size. Before Act 985 of 2013, Arkansas law did not limit the size of quorum-court committees, and some counties used a "committee of the whole" structure where all justices of the peace served on certain committees. Washington County Ordinance 2013-12 had established a 15-member Finance and Budget Committee of the Whole, comprising all 15 of the county's JPs.

Act 985 of 2013 changed the rule. Codified at Ark. Code Ann. § 14-14-904(d)(2)(B), the new provision says: "A regular committee or special committee of the quorum court shall not consist of more than a quorum of the whole body without the consent of the county judge." A majority of the whole membership is a quorum. So unless the county judge consents, a committee cannot have more members than a simple majority of the quorum court.

When the new Washington County Quorum Court took office in 2015, the county judge refused to consent to continuing the committee of the whole. The question was whether Act 985 reached a committee that had been established before the Act took effect, or whether the existing committee was grandfathered.

The AG said Act 985 applied, and the committee of the whole could not continue without the judge's consent. Two structural principles drove the analysis:

First, counties are subordinate to the state. Article 13, § 1 of the Arkansas Constitution recognizes the state's power to create and abolish counties. Amendment 55, § 1(a) gives counties local legislative authority but only to the extent "not denied by the Constitution or by law." Ark. Code Ann. § 14-14-808(a) bars counties from exercising power "in any manner inconsistent with state law." Ark. Code Ann. § 14-14-805(13) bars any "legislative act contrary to the general laws of the state."

Second, the order of enactment does not matter. Bragg v. Adams (1929) held that the General Assembly may divest local government of previously-held legislative authority. A county ordinance that predates a conflicting state statute does not preempt the statute. The state law takes priority either way.

Applied here: the Finance and Budget Committee of the Whole provision in Washington County Ordinance 2013-12 was no longer enforceable without the county judge's consent. The county judge could refuse, and that refusal was binding. The rest of the ordinance was likely severable and continued in effect.

The AG also issued Op. 2015-031 on the same day to Senator Jon Woods on the same Washington County ordinance. Op. 2015-031 simply enclosed this opinion as the controlling answer.

Currency note

This opinion was issued in 2015. 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.

Background and statutory framework

Arkansas quorum courts are the legislative bodies of counties. Their committees handle pre-vote work on legislation, budgets, and policy. Section 14-14-904(d)(2)(A) provides that the presiding officer (usually the county judge) appoints committee members; the quorum court itself decides which committees will exist.

Before Act 985 of 2013, the quorum court could establish committees of any size, including a committee of the whole on which all JPs served. Op. Att'y Gen. 2001-012 confirmed that pre-Act 985 structure. Some counties used committees of the whole for high-importance committees (finance, budget) where they wanted all JPs to participate as a matter of course rather than depending on appointments.

Act 985 of 2013, § 2, added § 14-14-904(d)(2)(B) to limit committee size. The new rule: regular or special committees cannot have more than a quorum of the whole body's membership without the county judge's consent. A "quorum" here means a simple majority of the whole membership (the same definition used in § 14-14-904(f) for purposes of holding meetings).

The state-preemption analysis turns on Arkansas's hierarchy of authority. Counties have no inherent legislative power; they have only what the state has granted them. When the state legislates contrary to a county ordinance, the state law wins, regardless of enactment order. Bragg v. Adams (1929) is the classic statement of the principle.

Severability is the secondary issue. When part of an ordinance conflicts with state law and part does not, the typical rule is that the non-conflicting parts survive. The AG flagged that Washington County Ordinance 2013-12 established five committees in addition to making one of them a committee of the whole. The other four committees, and the underlying scheme, could continue.

Common questions

Can a county quorum court still create a committee of the whole?
Yes, but only with the county judge's consent under § 14-14-904(d)(2)(B). The judge has discretion to refuse.

What happens to the existing committee of the whole if the judge refuses consent?
It cannot continue at full membership. The quorum court can restructure the committee at or below the quorum-size limit. If the underlying ordinance is severable, the rest of the ordinance survives.

Does it matter that Washington County's ordinance was enacted in 2013?
No. The AG held that the order of enactment is irrelevant. State law preempts conflicting local law regardless of which was first.

Could the General Assembly have grandfathered existing committees of the whole?
The General Assembly could have included a grandfather clause in Act 985, but did not. Without such language, the new rule applies to all committees, new and old.

Could the county judge be forced to consent?
The statute gives the judge discretion. The opinion does not address possible judicial review of an arbitrary refusal, but as a default matter, the judge's "no" is the end of the question.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-023
April 29, 2015

The Honorable Uvalde Lindsey
State Senator
2257 East Gentle Oaks Lane
Fayetteville, Arkansas 72703-6142

Dear Senator Lindsey:

This is my opinion on your question about the impact of Act 985 of 2013 on a quorum court's committee of the whole.

Before 2013, state law did not limit the size of quorum court committees, and some counties used committees of the whole (i.e., committees on which all quorum court members serve). Act 985 included a prohibition on regular or special committees larger than a simple majority of the whole quorum court membership, absent the county judge's consent.

Your request states that the "Washington County Quorum Court had a Committee of the Whole, all 15 Justices of the Peace, on Finance and Budget in 2013" and that "[t]he County Judge, based on Act 985 of 2013, has refused to consent to a Committee of the Whole beginning with the Court as sworn in for 2015." Washington County ordinance 2013-12 establishes five committees and provides that the Finance and Budget Committee will be a committee of the whole.

You ask whether Act 985 applies to committees already in existence when Act 985 came into effect.

RESPONSE

In my opinion, the answer to your question is "yes." A county ordinance is of no effect to the extent it conflicts with state law, regardless of the order in which the two were enacted.

DISCUSSION

Counties are created by and subordinate to the state. "A county ... may exercise local legislative authority not denied by the Constitution or by law" but may not "exercise ... any power in any manner inconsistent with state law ...." Enforcing a county ordinance requiring a committee of the whole without the county judge's consent would amount to the exercise of county authority in a "manner inconsistent" with the state law prohibiting committees of the whole absent that consent.

The inconsistency would exist regardless of the order in which the county and state laws were enacted. I know of no basis on which to argue that county legislative action preempts conflicting state legislative action when the former is first in time.

It follows that the ordinance is of no effect to the extent it purports to require, irrespective of the county judge's consent, a committee of a size not permitted under applicable state law without that consent. It appears likely that the ordinance's committee-of-the-whole provision would be held to be severable from the remainder of the ordinance, which (having no stated expiration date) will continue in effect until repealed.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/JMB:cyh