Will the Arkansas AG opine on a question that is already before a court?

Plain-English summary

Representative Stu Smith asked three questions about who has authority to hire a district court clerk in Arkansas: whether the county quorum court can authorize the judge to hire one under Ark. Code Ann. § 16-17-106, whether the judge needs city-council permission, and whether the statute applies to clerk hiring at all.

Then-Attorney General Leslie Rutledge declined to answer. The Independence County District Court had already filed a petition for declaratory judgment against the Independence County Judge, Robert Griffin, in case 32CV-21-61, raising the same issues. Under what the opinion described as "the long-standing policy of the Attorney General's office, as a member of the executive branch," the AG does not issue opinions on questions pending before the courts. The reasoning is structural: an opinion that pre-judges a live judicial controversy interferes with the judicial branch's authority to decide the case. The AG's appropriate posture is to wait for the court to rule.

This means the substantive § 16-17-106 question, who controls the hiring of district court clerks and how that authority is shared between the county quorum court, the city council, and the district judge, was left for the Independence County Circuit Court to resolve.

Currency note

This opinion was issued in 2021. 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 the Arkansas AG decline to opine on questions already in court?
The opinion described it as a "long-standing policy" rooted in the AG's role as an executive-branch officer. Issuing a formal opinion on a contested legal question that a court is already weighing risks pre-judgment, can muddy the record, and treads on the judicial branch's authority to interpret the law for the parties before it. The AG's role is advisory; the court's role is dispositive on the case.

Is the policy a hard rule or a courtesy?
The opinion treated it as a settled office policy, citing Ops. Att'y Gen. 2016-027 and 2015-140 as examples of the same disposition. It is consistent enough across decades of AG opinions to be treated as a rule, though it is not codified in any statute.

Where would a researcher find the actual answer to the § 16-17-106 question?
In the Independence County Circuit Court's docket for case 32CV-21-61, and in any later appellate review of that case. The AG opinion itself does not analyze the statute.

Could the AG revisit the question after the court ruled?
In principle, yes, especially if a different requestor framed the question with different facts. But once a court has decided it, the court's interpretation typically displaces the need for an AG opinion.

Background and statutory framework

Arkansas's district court system has a layered funding and staffing structure. District courts serve cities and counties; their personnel costs are typically split. Ark. Code Ann. § 16-17-106 deals with who has hiring and supervisory authority. The substantive question, whether a county quorum court has the authority to authorize a district judge to hire a clerk on the county's payroll, sits at the intersection of three governmental units (county, city, district court) with overlapping interests.

When that kind of inter-branch question reaches both the AG and a court at roughly the same time, the AG's office routinely steps back. The pending-litigation doctrine here is not a doctrine of finality (the court hasn't ruled), but of comity (the AG's opinion would be advisory and could prejudice the live case). It produces a "no opinion" disposition that, technically, leaves the legal question open as to the AG's office while the court works.

Citations

State statutes:

• Ark. Code Ann. § 16-17-106

Cases:

• Independence County District Court v. Independence County Judge Robert Griffin, No. 32CV-21-61 (Independence County Cir., Civ. Div., April 12, 2021)

Prior AG opinions:

• Op. Att'y Gen. 2016-027
• Op. Att'y Gen. 2015-140

Source

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

Original opinion text

Opinion No. 2021-022
April 20, 2021
The Honorable Stu Smith
State Representative
2605 Franklin Street
Batesville, AR 72501-7738
Dear Representative Smith:
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
This is in response to your request for an opinion on several questions pertaining to the hiring of district court personnel. I have paraphrased your questions as follows:
1) Does Arkansas Code § 16-17-106 statutorily prohibit a county quorum court from authorizing a district court judge to hire a clerk to serve under the judge's supervision?
2) Does Arkansas Code § 16-17-106 further require that a district judge seek permission from the city council to authorize hiring said clerk?
3) Is Arkansas Code § 16-17-106 applicable to a situation involving the hiring of a clerk?

RESPONSE
I must respectfully decline to issue an opinion on your questions in light of pending litigation. The questions you have posed are the subject of a petition for declaratory judgment in Independence County District Court v. Independence County Judge Robert Griffin, No. 32CV-21-61 (Independence County Cir., Civ. Div., April 12, 2021). It is the long-standing policy of the Attorney General's office, as a member of the executive branch, to decline to issue opinions on matters that are pending before the courts for resolution.

I regret that I cannot be of assistance in this matter. Please do not hesitate to contact me if I may be of future assistance in some other respect.

Sincerely,
LESLIE RUTLEDGE
Attorney General