Where does an Arkansas circuit judge get the power to declare a state law unenforceable beyond the boundaries of that judge's own judicial district?

Plain-English summary

Senator Bob Ballinger asked the Attorney General to identify the constitutional provision, statute, or precedent under which an Arkansas circuit judge can declare a state law unenforceable beyond the geographic boundaries of that judge's own judicial district. The question was loaded: it implied that such authority might not exist.

Attorney General Leslie Rutledge declined to answer. Two cases raising essentially the same question were pending in Pulaski County Circuit Court at the time, McClane v. State, 60CV-21-4692, and Little Rock School District v. State. The AG's standing policy is to stay out of cases the courts are actively deciding. The opinion is a short procedural decline with no substantive analysis.

So this opinion is useful for what it shows about AG practice, not for any answer about circuit-court reach.

What this means for you

If you are a state legislator or policy advocate who saw this opinion as a way to get a quick answer

A pending-litigation decline is not a hint about the merits. It is a separation-of-powers move: the AG, an executive officer, will not preempt a court that is already deciding the same issue. If you need a definitive answer about a circuit judge's geographic reach, the answer will come from the courts, either in McClane, in Little Rock School District, or in a later appellate decision. Treat this opinion as a procedural marker, not as either side of the underlying question.

If you are a litigator briefing the territorial reach of a circuit-court declaration

The opinion's footnote citations to Op. Att'y Gen. 2016-027 and 2015-140 are the authorities for the AG's pending-litigation policy. They are not on the merits of judicial authority. You will need to cite Arkansas case law and constitutional provisions on the scope of declaratory judgments and circuit-court jurisdiction directly.

If you are a journalist tracking statewide injunctions

The case captions in the opinion's footnotes (McClane v. State, 60CV-21-4692, Pulaski Circuit, 6th Division, filed Aug. 2, 2021; Little Rock School District v. State, filed Aug. 5, 2021) are the threads to follow for the actual judicial answer. Track the docket and any subsequent opinions for the substance.

Common questions

Q: Did the AG say a circuit judge cannot declare a law unenforceable statewide?
A: No. She did not address the merits. She only declined to issue an opinion because the question was already in court.

Q: Why does the AG decline to opine on pending issues?
A: It is a longstanding policy rooted in separation-of-powers concerns. The Attorney General is part of the executive branch. Issuing a formal opinion on a question that the judiciary is actively deciding could be seen as trying to influence the litigation. The opinion cites Ops. Att'y Gen. 2016-027 and 2015-140, among others, for that policy.

Q: Is a pending-litigation decline binding on anyone?
A: No. It is just a notice that the AG will not weigh in. It carries no precedential effect on the underlying legal issue.

Q: Where do I look for the actual answer about a circuit judge's geographic reach?
A: To Arkansas case law on declaratory judgment scope, to the Arkansas Constitution's provisions on circuit-court jurisdiction (article 7), and to the eventual rulings in the cited cases or any appellate decisions that follow. This AG opinion will not get you there.

Background and statutory framework

The Arkansas Attorney General's office issues advisory opinions to state officials under Ark. Code Ann. § 25-16-706. Those opinions are persuasive but not binding. The office has, for decades, declined to issue opinions on legal questions that are pending before the courts, on separation-of-powers grounds. That is the practice the AG invoked here.

The two cases the AG cited were both filed in Pulaski County Circuit Court in early August 2021. Both involved challenges to state law and at least one raised the question of how broadly a circuit court's declaration of invalidity reaches. Their dockets and any subsequent appellate decisions are the substantive authority on the question Senator Ballinger asked.

Citations

• Op. Att'y Gen. 2016-027 (decline policy precedent)
• Op. Att'y Gen. 2015-140 (decline policy precedent)
• McClane, et al. v. State of Ark., et al., 60CV-21-4692 (Pulaski Cir. Ct., 6th Div., Aug. 2, 2021)
• Little Rock Sch. Dist., et al. v. State of Ark., et al. (Pulaski Cir. Ct., 6th Div., Aug. 5, 2021)

Source

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

Original opinion text

Opinion No. 2021-078
November 22, 2021
The Honorable Bob Ballinger
State Senator
1047 CR 5099
Ozark, AR 72949
Dear Senator Ballinger:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for an opinion regarding the following question:

What constitutional provision, code provision, or court precedent
establishes the authority of a circuit court judge to declare a law
unenforceable outside of his or her judicial district?

I must respectfully decline to issue an opinion on your questions because of
pending litigation, your question being a matter before the court, the outcome of
which could directly affect the issue you have raised. 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

[Footnotes:
1 See McClane, et al. v. State of Ark., et al. 60CV-21-4692 (Pulaski Circuit, 6th Div., Aug. 2, 2021); Little Rock Sch. Dist., et al. v. State of Ark., et al. (Pulaski Circuit, 6th Div., Aug. 5, 2021).
2 See, e.g., Ops. Att'y Gen. 2016-027, 2015-140 (and opinions cited therein).]