Opinion No. ( 2005 )

The Honorable Denny Altes State Senator 8600 Moody Road Fort Smith, Arkansas 72903-6718

Dear Senator Altes:

I am writing in response to your request for an opinion on the following question:

Does the proposed Referred Question No. 1, know as the Arkansas Interstate Highway Financing Act of 2005, which would authorize the Arkansas Highway Commission to perpetually issue bonds without a popular vote, conflict with Arkansas Constitution Amendment XX?

RESPONSE

I must decline to issue an opinion on this matter at this time. The referred question will appear on the ballot to be voted on by the electorate at a special December 13, 2005 election. As I stated to you in July of this year in a similar context (see Op. Att'y. Gen. 2005-127), this office has traditionally maintained a policy not to issue opinions concerning the effect of proposed constitutional amendments prior to those amendments being put to a vote of the people. See Ops. Att'y. Gen.2004-210 (fn1) and 97-214 (discussing proposals referred by legislative resolutions) and 97-123 and 94-193 (discussing proposals initiated through the Amendment 7 "Initiative and Referendum" process). I see no basis to deviate from this policy with regard to matters required to be placed before the voters under the provisions of Amendment 20. Your question regarding the constitutionality of the referred question cannot be answered at this time in the framework of an official opinion. See A.C.A. § 25-16-706 (Repl. 1996). I, of course, provide opinions to members of the General Assembly concerning the constitutionality of proposed bills. The measure in question, however, is to be voted on by the people rather than the legislature. Further, in my judgment, a court would not entertain a declaratory judgment action to test the constitutionality of the proposed measure prior to enactment. See A.C.A. §§ 16-111-101 to -111 (1987). The absence of any forum for challenging my advisory opinion, coupled with the potential impact of such an opinion on the electorate, compels me to decline to opine on the matter. I must, instead, defer to the people's right to vote on the measure free from an opinion from this office.

Sincerely,

MIKE BEEBE Attorney General

MB:cyh