Opinion No. ( 2005 )

The Honorable Robbie Wills State Representative Post Office Box 306 Conway, Arkansas 72033-0306

Dear Representative Wills:

I am writing in response to your request for an opinion on a question regarding an upcoming referendum election in the City of Conway. Specifically, you relate the following information and pose the following question:

Background: There is currently circulating within the City of Conway a petition pursuant to Amendment 7 seeking a referendum on a local ordinance. The petition, pursuant to A.C.A. § 7-9-111(h) specifies a date for a special election to be held, August 23, 2005.

The City of Conway, on February 11, 1941, adopted, pursuant to Amendment 7, Ordinance No. A-193. That ordinance provides in section three (3) that after a finding that a referendum petition is proper, the city council "shall order a special election" for a date some time later than ten (10) days after its order. . . .

Given the previous information, what is your opinion on the following question:

1. Assuming that election officials have sufficient time to comply with all election procedures does the city council have the authority and discretion, under either 1.36.03 or Amendment 7, to order a special election for a date which is earlier than that specified in the petition?

RESPONSE

I must decline to respond to your question at this time. The central issue that is raised by your question, i.e., the authority of a city to set the date for a special election which is earlier than the date specified in the referendum petition, is the subject of Spatz v. City ofConway, CV 05-368 (Faulkner County Circuit Court, Third Division). The matter is therefore currently pending before that court. For that reason, I cannot opine on the issue.

My office has a long-standing policy against the issuance of opinions on questions that are the subject of pending litigation. This policy is based primarily upon the separation of powers doctrine. See, e.g., Ops. Att'y Gen. Nos. 2004-172; 2004-102; 2004-067; 2004-006; 2003-032; 2002-302; 99-389; 97-329; 97-105. Any opinion issued from my office would constitute executive comment on matters that are properly before a judicial body. Accordingly, any answer to the question you have raised must be provided in the judicial forum.

Sincerely,

MIKE BEEBE Attorney General

MB: ECW/cyh