Opinion No. ( 2004 )

The Honorable Barbara King State Representative 106 Tulip Circle Helena, AR 72342-1620

Dear Representative King:

You have requested my opinion on the following questions concerning a petition for consolidation of municipalities pursuant to A.C.A. §14-40-1201 et seq. (Repl. 1998 and Supp. 2003):

1. When a city council is presented with a petition requesting an election on consolidating two municipalities after the petitions have been deemed to contain a sufficient number of signatures and the council is required to pass an ordinance in favor of the annexation and calling an election on the question pursuant to 14-40-1201, what is the effective date of the ordinance?

2. Assuming that the normal effective date of the ordinance is a date after the election date called for on the petition, can the ordinance be passed with an emergency clause so that its effective date would be immediate?

3. If the normal effective date of the ordinance is a date after the election called for on the petition, is it necessary to recirculate the petition or can the election be called at a time compatible with the effective date of the ordinance with all other portions of the petition remaining valid?

RESPONSE

It appears that these questions are implicated in a circuit court case that is currently under consideration. See Valley v. Coad, et al, No. CV-2004-349-3 (Cir.Ct. Phillips Co.). I must accordingly decline to address your question in light of this office's long-standing policy against issuing opinions on matters 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. 2004-067; 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. Any answer to the questions you have raised must be provided in the judicial forum.

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB:EAW/cyh