Judges: MARK PRYOR, Attorney General
Filed Date: 3/22/2001
Status: Precedential
Modified Date: 7/5/2016
The Honorable Steve Faris State Senator 29476 Hwy. 67 Malvern, AR 72104
Dear Senator Faris:
This is in response to your request for an opinion regarding House Bill 2376 of the 83rd General Assembly. Specifically, you have asked for an opinion concerning the legality of this bill in light of the constitutional separation of powers doctrine.
RESPONSE
It is my opinion that HB 2376 does not on its face violate the separation of powers required by the Arkansas Constitution. While a separation of powers issue could conceivably arise in the application of the bill, this will require a review of the specific facts and circumstances presented.
House Bill 2376 is entitled "An act to require the Public Service Commission to provide space and reasonable accommodation for an employee of the General Assembly to act as liaison between the PSC and the General Assembly regarding utility issues. . . ." The text of the bill provides as follows:
Section 1. (a) The Arkansas Public Service Commission shall provide space and reasonable accommodation for an employee of the General Assembly who shall act as liaison between the Arkansas Public Service Commission and the General Assembly with respect to utility issues.
(b) The Arkansas Public Service Commission shall give the liaison free and unencumbered access to all records, hearings, conferences, and other meetings regarding utility issues.
The bill would presumably afford the liaison access to records and meetings that are not otherwise open to the public under the Arkansas Freedom of Information Act (A.C.A. §§
Arkansas's separation-of-powers provisions are set out in Article 4, Sections 1 and 2 of the Constitution:
§ 1. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
§ 2. No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
One legal commentator on the separation of powers doctrine has noted that "[a]lthough it is not always clear whether a particular administrative agency should be assigned to the executive department or the legislative department, the Public Serv. Commission has traditionally been treated as a part of the legislative department." Stafford, Separation of Powers andArkansas Administrative Agencies: Distinguishing Judicial Power andLegislative Power, 7 UALR L.J. 279, 343 n. 239 (1984). If indeed the Public Service Commission (PSC) is part of the legislative branch of government, then the separation of powers analysis of HB 2376 may end with that observation. It is fundamental that there must be at least two branches of government involved for a separation of powers issue to arise. Cf. Fireman's Ins. Co. v. Arkansas State Claims Comm'n,
I am not convinced, however, that a court would end the separation of powers inquiry in this instance by simply observing that the PSC is an arm of the legislature. Unlike the Claims Commission at issue in Fireman'sIns. Co., supra, the PSC does not "possess only legislative character" and it is not "subject to review only by the legislature." Arkansas MotorCarriers Ass'n Inc. v. Pritchett,
Assuming, then, that the Court would not departmentalize the PSC exclusively as a branch of the General Assembly in its constitutional analysis of HB 2376, it is my opinion that the bill would nevertheless likely withstand facial scrutiny. Under a so-called "usurpation of power" analysis of the bill, the focus would be on the degree of control exercised by one branch over another. See generally Spradlin v. ArkansasEthics Comm'n,
A cautionary note is, however, warranted in my opinion due to the potentially broad scope of the phrase "regarding utility issues." I would have no concern if the bill clearly limited the liaison's access to the Commission's "purely legislative" (City of Fort Smith, supra) rate-making function. There of course is no usurpation where the legislative branch is exercising its own powers. As it stands, however, the bill is potentially much broader in scope, thus opening the way to arguments concerning its constitutionality as applied. The liaison's access to all meetings regarding utility issues could, I believe, depending upon the specific facts, conceivably impinge upon executive or judicial functions. Because the resolution of any such issues will turn on the particular facts, I cannot speculate further in this regard other than to note the potential implications of this broad language.
In conclusion, it is my opinion that there is no clear constitutional conflict on the face of HB 2376. Depending upon how the bill, if enacted, is applied, I can conceive of factual scenarios giving rise to the argument that the legislature is interfering with executive or judicial functions of the PSC. In my opinion, however, the bill is constitutional on its face.
Assistant Attorney General Elisabeth A. Walker prepared the following opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:EAW/cyh
By way of contrast, HB 2376, as noted above, involves an agency that is not easily departmentalized for separation of powers purposes. Nor, in my view, does the bill implicate the judicial department to an extent that the court would be inclined to adhere to the rigid "formalist approach" (Robertson, supra, 48 Ark. L. Rev. at 768) reflected in Spradlin. The PSC is not a judicial body. Cullum v. Seagull Mid-South, Inc.,
Cullum v. Seagull Mid-South, Inc. , 322 Ark. 190 ( 1995 )
State v. Ruiz , 269 Ark. 331 ( 1980 )
Chaffin v. Arkansas Game & Fish Commission , 296 Ark. 431 ( 1988 )
Fireman's Insurance v. Arkansas State Claims Commission , 301 Ark. 451 ( 1990 )
Lincoln v. Arkansas Public Service Commission , 313 Ark. 295 ( 1993 )
Southwestern Bell Telephone Co. v. Arkansas Public Service ... , 267 Ark. 550 ( 1980 )
Ports Petroleum Co., Inc. of Ohio v. Tucker , 323 Ark. 680 ( 1996 )
City of Fort Smith v. Dept. of Public Utilities. , 195 Ark. 513 ( 1938 )