Judges: WINSTON BRYANT, Attorney General
Filed Date: 11/17/1993
Status: Precedential
Modified Date: 7/5/2016
The Honorable Bob Fairchild State Representative 1428 Mission Blvd. Fayetteville, Arkansas 72701-2221
Dear Representative Fairchild:
This is in response to your request for an opinion on three questions concerning the "veterans preference"1 set out at A.C.A. §
Your first question is as follows:
Does the Executive Director of the Board of Law Examiners, in the absence of a ruling from the Supreme Court regarding the applicability of A.C.A.
17-1-101 to the Arkansas bar exam, have the authority to invalidate that statute as to veteran bar exam applicants? Put another way, is it lawful for the Executive Director to treat this law as invalid until such time as its validity or lack thereof is determined by the Supreme Court? Put still another way, does the Executive Director have the authority to `stand in the shoes' of the Supreme Court and strike down the Veterans' Credit statute as it pertains to veterans taking the bar exam?
It is my opinion that the answer to your question, as drafted, is technically "no," the "Executive Director" does not have this authority. The Board of Law Examiners, however, does have the duty to construe statutes and rules under which it operates and determine the proper course to pursue in administering them. The Board has the authority to determine, in my opinion, that A.C.A. §
It should be noted in response to your question that the position of "Executive Secretary" of the State Board of Law Examiners is authorized by Arkansas Supreme Court Rule VIII of the Rules Governing Admission to the Bar. This officer performs duties which are "purely ministerial." Id. It is the State Board of Law Examiners which is invested with the authority to "cause to be graded the examination papers and as a Board determine the average score of each applicant." See Rule IV of the Rules Governing Admission to the Bar. It should be noted that the Rules also provide that "[a]pplicants must make a combined average grade of 75 percent on all subjects in order to pass." See Rule IX. There is no preference granted for veterans. It is my opinion, in response to your question, that the Board does have the authority, if in its judgment the statute has been superseded by rules of the Supreme Court promulgated under Amendment
A similar issue was addressed in Petition of Pitchford,
It is my opinion therefore, in response to your first question, that the State Board of Law Examiners does have the authority to disregard A.C.A. §
Your second question is as follows:
If the Executive Director of the Board of Law Examiners does have the authority to invalidate the Veterans' Credit statute as it pertains to veteran bar applicants, does the exercise of that authority violate the rights of such veterans to the equal protection of the law, as guaranteed by the
Fourteenth Amendment to the United States Constitution, by having the effect of singling them out from among all other veterans taking all other state board examinations and denying only them the benefits that law is intended to confer upon veterans generally? Put another way, would a Supreme Court rule that denies to veteran bar applicants the benefits conferred on veteran applicants to all other state boards by the Veterans' Credit statute invidiously discriminate against veteran bar applicants in violation of the Equal
Protection clause of the
It is my opinion that the answer to this question is "no." This office has opined previously that the statute at issue, A.C.A. §
Your third question is as follows:
If the Supreme Court should either strike down the Veterans' Credit statute altogether as unconstitutional or decide that, under Amendment 28, the credit conferred upon veterans under the Veterans' Credit statute is not available to bar exam applicants, and that the ruling does not deny veteran bar applicants the equal protection of the law, should such a ruling properly be applied prospectively or retroactively? In other words, is the law presumptively invalid until deemed valid by the Supreme Court, or presumptively valid until deemed invalid?
The answer to your third question would depend upon the language of the ruling of the Supreme Court. This office is not in a position to construe a hypothetical decision of a court. Of course, all statutes are presumed constitutional (Stone v.State,
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh
Enclosure