Opinion No.

The Honorable Paul R. Bosson Prosecuting Attorney Eighteenth Judicial District East 501 Ouachita Avenue Hot Springs, AR 71901

Dear Mr. Bosson:

This is in response to your request for an opinion regarding the election procedure for the office of Municipal Judge in Hot Springs Municipal Court. You have asked, specifically, whether the election is conducted according to A.C.A. §§ 16-17-208 and 14-47-110 as are the rest of the City Board of Directors' races without a primary, or in another manner. You note that the Garland County Election Commission is of the opinion that this is a nonpartisan race.

It is my opinion that the election will be nonpartisan, in accordance with A.C.A. § 14-47-109(d)(1) (Supp. 1997), if the City of Hot Springs has adopted an ordinance as prescribed in A.C.A. § 16-17-208 (Repl. 1994), providing for the election of the municipal judge(s) at the biennial general election held in even-numbered years.

Because § 16-17-208 is, in my opinion, the controlling law, I will set out the full text of this provision. Section 16-17-208 states:

(a) Any city in this state having a city-manager form of government which adopts an ordinance for the purpose shall, upon adoption thereof, provide for the election of the municipal judges of the city at the biennial general election held in even-numbered years.

(b) In the event such an ordinance is adopted pursuant to this section, the judges of the municipal court of the city shall be elected for a term of four (4) years, with the applicable provisions of 14-47-109 and 14-47-110 to be followed in qualifying for and in conducting the election for the office.

(c) In the event such an ordinance is adopted pursuant to this section, the judges of the municipal court of the city shall, if their term of office expires prior to the date of the next following even-year general election, continue to hold office until their successors are elected and qualified and assume office on January 1 of the year next succeeding the date of the next even-year general election.

(d) Upon the adoption of the ordinance authorized by this section, the odd-year elections for municipal judges in the city shall not be applicable.

A.C.A. § 16-17-208 (Repl. 1994) (emphasis added).

Any ambiguity with respect to the referenced "ordinance" in this provision is resolved by reviewing the legislative history of §16-17-208. This section is the codification of Act 39 of 1961, as amended by Act 38 of the First Extraordinary Session of 1968. It is clear from these acts that the purpose was to authorize cities having a city manager form of government to enact an ordinance to provide for the election of the municipal judge at the biennial general election rather than at the odd-year election. See Acts 1968, No. 38 (1st Ex. Sess.) (introductory language) and Acts 1961, No. 39 (title). This purpose is also confirmed by the following language from Williamson v. Pulaski County ElectionComm'n, 249 Ark. 309, 459 S.W.2d 52 (1970):

Act 38 of 1968 provided that a city with a city management form of government may, by ordinance, provide for the election of Municipal Judges in that city at biennial general elections, in which event the candidates for such office shall be nominated and elected in accordance with the applicable provisions of Arkansas statute 19-704 [now A.C.A. § 14-47-109] and 19-705 [now A.C.A. § 14-47-110]. The City of Little Rock adopted such an ordinance in 1968.

249 Ark. at 312.

You have not indicated whether the City of Hot Springs has adopted such an ordinance. If such an ordinance is not adopted, it is my opinion that the municipal judge is elected as otherwise provided by law (see A.C.A. § 16-17-120(c)(2) (Repl. 1994)), which means through the preferential and general primary process and ultimately through the general election process. See generally A.C.A. §§ 7-7-102(b), 7-7-202, and 7-7-203. Seealso Op. Att'y Gen. 94-244 (copy enclosed).

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:EAW/cyh