Judges: WINSTON BRYANT, Attorney General
Filed Date: 11/23/1998
Status: Precedential
Modified Date: 7/5/2016
The Honorable Larry Jegley, Prosecuting Attorney Sixth Judicial District 122 South Broadway Little Rock, Arkansas 72201
Dear Mr. Jegley:
You have requested an Attorney General opinion concerning Ordinance No. 17,794, recently passed by the Little Rock Board of Directors, authorizing the city attorney to establish a system for collecting hot checks.
Regarding this ordinance and the related state laws, you have presented the following questions:
(1) Assuming arguendo that Ordinance No. 17,794 was validly passed, does it, by authorizing a hot check program and the collection of hot checks by the city attorney, violate state statutory or constitutional law in light of Attorney General Opinion No.
91-048 , and A.C.A. §§16-21-103 ,16-21-1109 ,16-21-115 ,21-6-411 , and16-21-120 , and especially in light of the fact that the 6th District prosecutor has explicitly refused to grant the city authority to prosecute hot checks?(2) If the answer to Question 1 is "yes," does the operation of the program subject the city attorney to an illegal exaction action pursuant to article
16 , §13 of the Arkansas Constitution? What other legal remedies are available to attack the city hot check program legally, and who may bring the actions? (Quo warranto by either the prosecutor or Attorney General? Mandamus by the prosecutor or Attorney General? Injunctive relief associated with any of the above?)(3) If the answer to Question 1 is "no," please state your opinion as to why the ordinance does not violate state statutes or constitutional provisions in light of the prosecutor's withholding of permission to prosecute.
(4) If the answer to Question 1 is "no," is the ordinance defective due to the erroneous reference to A.C.A. § "21-6-416" or due to its enactment with an emergency clause, despite the existence of the prosecutor's hot check program?
(5) Is there any constitutional or legal defect in A.C.A. §
16-21-120 , such as problems under Amendment14 to the Arkansas Constitution (special or local legislation), or due process problems under the U.S Constitution? Does A.C.A. §16-21-120 specifically authorize any and all prosecuting attorneys' offices to establish a hot check program and expend the funds in a discretionary manner?(6) Is there any constitutional or legal defect in A.C.A. §
16-21-1109 , such as problems under Amendment14 to the Arkansas Constitution (special or local legislation), or due process problems under the U.S Constitution? Does A.C.A. §16-21-1109 legally authorize the 6th Judicial District to establish a hot check program pursuant to other state statutes and to expend the funds in official uses for the benefits of the office?(7) Is there any legal problem with the prosecuting attorney delegating the power to prosecute certain misdemeanor cases to the city attorney without delegating the power to prosecute all such cases? That is, may the prosecutor delegate the power to try traffic cases only, or hot check cases only, or other misdemeanor cases only?
(8) Is there any legal problem with the prosecutor's office hot check program utilizing a specific municipal court which has the ability to effectively serve warrants and efficiently try hot check cases since such court has county-wide jurisdiction to try any misdemeanor case arising within the county?
RESPONSE
Before responding to your specific questions, I must note at the outset that your questions, considered as a whole, appear to address the larger question of the scope of the duties and jurisdiction of both prosecuting attorneys and city attorneys. The Attorney General does not have the authority to define the scope of the duties or jurisdiction of either of these offices. I therefore will not attempt to do so. Accordingly, the views expressed in this opinion should not be interpreted as such. Only a court or the legislature can make a determination of that nature.
I am also not authorized to resolve definitively any lack of clarity in the law or dispute between city attorneys and prosecutors concerning the authority to prosecute hot check violations. Again, such matters can only be resolved definitively through legislation or judicial decision.
Nevertheless, pending such legislative or judicial clarification of that general issue, I will address your specific legal questions and analyze them on the basis of the sources of law that are available to me.
Question 1 — Assuming arguendo that Ordinance No. 17,794 was validlypassed, does it, by authorizing a hot check program and the collection ofhot checks by the city attorney, violate state statutory orconstitutional law in light of Attorney General Opinion No.
The question of whether ordinances such as Ordinance No. 17,794 violate state statutory or constitutional law has not been addressed by a court and therefore currently remains unresolved.
Some existing laws can provide guidance, however, in analyzing this question. Cities are explicitly empowered to enact ordinances prohibiting and punishing any act that is also a misdemeanor under state law. They are also empowered to prescribe penalties for violations of city ordinances, and to prosecute to enforce those ordinances. The sources of these powers are A.C.A. §§
The town or city council in all cities or incorporated towns in this state are authorized and empowered to prohibit and punish any act, matter, or thing which the laws of this state make a misdemeanor.
A.C.A. §
(a) The town or city council in all cities or incorporated towns in this state are authorized and empowered to prescribe penalties for all offenses in violating any ordinance of the city or town not exceeding the penalties prescribed for similar offenses against the state laws by the statutes of this state.
(b) It shall be unlawful for any town or city council in this state to prescribe, by city ordinance, less severe penalties for all offenses in violation of any ordinance of the city or town than are prescribed for similar offenses against the state laws by the statutes of this state.
A.C.A. §
(a) Bylaws and ordinances of municipal corporations may be enforced by the imposition of fines, forfeitures, and penalties on any person offending against or violating them.
(b)(1) The fine, penalty, or forfeiture may be prescribed in each particular bylaw or ordinance, or by a general bylaw or ordinance made for that purpose.
(2) Municipal corporations shall have power to provide in like manner for the prosecution, recovery, and collection of the fines, penalties, and forfeitures.
A.C.A. §
Although, again, the question has not been decided by a court, Ordinance No. 17,794 appears to fall within the authority granted in the above-quoted statutes. It prohibits and punishes an act that constitutes a misdemeanor under state law, i.e., the writing of a hot check in an amount not exceeding $200.00. See A.C.A. §
You have specifically inquired as to whether A.C.A. §§
All of the cited statutes address and deal with the prosecutor's authority under state law and do not address the city attorney's authority under city ordinance, as authorized by state law. More specifically, A.C.A. §
Moreover, Attorney General Opinion No.
It is my understanding that prosecutors have specific efficiency-related concerns based on the fact that hot check programs operated by cities would not be able to offer merchants the full range of prosecutorial services, in that they cannot prosecute felony hot check offenses, they do not have sufficient numbers of personnel, and they cannot aggregate misdemeanor hot check offenses into felonies. These are all quite valid concerns, and should be addressed legislatively. Any legislative remedy that is sought must specifically address the authority that is currently granted to cities by state law to prosecute violations of city ordinances.
I reiterate that the question of the legality of ordinances such as Ordinance No. 17,794 can only be answered definitively by a court, but under the sources of law currently available, the ordinance appears to be authorized by state law.
Question 2 — If the answer to Question 1 is "yes," does the operation ofthe program subject the city attorney to an illegal exaction actionpursuant to article
Because I have opined that Ordinance No. 17,794 appears to be authorized by law, response to Question 2 is unnecessary.
Question 3 — If the answer to Question 1 is "no," please state youropinion as to why the ordinance does not violate state statutes orconstitutional provisions in light of the prosecutor's withholding ofpermission to prosecute.
I opined in response to Question 1 that the legality of ordinances such as Ordinance No. 17.794 currently remains unresolved, in that the question has not yet been addressed by a court. I also pointed out that under the sources of law that are currently available for analysis of this question, the ordinance appears to be authorized by state law. For the basis of this appearance of authorization, see response to Question 1.
Question 4 — If the answer to Question 1 is "no," is the ordinancedefective due to the erroneous reference to A.C.A. § "21-6-416" or due toits enactment with an emergency clause, despite the existence of theprosecutor's hot check program?
It is my opinion that Ordinance No. 17,794 is not defective, either because of its erroneous reference to A.C.A. § "21-6-416" or because of its enactment with an emergency clause, despite the existence of the prosecutor's hot check program.
The Erroneous Reference
Ordinance No. 17,794, Section 6, states: "In addition to the fines and costs provided by law, the City Attorney may collect a fee, pursuant toArk. Code Ann. §
The Arkansas Supreme Court has held that it is appropriate, in interpreting city ordinances, to apply the same rules of construction as are applied in interpreting state statutes. Stricklin v. Hays,
It is quite obvious that in authorizing the city attorney to collect fees for processing hot checks, the city board intended to refer to A.C.A. §
The Emergency Clause
Your question raises the issue of whether the inclusion of an emergency clause in Ordinance No. 17,794 renders the ordinance invalid in light of the fact that the prosecutor's hot check program was already in operation, thus indicating that a true emergency regarding the collection of hot checks may not have really existed.
As explained more fully below, the question of whether an emergency clause is warranted is a question of fact, and I therefore cannot opine definitively as to whether an emergency existed with regard to the collection of hot checks. Nevertheless, it is my opinion, as further explained below, that even if it were found that no emergency existed, the inclusion of the emergency clause in Ordinance No. 17,794 did not have the effect of rendering the ordinance invalid.
The Arkansas Supreme Court has held that the test for determining whether a true emergency exists with regard to particular legislation is whether reasonable people differ on the issue. If so, it is held that no emergency existed, and the emergency clause in question is invalidated.Priest v. Polk,
Even if a court should determine that no such emergency existed, that determination would not render the ordinance invalid. The Arkansas Supreme Court has held that the effect of the invalidation of an emergency clause is simply that instead of the legislation in question taking effect immediately, it takes effect as though it did not include an emergency clause. Beaumont v. Faubus,
For these reasons, I must conclude that the inclusion of an emergency clause in Ordinance No. 17,794 cannot affect the validity of the ordinance.
Question 5 — Is there any constitutional or legal defect in A.C.A. §
A.C.A. §
Fees from persons issuing bad checks — Special fund
Fees collected under this act shall be deposited in a special fund to be administered by the prosecuting attorney.
(b) Expenditures from this fund shall be at the sole discretion of the prosecuting attorney and may be used only to defray the salaries and expenses of the prosecuting attorney's office, but in no event may the prosecuting attorney or any deputy prosecutor who is paid on the fee system supplement his or her own salary, nor may the prosecuting attorney increase any employee's salary, without approval of the quorum court of the county where employed from this fund.
(c) The prosecuting attorney shall annually prepare and present to the quorum courts of each county within his or her district a report showing all receipts and disbursements from the special fund created by this section.
(d) Nothing in this act shall be construed to decrease the total salaries, expenses, and allowances which a prosecuting attorney's office is receiving as of June 26, 1985.
A.C.A. §
The constitutionality of A.C.A. §
It must be noted at the outset of this discussion (and in connection with the responses to Question 6) that legislation is presumed to be constitutional and will be upheld if the courts can find any possible way to construe the legislation so that it meets the tests of constitutionality. Arnold v. Kemp,
Arkansas Constitutional Amendment 14 — Special and Local Legislation
Amendment
In this regard, the court has stated:
An act is not local or special simply because it is limited to a class consisting of less than all citizens of the state or less than all of its territory. However, generality ends and specialty begins where the class established by the act has no reasonable relation to the purpose or subject matter of the enactment or omits from its operation persons or areas which would fall naturally into the class to which the act is limited.
Littleton v. Blanton,
It should be noted that with regard to the rational basis standard generally, the courts will find that a rational basis exists without requiring a showing of an actual rational basis, if any conceivable rational basis for the scheme can be adduced — even a hypothetical one.See, e.g., Medlock v. Leathers,
It is likely that A.C.A. §
U.S. Constitution — Due Process
The documentation attached to your correspondence appears to indicate that the possible U.S. constitutional concern with A.C.A. §
The Arkansas Court of Appeals had occasion to address this due process issue in Lambert v. Baldor Elec.,
[T]he test as to whether due process is violated is whether the situation is one "which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused."
Baldor Elec.,
The Arkansas court went on to note that the U.S. Supreme Court, in Ward,supra, applying the above quoted standard, ruled that, "due to the mayor's interest in maintaining village finances and the high level of revenue from the mayor's court, the `possible temptation' to rule improperly constitutionally prevented the mayor from acting as judge."Baldor Elec.,
The Baldor Elec. court then cited cases from other states in which the same due process claim was asserted but rejected on the grounds that the officials in question had no "`direct, personal, substantial, pecuniary interest' in the outcome of claims," and therefore had no temptation to administer the fund in question inappropriately. Id., quoting Ison v.Western Vegetable Distrib.,
If an Arkansas court were to apply the foregoing guidelines to A.C.A. §
It should be noted, of course, that constitutional statutes can be administered and applied in an unconstitutional manner. The particular facts of each case must be reviewed before a conclusive determination can be made concerning the constitutionality and other legality of any statute. I reiterate, however, the presumption of the constitutionality of all legislation.
You have also asked whether A.C.A. §
Question 6 — Is there any constitutional or legal defect in A.C.A. §
A.C.A. §
Hot check funds.
The Office of the Prosecuting Attorney of the Sixth Judicial District is hereby authorized to establish a hot check program pursuant to state statute to collect fees for the hot check fund as authorized by the General Assembly and to expend those funds in official uses for the benefit of the office.
A.C.A. §
Arkansas Constitutional Amendment 14 — Special and Local Legislation
As noted previously, the Arkansas Supreme Court has held that legislation is unconstitutionally "special" if "by some inherent limitation or classification it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate, and the legislation is local if it applies to any division or subdivision of the state less than the whole." Owen v. Dalton,
The provisions of A.C.A. §
Even if A.C.A. §
The question, then, would be whether it is possible to adduce a rational basis upon which the provisions of A.C.A. §
Question 7 — Is there any legal problem with the prosecuting attorneydelegating the power to prosecute certain misdemeanor cases to the cityattorney without delegating the power to prosecute all such cases? Thatis, may the prosecutor delegate the power to try traffic cases only, orhot check cases only, or other misdemeanor cases only?
The prosecutor's authority to delegate prosecutorial power to the city attorney is stated in A.C.A. §
City attorneys.
A prosecuting attorney may designate the duly elected or appointed city attorney of any municipality within the prosecutor's district to prosecute in the name of the state in municipal or other corporation courts violations of state misdemeanor laws which violations occurred within the limits of the municipality if the city attorney agrees to the appointment.
A.C.A. §
The Arkansas Supreme Court has not interpreted this statute or addressed the question you have raised. The issue can only be conclusively determined through legislative clarification or judicial interpretation.
Pending such legislative or judicial guidance, it is my opinion that the prosecuting attorney may delegate selectively. That is, the prosecutor may, in my opinion, delegate the authority to handle only certain types of cases, and not others.
I base this conclusion on the fact that the delegation statute quoted above does not place conditions on the authority of the prosecutor to delegate to the city attorney. The language of the Arkansas Rules of Criminal Procedure bolsters this position. Those rules define the term "prosecuting attorney" as follows:
RULE 1.6. Definitions.
(b) "Prosecuting attorney" means any person legally elected, appointed, or otherwise designated or charged generally or specially with the duty of prosecuting persons accused of crime or traffic offenses, and includes, but is not limited to:
* * *
(ii) a city attorney and any of his deputies or assistants.
Rule 1.6, Ark. Rules of Cr. P. (emphasis added).
The above-quoted definition indicates that the Rules of Criminal Procedure clearly contemplate that a city attorney can be designated either to prosecute all types of cases or to prosecute specific cases.
Because no source of law presents any other indication, I conclude that the prosecutor can, under the authority of A.C.A. §
Question 8 — Is there any legal problem with the prosecutor's office hotcheck program utilizing a specific municipal court which has the abilityto effectively serve warrants and efficiently try hot check cases sincesuch court has county-wide jurisdiction to try any misdemeanor casearising within the county?
It is my opinion that there is no legal prohibition against a prosecutor's utilizing a particular municipal court for the purpose of prosecuting state misdemeanor cases. As you have noted, municipal courts have county-wide jurisdiction. It has been judicially recognized that such courts are "all equally free to hear any case arising from any place in the county." Beshear v. Clark,
Moreover, with regard to the prosecutor's delegation of state misdemeanor cases to city attorneys pursuant to A.C.A. §
My conclusion regarding this issue is bolstered by a factor stated in response to Question 7. As noted therein, A.C.A. §
For these reasons, I conclude that the prosecutor has discretion to utilize the municipal court of his or her choice for the purpose of prosecuting state misdemeanor cases.
Concluding Remarks
I reiterate that this opinion should not be interpreted as any attempt to define the scope of the duties or jurisdiction of either prosecuting attorneys of city attorneys. Only a court or the legislature can definitively address such matters.
I also reiterate that any meaningful remedy for the concerns of the various parties who are interested in the issues you have raised must ultimately come from the legislature or a court. This opinion is limited to addressing specific legal questions on the basis of existing legal authority.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
WINSTON BRYANT Attorney General
WB:SBA/cyh
Ison v. Western Vegetable Distributors , 48 Ariz. 104 ( 1936 )
McCutchen v. Huckabee , 328 Ark. 202 ( 1997 )
Owen v. Dalton , 296 Ark. 351 ( 1988 )
Littleton v. Blanton , 281 Ark. 395 ( 1984 )
Arnold v. Kemp , 306 Ark. 294 ( 1991 )
CITIZENS TO EST. REFORM PARTY v. Priest , 325 Ark. 257 ( 1996 )
Priest v. Polk , 322 Ark. 673 ( 1995 )
Beaumont v. Faubus , 239 Ark. 801 ( 1965 )
Streight v. Ragland , 280 Ark. 206 ( 1983 )
Medlock v. Leathers , 311 Ark. 175 ( 1992 )
City of Fort Smith v. Tate , 311 Ark. 405 ( 1993 )
Holland v. Willis , 293 Ark. 518 ( 1987 )
Tumey v. Ohio , 47 S. Ct. 437 ( 1927 )