Opinion No.

The Honorable Sarah Agee State Representative 11898 Sage Road Prairie Grove, Arkansas 72753

Dear Representative Agee:

I am writing in response to your request for my opinion on two questions, which I will paraphrase as follows:

1. If an individual pleads guilty to DWI 3 in one city, may a pending DWI 3 charge in another city against the same individual be amended to a DWI 4 and referred to the prosecutor as a felony?

2. May a candidate for judicial office use the title "Judge" on a ballot if he has been elected or appointed to a judgeship in a court inferior to the one for which he is running?

RESPONSE

I must decline to answer your first question because it appears to be the subject of pending litigation. I believe the answer to your second question is "yes" with respect to both elected and appointed judges.

Question 1: If an individual pleads guilty to DWI 3 in one city, may apending DWI 3 charge in another city against the same individual beamended to a DWI 4 and referred to the prosecutor as a felony?

I assume that you have posed this question not as a hypothetical but rather to clarify the issues in a currently pending case. It has long been the policy of this office to avoid rendering opinions on matters that are the subject of pending litigation. I must therefore respectfully decline to answer your question.

Question 2: May a candidate for judicial office use the title "Judge" ona ballot if he has been elected or appointed to a judgeship in a courtinferior to the one for which he is running?

At issue is the application of A.C.A. § 7-7-305, which provides in pertinent part:

(c)(1)(A) Any person who shall file for any elective office in this state may use not more than three (3) given names, one (1) of which may be a nickname or any other word used for the purpose of identifying such person to the voters, and may add as a prefix to his name the title or an abbreviation of an elective public office the person currently holds.

(B) A nickname shall not include a professional or honorary title.¹

I am obligated to construe this statutory language just as it reads, "giving the words their ordinary and usually accepted meaning in common language." Brimer v. Arkansas Contractors Licensing Bd., 312 Ark. 401,405, 849 S.W.2d 948 (1993). In my opinion, this statute clearly authorizes an incumbent elected judge to include his title on the ballot when he or she seeks election to a higher court.

Although the analysis is somewhat more complicated if the incumbent judge is an appointee, I believe the same conclusion applies. Significantly, A.C.A. § 7-7-305(c)(1)(A) does not restrict the use of titles to elected, as opposed to appointed, public officers; rather, it restricts the use of titles to holders of "elective public office." (Emphasis added.) As my immediate predecessor pointed out in the attached Ark. Op. Att'y Gen. No. 97-198, the fact that an elective judgeship may be temporarily filled by appointment in the event of a vacancy, see Ark. Const. amend. XXIX, does not render the judgeship something other than "elective." Accordingly, I believe the statute clearly authorizes an appointed judge, as the incumbent holder of an elective office, to include his title on the ballot.

As you are doubtless aware, Senate Bill 971 proposes to amend A.C.A. §7-7-305 by adding the following as subsection (c)(1)(B): "A person may only use the prefix, ``Judge,' ``Justice,' or ``Chief Justice' in an election for a judgeship if the person is currently serving in a judicial position to which the person has been elected." There would obviously be no need for this amendment if the current statute already precluded incumbent appointees from using their titles in elections.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP/JHD:cyh

Enclosure

¹ Cf. American Party v. Brandon, 253 Ark. 123, 126, 484 S.W.2d 881 (1972) (remarking that "Ark. Stats. 3-114(c) [the predecessor statute] permits party nominees to use nicknames or "handles" (prefixes such as Judge, Senator, etc.").