Opinion No. 1989-223

Tommy E. Mitchum

Attorney General of Arkansas — Opinion
October 2, 1989

STEVE CLARK, Attorney General

The Honorable Tommy E. Mitchum State Representative P.O. Box 2082 Batesville, AR 72501

Dear Representative Mitchum:

This is in response to your request for an opinion regarding a restraining order which was issued on July 24, 1989 by the Independence County Municipal Court. You indicate that according to your research, the action of the sheriff in connection with the collection of fees for serving warrants is within the scope of the law. You have asked for my review of this situation. I must conclude from this that you are asking me to declare whether I believe Municipal Judge Roy Thomas acted properly in issuing the restraining order.

The Municipal Court Order which is being questioned prohibits the collection of any cost or fine from those subject to any municipal warrant “unless authorized by the Court.” The Order states that “[a]nyone failing to adhere to this order shall be s[u]bject [sic] to a contempt hearing.”

It thus appears that the Municipal Court has spoken on this subject, and in doing so has exercised its power and duty to interpret the law as enacted by the General Assembly. I am not in a position in this instance to question the propriety of this judicial action, and thereby indirectly suggest a course of action in defiance of a court order. Were I to issue my official opinion at this point on the propriety of such an Order, which otherwise appears facially valid, I believe that I would be placing my office, which is in the executive department of government, in conflict with a matter that now lies exclusively within the judicial branch. Const. Ark. art. 4, 1 and 2; art. 7, 1; Amend. No. 63, 1.

Where questions exist surrounding the propriety of judicial actions that have been taken in relation to particular matters, I believe that the remedies available within the judicial forum are more appropriate than the issuance of an opinion from my office which, under these circumstances, would in essence amount to no more than an executive comment on a judicial ruling. Nothing short of a final decision by the appropriate court can resolve these matters.

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