Opinion No. 2003-130

Kevin Anderson

Attorney General of Arkansas — Opinion
Opinion Delivered May 30, 2003

MIKE BEEBE, Attorney General

The Honorable Kevin Anderson State Representative 1712 South 28th Place Rogers, AR 72758-1479

Dear Representative Anderson:

I am writing in response to your request for an opinion regarding the authority of a District Judge to perform various judicial tasks in another court. You state:

Benton County would like to make arrangements for one of the current District Judges in Benton County (those judges being located in Benton County West, Bentonville, Rogers, and Siloam Springs) to conduct bail bond hearings, Review probable cause affidavits for search warrants, Review probable cause affidavits for arrest warrants, Conduct extradition hearings, and conduct indigency hearings regarding the appointment of the Public Defender to represent criminal defendants.

You then ask:

May a duly-elected District Judge conduct one of the functions described above in a matter that is filed in another District Court in the same county or in Benton County Circuit Court?


I must decline to provide an answer to this question in light of this office’s long-standing policy against the issuance of opinions on questions that are the subject of pending litigation. It has come to my attention that an issue concerning the authority of a court-appointed magistrate, who was also a district judge, has been raised in the case o State v. Nash (Benton County Circuit Court CR 2002-258-2). A motion to suppress a search warrant is currently pending in that case, based in part on the magistrate’s alleged lack of authority to issue the warrant. Although briefs have not yet been filed and I am therefore unaware of the precise legal argument supporting the motion, it appears that the issue you have presented is currently before the court in this case.

In recognition of the judiciary’s independent constitutional role, it has long been the Attorney General’s policy, as an officer in the executive branch of government, to refrain from rendering opinions on matters that are pending before the courts for determination. Any opinion issued by my office would constitute executive comment on matters that are properly before the judicial branch. I am thus unable at this time to render an opinion in response to your question. The issues you have raised are properly before the judicial branch to be resolved in that forum. If you wish to seek an opinion after a ruling is obtained in the pending case, I will be pleased to respond in as timely a manner as possible.

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.


MIKE BEEBE Attorney General