If an Arkansas city council resolution to hold partisan primaries uses outdated language, is it still effective, and is it binding?

Plain-English summary

Representative Ken Bragg asked AG Dustin McDaniel about two Arkansas statutes that seemed to step on each other. A.C.A. § 14-42-206(a), enacted in 1991, said that a city council could pass a resolution "requesting" county party committees to conduct partisan primaries for municipal offices. A.C.A. § 7-7-201(b)(1), enacted in 1995, said that "within each county, the political party primary elections shall be conducted by" the county board of election commissioners (CBEC). The newer statute moved primary-election conduct away from party committees and onto the CBEC. The question was what that meant for city resolutions still using the 1991 language.

The AG addressed two issues:

1. Is the resolution effective if it still uses the old "request the county party committees" language?

Yes. A.C.A. § 7-7-201(b)(1), as the later-enacted statute, impliedly repealed the conflicting language in § 14-42-206(a). The city council retains the authority to initiate the process leading to a partisan primary; the entity that actually conducts the primary is now the CBEC, not the county party committees. The resolution is impliedly modified the same way the statute is, under the standard principle that a partial statutory repeal also impliedly modifies any ordinance or resolution passed under the repealed statute. The resolution is not void.

2. Is the resolution binding, given that it is framed as a "request"?

Yes. The AG rejected two arguments that the resolution was non-binding:

• The fact that it is a "resolution" rather than an "ordinance" did not make it non-binding. Resolutions can have legal force, especially when the legislature requires that an action be effected by resolution. The opinion cites examples: A.C.A. § 7-5-301(c)(1) (selection of voting system by quorum court resolution), A.C.A. § 7-5-806(g) (joint resolution in election contests), and A.C.A. § 14-42-403 (city public-safety appointments).

• The word "request" did not give the CBEC discretion to refuse. Reading "request" literally would lead to an absurd result: the CBEC, a county-wide elections body, would be deciding a uniquely municipal question of whether a city wants partisan primaries. The "request" under § 14-42-206(a) is analogous to a FOIA "request" under § 25-19-105(a)(2)(A): the request generates legal obligations on the receiving entity, not a free-floating choice. Section -206(a)(2)'s rule that the resolution "shall remain in effect for the subsequent elections unless revoked" reinforces this reading; the resolution embeds an ongoing municipal policy decision, not a one-shot ask.

The combined result: a city council resolution under § 14-42-206(a) initiates partisan primaries for municipal offices, the CBEC must run those primaries, and the resolution stays in effect until the council revokes it.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is "repeal by implication" in Arkansas law?
When a later statute conflicts with an earlier one and the legislature does not expressly repeal the earlier statute, courts will give effect to the later statute to the extent of the conflict. The earlier statute is "impliedly repealed" only as to the conflicting parts.

Does an old city council resolution need to be redone after implied repeal?
Per this opinion, no. The resolution is treated as impliedly modified the same way as the statute it relied on. The city council is not required to pass a new resolution naming the CBEC, though doing so would avoid any confusion.

Can the CBEC refuse to run a partisan primary the city council has requested?
At the time of this opinion, no. The "request" is binding within the meaning of § 14-42-206(a), and the CBEC's role is mechanical: conduct the primary.

Why is the difference between resolution and ordinance not dispositive here?
The Arkansas Supreme Court in Kruzich v. West Memphis Utility Commission noted that resolutions can carry the same legal force as ordinances if the legislature so requires. The form (resolution vs. ordinance) does not by itself determine binding effect.

Does the resolution have to be renewed each election?
No. Section -206(a)(2) says the resolution "shall remain in effect for the subsequent elections unless revoked by the city...council." The AG treats this as making the resolution a continuing policy choice.

Background and statutory framework

A.C.A. § 14-42-206(a) (originally Act 59 of 1991) created the procedure for a city council to opt into partisan primaries for municipal offices. As enacted, it routed the actual conduct of the primary through county party committees.

A.C.A. § 7-7-201(b)(1) (originally Act 901 of 1995) shifted the conduct of all political party primary elections within a county to the CBEC. That change reflected a broader Arkansas trend toward centralizing election administration in election commissions.

The AG's analysis applies several standard Arkansas statutory-construction rules: avoiding absurd results (McMillan v. Live Nation Entertainment); reading words in context rather than in isolation; honoring the later-enacted statute when statutes conflict; and treating an ordinance or resolution as impliedly modified when its enabling statute is partially repealed (6 McQuillin Mun. Corp. § 21:42).

The footnote on partisan-primary interests draws from Republican Party of Ark. v. Faulkner County (8th Cir. 1995), which identified the three core purposes of party primaries as minimizing voter confusion, screening out frivolous or fraudulent candidates, and increasing the likelihood that winners hold majority support.

Citations

• A.C.A. § 14-42-206(a) (city council resolution to initiate partisan primaries)
• A.C.A. § 14-42-206(a)(1) (initiating procedure)
• A.C.A. § 14-42-206(a)(2) (continuing effect of resolution)
• A.C.A. § 7-7-201(b)(1) (CBEC conducts party primary elections)
• A.C.A. § 25-19-105(a)(2)(A) (Supp. 2013) (FOIA request analogy)
• Act 901 of 1995 (CBEC primary conduct)
• Act 59 of 1991 (city council resolution authority)
• Citizens to Establish a Reform Party in Arkansas v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996) (unamended sections not new enactments)
• Kruzich v. West Memphis Utility Commission, 257 Ark. 187, 515 S.W.2d 71 (1974) (resolution vs. ordinance)
• McMillan v. Live Nation Entertainment, Inc., 2012 Ark. 166, 401 S.W.3d 473 (no absurd consequences)
• Republican Party of Ark. v. Faulkner County, Ark., 49 F.3d 1289 (8th Cir. 1995) (purposes of partisan primaries)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
DusTiIn McDANIEL

Opinion No. 2014-001

February 26, 2014

The Honorable Ken Bragg

State Representative

63 Pinecrest Circle

Sheridan, Arkansas 72150-9704

Dear Representative Bragg:

You have asked for my opinion on an issue that is essentially a question of
statutory interpretation. I have paraphrased your background information as
follows:

Arkansas Code section 14-42-206(a) states that the city council may,
by resolution, request that “the county party committees of the
recognized political parties” conduct party primaries for municipal
offices. But section 7-2-201(b)(1), which is more recent, states that
“political party primary elections shall be conducted by the county
board of election commissioners.”

With this background in mind, you essentially ask two questions, which I have
paraphrased as follows:

1. At least part of section 14-42-206(a) seems to have been impliedly
   amended by section 7-7-201(b). If a city council uses the original
   language of section 14-42-206(a) in its resolution, is that resolution
   ineffective?

2. Is a resolution enacted under section 14-42-206(a) binding, given
   that it is a “request” by “resolution”?

323 CENTER STREET, SUITE 200 ¢ LITTLE Rock, ARKANSAS 72201
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The Honorable Ken Bragg
State Representative
Opinion No. 2014-001
Page 2

RESPONSE

In my opinion, the answer to your first question is that section 7-7-201(b)(1)
operates as an implied repeal/amendment of section 14-42-206(a). Likewise, the
former impliedly modifies (repeals/amends) any resolution adopted under and
compliant with section 14-42-206(a). Regarding question two, it is my opinion
that the resolution is not a request to non-city entities that they consider whether
the city should have partisan primaries, Rather, for the reasons explained below, it
is my opinion that the resolution reflects the city council’s decision to hold
partisan primaries; and it is a directive to initiate the necessary procedures for
holding party primaries.

DISCUSSION

Question 1: At least part of section 14-42-206(a) seems to have been impliedly
amended by section 7-7-201(b). If a city council uses the original language of
section 14-42-206(a) in its resolution, is that resolution ineffective?

Section 14-42-206(a) grants the city council the authority to initiate the process
leading to a political-party primary for municipal offices. According to the statute,
that process is initiated when the city council passes a resolution that “request{s]
the county party committees...to conduct party primaries for municipal offices for
the forthcoming year.” But section 7-7-201(b)(1) states that “within each county,
the political party primary elections shall be conducted by” the county board of
election commissioners (CBEC). As the more recent of the two statutes, section 7-
7-201(b)(1)’s provisions control.' This is known as “repeal by implication.” Thus,
the city council retains the authority to initiate the process leading to the political-
party primary. But the entity that “conducts” the partisan primary is the CBEC, not
the political parties themselves.

So how does the repeal by implication at the statutory level affect a resolution
passed under the authority of section 14-42-206(a)? A standard principle of law is

' The relevant portions of section 7-7-201(b)(1) were added by Act 901 of 1995, whereas the
relevant portions of section 14-42-206(a) were added by Act 59 of 1991. While various parts of
section 14-42-206 have been modified since 1995, none of those modifications have affected
subsection -206(a), which is the only one at issue in this opinion. These non-relevant
modifications do not affect the repeal-by-implication analysis. See Citizens to Establish a Reform
Party in Arkansas y. Priest, 325 Ark. 257, 265, 926 S.W.2d 432, 437 (1996) (“When an act
amends the law, portions of the law that are not amended but simply retained are not thought of
as new enactments.”).

The Honorable Ken Bragg
State Representative
Opinion No. 2014-001
Page 3

that a repeal (whether in part or in whole) of a statute under which an ordinance
was enacted also impliedly repeals the ordinance.” As noted above, section 14-42-
206(a) was impliedly repealed, but only in part. Thus, any resolution passed in
reliance upon section 14-42-206(a) will also be impliedly repealed in the same
manner and to the same degree.

It is therefore my opinion that the resolution is not rendered void or ineffective
merely because of the partial statutory repeal. The resolution will be impliedly
modified in the same way as the statute on which it was based.

Question 2: Is a resolution enacted under section 14-42-206(a) binding, given
that it is a “request” by “resolution”?

The concern behind your first question is whether, in light of the statutory repeal
by implication, the resolution is legally effective. But the concern behind your
second question goes to the nature of the resolution’s effect. That is, your second
question posits two reasons why you think the resolution is non-binding. In my
opinion, neither reason provides good grounds to think that the resolution is non-
binding.

First, you say that a resolution (as opposed to an ordinance) “is not binding law.”
And given that section 14-42-206 only authorizes the city council to pass a
“resolution,” the resulting resolution does not bind anyone. Legislative bodies
typically memorialize their actions in one of two legal instruments: resolutions and
ordinances.’ Resolutions can have the same legal force as ordinances, especially if

? See 6 McQuillin Mun. Corp. § 21:42 (3d ed.) (“[T]he repeal of a statute under which an
ordinance was enacted impliedly repeals the ordinance....”). Because section 14-42-206(a) has
only been partially repealed, any resolution passed under and in compliance with section 14-42-
206(a) will also be modified to the extent of its authorizing statute.

3 Kruzich v. West Memphis Utility Commission, 257 Ark. 187, 191, 515 S.W.2d 71, 73 (1974)
(quoting McQullin on Municipal Corporations, “A resolution in effect encompasses all actions of
the municipal body other than ordinances. Whether the municipal body should do a particular
thing by resolution or ordinance depends upon the forms to be observed in doing the thing.”); 56
Am. Jur. 2d Municipal Corporations, Etc. § 286; 1A Sutherland Statutory Construction § 30:3
(7th ed.) (“A municipal resolution, like a legislative resolution, is less formal than a statute or
ordinance and usually relates to temporary or administrative matters....It is not necessary that the
action be called an ‘ordinance,’ for the name is immaterial. If the regulation is permanent and it
has been enacted in the requisite manner, it will be enforced as an ordinance.”),

The Honorable Ken Bragg
State Representative
Opinion No. 2014-001
Page 4

the legislature requires a given action be accomplished by a resolution.’ The
legislature often requires certain binding action be effected by resolution.” Thus,
the mere fact that section 14-42-206(a) is described as a resolution does not mean
that it is non-binding.

The second reason you offer to support the assertion that the resolution is non-
binding is that, under section 14-42-206, the resolution merely “requests” that
party primaries be conducted. Thus, you say, the request can be freely declined.
This view presumably follows from a literal interpretation of the word “request” as
implying discretion in the one to whom the request is directed. But, in my opinion,
the “request” under section 14-42-206(a) cannot reasonably be read to imply that
the recipient of that request has the authority to decide whether the partisan
primaries will be conducted. For such a view (a) fails to read the term “request” in
its wider context and (5) leads to an absurd consequence. Courts read statutes as a
whole and “will not give statutes a literal interpretation if it leads to absurd
consequences that are contrary to legislative intent.”®

The idea that the recipient of a request under section 14-42-206(a)(1) has
discretion to deny it fails to read the request in its broader context. Section 14-42-
206(a)(1) establishes the procedure that the city council employs to initiate the
process leading to a political-party primary: “The city...council..., by
resolution..., may request the county party committees...to conduct party
primaries for municipal offices for the forthcoming year.” As explained in
response to your first question, section 7-7-201(b)(1) impliedly modifies any
resolution passed under section 14-42-206(a) such that the resolution would be
read as referring to the county board of election commissioners (CBEC).

4 See the authorities cited in note 3.

See, e.g. A.C.A. § 7-5-301(c)(1) (Supp. 2013) (“The quorum court of each county shall choose
by resolution a voting system containing voting machines or electronic vote tabulating devices or
both..,for use in all elections....”); A.C.A. § 7-5-806(g) (Repl. 2011) (“The committee shall
report the facts to two (2) houses, and the day shall be fixed by joint resolution for the meeting of
the two (2) houses to decide the context, on which decision the yeas and nays shall be taken....);
A.C.A. § 14-42-403 (Repl. 2013) (‘The governing body of a city may, by resolution, appoint,
remove, and appoint successors to the position of director of the department of public safety, who
shall be the chief executive officer of the department.”’). (All emphases added.)

® McMillan y. Live Nation Entertainment, Ine,, 2012 Ark, 166, 12, 401 S.W.3d 473, 480.

The Honorable Ken Bragg
State Representative
Opinion No. 2014-001
Page 5

Section -206(a)(2) makes clear that the resolution is akin to municipal law in the
sense that it remains continuously in force: “The resolution shall remain in effect
for the subsequent elections unless revoked by the city...council.”’ The view that
the resolution is merely a request for the CBEC to decide whether the city would
hold partisan primaries fails to take into account the fact that -206(a)(2) gives the
resolution a continuing character. Nothing in -206(a)(2) indicates that the
“request” is continually renewed at each election cycle. Rather, the clear
implication of the text is that the council’s adoption of the resolution reflects the
council’s decision to hold partisan primaries. That decision remains in effect for
all subsequent municipal elections unless a later council repeals the resolution.

Therefore, the “request” contemplated by section 14-42-206(a) is analogous to the
type of “request” contemplated by the Arkansas Freedom of Information Act
(FOIA). Under the FOIA, a person obtains public records by making “a request to
the custodian to inspect, copy, or receive copies of public records.”* The custodian
is not free to “decline the request.” On the contrary, the request generates certain
legal obligations. Likewise, in my opinion, the “request” under section 14-42-
206(a) cannot reasonably be viewed as the type of request that is open to being
flatly declined.

If one were to read section 14-42-206(a)’s request language as implying that the
CBEC can decide whether to hold partisan primaries, an absurd consequence
follows: the CBEC would be required to make a uniquely municipal decision.
Courts have been clear that there are several interests served by partisan primaries:
(1) minimizing voter confusion, (2) protecting the public from frivolous or
fraudulent candidates, and (3) maximizing the probability that the winning
candidate will have received a majority of the popular vote.” It is a uniquely
municipal question whether a particular city at a particular time needs these
interests to be advanced. There is no indication anywhere in the Arkansas Code
that the CBEC is vested with the authority to weigh the needs of a given city to
individually determine whether the city needs these interests advanced during a
given election cycle.

7 A.C.A. § 14-42-206(a)(2).
® A.C.A. § 25-19-105(a)(2)(A) (Supp. 2013).

” E.g., Republican Party of Ark. v. Faulkner County, Ark., 49 F.3d 1289, 1299 (8th Cir. 1995).

The Honorable Ken Bragg
State Representative
Opinion No. 2014-001
Page 6

In summary, the two reasons offered do not constitute good grounds to think that a
resolution passed pursuant to section 14-42-206 is non-binding. The mere fact that
it is a “resolution” is not dispositive. Nor can the statute’s reference to the
council’s “request” reasonably be interpreted as implying discretion to decide
whether party primaries will be held. For such a view fails to take into account the
continuing nature of the council’s action and leads to an absurd consequence.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.

Sincerely,

Attorney Genfral

DM/RO:cyh