Can someone in Arkansas run for justice of the peace and constable, or for county treasurer and constable, in the same election?

Plain-English summary

The chair of the Greene County Election Commission asked a time-sensitive filing question: could a candidate run for justice of the peace and constable in the same election, or for county treasurer and constable in the same election? Arkansas Code § 7-5-111 says: "A person shall not run for more than one (1) state, county, or municipal office if the elections are to be held on the same date."

The AG concluded the statute did not block either combination because constable is a township office, not a state, county, or municipal office. The Arkansas Supreme Court had held in Roberson v. Phillips County Election Comm'n (2014) that section 7-5-111 plainly forbade simultaneous candidacy for justice of the peace and city treasurer (a county office and a municipal office, both expressly covered). And Graves v. Greene County (2013) had held that a constable is a township officer, not a "district official." Reading those cases together with constitutional and statutory text that distinguishes township offices from county, state, and municipal offices, the AG concluded that constable does not fall within § 7-5-111's prohibition.

The opinion was careful to flag the separate dual-office-holding question. The Arkansas Supreme Court has recognized three types of bars to simultaneously holding two offices: constitutional, statutory, and common-law (the "doctrine of incompatibility"). Byrd v. State, 240 Ark. 743 (1966). The AG did not undertake a full analysis but observed that the JP-and-constable combination in particular looked likely to be incompatible: the quorum court fixes a constable's compensation under § 14-14-1205(d), and JPs sit on the quorum court, creating salary-negotiation conflicts that the doctrine of incompatibility is designed to prevent. The treasurer-and-constable pairing, the AG noted, did not show the same clear incompatibility.

Currency note

This opinion was issued in 2015. 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.

Background and statutory framework

Arkansas law generally protects the right to run for office, but several limits apply. Among them, § 7-5-207(b) requires candidates to be "qualified and eligible" at the time of filing; § 7-4-109 bars county election commission members from being candidates; § 7-6-102 bars candidates with certain felony convictions from running for certain offices unless the record is expunged; and §§ 14-49-202, 14-50-202, and 14-51-202 bar members of municipal civil service commissions from being candidates for any office. The protection of the right to run as a candidate is also affirmed in § 21-1-207.

Section 7-5-111 says a person may not run for more than one state, county, or municipal office in the same election. Roberson confirmed the plain meaning: justice of the peace is a county office and city treasurer is a municipal office, both covered, so dual candidacy was prohibited.

Constable is different. The Arkansas Constitution provides in art. 7, § 47, that "the qualified electors of each township shall elect the Constable for the term of two years." The County Code echoes this in § 14-14-1301(b)(2), which directs that "a constable shall be elected in each township," separately from county officers (elected from the county at large under § 14-14-1301(b)(1)) and justices of the peace (elected by quorum court district under § 14-14-1301(b)(1)). Section 14-14-604(3) further provides that constables are "deemed township officers" and do not fall under Amendment 55, § 2(b) (which authorizes the quorum court to reorganize "any elective county office"). Graves v. Greene County (2013) treated a constable as a township officer for purposes of expense reimbursement under § 14-14-1207(a).

The Election Code reinforces the distinction. Section 7-6-102(a)(1) sends "state or district" candidate filings to the Secretary of State and "county, municipal, or township" filings to the county clerk. Sections 7-6-207(a) and 7-6-208(a) split candidate contribution-reporting rules between "school district, township, or municipal office" candidates and "county office" candidates. Section 7-7-103 treats independent candidates for "state, county, township, or district office" separately.

The AG read all of these to confirm that the four buckets used in Arkansas election law are state, county, municipal, and township, with township a distinct fourth category. Constable is the township office in modern Arkansas.

There is some pull in the other direction. The Arkansas Supreme Court has treated a constable as a county "official" for purposes of the workers' compensation requirement in § 14-26-101 (Farnsworth v. White County, 312 Ark. 574 (1993)). The Graves court itself declined to reach an argument that a constable might be both a township and county official under § 14-14-1207(a). The AG nonetheless concluded those exceptions did not change § 7-5-111's plain meaning, given the consistent treatment of township as a distinct fourth category in election-specific provisions.

On dual office holding, the AG sketched but did not resolve the three sources of prohibition: constitutional, statutory, and common-law incompatibility. Citing 67 C.J.S. Officers § 38, the AG noted that incompatibility arises whenever there are potential conflicts of interest, and salary negotiations are a paradigmatic example. The constable's compensation is fixed by the quorum court, and JPs sit on the quorum court, so a JP-constable combination raises the incompatibility issue squarely.

The AG also explained why dual office holding is a separate question from dual candidacy. Dual-office-holding rules apply only after the person actually starts serving. A person can be elected to an office while serving in another, as long as he or she does not hold both at once. The AG cited Johnson v. Darnell, 220 Ark. 625 (1952), where a state legislator constitutionally barred from also serving as a municipal judge was still permitted to be elected municipal judge while serving the legislative term.

Common questions

Why is constable not a county office for this purpose?

Because the Arkansas Constitution and the County Code put constables in a separate category: township offices. The legislature consistently treats township as a fourth category alongside state, county, and municipal in election-specific provisions, and the Supreme Court has reaffirmed in Graves that a constable is a township officer.

Can the candidate actually serve as both JP and constable if elected to both?

The AG was cautious. The dual-office-holding doctrine of incompatibility appears likely to bar that combination because the quorum court fixes the constable's pay and JPs sit on the quorum court, creating a salary-negotiation conflict. The AG did not undertake a full incompatibility analysis, however.

What about treasurer and constable?

The AG did not see a clear incompatibility there: the treasurer does not set the constable's pay. Whether other legal restrictions might apply was outside the scope of the opinion.

Does the candidate have to choose between offices if elected to both?

That is the practical effect if the doctrine of incompatibility applies: a person elected to two incompatible offices generally must choose one. The AG did not lay out the procedural mechanics of that choice.

Are there other restrictions on running for office?

Yes. The opinion lists several: § 7-5-207(b) (qualified and eligible at filing), § 7-4-109 (county election commissioners), § 7-6-102 (felony convictions without expungement), and §§ 14-49-202, 14-50-202, 14-51-202 (municipal civil service commissioners). None of those tracked the senator's specific question, but they are relevant context for any dual-candidacy analysis.

Citations

• Ark. Code Ann. § 7-5-111 (Supp. 2015) (one state/county/municipal office at a time)
• Ark. Code Ann. § 7-5-207(b) (Repl. 2011) (qualified and eligible at filing)
• Ark. Code Ann. § 7-4-109 (Supp. 2015) (county election commissioners ineligible)
• Ark. Code Ann. § 7-6-102, 7-6-102(a)(1) (Supp. 2015) (felony bar; filing location)
• Ark. Code Ann. §§ 7-6-207(a), 7-6-208(a) (Supp. 2015) (contribution reporting splits)
• Ark. Code Ann. § 7-7-103 (Supp. 2015) (independent candidate filings)
• Ark. Code Ann. § 14-14-604(3), § 14-14-1207(a), § 14-14-1301(b)(1), (b)(2) (Repl. 2013)
• Ark. Code Ann. § 14-14-1205(d) (Repl. 2013) (quorum court fixes constable compensation)
• Ark. Code Ann. § 14-26-101 (Repl. 2013) (workers' compensation for officials)
• Ark. Code Ann. § 14-43-310 (Repl. 2013) (alderman vacancy on move out of ward)
• Ark. Code Ann. § 14-47-109(f)(2) (Repl. 2013) (age 21 to run for city director)
• Ark. Code Ann. §§ 14-49-202, 14-50-202, 14-51-202 (Repl. 2013) (civil service commissioner bar)
• Ark. Code Ann. § 21-1-207 (Supp. 2015) (right to run as candidate)
• Ark. Const. art. 7, § 47 (election of constables by township)
• Ark. Const. amend. 55, § 2(b) (quorum court reorganization power)
• Populist Party of Arkansas v. Chesterfield, 359 Ark. 58, 195 S.W.3d 354 (2004)
• Fisher v. Taylor, 210 Ark. 380, 196 S.W.2d 217 (1946)
• Johnson v. Darnell, 220 Ark. 625, 249 S.W.2d 5 (1952) (dual-office-holding rules apply to service, not candidacy)
• Byrd v. State, 240 Ark. 743, 402 S.W.2d 121 (1966) (three categories of dual-office prohibition)
• Roberson v. Phillips County Election Comm'n, 2014 Ark. 480, 449 S.W.3d 694 (§ 7-5-111 plain meaning)
• Graves v. Greene County, 2013 Ark. 493, 430 S.W.3d 722 (constable is township officer)
• Farnsworth v. White County, 312 Ark. 574, 851 S.W.2d 451 (1993) (constable as county official for workers' comp)
• Green v. Mills, 4 S.W.3d 493 (Ark. 1999) (statutory construction in context)
• 67 C.J.S. Officers § 38 (2015) (doctrine of incompatibility)

Source

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

Original opinion text

Opinion No. 2015-138
November 25, 2015
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Don Farmer, Chairman
Greene County Election Commission
c/o Greene County Clerk's Office
320 West Court Street, Room 102
Paragould, AR 72450
Dear Mr. Farmer:
This is in response to your request for an opinion on the following questions:

1. Is it your opinion that a candidate can run for both a justice of the peace and a constable position simultaneously?
2. Is it your opinion that a candidate can run for both a county treasurer's office and a constable position simultaneously?

You note that these questions are time-sensitive because of the November 30 deadline for the County Clerk to certify filing.

RESPONSE

In my opinion, the answer to both of these questions is "yes."

(Because the questions are couched in terms of filing and running for office, I have focused my analysis on the issue of any limitations on candidacy and have not undertaken an extensive analysis of the separate question whether one individual may serve simultaneously in these positions if elected to both. The latter question implicates so-called "dual office-holding principles." The Arkansas Supreme Court has identified three possible types of legal prohibitions to the concurrent holding of two offices: constitutional prohibitions, statutory prohibitions, and common law prohibitions (i.e., the common law "doctrine of incompatibility"). Byrd v. State, 240 Ark. 743, 402 S.W.2d 121 (1966). Again, I have not undertaken a detailed analysis, but a cursory review indicates there is no clear prohibition against one's simultaneous service as county treasurer and constable, whereas the offices of justice of the peace and constable may well be incompatible based on the fact that the constable's compensation is fixed by the county quorum court. Ark. Code Ann. § 14-14-1205(d) (Repl. 2013). See 67 C.J.S. Officers § 38 (2015) (noting that two public positions are incompatible whenever there are any potential conflicts of interest between the two, such as salary negotiations).)

DISCUSSION

Although Arkansas law generally protects the right to be a candidate for office, certain restrictions apply. State election laws require, for instance, that candidates for public office be "qualified and eligible" to hold the office "at the time of filing." There are also some specific limitations on candidacy, including the following which appears most relevant to your questions:

A person shall not run for more than one (1) state, county, or municipal office if the elections are to be held on the same date.

When the language of a statute is clear, it is given its plain meaning. In Roberson, the Arkansas Supreme Court held that this statute plainly prohibited one person's simultaneous candidacy for justice of the peace and city treasurer:

"Here, the phrase, 'more than one' means two or more, and 'state, county, or municipal' are adjectives modifying the word 'office.' In other words, the plain language of section 7-5-111 dictates that Roberson was prohibited from running for two offices, in this instance, Justice of the Peace, a county office, and Helena-West Helena City Treasurer, a city office, when elections for both offices were held on November 4, 2014."

Section 7-5-111 clearly covers persons seeking election to "state," "county," and "municipal" offices. According to the Court in Roberson, it was beyond question that the two offices at issue in that case, justice of the peace and city treasurer, were covered by the statute. It seems the same is true of the first office identified in each of your questions: justice of the peace (county office, according to Roberson) and county treasurer. But the other office identified in your questions, the office of constable, is generally considered a township office. This would suggest that the office of constable is not covered by section 7-5-111. (A constable clearly does not hold a "state" or "municipal" office.)

It must be recognized, however, that the Court in Graves did not address the argument that a constable is a county office for purposes of the statute at issue. Additionally, the Court has previously determined that a constable is a county "official" within the meaning of Ark. Code Ann. § 14-26-101, which requires counties to provide workers' compensation coverage for their "officials, employees, and municipal volunteer fire fighters." Farnsworth v. White County, 312 Ark. 574, 851 S.W.2d 451 (1993). It thus seems that a constable is considered a county officer at least for purposes of receiving workers' compensation benefits.

In my opinion, the plain language and context of section 7-5-111 compel the conclusion that the office of constable is not included in this prohibition. This statute is a limitation on candidacy, and a person running for constable is running for township office rather than "state, county, or municipal office." As the Court noted in Graves, the Arkansas Constitution provides for the election of constables by township. As was also noted in Graves, the County Code recognizes that the office of constable is an elective township office. Arkansas Code Annotated § 14-14-604(3) states that constables "are deemed township officers" and do not fall under Ark. Const. amend. 55, § 2(b), which authorizes the quorum court to reorganize "any elective county office." Arkansas Code Annotated § 14-14-1301(b)(2) echoes the requirement in Ark. Const. art. 7, § 47, that a constable "shall be elected in each township." Further confirming that the office of constable is not a county office for election purposes, the latter Code section also separately identifies "county officers," who "shall be elected ... in each of the several counties," and justices of the peace, who "shall be elected in each of the quorum court districts of the counties."

The distinction between township officers and state, county, or municipal officers for election purposes is also reflected in the Election Code (e.g., Ark. Code Ann. § 7-6-102(a)(1) ("state or district" political party candidate to file political practices pledge with Secretary of State, and "county, municipal, or township" candidate to file the pledge with county clerk); Ark. Code Ann. §§ 7-6-207(a) and -208(a) (governing pre-election and final reports of contributions by candidates for "school district, township, or municipal office" and "county office," respectively); Ark. Code Ann. § 7-7-103 (filing requirements for independent candidate for "state, county, township, or district office.")). Given that townships appear to have little remaining efficacy save for the election of constables, it seems clear that the candidate for "township" office as referenced in these election provisions is the candidate for the office of constable.

It is therefore my opinion that the office of constable is not covered by section 7-5-111, which by its plain terms does not apply to elective township office. Consequently, in my opinion, a person can lawfully run simultaneously for 1) justice of the peace and constable and 2) county treasurer and constable. This does not necessarily mean, however, that a person may simultaneously hold these positions.

Sincerely,
LESLIE RUTLEDGE
Attorney General