If a person is appointed to fill a vacancy in an Arkansas city of the first class elected office, can they run for that same office in the next election?

Plain-English summary

State Senator Stephanie Flowers asked the AG a clean structural question: when an Arkansas city of the first class elected official resigns and a replacement is chosen to fill the rest of the term, can the replacement run for that same office at the next regular election?

AG Leslie Rutledge said "yes," subject to two caveats:

1. No constitutional ban for city officers. Section 2 of Amendment 29 to the Arkansas Constitution makes appointees to certain offices ineligible for succession. But Section 1 limits that anti-succession rule to "the office of United States Senator, and in all elective state, district, circuit, county, and township offices." City offices are not on the list. The Arkansas Supreme Court confirmed this reading in Johnson Cty. Bd. of Election Comm'ns v. Holman, 280 Ark. 128, 655 S.W.2d 408 (1983).

2. No general statutory ban. The AG searched and found no Arkansas statute that prohibited a city officer from running to succeed himself after being chosen to fill a vacancy. Without knowing the specific city office at issue (Flowers did not name it), the AG could not categorically rule out an office-specific statute that might still apply, but none came to the AG's attention.

The AG noted one important wrinkle in a footnote: Johnson County itself involved a municipal judge. Amendment 80 redesignated municipal judges as district court judges. Because district judges are state/district officials, Amendment 29's anti-succession rule does apply to them today. So if Flowers's question concerned a district court judge filling a vacancy by appointment, the answer would be different (the appointee could not run to succeed himself). For other city offices (mayor, city council, city clerk, city attorney), Amendment 29 does not apply.

Currency note

This opinion was issued in 2016. 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.

If the specific city office involved is identified, current statutes governing that office should be checked. Amendment 29 jurisprudence has continued to develop, particularly around the interaction with Amendment 80 and the status of district judges.

Background and statutory framework

Amendment 29's anti-succession rule

Ark. Const. amend. 29 was adopted to handle vacancies in elective offices. Section 1 deals with appointment authority for various offices. Section 2 then says: "No person appointed under Section 1 of this amendment shall be eligible for appointment or election to succeed himself."

The list of offices covered by Section 1 (and therefore subject to the Section 2 anti-succession rule) is: "United States Senator, and in all elective state, district, circuit, county, and township offices." City offices are conspicuously absent.

The structural reason for this is historical: at adoption, city officers had their own succession schemes through city charters and statutes, and Amendment 29 left those alone.

Johnson County Bd. of Election Comm'ns v. Holman

The Arkansas Supreme Court in Johnson County, 280 Ark. 128, 655 S.W.2d 408 (1983), held that Amendment 29's anti-succession rule did not apply to city officers. The case involved a municipal judge (which at the time was clearly a city office). The court concluded that the office was not within Amendment 29's enumerated list.

The AG cited a string of prior AG opinions (2006-123, 2004-282, 2004-253, 99-242, 98-176) that had consistently applied Johnson County to permit successor candidates for various city offices.

The Amendment 80 wrinkle

In 2000, Arkansas voters approved Amendment 80, which reorganized the state's judicial system. Among other changes, Amendment 80 redesignated former "municipal judges" as "district court judges." The reorganization moved the position out of the city-officer category and into the state/district court system.

The practical consequence: today, a person appointed to fill a vacancy on a district court bench cannot run for that same office at the next election. Amendment 29 reaches district judges through Amendment 80's reclassification. The AG had previously stated this view in Op. Att'y Gen. 2015-018, note 11.

So Johnson County's holding on municipal judges is, as a matter of current law, no longer the rule for that specific office, even though the case's reasoning about city offices generally remains good law for non-judge city positions.

Why Senator Flowers's question needed more facts

Flowers did not specify which city office she had in mind. The AG could only say:

• No constitutional bar (for non-judge city offices).
• No statute discovered that would prohibit succession.

If Flowers had identified, say, "mayor of a city of the first class" or "alderman," the AG could have given a more conclusive answer. But unidentified offices left the small possibility that an obscure office-specific statute might bar succession. The opinion's posture was thus: "yes, unless something narrow happens to apply."

Common questions

Q: I was appointed to my city council seat when the previous member resigned. Can I run for that seat in the next election?
A: Generally yes, under this opinion. Amendment 29's anti-succession rule does not apply to city offices like city council. You should verify no statute specific to your office prohibits succession.

Q: What if the office is mayor?
A: Same answer. Mayor is a city office, not on Amendment 29's list.

Q: What about a district court judge?
A: Different answer. After Amendment 80, district court judges are state/district officers within Amendment 29's reach. A person appointed to fill a district judge vacancy cannot run for that office at the next election.

Q: Does this rule apply to all classes of cities?
A: The opinion was framed around "cities of the first class," but the Amendment 29 logic applies broadly to city offices regardless of class. The structural exclusion of city offices from Amendment 29 is the same.

Q: Why does Amendment 29 not cover city offices?
A: Historical reasons. At Amendment 29's adoption, cities had their own succession arrangements through charters and statutes. Amendment 29 was directed at the state-level offices Arkansas wanted to standardize.

Citations and references

Constitution:

• Ark. Const. amend. 29, § 1 (covered offices)
• Ark. Const. amend. 29, § 2 (anti-succession rule)
• Ark. Const. amend. 80 (judicial reorganization, including redesignation of municipal judges as district court judges)

Cases:

• Johnson Cty. Bd. of Election Comm'ns v. Holman, 280 Ark. 128, 655 S.W.2d 408 (1983) (Ark. Sup. Ct.)

Prior AG opinions:

• Op. Att'y Gen. 2015-018 (district court judge succession under Amendment 80)
• Op. Att'y Gen. 2006-123, 2004-282, 2004-253, 99-242, 98-176 (city office succession analyses)

Source

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

Original opinion text

Opinion No. 2016-049
July 15, 2016

The Honorable Stephanie Flowers
State Senator
217 South Main Street
Pine Bluff, AR 71601

Dear Senator Flowers:

This is in response to your request for an opinion on the following question:

When an elected official of a city of the first class resigns, is the person chosen to fill the remaining time of the official's term eligible to run as a candidate in the next election for that position?

RESPONSE

There is no general constitutional or statutory prohibition against a person running to succeed himself after being chosen to fill a vacancy in a city office. The answer to your question is therefore "yes," unless a statute applicable to the particular city office prohibits a person from succeeding himself in that specific office after filling a vacancy. You did not identify a particular office when presenting your question. In the course of researching your question, no statute applying to a specific city office came to my attention. But without knowing the particular office involved, I cannot definitively state that no such specific prohibition exists.

DISCUSSION

There is no constitutional impediment to a city officer succeeding himself after being chosen to fill a vacancy in the city office. Section 2 of Amendment 29 to the Arkansas Constitution does make appointees to certain offices ineligible for succession. With certain exceptions not relevant to your question, however, that prohibition applies only to persons who were appointed to fill vacancies in "the office of United States Senator, and in all elective state, district, circuit, county, and township offices." It does not apply to city officers.

Nor is there any general statutory impediment to a city officer running to succeed himself after filling a vacancy in the city office. In order to provide a definitive answer to your question, however, it would be necessary to know the exact city office involved. The person chosen to fill a vacancy in an elected city office will be eligible to run as a candidate for that position in the next election as long as no statute applicable to that particular office makes the person ineligible for succession.

It should perhaps be noted that Johnson County involved a municipal judge. Amendment 80 re-designated the former "municipal judges" as "district judges." And as I have previously observed, Amendment 29 now applies to the position of district court judge through Amendment 80. See Op. Att'y Gen. No. 2015-018, at note 11.

Sincerely,

LESLIE RUTLEDGE
Attorney General