Did the Arkansas AG decide whether Act 882 of 2015 applies retroactively to undo earlier Malvern annexations?

Plain-English summary

Representative Laurie Rushing posed six questions about the interplay between the City of Malvern and the City of Rockport, both in Hot Spring County. Malvern had annexed several properties from Rockport in 2000, 2005, and 2007 under Arkansas's "annexation for lack of services" statutes (§ 14-40-2001 et seq.). In January 2017, Rockport passed a resolution invoking Ark. Code Ann. § 14-40-2006 (codifying Act 882 of 2015) to declare those properties "automatically detached and annexed back into" Rockport on the theory that Malvern had failed to provide services within 180 days.

The questions covered retroactive application of § 14-40-2006, the 30-day suit limitation, the effect on Act 779 of 1999 annexations, due process under both the U.S. and Arkansas constitutions (the property owners and Malvern got no notice), the criteria Rockport used, and when the County Real Estate Assessor would adjust tax districts.

Attorney General Leslie Rutledge declined to answer any of them. The same questions were the subject of a pending declaratory-judgment action: City of Malvern v. City of Rockport, No. 30CV-17-50, filed in Hot Spring County Circuit Court on February 17, 2017. The AG's office has a longstanding policy, rooted in separation of powers between the executive and judicial branches, not to issue opinions on matters before the courts for resolution. The AG cited prior opinions (2016-027 and 2010-047) as examples of the policy in operation.

The opinion is therefore procedurally important even though it has no substantive holding. It is a clean illustration of the AG's pending-litigation rule.

Currency note

This opinion was issued in 2017. 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

Q: Why does the AG decline opinions when litigation is pending?
A: The opinion explains: as a member of the executive branch, the AG's office has a "long-standing policy" not to issue opinions on matters that are pending before the courts. The principle is one of separation of powers and judicial deference. A court is the proper forum for resolving the question, and an AG opinion could improperly influence the litigation or be misread as preempting it.

Q: What was actually being fought over in City of Malvern v. City of Rockport?
A: Whether Ark. Code Ann. § 14-40-2006 (Act 882 of 2015) operated to retroactively undo Malvern's earlier annexations. Rockport had taken the position that the new automatic-detachment statute applied to the properties Malvern annexed in 2000, 2005, and 2007 (because Malvern allegedly failed to provide services within 180 days of those annexations). Malvern's complaint sought a declaratory judgment that the statute did not apply retroactively, that the 30-day annexation-suit limit barred Rockport's action, and that the procedure violated due process because property owners had no notice and no chance to be heard.

Q: What is the underlying statutory backdrop?
A: Arkansas allows a city to annex unincorporated or under-served territory belonging to another city if the territory has not received services within 180 days of an existing annexation. Section 14-40-2001 et seq. is the older detachment-for-lack-of-services framework. Act 882 of 2015, codified at § 14-40-2006, added a specific automatic-detachment mechanism. The two cities had different views on whether the 2015 act reached pre-2015 annexations.

Q: Was a state representative entitled to ask these questions even if litigation was pending?
A: Yes. Members of the General Assembly may request AG opinions under Ark. Code Ann. § 25-16-706. The AG's pending-litigation policy is independent of who asks. The policy applies regardless of the requester.

Q: How was the pending-litigation rule applied here?
A: The AG identified the case by name and number, noted that the questions in the opinion request and the questions in the litigation were the same, and declined. The opinion does not analyze the underlying merits even briefly.

Q: What if the litigation had ended before the opinion was issued?
A: The AG would normally then defer to the court's resolution and might or might not issue an opinion afterward. AG opinions do not bind courts, and an opinion that contradicts a court ruling on the same issue would not be useful.

Background and statutory framework

Arkansas's annexation framework is layered. Cities can grow through voluntary annexation, by petition of property owners, by city ordinance under specified conditions, and through detachment-for-lack-of-services proceedings. The detachment provisions in § 14-40-2001 et seq. allow one city to take territory from another that the territory's current city is not adequately serving. Act 882 of 2015 (§ 14-40-2006) added an automatic-detachment mechanism designed to streamline that process.

The retroactivity question is recurrent in Arkansas annexation law. Statutes are presumed prospective absent clear legislative intent to the contrary. The interplay between Act 882 and earlier annexation acts (like Act 779 of 1999) is exactly the kind of question that courts, not AG opinions, resolve. The AG's policy reflects that institutional division.

Citations and references

Statutes and acts:

• Ark. Code Ann. § 14-40-2001 et seq. (annexation/detachment for lack of services)
• Ark. Code Ann. § 14-40-2006 (Act 882 of 2015)
• Act 779 of 1999

Pending case (subject of the AG's decline):

• City of Malvern v. City of Rockport, No. 30CV-17-50 (Hot Spring County Cir., Civ. Div., Feb. 17, 2017)

Prior AG opinions cited as policy precedent:

• Op. Att'y Gen. 2016-027
• Op. Att'y Gen. 2010-047

Source

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

Original opinion text

Opinion No. 2017-018
April 25, 2017

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Laurie Rushing
State Representative
134 Cannon Ridge Point
Hot Springs, Arkansas 71913-8678

Dear Representative Rushing:

You have requested my opinion regarding Act 882 of 2015, which is codified at Ark. Code Ann. § 14-40-2006 (Supp. 2015). As background for your specific questions, you state:

The City of Malvern annexed certain real properties by Resolutions on January 10, 2000, November 15, 2005, and February 12, 2007. Said real properties detached from the City of Rockport for lack of services as provided in Ark. Code Ann. § 14-40-2001 et seq. The City of Malvern provided each property a Commitment to Provide Services.

On January 18, 2017, the City of Rockport passed Resolution 2 of 2017, asserting that pursuant to Ark. Code Ann. § 14-40-2006, the properties annexed by the City of Malvern, as stated above, are "automatically detached and annexed back into the City of Rockport" for the City of Malvern's failure to provide services within 180 days of the annexations.

You have posed the following questions against this background:

1. Does Ark. Code Ann. § 14-40-2006 apply retroactively to the annexations by the City of Malvern in 2000, 2005 and 2007?

2. Does the statutory 30-day restriction on a suit challenging annexation, apply as a statute of limitation on this matter?

3. What effect does Ark. Code Ann. § 14-40-2006 have on annexations pursuant to Act 779 of 1999?

4. Does Ark. Code Ann. § 14-40-2006 violate the due process clause of the United States and Arkansas Constitutions? The annexed landowners nor the City of Malvern were given notice of the City of Rockport's Resolution and had no opportunity to be heard.

5. What criteria is used for the City of Rockport to decide whether the City of Malvern has provided services to the annexed landowners?

6. When does the County Real Estate Assessor move the tax district of the land "automatically detached and annexed back to the City of Rockport" pursuant to Ark. Code Ann. § 14-40-2006?

RESPONSE

I must respectfully decline to answer your questions because of pending litigation. It is the long-standing policy of the Attorney General's office, as a member of the executive branch, to decline to issue opinions on matters that are pending before the courts for resolution. The questions you have posed are the subject of a complaint for declaratory judgment in City of Malvern v. City of Rockport, No. 30CV-17-50 (Hot Spring County Cir., Civ. Div., Feb. 17, 2017). I must therefore respectfully decline to issue an opinion on these questions.

I regret that I cannot be of more assistance in this matter. Please do not hesitate to contact me if I may be of future assistance in some other respect.

Sincerely,

LESLIE RUTLEDGE
Attorney General