If an Arkansas municipality enters into a court-approved consent order in a lawsuit, must it abide by all terms?

Plain-English summary

Senator Alan Clark asked Attorney General Leslie Rutledge a deceptively simple question: if a municipality is a party to a lawsuit in an Arkansas court, agrees to a consent order with the plaintiff, and the court approves the consent order, is the municipality bound by all of its terms?

The AG declined to answer. Her statutory authority under Ark. Code Ann. § 25-16-706 covers questions of state law posed by legislators and certain state officials, but does not extend to fact-bound assessments of specific lawsuits or specific consent orders. Without seeing the consent order, the underlying complaint, the parties' written agreement, and the court's approval order, the AG could not opine on whether all terms were enforceable.

The AG also could not act as a finder of fact in issuing official opinions. That long-standing rule, restated in Op. Att'y Gen. 2015-078 and many earlier opinions, prevents the AG from resolving disputes that depend on the specific terms of specific documents or the conduct of specific parties.

Practically, this kind of question belongs in the lawsuit itself. If the municipality believes some term is unenforceable, the path is a motion to modify or vacate the consent order in the original court, not an AG opinion. If the plaintiff believes the municipality is violating the consent order, the path is a motion to enforce.

The AG's declination did not endorse or reject the consent order. It simply confirmed that the answer was not within the AG's role.

Currency note

This opinion was issued in 2018. 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

Ark. Code Ann. § 25-16-706 (Repl. 2014) sets out the AG's opinion-issuing duties. The AG renders opinions to members of the General Assembly, constitutional officers, and certain state officials on questions of state law. The statutory grant has long been read narrowly: AG opinions address questions of state law in the abstract, not particular controversies or specific documents that the office has not reviewed.

Several principles flow from that scope:

• The AG does not review private contracts, specific consent orders, or particular litigation documents to determine their effect.
• The AG does not act as a fact-finder.
• The AG defers to courts and to local counsel on questions that depend on specific case facts.

Op. Att'y Gen. 2015-078, cited in this opinion, is one of many decisions reinforcing the no-factfinding rule.

Why this kind of question always gets a similar answer

Lawsuits that produce consent orders are typically resolved between specific parties under specific facts. Whether a particular term is binding depends on:

• The municipality's authority to enter the agreement (was it within the council's powers?).
• Court approval (was the order properly entered?).
• The terms themselves (are any contrary to law or void as against public policy?).
• Subsequent events (has anything changed that might give grounds for modification?).

None of those questions can be answered from an AG opinion request alone. They require document review and, if disputed, judicial resolution. So the right answer for the AG, every time a request like this comes in, is to decline and point the requester to the parties and their counsel.

Common questions

What if the consent order conflicts with state law?

That is a question for the court that approved it, not the AG. A consent order that requires a municipality to act contrary to state law might be voidable, but the procedure for raising that argument is in the original lawsuit (typically through a motion to modify or vacate, or in defense to a motion to enforce).

Could the municipality just stop following the consent order?

The opinion did not address that. As a general matter, ignoring a court-approved consent order risks contempt sanctions or other enforcement consequences. Any decision to stop performance should go through the court that approved the order, not unilateral action.

Why did Senator Clark ask the AG instead of asking a court?

Legislators sometimes ask AG opinions to clarify a general legal point, even when a specific case is the impetus. The AG's role is to opine on the general state-law question. When the question turns on a specific consent order's enforceability, the general-law nature falls away and the AG declines.

Could a future opinion answer the same question if framed more generally?

Possibly. A request like "Are court-approved consent orders binding on municipalities under Arkansas law?" without reference to a specific dispute would be more amenable to a general legal answer. But even then, the answer would be heavily qualified ("yes, generally, subject to the usual contract-law and public-policy defenses").

Citations

Ark. Code Ann. § 25-16-706 (Repl. 2014); Op. Att'y Gen. 2015-078.

Source

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

Original opinion text

Opinion No. 2018-075
July 24, 2018
The Honorable Alan Clark
State Senator
P.O. Box 211
Lonsdale, AR 72087
Dear Senator Clark:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
You have requested my opinion on the following question:
If a municipality is a party to a lawsuit, properly filed in an Arkansas Court, and enters into a Consent Order, which has been agreed to by both the plaintiff and defendant and is subsequently approved by the Court, must the municipality abide by all terms of the agreement in the Consent Order?

RESPONSE
Please be advised that I am not in a position to review the agreement or Consent Order you reference, or otherwise undertake a separate review of the underlying lawsuit. I am therefore unable to address your question.

I am charged by statute with providing my opinion to members of the legislature and other state officials regarding various matters of state law. Your question does not appear to fall within the scope of this charge. Rather, its resolution likely depends upon the facts and circumstances prevailing in the particular underlying dispute. And I cannot act as a finder of fact in issuing official opinions. The matter at hand must be handled locally, through the interested parties and their counsel.

I regret that I am unable to directly assist you in this matter. Thank you for writing, and please feel free to contact me in the future when we can be of assistance.

Sincerely,

LESLIE RUTLEDGE
Attorney General