Does Act 1077 of 2019 apply retroactively to fire protection district petitions, and does the new procedure violate Arkansas constitutional limits on quorum-court authority?

Plain-English summary

Act 1077 of 2019 made significant changes to how Arkansas fire departments could convert into fire protection districts. Under the amended Ark. Code Ann. § 14-284-226, the governing body of a fire department wishing to become a district makes a "request by petition" to the quorum court of the county (or counties) it serves. The quorum court "shall grant" the petition within 60 days. The "shall grant" language stripped quorum courts of the discretion they had under the prior version of the statute.

Daniel Shue, prosecuting attorney for the 12th Judicial District, asked AG Leslie Rutledge several questions about how the new act interacts with constitutional limits on county authority and prior provisions in the same chapter, specifically as applied to challenges Sebastian County faced.

The AG's answers, in order:

Q1: If a petition is filed before April 24, 2019, do the new procedures apply? No. The Arkansas Supreme Court has consistently held that legislation is presumed to apply prospectively unless the legislature has expressly declared, or necessarily implied by the language used, an intent to give it retroactive effect. The presumption is especially strong for amendatory acts. Act 1077 contains no language signaling retroactivity. There is an exception for procedural or remedial legislation, but Act 1077 is not merely procedural or remedial; it creates a new method of converting a fire department to a fire protection district that differs substantively from the prior version. So petitions filed before the effective date are governed by the older statute.

Q2: Does the procedure usurp the quorum court's tax authority under Article 7, § 30 and Amendment 55, § 1? No. Fire protection districts levy "annual assessments" under Ark. Code Ann. § 14-284-216(a)(1), not taxes. The Arkansas Supreme Court drew the line in Rainwater v. Haynes, 244 Ark. 1191, 428 S.W.2d 254 (1968): taxes are exactions for general revenue; assessments are exactions for local improvements that benefit property owners. The two are categorically different, even though district assessments are payable at the same time as ad valorem taxes. So Act 1077 does not touch the quorum court's tax authority.

Q3: Does Act 1077 improperly delegate quorum-court power to the fire department's governing body in violation of Article 4, § 2? No. Amendment 55 to the Arkansas Constitution grants enlarged self-government authority to counties, but their authority remains subordinate to the state. Counties may "exercise local legislative authority not denied by the Constitution or by law" (amend. 55, § 1(a)). The quorum court's powers are "such powers as provided by law" (amend. 55, § 4) and include performing legislative duties "as may be prescribed by law" (Ark. Code Ann. § 14-14-1301(b)(1)(A)). The General Assembly may therefore require quorum courts to grant a petition; the requirement is not an unlawful delegation of legislative authority.

Q4: Does the procedure satisfy procedural and substantive due process under Article 2, § 8? Wrong question. A political subdivision of the state cannot invoke the due process clause against the state itself. The AG cited City of Cave Springs v. City of Rogers, 343 Ark. 652, 657, 37 S.W.3d 607, 610 (2001) (citing Ark. State Hosp. v. Goslee, 274 Ark. 168, 623 S.W.2d 513 (1981)), and noted that the Arkansas due process clause is virtually identical to the Fourteenth Amendment, so it does not provide a county anything the federal due process clause would not. Counties simply do not have due process rights against the state.

Q5: Did Act 1077 repeal Ark. Code Ann. §§ 14-284-204 and 14-284-208 by implication? No. Act 1077 did not expressly repeal either section. To the contrary, it amended § 14-284-204 by adding a new subdivision. Repeal by implication is disfavored and is "never allowed except where there is such an invincible repugnancy between the former and later provisions that both cannot stand together" (Donoho v. Donoho, 318 Ark. 637, 639, 887 S.W.2d 290, 291 (1994)). Nothing in Act 1077 suggests that level of repugnancy.

Q6: If § 14-284-204 and § 14-284-208 had been impliedly repealed, what procedures should the Sebastian County Quorum Court follow? Moot in light of Q5.

Q7: What procedures apply if the quorum court, in the exercise of its discretion, refuses to grant the petition? None. Section 14-284-226 directs the quorum court to grant the petition; the language is nondiscretionary. There are no established procedures for the consequences of a refusal, so the AG declined to speculate.

Currency note

This opinion was issued in 2020. 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's the practical difference between an assessment and a tax for fire protection?
Assessments are exactions for local improvements that benefit property owners; taxes are exactions for general revenue. The Arkansas Supreme Court drew the line in Rainwater v. Haynes. The label matters because Article 7, § 30 of the Arkansas Constitution and Amendment 55, § 1 limit the quorum court's power over taxes. They do not limit assessments in the same way.

If the quorum court has to grant the petition, what's the point of having it act?
The mandatory language in § 14-284-226 (the quorum court "shall grant" within 60 days) makes the quorum court's role essentially ministerial in this context. The legislature has made the substantive decision (that a fire department's governing body may convert to a fire protection district by petition) and assigned the quorum court to carry it out. Subsection (b)(1)(B) gives the quorum court a 60-day window to ask questions about the petition, but does not give it a power to deny.

Why can't a county claim due process protection against the state?
Because counties are creations of the state, not separate sovereigns. The U.S. Supreme Court and the Arkansas Supreme Court have both held that political subdivisions cannot invoke the Fourteenth Amendment's due process clause against the state. The same reasoning applies to the parallel Arkansas due process clause.

What happens if a quorum court refuses to grant a petition anyway?
The opinion did not say. It treated § 14-284-226 as nondiscretionary and declined to speculate about the consequences of a refusal. The fire department's likely remedy would be a writ of mandamus or other affirmative action; the AG did not address that.

Why is Act 1077 not just procedural?
Because it changes the substantive standard, from quorum-court discretion to mandatory grant-on-petition. Procedural-or-remedial legislation can apply retroactively under Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962). Substantive changes cannot. Act 1077 changed the substantive answer to "may a fire department convert into a district by petition," not just the procedure for doing so.

Background and statutory framework

Ark. Code Ann. § 14-284-226 sits in subchapter 2 of Chapter 284, which governs the formation of fire protection districts. Act 1077 of 2019 amended § 14-284-226 to provide a mandatory grant-on-petition mechanism, replacing the prior discretion-based procedure. The act also amended § 14-284-204 and § 14-284-216(a)(1) without expressly repealing § 14-284-204 or § 14-284-208.

Amendment 55 to the Arkansas Constitution governs county self-government. Section 1(a) authorizes counties to "exercise local legislative authority not denied by the Constitution or by law"; § 4 says quorum courts "shall meet and exercise all such powers as provided by law." Ark. Code Ann. § 14-14-1301(b)(1)(A) implements Amendment 55 with respect to quorum-court duties.

Article 2, § 8 of the Arkansas Constitution is the state due process clause. Article 4, § 2 embodies the separation-of-powers doctrine. Article 7, § 30 and Amendment 55, § 1 govern quorum-court tax authority.

Citations

Statutes:

• Ark. Code Ann. § 14-284-204 (Repl. 2013) (fire protection district provisions)
• Ark. Code Ann. § 14-284-208 (Repl. 2013) (fire protection district provisions)
• Ark. Code Ann. § 14-284-216(a)(1) (Supp. 2017 and Act 1077 of 2019, § 5) (annual assessments)
• Ark. Code Ann. § 14-284-226 (Repl. 2013, as amended by Act 1077 of 2019, § 6) (conversion of fire department to fire protection district)
• Ark. Code Ann. § 14-14-1301(b)(1)(A) (Supp. 2017) (quorum-court duties)

Constitution:

• Ark. Const. art. 2, § 8 (due process clause)
• Ark. Const. art. 4, § 2 (separation of powers)
• Ark. Const. art. 7, § 30 (quorum-court taxing authority)
• Ark. Const. amend. 55, § 1 (Repl. 2019) (county self-government)
• Ark. Const. amend. 55, § 4 (quorum-court powers)

Cases:

• City of Cave Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001) (presumption of prospective application; political subdivisions cannot invoke due process against the state)
• City of Dover v. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999) (presumption of prospective application)
• Lucas v. Hancock, 266 Ark. 162, 583 S.W.2d 491 (1979) (presumption strong for amendatory acts)
• Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962) (procedural or remedial legislation may apply retroactively)
• Gannett River States Pub. Co. v. Ark. Indus. Dev. Comm'n, 303 Ark. 684, 799 S.W.2d 543 (1990) (procedural vs. substantive presumption)
• Rainwater v. Haynes, 244 Ark. 1191, 428 S.W.2d 254 (1968) (taxes vs. assessments)
• Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844 (separation of powers analysis)
• Ark. State Hosp. v. Goslee, 274 Ark. 168, 623 S.W.2d 513 (1981) (political subdivisions cannot invoke 14th Amendment)
• Wilson v. City of Pine Bluff, 278 Ark. 65, 643 S.W.2d 569 (1982) (federal/state due process equivalence)
• Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307 S.W.3d 6 (federal/state self-incrimination equivalence)
• Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994) (repeal by implication disfavored)

Prior opinions referenced:

• Op. Att'y Gen. 2018-136 (predecessor analysis of fire protection district conversion)
• Op. Att'y Gen. 2019-032 (predecessor analysis)
• Op. Att'y Gen. 2014-032 (taxes vs. assessments)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2019-064
March 26, 2020

The Honorable Daniel Shue
Prosecuting Attorney
Twelfth Judicial District
901 South B Street, Suite 209
Fort Smith, AR 72901

Dear Mr. Shue:

This is in response to your request for a follow-up opinion related to Attorney General Opinions 2019-032 and 2018-136. Your request states that Act 1077 of 2019 has made fundamental changes in the procedures to be followed for establishing fire protection districts, presenting challenges for Sebastian County government and the Sebastian County Quorum Court.

In this regard, you have posed the following questions:

Question No. 1: If a petition is filed prior to April 24, 2019, do the procedures of Act 1077 of 2019 apply to that petition?

Question No. 2: Pursuant to Arkansas Constitution Article 7, § 30, and Arkansas Constitution Amendment 55, § 1, does this procedure usurp the power of the quorum court with regard to its responsibility for the levying of taxes?

Question No. 3: With regard to Arkansas Constitution Article 4, § 2, is this procedure an improper delegation of powers from the quorum court to the "governing body of a fire department that seeks to become a fire department district"?

Question No. 4: With regard to Arkansas Constitution Article 2, § 8, does this procedure provide both procedural and substantive due process?

Question No. 5: Did Act 1077 of 2019, repeal A.C.A. §§ 14-284-204 and 14-284-208 by implication?

Question No. 6: If the answer to Question No. 5 is "yes," please specify the procedures to be followed by the Sebastian County Quorum Court in addressing any petition under Act 1077 of 2019.

Question No. 7: What procedures would be followed if the quorum court, in the exercise of its discretion, refuses to approve the petition?

RESPONSE

It is my opinion that the answer to each of your first, second, and third questions is "no." It is my opinion in response to your fourth question that a political subdivision of the state cannot invoke the protections of the due process clause. The answer to your fifth question is "no," rendering your sixth question moot. As for your final question, there are no established procedures in this regard.

DISCUSSION

[Question-by-question analysis as summarized in the Plain-English summary above. Key textual hooks:]

Act 1077 of 2019 contains no language indicating that it was intended to be applied retroactively. Nor does it imply that the act is to be given retroactive effect. There is an exception to the general rule of prospective application in the case of "procedural or remedial legislation." But the general rule applies here because Act 1077 is not merely procedural or remedial. Rather, it creates a new method of converting a fire department to a fire protection district that differs substantively from the previous version of Ark. Code Ann. § 14-284-226. This dictates against its retroactive effect.

A fire protection district formed under Subchapter 2 of chapter 284 of Arkansas Code title 4 levies "annual assessments." These assessments are distinct from "taxes," though they are "payable at the time ad valorem taxes are payable."

Section 14-284-226, as amended, directs the quorum court to establish a fire protection district upon the petition of a fire department. This procedure does not violate the separation-of-powers doctrine. Although the adoption of Amendment 55 to the Arkansas Constitution granted enlarged authority for self-governance to counties, the counties' authority in this regard remains subordinate to the state.

It is settled that "[a] political subdivision of the state cannot invoke the protection of the Fourteenth Amendment against the state itself." For the same reason, a county's attempt to challenge Article 2, section 8 of the Arkansas Constitution would not succeed.

Act 1077 did not expressly repeal either of these sections. To the contrary, the Act amended section 14-284-204 by adding a new subdivision. And nothing in the Act suggests any intention to repeal either section. It is well established that repeal by implication is not favored and is "never allowed except where there is such an invincible repugnancy between the former and later provisions that both cannot stand together."

As stated in response to Question 3 above, Section 14-284-226 directs the quorum court to establish a fire protection district upon the petition of a fire department. This appears to be nondiscretionary. There are no established procedures in the event that a quorum court refuses to grant the petition. Accordingly, I cannot speculate as to the consequences of such a refusal.

Sincerely,

LESLIE RUTLEDGE
Attorney General