The Honorable Bobby Glover State Senator Post Office Box 1 Carlisle, Arkansas 72024-0001
Dear Senator Glover:
I am writing in response to your request for an opinion on whether Senate Bill 13, which you are sponsoring in the current session of the Arkansas General Assembly, is constitutional. Specifically, you state that Senate Bill 13 "provides a procedure for the recall of state constitutional officers, members of the General Assembly, and judicial officers." Your question is "does the Arkansas Constitution permit the General Assembly to legislate a recall procedure for these offices or would the creation of the procedure require a constitutional amendment."
RESPONSE
In my opinion a recall procedure for the constitutional officers at issue in Senate Bill 13 may only be accomplished by constitutional amendment.
My predecessor addressed the constitutionality of a bill materially indistinguishable from Senate Bill 13 in Op. Att'y Gen. 2003-104. At issue in Opinion 2003-104 was Senate Bill 378 (2003 Regular Session). As my predecessor concluded in Opinion 2003-104:
The Arkansas Supreme Court has held that the Arkansas Constitution provides an "exclusive scheme" for dealing with removals from office. This is true at least as to those officers whose removal is addressed by the Arkansas Constitution. The Arkansas Constitution addresses the removal of every officer covered by Senate Bill 378.
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In my opinion, because Senate Bill 378 applies to officers whose removal is exclusively addressed by the Arkansas Constitution, it is unconstitutional. The methods of removal set out in the Arkansas Constitution for these officers constitute the exclusive mode of removal. If recall is to be instituted in Arkansas, it must be accomplished by constitutional amendment.
Id. at 2 and 7.
I have enclosed Opinion 2003-104 for your review. I can find no subsequent change in the law of Arkansas altering the conclusion reached by my predecessor in that Opinion. As a consequence, in my opinion the answer to your question is that Senate Bill 13 is unconstitutional and its subject matter is outside the power of the General Assembly. Any recall procedure for the constitutional officers mentioned in Senate Bill 13 must be instituted by constitutional amendment.
Deputy Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
DUSTIN McDANIEL
Attorney General