Mr. Kern Treat Director Bureau of Legislative Research State Capitol, Room 315 Little Rock, AR 72201
Dear Mr. Treat:
This is in response to the House Committee on State Agencies and Governmental Affairs' request for an opinion regarding the constitutionality of House Bill 1047, as amended. According to the "Amendment Form" that was submitted with the opinion request, Section 1 of the bill would be amended to insert the following language:
(a)(1) The Secretary of State shall ascertain and declare the sufficiency or insufficiency of each initiative and referendum petition within thirty (30) days after it is filed.
(2) The Secretary of State may contract with the various county clerks for their assistance in verifying the signatures on petitions. The county clerks shall return the petitions to the Secretary of State within ten (10) days.
It is my opinion that the bill, as amended, would be constitutional on its face. It was noted in Opinion Number 91-049, a copy of which is enclosed, that a contract may be an appropriate means of gaining the county clerks' input into the Secretary of State's sufficiency determination under Amendment 7 to the Arkansas Constitution. Att'y. Gen. Op. No. 91-049 at 2.
It was also noted in Op. No. 91-049, however, that the particular terms of any contract(s) with the clerks in this regard would be relevant in determining whether the Secretary of State has retained the power and duty to decide the sufficiency of statewide petitions in the first instance. Id. Questions may thus be raised with regard to the application of HB 1047, as amended, depending upon the particular facts surrounding the contract(s). See Op. No. 91-049. Any questions involving the constitutionality of HB 1047 as applied will therefore require a factual review, a type of review that is ordinarily not within the province of an Attorney General opinion. The enclosed Op. No. 91-049 does, however, set forth what, in my opinion, constitute the relevant factors in making this review.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB/dwv