The Honorable Brenda Gullett State Senator 28 Longmeadow Pine Bluff, AR 71603
Dear Senator Gullett:
I am writing in response to your request for an opinion on the following questions:
1. Is a rezoning ordinance passed by the Pine Bluff City Council subject to referendum? On March 18, 2002, the Council passed an ordinance to rezone an area in which Wal-Mart is planning to construct a Wal-Mart Supercenter. A petition drive is currently in the process of gathering the signatures to call for a referendum in this rezoning matter.
2. On March 4, 2002, the Pine Bluff City Council passed an ordinance abolishing the Pine Bluff Wastewater Utility Commission. On April 3, petitions with apparent needed numbers of signatures were presented to the city clerk to call for a referendum to overturn the council's decision. Is the ordinance held in abeyance until the matter of the referendum is decided — possibly as late as November?
RESPONSE
I must decline to issue an opinion on your first question because the issue of whether a municipal rezoning ordinance is subject to referendum is currently pending before a court. See Lemond, et al. v. City of LittleRock, et al. (No. IJ 2001-2246, Pulaski County Circuit Court, 17th Division). It is the longstanding policy of this office that opinions not be rendered on matters that are pending before the courts for resolution. Although the Pulaski County case involves different parties than the situation you have presented, it involves the same issue and a future appeal of the Pulaski County case would provide precedent on this referendum issue. Because the issue has been raised in judicial proceedings, it is properly addressed in that forum, pursuant to the Court's power and duty to interpret the law as enacted by the General Assembly. My effort to address the matter at this point would simply amount to an executive comment on a matter properly before the judicial branch.
Your second question also pertains to a matter that is currently in litigation. The plaintiffs in Woods et al. v. City of Pine Bluff, et al. (No. CV-2002-349-1, Jefferson County Circuit Court) seek to enjoin enforcement of this ordinance (Pine Bluff Ordinance No. 5996), which is entitled "An Ordinance to Abolish the Utility Commission of the City of Pine Bluff, Arkansas." Part of the relief sought is the maintenance of the "status quo" pending the court action and pending the referendum.See Complaint to Enjoin Enforcement of Invalid City Ordinance, and forDeclaratory Judgment at 10. The matter of holding the Ordinance in abeyance pending the referendum election has thus been raised in this judicial proceeding. An answer to the question you have raised should be provided by the Jefferson County Circuit Court in this case.1
I regret that I cannot offer a response to your questions, but hope that the issues will be resolved expeditiously through the judicial process.
Sincerely,
MARK PRYOR Attorney General
MP:EAW/cyh
1 It is my understanding that there may be a question regarding the sufficiency of the signatures on this particular referendum petition. If the petition in fact is determined to be insufficient, your question at that point would presumably be hypothetical, assuming of course that the Jefferson County court declined to rule on the plaintiffs' request to maintain the status quo pending a referendum election. I would be able at that point to address the general question of holding a municipal ordinance in abeyance pending a referendum, and would certainly do so in as timely a manner as possible upon request.