Mr. Robert L. Herzfeld, Jr. Prosecuting Attorney Twenty-Second Judicial District 102 South Main Street Benton, AR 72015
Dear Mr. Herzfeld:
You have presented the following questions for my opinion:
(1) Does the prosecuting attorney for the county in which the original conviction occurred have standing to file suit to enjoin or void the granting of executive clemency based upon the governor's failure to follow the procedures described in A.C.A. § 5-4-607?
(2) If the answer to Question 1 is no, what person or official does have standing, and does any official have a duty to take action?
(3) Would jurisdiction for a petition as described in Question 1 be proper in the county where the original conviction occurred? If not, what would be the proper jurisdiction?
(4) What is the proper form for bringing action (i.e., should the petitioner request a restraining order, or should the petitioner seek to have the illegal clemency voided, or seek some other relief?
(5) If the recipient of the clemency has been released from state custody, what is the proper procedure for bringing the recipient back into custody assuming the clemency is voided?
RESPONSE
I am unable to respond to your request at this time. Litigation on the issues that are raised by your questions appears to be imminent.
Although pursuant to statute I render my opinion to members of the legislature and various state officials regarding uncertain matters of state law, A.C.A. § 25-16-706, my office adheres to a long-standing policy against issuing opinions concerning matters where litigation is pending or appears imminent. This policy of declining to address such issues is based primarily upon the separation of powers doctrine. See,e.g., Ops. Att'y Gen. Nos. 2003-311; 2003-182; 2003-032; 2002-302; 99-389; 97-329; 97-105. Any opinion issued from my office would constitute executive comment on matters that are properly decided by a judicial body. Because your questions clearly relate to planned litigation, any answer to the questions you have raised must be provided in the judicial forum.
Accordingly, I must not address your questions at this time.
Sincerely,
MIKE BEEBE Attorney General