The Honorable Janet Johnson State Representative 600 Mills Park Road Bryant, Arkansas 72022-3123
Dear Representative Johnson:
This is in response to your request for an opinion concerning the Arkansas Department of Health's administration of the federal "Special Supplemental Nutrition Program for Women, Infants and Children or "WIC." Specifically, you note that it has come to your attention that there are "no state regulations pertaining to the State's administration of this program even though it appears that the State has the ability to interpret and implement federal program requirements and make some program policy decisions at the state level." You therefore pose the following question:
Is the Department of Health responsible for following the rule-making provisions of the Arkansas Administrative Procedures Act, Arkansas Code 25-15-201 through 218, with regard to the Department's administration and implementation of the WIC program?
RESPONSE
I must decline to answer your question, as the matter you reference is the subject of litigation pending in Arkansas Nutritional Food SuppliersAssociation, Inc. v. Boozman, (No. 04-13291, Pulaski County Circuit, Seventeenth Division). In order to avoid encroaching upon exclusively judicial prerogatives, it has long been the policy of this executive-branch office to avoid rendering opinions on matters that are pending in the courts. This policy is based primarily upon the separation of powers doctrine. See, e.g., Ops. Att'y Gen. Nos. 2004-067; 2004-006; 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 before a judicial body. Any answer to the question you have raised must be provided in the judicial forum.
Sincerely,
MIKE BEEBE Attorney General
MB:ECW/cyh