Opinion No. ( 1999 )

The Honorable Larry Prater State Representative 8800 Prater Lane Rudy, AR 72952-9373

Dear Representative Prater:

This is in response to your request for an opinion on the following questions concerning an election in Crawford County to repeal the tax going to the County Library Board:

1. When we have this election, how soon can the election be held?

2. If the petition is passed to repeal the tax, when will it become effective?

3. Will the petition become retroactive?

4. Will the library dissolve if Mr. Stilley wins his case?

RESPONSE

Question 1 — When we have this election, how soon can the election beheld?

It is my opinion that the election cannot be set any earlier than thirty days after the petition is filed. See Op. Att'y Gen. 93-140 (copy enclosed). Amendment 38 to the Arkansas Constitution, as amended by Amendment 72, authorizes a special election on the question of abolishing a county library tax, upon the petition of 100 or more taxpaying electors of the county. Ark. Const. amend. 38, § 3 (Supp. 1997). The petition must be filed "at least thirty days prior to the election. . . ." Id. While this language is somewhat ambiguous, given the fact (as noted in Opinion93-140) that the special election date will not have been set prior to the petition filing, it was concluded in Opinion 93-140, and I agree, it should be interpreted as requiring that there must be at least a thirty-day period between the filing of the petition and the election.

Question 2 — If the petition is passed to repeal the tax, when will itbecome effective?

In my opinion, the result of the election will be effective when it is certified and entered of record by the County Judge. See Ark. Const. amend. 38, §§ 2 and 3 (1987 and Supp. 1997). The result will, however, be subject to attack for thirty days, in accordance with Amendment 38, § 3 wherein it provides that:

. . . the result as entered of record shall be conclusive unless attacked in the courts within thirty days.

Ark. Const. amend. 38, § 3 (Supp. 1997).

Question 3 — Will the petition become retroactive?

It is my opinion that the answer to this question is "no." Section 2 of Amendment 38 provides for the continual levy of the library tax wherein it states: "If a majority of the qualified electors voting on the question at such election vote in favor of the specified tax, then it shall thereafter be continually levied and collected as other general taxes. . . ." Ark. Const. amend. 38, § 2 (1987). Section 3 of Amendment 38 provides for subsequent submission of the question whether to abolish the tax. Amendment 38 makes no provision, however, for the result of such an election to be retroactive. The ballot, as set out in Section 1 of Amendment 38, simply provides for a vote "for" or "against" the tax. Nor has my research yielded any other authority for the proposition that an election to abolish a county library tax will have retroactive effect.

Question 4 — Will the library dissolve if Mr. Stilley wins his case?

The case to which you refer is a case currently pending before the court. It is the long-standing policy of this office to decline to issue opinions on matters that are the subject of ongoing litigation. I would note, however, that as the case currently stands, Mr. Stilley has not sought dissolution of the library. Nor do I believe such dissolution would necessarily follow from this case. See generally A.C.A. § 13-2-401 (Supp. 1997) (authorizing county quorum courts to "establish, maintain, and operate county public libraries" and providing that "counties may appropriate money for these purposes.")

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:EAW/cyh

Enclosure