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AG Opinions: fire protection districts, age requirements for JPs, and liens

By Mark Whitmore, AAC Chief Legal Counsel

AG OPINION NO. 2019-032

Traditionally, formation of a fire protection district under Ark Code §14-284-203 was accomplished as follows: (1) By the Quorum Court by ordinance enacted after notice and a public hearing; or (2) By the County Court (County Judge sitting as the County Court) pursuant to an election of qualified electors of the proposed fire protection district. Ark Code §14-284-204 prescribed that any ordinance considered by the Quorum Court include publication of notice and a public hearing. The ordinance would be void if a majority of the qualified electors appearing in person at the hearing opposed the formation of the fire protection district. Likewise, petitions submitted by a majority of the qualified electors could oppose and void the formation of the district.

Attorney General (AG) Opinion No. 2018-136 requested by the Honorable Daniel Shue, prosecuting attorney of the 12th Judicial District, stated that Act 703 of 2017 retained the provisions of the subsection allowing for the will of the qualified electors. Act 703 of 2017 did not eliminate the requisite public hearing or the capacity of the majority of the qualified electors to void the ordinance. Act 703 of 2017 did retain the capacity of the vote of the majority qualified elections to oppose the formation of the district by signature petitions.

The current opinion, AG Opinion No. 2019-032, explains that Act 1077 of 2019 sought to and effectively eliminated the will of the people: the requirement of a public hearing; the ability for the vote of the majority of the qualified electors attending a public hearing to oppose the ordinance; and the ability of the majority of the qualified electors in the district to oppose the ordinance by signature petition. The AG states, “As you can see, subsection (b)(1) no longer states that the fire protection district no longer becomes a fire protection district using the procedures set out in this subchapter.” The petition by the governing body of the fire department to convert a fire protection district must be granted within 60 days. The AG further explained that there can be no delay of a 60-day period for granting the petition. The language of Act 1077 of 2019 directs if the Quorum Court want any issues or questions to be addressed by the governing board of the fire department, it must do so within 60 days. Lawsuits regarding Act 1077 of 2019 are pending.

AG OPINION NO. 2019-037

Does a constituent have to be 18 years of age at the date of filing for office for the primary office or at the time that he would be sworn into office to be eligible to serve as Justice of the Peace? A person will only need to be 18 years old and otherwise a qualified elector at the time of taking office.

AG OPINION NOS. 2019-015 & 2019-016

These two opinions regard the same questions and subject matter. The AG explained that Ark. Code §26-34-101 provides for a lien on all items of assessed and taxable personal property. The lien remains regardless of subsequent transfers in ownership. It has been long-standing law in Arkansas that taxes assessed upon real and personal property shall bind them and be entitled to preference over all judgments, executions, encumbrances, or liens when created. When taxpayers assess their tangible personal property each year, that assessment creates liens encumbering the property for the taxes due. No action is needed to make the county a secured creditor in respect to the property. The lien is paramount and not affected by subsequent change in ownership. Collectors are not required to record tax liens with the Federal Aviation Administration (FAA). However, recoding the lien with the FAA is necessary to the lien to be valid against an innocent buyer of an aircraft. Congress has established a single national registration and recording system for liens against aircraft.

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