Certification Prerequisite for Attorney General Representation Under Ark. Code § 25-16-702

Introduction

In Tim Griffin, in His Official Capacity as Attorney General of Arkansas v. Arkansas Board of Corrections (2025 Ark. 81), the Arkansas Supreme Court addressed a novel procedural issue: whether a trial court may compel the Attorney General to certify representation or to invoke the special-counsel process under Ark. Code Ann. § 25-16-702 when the agency has made no such request. The suit arose under the Arkansas Freedom of Information Act (FOIA), in which the Attorney General alleged that the Board of Corrections had violated both the open-meetings and open-records provisions of FOIA. Within days of filing, the Pulaski County Circuit Court sua sponte ordered the AG either to accommodate the Board’s special counsel or initiate statutory special-counsel procedures—threatening dismissal if he failed to do so. The AG appealed after the court dismissed his complaint without prejudice. The Supreme Court reversed, holding that the AG had no statutory duty to act absent a certified request by the Board and that the court had abused its discretion under Ark. R. Civ. P. 41(b).

Parties:

Appellant: Tim Griffin, Attorney General of Arkansas.
Appellees: Arkansas Board of Corrections and Benny Magness, its Chairman.

Summary of the Judgment

The Supreme Court of Arkansas first denied the Board’s motion to dismiss the appeal for lack of a final order. It then examined whether the circuit court properly dismissed the AG’s FOIA lawsuit under Rule 41(b) for noncompliance with its order. The Court held:

The AG could not legally “certify special counsel” or otherwise comply because Ark. Code Ann. § 25-16-702 requires an agency to certify its need for representation before the AG is obligated to act.
The AG alone cannot bind the Governor or Legislative Council to fund or approve special counsel; such authorities are separate and must consent.
Requiring the AG to comply with this order was an erroneous statutory interpretation and thus an abuse of discretion, making dismissal under Rule 41(b) improper.

The Court reversed the dismissal and remanded for further proceedings. It also denied without prejudice the AG’s request to disqualify the Board’s special counsel, noting that fact issues remain to be developed below.

Analysis

Precedents Cited

The Court relied on three principal precedents concerning the Attorney General’s duties under § 25-16-702:

Parker v. Murry, 221 Ark. 554 (1953): Held that the AG cannot intervene in an agency’s litigation unless the agency “needs his services and so certifies this need to the Attorney General.”
Taylor v. Zanone Props., 342 Ark. 465 (2000): Reaffirmed that an agency’s certification is the jurisdictional trigger for the AG’s representation duties.
Ark. Const. art. 6, § 22: Requires the AG to perform only such duties “as may be prescribed by law.”

These cases establish that the AG’s statutory duty to represent an agency is not self-executing; it arises only upon the agency’s formal request.

Legal Reasoning

The core statutory provision reads:

“The Attorney General shall be attorney for all state officials, departments, institutions, and agencies. When any … needs the services of an attorney, the matter shall be certified to the Attorney General for attention.” (Ark. Code Ann. § 25-16-702(a))

Subsection (b)(2) authorizes—but does not compel—the AG, with the Governor’s approval, to employ special counsel, subject to Legislative Council review. Subsection (c) permits the Governor to step in if the AG “fails to render service when requested.” Reading these in pari materia, the Court concluded:

No certification request = no AG duty.
No unilateral AG authority to bind Governor or Legislative Council.
Circuit court lacked statutory or constitutional power to impose an independent obligation on the AG.

Because the trial court’s order sprang from an erroneous interpretation of § 25-16-702, dismissing the suit under Rule 41(b) was an abuse of discretion.

Impact

This opinion clarifies and reinforces separation of powers in several respects:

Attorney General’s Role Defined: Confirms that the AG cannot be compelled to act in the absence of an agency’s certified request.
Limit on Judicial Power: Courts may not rewrite or expand statutory duties in the interest of judicial efficiency.
Agency Autonomy Preserved: Agencies must take the first step in seeking legal representation; courts cannot substitute their own determinations.

Future FOIA or other government-entity suits will reference this decision to determine when and how the AG’s representation duties are triggered. Lower courts must be cautious about issuing sua sponte orders that require statutory actions not authorized by law.

Complex Concepts Simplified

Certification: A formal written request by a state agency asking the Attorney General to represent it in a lawsuit.
Special Counsel Process: Under Ark. Code Ann. § 25-16-702(b)(2), the AG may recommend hiring an outside lawyer—but only with the Governor’s and Legislative Council’s approval.
Rule 41(b) Dismissal: Allows involuntary dismissal for failure to comply with court rules or orders—subject to review for abuse of discretion.
Abuse of Discretion: Occurs when a court misinterprets the law or acts arbitrarily; here, the trial court misread the statutory text governing the AG’s duties.

Conclusion

Tim Griffin v. Arkansas Board of Corrections establishes that the Attorney General’s duty to represent state agencies under § 25-16-702 is strictly conditional on an agency’s certified request. Courts cannot impose additional obligations on the AG or bypass the Governor’s and Legislative Council’s roles in approving special counsel. By reversing the dismissal, the Supreme Court reaffirmed the narrow scope of the AG’s statutory duties, preserved agency autonomy, and reinforced judicial respect for the legislature’s statutory design.