The
2003 legislative session presented many challenges for
the Arkansas Bar Association and its members. The session
marked the first real experience with the effects of
term limits, with 36 representatives and 16 senators
- nearly 40% of the entire General Assembly - serving
as freshmen. Furthermore, the vast majority of the "veterans"
were in fact only serving their second terms; there
was very little institutional memory in the group. Additionally,
the number of lawyers in the General Assembly was substantially
diminished. In the 35-member Senate, there were only
two lawyers, and only one of them, Senator Jim Luker,
was a member of the Senate Judiciary Committee. There
were 15 lawyers in the 100-member House, with seven
on that chamber's Judiciary Committee. Finally, there
were several bills that significantly affected the law,
lawyers, and the judicial system. This article provides
a synopsis of these bills, as well as two measures that
did not pass but are expected to be re-introduced in
future sessions.
(A) The Association's Legislation
Package.
The Association's House
of Delegates approved a legislation package consisting
of three measures recommended by the Jurisprudence and
Law Reform Committee. All of them passed both chambers
without a dissenting vote. Act 177 (Senate Bill 153)
amended the Arkansas Probate Code to increase the allowances
to surviving spouses and minor children from $2,000
to $4,000 as against distributees and from $1,000 to
$2,000 as against creditors. It also increased from
$500 to $1000 the maximum amount that can be distributed
to surviving spouses and minors for sustenance during
the first two months after the decedent's death. Finally,
it increased from $5,000 to $10,000 the value of assets
that could be sold, mortgaged or leased without notice
of hearing. We thank Bill Haught for his testimony before
the committees to achieve the bill's passage.
The second measure, Act
610 (SB 303), adopted the Arkansas Disclaimer of Property
Interests Act. This act is an important addition to
the law governing estates, trusts and probate. It prescribes
the procedural and substantive law governing disclaimed
interests in property, including partial interests,
future interests, and rights of survivorship. Section
14 of the act provides important guidance regarding
the timing and effect of tax-qualified disclaimers under
the federal Internal Revenue Code. The Association thanks
Byron Eiseman, Phil Carroll and Bill Haught for lending
their expertise and assistance in achieving the passage
of this measure.
The third measure, which
made numerous technical corrections to the Arkansas
Code to make it conform to the provisions of Amendment
80, actually took the form of two bills. Act 1166 (HB
2471) comprises 53 pages and focuses on statutes dealing
with adoption and juvenile law. Act 1185 (SB 462) is
118 pages long and covers all other statutes that needed
technical revision. We are indebted to the members of
the Association's Amendment 80 Task Force and, in particular,
Professors John Watkins and Ken Gould for their painstaking
work in reviewing the Code and preparing these bills.
(B) Other Acts of Interest
to the Bar.
In addition to the Association's
package, there were several other enactments that are
of interest to the profession. This is by no means an
exhaustive list, and each member is encouraged to review
a listing of the acts by accessing the General assembly's
website, www.arkleg.state.ar.us. Some of the acts that
should be mentioned here are:
• Act 32 amends the new Article
9 of the UCC to re-adopt the "old" version's
provisions for perfecting and prioritizing landlord's
liens on crops;
•
Act 623 establishes that where there is a conflict between
the internet and hardbound versions of the Arkansas
Code, the hardbound version prevails;
•
Act 1030 abolishes the Rule in Shelley's Case;
•
Act 1179 empowers circuit and appellate courts to order
parties to mediate civil cases.
Additionally, Act 1077
deserves special mention. This act created the Arkansas
Criminal Code Revision Commission, a 19-member body
that is charged with the task of performing a comprehensive
review of the criminal code. Under the act, the Commission
is to provide to the House and Senate Judiciary Committees
a draft of legislation proposing changes and corrections
to the criminal code. The last such undertaking occurred
in 1974. This is a much-needed development that may
result in monumental reform to criminal law, including
sentencing and procedure. The act provided that the
Association president select one member, and Tom Daily
appointed Jack Lassiter of Little Rock. If you practice
in the area of criminal law, please contact Jack with
any suggestions you may have.
Last but not least is
Act 649, the so-called "tort reform" law.
This measure contains significant changes to the law
governing tort litigation, including limitations on
the availability of joint and several liability, caps
on punitive damages, and significant procedural changes
governing tort actions against medical care providers.
Due to space limitations and an upcoming, separate article
to appear in The Arkansas Lawyer providing an
exhaustive analysis of this act, the particulars of
the changes are not discussed here. However, every practitioner
in the field of tort litigation should carefully peruse
this new law.
(C)
Other Bills Of Interest That Did Not Pass.
There were several measures
opposed by the Association that did not pass. Two of
them bear particular note because of their impact upon
the practice of law and the judiciary, and because we
expect them to appear again in future sessions. They
are next discussed.
Sales tax on professional
services. Several bills were introduced that proposed
to apply the sales tax to professional services, and
to attorneys fees in particular. Due to the need for
additional funding for the medicaid, prisons and the
public school system and the comparative ease with which
sales taxes can be enacted (the legislature may adopt
a sales tax by a simple majority vote, whereas other
taxes, such as income taxes, require a three-quarters
majority), we were quite concerned that these taxes
would garner support as the session wore on. Ultimately,
all of these measures died in committee during the regular
session, but none of the budgeting matters were resolved,
either.
The General Assembly came
back for a special session in June to address immediate,
non-educational funding needs and opted for additional
tobacco taxes and an income tax surcharge. The Governor
has announced that another special session will be held
in December to address secondary education reform and
the associated funding issues. The estimated additional
cost is in the hundreds of millions, and we believe
that the General Assembly will seriously consider any
and all funding options - including sales taxes on professional
services. Mr. McNulty and the Legislation Committee
will keep the Association membership apprised of these
developments and will continue to develop strategies
in response to any such measures.
Recall elections.
SB 378 proposed a mechanism for elections to recall
constitutional officers, members of the General Assembly,
and district, circuit and appellate judges. Bills of
this type have been introduced in past sessions but
have always died in committee. To the surprise of many,
this measure passed the Senate late in the session and
was referred to the House Rules Committee, which recommended
its passage. Prior to a vote by the full House, it was
re-referred to the Rules Committee, where efforts to
amend the bill to alleviate its many flaws failed. Attorney
General Beebe also issued an opinion casting doubt on
the measure's constitutionality, and ultimately the
primary sponsor withdrew the bill and directed it to
interim study.
The Association opposed
this measure for three principal reasons. First, it
unconstitutionally encroached upon the independence
of the judicial branch. Second, it was unnecessary because
Amendment 66 of the Arkansas Constitution already provides
a means for disciplining and, if necessary, removing
judges for cause. Third, the bill contained no grounds
upon which an elected official could be recalled, meaning
that an official could be recalled for any reason, or
no reason at all. We believed that such a measure could
be used to intimidate all elected officials - not only
judges, but also governors and legislators - in situations
in which they are required to make hard decisions on
difficult, politically volatile issues. Finally, such
a measure creates governmental instability that is detrimental
to the interests of the state and its citizens - a point
borne out by the current situation in California. We
will continue to oppose measures of this sort in future
sessions. Hopefully, however, the California experience
will demonstrate the many, real-world problems that
recall statutes can cause.
Conclusion
The 2003 regular session
was indeed challenging to the Association and to lawyers,
and we expect the trend to continue. You can help our
cause by getting to know your hometown legislators and
lending them assistance as they deal with the often
difficult issues confronting them. And you are always
encouraged to place your hat in the ring. Finally, please
read the accompanying article on the Legislation Committee.
During the course of the session we had many inquiries
regarding its function and its workings, and the article
is an effort to answer those questions.• |
