Performing Simple Legal Research in Arkansas

I have performed legal research which I provide to the readers of this website to inform them of certain laws or elements of laws pertaining to our pension fund even though I am NOT a lawyer.  This “research” has been performed utilizing my particular skills and abilities obtained through my career as a law enforcement officer and my publication for over twenty years of the Arkansas Criminal Law Manual that required my constant review of U.S. Supreme Court cases and Arkansas Supreme Court cases as well as Arkansas Attorney General’s Opinions to keep the information contained in that text accurate and up to date.  The purpose of legal research is to find “authority” that will aid in finding a solution to a legal problem.  While this article will not go into any great depth about performing legal research, it will provide a general overview of various sources of information that are freely available on the Internet.  One such excellent resource for links to both primary and secondary source material on the Internet for researchers is found HERE and a brief description of each resource is also provided.  However, this article will concentrate specifically on performing “Arkansas” legal research rather than the more broad legal research contemplated by the above linked article.

I used to state in my publication that I believed “anyone capable of reading and understanding a cookbook, vehicle repair manual, or computer software manual could read and understand the provisions of Arkansas law.”  The provisions of law are not all that complicated and are certainly not “rocket science”; however, many people believe only a lawyer can provide them with a reasonable explanation of the law but that believe is, for the most part, untrue.  Because our membership is experienced in reading and understanding the law and can help our fund by performing their own legal research on different matters of law, I wish to present this basic guide to our membership to enable them to perform the same simple legal research I have performed.  While some of our membership may already know much of what I will present because again, it is not “rocket science,” the point of this article is to provide those who may NOT know how to perform that task with the information necessary to perform such “research” on the Internet.

Background
The laws affect the rights of all citizens and apply to all citizens equally; therefore, it is generally held that every citizen has the right to represent himself before a court of law.  Such “right” is referred to in lawyer speak, as “pro se representation” which is a Latin term meaning advocating on one’s own behalf before a court, rather than being represented by a lawyer.  While I do not recommend that practice, I do believe it is important to mention it due to the relative importance and significance such fact places upon the individual citizen’s knowledge of law as well as our system of justice’s recognition that the law is not something that should be so complicated as to prevent the average citizen from conducting his own representation or even assisting his attorney to perform that representation.

In Arkansas, the Arkansas Constitution Article 11 § 16 states:

Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws. [Emphasis added]

The Arkansas legislature later seemingly acknowledged that Constitutional requirement by stating:

If laws were written in language which could be understood by the average person the expense to the citizens of Arkansas for employment of legal assistance to interpret laws and to represent such citizens in court to obtain their rights under such laws would be substantially reduced. [Preamble to Act 308 of 1981]

Consequently, the Arkansas legislature passed the above Act and codified it [placed it into the law books] as A.C.A. § 1-2-121 which states:

No bill shall be considered and no law enacted unless the bill or law is written in clear, unambiguous language. [Emphasis added]

Thus, in Arkansas, the right to represent one’s self or the right to assist one’s legal counsel is clearly recognized under our law as well as the requirement in the law for our legislature to write all laws in a manner that can be understood by the average citizen.  For the most part, our legislature performs that requirement in an excellent manner; however being human, they occasionally make mistakes in that effort and that is where our system of courts and our Attorney General’s office helps to explain such mistakes or problems.

Utilizing a Lawyer
Finding a good lawyer is very similar to finding a good mechanic.  Both supposedly have extensive training allowing them to perform services for the less informed public and both charge exorbitant fees to perform that service.  Because most people do not wish to expend the time or effort to learn how to perform legal or mechanical services, a thriving industry has developed for both professions; however, that does not mean that either service has to be performed exclusively by lawyers and mechanics.  Certainly, the average citizen is quite capable of understanding a shop manual that will provide detailed instructions to affect the repair of a particular vehicle without the need to consult a mechanic or can, at least, provide the uninformed customer with a better understanding of the services to be supplied by the mechanic.  Similarly, the average citizen is also quite capable of understanding the law that will provide detailed instructions to affect the enforcement of the citizen’s rights without the need to consult a lawyer or again, at least, provide the uninformed customer with a better understanding of the services to be supplied by the lawyer.

Much of a lawyer’s “representation” will involve his research of the law to answer a particular question or questions the uninformed customer may have.  To perform that task, he or his assistant relies upon several legal texts [or shop manuals] that will tell him what the law is and what the courts have determined a particular law to mean or, if there are no prior court decisions on point, he will perform a review of the statutory language and often consult with other attorney’s or search for Attorney General’s opinions on the particular matter in question.  Often, the attorney will see the facts and circumstances presented in a particular case clearly; however, again being human, the attorney is not exempt from making mistakes.  Unfortunately for the uninformed customer, such “mistakes” by an attorney can have costly and disastrous consequences.  Thus, it is very important that each individual who seeks the services of a lawyer not be totally ignorant on the legal issues in question and performs his own research and analysis of the applicable law to ensure that his rights are adequately protected, represented, and addressed by the lawyer.

Arkansas Code
In Arkansas, the laws of our state are referred to as the “Arkansas Code.”  This has been true since 1987 when the Arkansas laws were re-codified from the old “Arkansas Statutes.”  Many of our membership probably recall that the charge of “Public Drunk” was codified under the Arkansas Statutes as § 48-943; however today, it is codified under the Arkansas Code as § 5-71-212.  In order to properly understand the Arkansas law, it is first necessary to understand the numbering system used to codify the law.

In Arkansas Code, the law is divided into titles, subtitles, chapters, subchapters, and sections.  The numbering system uses three groups of hyphenated numbers to identify the location of each section or statute of the Code such as 1-23-456.  The first numbers identify the “title” within the Code (1-23-456) while the second set of numbers identifies the “chapter” within that particular title (1-23-456).  The first digit of the last set of figures identifies the “subchapter,” if there is one, within the chapter (1-23-456) while the remaining digits identify the placement of the particular “section” within that subchapter (1-23-456).  While the Arkansas Code is broken down as explained above, many times a person will include a particular subsection and subdivision of Code to further assist the reader in identifying exactly what in the particular “section” of Code they are referring too (1-23-456(a)(1)).  Thus, any section or subsection identified in this manner can easily be located within the Arkansas Code.

Two other parts of the Arkansas Code also need to be mentioned briefly.  The classification and organization of the titles, subtitles, chapters, subchapters, and sections are made for the purpose of convenient reference and orderly arrangement.  The heading or “catchline,” usually appearing in bold print immediately following the section number and preceding or contained within the text of the individual section is only intended to help identify its subject and contents.  While helpful in locating areas containing required information, these headings or catchlines are not part of the law nor do they limit or expand the provisions of law they describe (A.C.A. § 1-2-115).  For example, the underlined text in the following example is a catchline:

5-52-104.  Soliciting unlawful compensation.

To assist persons who wish to conduct research concerning a particular section of law, each section is followed by a “History” showing the origin or history of the particular section.  This information includes original and amendatory Acts as well as the relevant sections within the Acts and their particular section designation in previous texts such as the Arkansas Statutes Annotated (A.S.A.).  Utilizing this information, the researcher is able to track the origin and changes to each section; however, the “history” is not a part of the law and is included for reference only.  For example, “History. Acts 1975, No. 280, § 2704; A.S.A. § 41-2704.”  More information will be provided about the “History” of a section later in this article.

Finally, the Arkansas Code is available from various sources in annotated and unannotated versions.  The annotated versions are more helpful in performing legal research because they contain explanations, comments, notes, and other information useful to the researcher about most sections of Code; however, annotated copies of the Code are usually not free.  Currently, the complete Arkansas Code Unannotated can be found on the Internet at LexisNexus® HERE.  The Arkansas Bureau of Legislative Research used to have a portable document format (pdf) version on the Internet that was fully annotated but they have taken it down now.  Fortunately, that version is still current but will be out of date at the end of this legislative session.  I downloaded the complete contents of this pdf version onto my hard drive because I anticipated that it wouldn’t be free for too long.  Any member of an Arkansas police pension fund who wants a copy can call me and I will provide it on YOUR flash drive.  It only takes up about 86MB so just about any flash drive of 1GB or more will do the trick.  While it will not be completely up to date after this session of the legislature, there will only be the changes made in this session of legislature to consider.  However, the Bureau of Legislative Research claimed that a pdf version was going to be available from now on but we shall see if that is true and if it is annotated.

Statutory Construction / Interpretation
When examining any section of law contained in the Arkansas Code, it is extremely important to the legal researcher that a correct statutory interpretation or statutory construction of the section under review be applied.  While this is generally not too difficult, there are circumstances when such interpretation can be confusing and cause problems.  Fortunately, the Arkansas Supreme Court, who must make the ultimate decision concerning such statutory interpretation or construction, has outlined several basic rules of statutory interpretation that will assist the researcher in determining a proper interpretation.  One basic example of such assistance is contained in the following Arkansas Supreme Court statement:

The basic rule of statutory construction is to give effect to the intent of the legislature.  Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used.  In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language.  We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible.

There are many more examples of the Arkansas Supreme Court’s rules of statutory construction or interpretation and you can review most of them by going to the Arkansas Judiciary website or the Arkansas Attorney General’s Opinion website, both of which are mentioned later in this article, and search the rulings or opinions for the terms “statutory construction” or “statutory interpretation.”  By utilizing this process, you will receive a good general overview of the various rules of statutory construction that must be applied to any statute under review.

Perhaps the best and certainly my personal favorite scholarly treatise on ALL the cannons of Arkansas statutory interpretation is found HERE (you will have to scroll down to page 83 in the PDF document or just place the number “83” in the page number box in the PDF menu, and hit enter).  This article is entitled, Statutory Interpretation in Arkansas: How Arkansas Courts Interpret Statutes, by Michael W. Mullane, a professor of law at the University of Arkansas School of Law in Fayetteville.  This article discusses each cannon of statutory interpretation that has been used by Arkansas courts, provides and discusses different case citations about each cannon, as well as adding the professor’s general opinion of each cannon’s application and treatment by the courts.  I highly recommend this article to any serious researcher of Arkansas law interested in statutory interpretation.

Another excellent discussion of “Statutory Interpretation” appears HERE.  While this article concerns the statutory construction performed by the U.S. Supreme Court, manyof the rules of statutory interpretation or construction discussed in this article also apply in Arkansas’ courts and will provide you with a broad overview of such issues.

Arkansas Supreme Court Case Law and Rules
Most everyone understands that “case law” is a prior ruling of a court on a particular matter that carries great authority in future trials on the same or similar issue.  Most attorneys “Shepardize” their case law pertaining to a particular issue by looking it up in the Shepard’s Citations for their State.  I have only used this process a few times because it required me to drive into the UALR Law School Library.  Shepard’s Citations are used to determine if a particular case law still constitutes persuasive precedential value in a court of law on your particular issue or telling you exactly which case law does have such value so that an attorney can reasonably cite the proper case law that supports his position in any legal opinion or motion before the court.  While “Shepardizing” a case will provide the best insurance against citing “bad law” (a case that no longer has precedential value) in any legal research, it has been my experience that, so long as the case cite you provide is on your point of law and was decided reasonably recently by a court of jurisdiction, the case usually still has a high likelihood of having precedential value.  For that reason, I generally don’t bother to “Shepardize” cases in my research papers; however, I know that I should to ensure a higher degree of accuracy.  However, because I am lazy and do not care to drive into Little Rock, I generally just put the case cite into the Google search box and hit “enter” to see what other court cases or writers have cited the same case and read their rulings in an effort to “Shepardize” the case to some degree and this is a method you too can use.  However, if you do wish to “Shepardize” your cases but do not know how, the publication Legal Research from Nolo.com provides an excellent explanation of how to use the Shepard’s Citations in Chapter 10 of that publication.  This publication also has other valuable information about conducting legal research and is a good read for the serious legal researcher.

Most of the more recent rulings of the Arkansas Supreme Court are on line HERE at the official Arkansas Judiciary website and provide a search box HERE that you can enter any word or phrase you wish to search on (Note that any phrase must be set in quotations such as, “statutory construction”).  This website is particularly useful as it also provides “Slip Opinions” or opinions that have not yet been published or not published in a reporter.  This website also lists the Supreme Court Rules under the nondescriptive side menu bar of the “Home” page labeled “Searches” and then “Arkansas Court Rules and Administrative Orders” including the Supreme Court Rules of Evidence and Rules of Criminal and Civil Procedure, etc., found HERE.  In addition to that website, I have also found the resource at www.findlaw.com to be helpful in locating rulings of the Arkansas Supreme Court.  The FindLaw website rulings of the Arkansas Supreme Court can be found HERE and has a “free text search” box which is the second tab on top of the blue search box that will also allow you to search for any words or phrase in a ruling.

Another excellent resource to search for legal case law is ”Google Scholar.”  Google Scholar allows you to search and read opinions for State court appellant and supreme court cases going back to 1950; US federal district appellant, tax, and bankruptcy cases going back to 1923; and US Supreme Court cases going back to 1791.  To access the legal opinions be sure to click on the “legal opinions” radio button under the search box.  Finally, my new favorite search resource for Arkansas cases is at LexisOne.com found HERE.  Just click on the second tab at the top of the screen labeled “Free Case Law” and then select whether you want to search by keywords or citation by clicking the appropriate radio button, enter your search terms or citation, select “Arkansas” from the drop down menu, and read the results all for free.

Through a little imagination and constructive search utilizing different terms that you believe may be applicable to your issue; you can usually find any relevant case law the Arkansas Supreme Court may have decided on your particular issue by utilizing any of the above websites.  Once discovered, I recommend you “Google” the case citation to read what others have said about the case to “Shepardize” it as much as possible.  Again, if the case you wish to cite was decided in 1999 and you find a court citing that same case in a 2008 ruling, odds are your case law is still good to use.

Arkansas Attorney General Opinions
Generally, the Arkansas Attorney General Opinions provide an invaluable resource for legal research and a search box to search these opinions on the Internet is provided HERE.  While opinions of the Attorney General do not constitute binding law or precedent, they do provide a significant source of legal interpretation, often with respect to questions that have not been addressed elsewhere.  For example, issues that have not been addressed by the Arkansas Supreme Court may have been addressed in an “opinion” issued by the Attorney General.  Again, it is important to note that such “opinions” do not prohibit a court of law from making a ruling contradictory to an Attorney General’s opinion; however, such opinions do provide an excellent legal review of similar issues.

Another thing I like about Attorney General Opinions is that a legal issue or question you are researching may have already been researched by a competent attorney to include various case law citations associated with the opinion as well as other information of value to the researcher as noted under the “Statutory Interpretation” section of this article that can prevent the researcher from having to “reinvent the wheel” in his research.  Such an opinion generally has compelling value to any legal research conducted and you can use the information contained in these opinions to provide additional information on the topic you are researching.  Thus, an excellent source for information about any legal issue is to perform a search of the particular terms or phrases you are interested in and then read the resulting opinions to obtain various case law and other references that add considerable weight to your legal research.

However, I believe one caution is advisable when using Attorney General Opinions or basically any other source in your research.  While Attorney General Opinions do carry significant weight, it should be noted that they are not generally immune from the political process.  This means that certain opinions issued may be tainted by that political process and I recommend you research the opinion as well as other such material on your own to determine its validity under the law.

Arkansas State Legislature
Perhaps, I should have mentioned this resource first because every law contained in the Arkansas Code must first be approved by the legislature; however, not every law passed by the legislature is included in the Arkansas Code if the legislature specifically provides that it not be included.  Each law starts out as a House or Senate Bill sponsored by a legislator.  If approved by the legislature, the Bill then goes to the Governor’s desk for his signature.  If the Governor approves the Bill, it becomes an Act, or if he takes no action on the Bill, it will become an Act within 5 days if still in session or within 20 days after adjournment, or, if he vetoes the Bill and the legislature overturns his veto by a majority vote, that “Bill” becomes an Act.  All Acts of the legislature are provided with a number by the Secretary of State and go into effect 91 days after the final adjournment of the legislature unless the legislature included an “effective date” or an “emergency clause” in the Act that allows it to go into effect sooner.

All Acts of the legislature designated for codification are then codified or placed into the law by the Arkansas Code Revision Commission and that is what we see when we read the law in the Arkansas Code.  The Arkansas Code Revision Commission, among other things, also ensures that the Annotation to the law are correct and provides a “history” of each section immediately following the text of the law.  This is the history I mentioned under the “Arkansas Code” section of this report.  The “history” of each section is very important to the researcher because it provides them with the exact changes made to each section of code by the Act number and section number or has the exact Act and section number that created the section of code if it is a new section.  Utilizing the history, one can track changes made to each section of code over the years and establish exactly when each section or subsection went into effect.  For example, in the history mentioned in the Arkansas Code section of this report, “History: Acts 1975, No. 280, § 2704; A.S.A. § 41-2704,” we can see that this particular section was created in 1975 by Act number 280 in section (§) 2740 and has not changed since that time.  We can also see that it was originally a part of the old Arkansas Statutes found at section (§) 41-2704.

Knowing that information, we can go to the Secretary of State’s Office and request a copy of that Act to see exactly what the legislature did that created that particular law.  Often, the “legislative intent” will be contained in the original Act but not published in the Code.  This information is very important if the intent of the legislature concerning a particular section should ever become an issue.  If the Act had been passed since 1987, the task is much simpler and can be performed on the Internet website for the Arkansas State Legislature HERE by simply clicking on the box for the year of the Acts passage, typing the Act number in the box, and clicking on the “Search” button.  The Act will then be displayed on your computer in pdf format.  The underlined portions of text represent new text added to the section while the strike through text represents text deleted from the section. 

Besides checking for any legislative intent, it is also important to check to see when a particular Act modified a section or subsection.  For example, our new pension attorney recently discovered that the probation fees thought by our Board to amount to $500,000 only amounted to $95,000 because our previous attorney had not checked the history of the section to discover that probation fees were not included until 2001.  That history for A.C.A. § 16-13-701 reads as follows:

History.  Acts 1995, No. 1262, § 1; 1997, No. 941, § 1; 2001, No. 1809, § 12; 2003, No. 1765, § 8; 2005, No. 1934, § 6. 

Humm . . . I just discovered that, while it seems our past attorney did make a mistake, it also seems our new attorney made a mistake too based on my research of this matter that I performed only to write this article.  This fact proves that any attorney can make a mistake and, absent performing your own legal research on issues, you are completely at their mercy.  I shall now proceed with my analysis as it points out that error for your consideration although in a manner that I did not originally expect.

In the section of code in question, our new attorney claimed that § 16-13-701 did not authorize the collection of “probation fees” until the passage of Act 1809 of 2001.  However, look at Act 1809 of 2001 and scroll down to “SECTION 12” and read it for yourself.  You will find that, among other modifications to that section, a new subsection (b) was added to § 16-13-701 that states:

(b) For purposes of this subchapter, the term “fine” or “fines” means all monetary penalties imposed by the courts of this state, which include fines, court costs, restitution, probation fees, and public service work supervisory fees. [Emphasis added]

Our new attorney apparently believed that the inclusion of “probation fees” as a type of fine to be included in the definition of “fine” or “fines” listed in subsection (b) above, somehow constituted a new authorization for the collection of such fees rather than merely indicating a type of such fee, already in existence and being collected, to be added to the definition of “fine” or “fines.”  In fact, subsection (a) of that section makes clear that providing procedures for “all monetary fines, however designated” was the “legislative intent” of that section and the entire subchapter.  Subsection (b) states that “fine” means ALL “monetary penalties” in existence, whatever they may be called and lists certain types of fines or fees to be included in that list.  Thus, the analysis of that section provided by our new attorney appears to be in error.  In fact, the City of Little Rock had been collecting such probation fees since at least 1995 in their municipal courts.  This misinterpretation of that Act caused our new attorney to believe that we could only go back to collect those fees from the City until 2001 when that Act was passed but instead, we can collect them going back another four (4) years, as explained below, and potentially pick up another $244,345 in such probation fees from the City.

Now, look at Act 1262 of 1995 that originally created that section of code and scroll down to “SECTION 1” and you will see that our new attorney was right when he claimed that our old attorney made a mistake by telling our fund that we could go back to 1995 to collect probation fees from the City because that particular Act only applied to “Circuit Courts” and not “municipal courts.”  However, now look at Act 941 of 1997 and again scroll down to “SECTION 1” and you will see that Act added “municipal courts” to that section.  This particular Act is important to the researcher, although it was not even mentioned by our new attorney, because it means the City is responsible for paying such fees going back to 1997 and not the 2001 date provided by our new attorney or the 1995 date provided by our old attorney.  Both attorneys were apparently wrong on this issue, as I am certain you can now see.

Conclusion
I cannot stress strongly enough how important it is to check your attorney’s opinions or advice by conducting your own legal research.  Hopefully by following this simple guide, you will be able to perform basic legal research to at least verify the information provided by your attorney or ask him intelligent questions about the services he provides.  Being able to conduct legal research is not “rocket science” nor does it make anyone an attorney anymore than fixing a blown fuse in a car makes anyone a mechanic but being able to perform either task can certainly save you money and make you rest much easier.  I hope our fellow police pension members find this guide somewhat useful and will undertake their own legal research on issues that face us all as working together there is much we can achieve; however, working alone, there is only a little that can be done

Finally, if any Arkansas local police pension member performs such legal research and wants me to review their findings, just email me a copy of your research and I will review it to see if “I concur” (old police supervisor term) with your findings.  Most of the time, it is best to have someone else review such research although, again, I am NOT an attorney — Thank God!