Young Lawyers Section Report Payton C. Bentley

Handbooks, Clinics and More

Payton C. Bentley is the Chair of the Young Lawyers Section. He is an attorney at the Clark Law Firm, PLLC.

YLS is gearing up for a busy Spring. YLS is leading the effort in updating the Statute of Limitations Handbook since its last update in 2017. The Statute of Limitations Handbook is a great benefit to our members. It contains 14 chapters covering all subject areas and miscellaneous issues. This handbook is a valuable tool for any practitioner, and is available to you free as part of your Fastcase legal research member benefit. We need a few more volunteers for this project; please consider volunteering for a chapter.

The Statute of Limitations Handbook can also be found on the Association’s website at www.arkbar.com in the Publications section, which can be accessed by going to the Attorneys drop-down tab and clicking on Publications under the Resources subheading. You will find many other member benefits in the Publications section, including ArkBar Docs, the Domestic Violence Practical Guide, e-Bulletins, Law Reviews, Law Student Spotlight, Member Newsletter, Practice Handbooks, Social Media Guidebook, and The Arkansas Lawyer magazine. Make sure to check these out to get the most of your membership!

YLS is preparing for our Annual Wills for Heroes Clinic for late March or the beginning of April that provides Arkansas First Responders free simple wills, powers of attorneys, and living wills. Given the success of last year’s statewide virtual clinic and the current state of COVID-19, this year’s clinic will be virtual. This will enable YLS to recruit more volunteer attorneys and to help Arkansans across the state.

Please consider volunteering for this incredible clinic. Any lawyer from any practice area even with no prior experience can volunteer. Volunteers will use a completed questionnaire to fill in the blanks on the provided forms before the clinic and then go over the documents with the First Responders in 30-minute appointments via Zoom on the day of the clinic. Make sure to keep an eye on the YLS Facebook page and the YLS page on ACE for future updates!

YLS is helping in the effort, along with the Arkansas Bar Association, Center for Arkansas Legal Services, and Legal Aid of Arkansas, to recruit volunteers to provide pro bono legal assistance to the victims of the recent storms in the counties of Craighead, Jackson, Mississippi, Poinsett, and Woodruff in Northeast Arkansas. YLS coordinates disaster legal assistance through the Disaster Legal Assistance program, and in conjunction with Legal Aid of Arkansas YLS created the Arkansas Disaster Assistance Manual that can be found in the Publications section referenced above.

Those hit by the severe storms and tornadoes will call a toll-free number, 1-800-952-9243, and a volunteer attorney will gather and divide requests between those willing to respond by telephone to answer legal questions. The goal is to assist as many individuals affected by these storms as possible. The volunteer attorneys will be asked to help with the following areas: • Assistance securing FEMA and other government benefits available to disaster victims; • Assistance with life, medical, and property insurance claims; • Help with home repair contracts and contractors; • Replacement of wills and other important legal documents lost or destroyed in the disaster; • Consumer protection to guard against price-gouging and avoiding contractor scams in the rebuilding process; • Counseling on mortgage-foreclosure problems; and • Counseling on landlord-tenant problems.

Please consider volunteering. Our fellow Arkansans need our help in picking up the pieces and dealing with the aftermath of this disaster. Our first responders need help and our membership in general will greatly benefit from an updated Statute of Limitations handbook. If you would like to volunteer for the disaster relief, please contact Jay Robbins at jrobbins@arkbar. com. If you would like to volunteer for the other projects please contact me at pbentley@clark-firm.com. ■

Arkansas Precedent on the Law of Precedents: Where Have We Been and Where Are We Now?

By Tory Hodges Lewis and Brett D. Watson

Tory Hodges Lewis works for Taylor & Taylor Law Firm as a remote, part-time appellate attorney, preparing cases for the Arkansas Supreme Court and Court of Appeals.

Brett D. Watson is an Arkansas appellate attorney who has handled more than 250 appeals in state and federal courts. Have you ever thought you had a strong argument, but then you came across an Arkansas Supreme Court or Court of Appeals case that directly contradicted your argument? Most of us have. When we are confronted with unfavorable precedent that is on point, we must decide whether to make the argument anyway—despite the precedent—in hopes the appellate court will overrule its prior decision. The Latin phrase for our dilemma is stare decisis. Stare decisis, the law of precedents, is “not a mechanical formula of adherence”1 but a principle courts emphasize or deemphasize depending on the nature of the case, the policies at play, and the persuasiveness of precedent.

The Arkansas Supreme Court has not always been clear on whether stare decisis will dictate the outcome of cases before it. Just 10 years into Arkansas statehood, the Court declined to reconsider cases it had decided a few years earlier and set forth what appears to be its first explanation of stare decisis:

There should be strong reasons for overruling previous adjudications. . . . [W]here a principle has once been declared and acquiesced in, in subsequent cases it should be adhered to, unless great injury and injustice would necessarily result from such adherence. . . . In most questions of practice more depends upon the uniformity of the rule than the rule itself.2

Later that month, however, the Court favored accuracy over consistency:

[W]here the decision goes to the merit of the controversy, . . . if the court should from any cause have erred, it is not only proper, but it is an obligatory duty upon them . . . to re-examine the opinion[] so pronounced, and if found to be erroneous to recede from it.3

These opinions illustrate the challenge stare decisis presents for lawyers: How can we know when the appellate court will overrule precedent and chart a new course?

Recent cases have drawn renewed attention to stare decisis in Arkansas.4 In this article, we survey authority in areas of constitutional interpretation, statutory interpretation, and property law.5 We consider whether and to what extent the Arkansas Supreme Court’s application of stare decisis has evolved in these areas. And we draw practical tips for assessing whether the Court will (or won’t) apply stare decisis. 6

Stare decisis, the law of precedents, is ‘not a mechanical formula of adherence’ but a principle that courts emphasize or deemphasize depending on the nature of the case, the policies at play, and the persuasiveness of precedent. ”

I. Stare Decisis in Constitutional Interpretation

Stare decisis has less force when deciding constitutional issues than other issues.7 That may seem counterintuitive, but the Arkansas Supreme Court derives its legitimacy from the Arkansas Constitution.8 Thus, “to maintain a plausible claim to obedience, the Court must ensure that its rulings comport with the document that confers its power to decide cases.”9 When the Court applies stare decisis, it favors consistency and stability over proper interpretation.10 The resulting tension is evident in Arkansas’ jurisprudence.

A. Then

In an 1850 case, Ex parte Hunt, 11 the Court issued a writ of habeas corpus based on its original jurisdiction established in prior opinions. Justice Scott dissented as to the Court’s power to issue the writ. He acknowledged precedent and recognized that “uniformity of authoritative decisions is, for obvious reasons, of great importance in the administration of justice.”12 But he found no constitutional foundation for the Court’s exercise of original jurisdiction.13 He contended that stare decisis is not an “inexorable” rule but is instead “of mild and beneficial sway, and, when justice is to be advanced and the means are clearly pointed out, and they contemplate no private or public wrong, it interposes no barrier at all.”14

In Brickhouse v. Hill, 15 the majority echoed Justice Scott when it overruled precedent interpreting Amendment 7. The Court reasoned that “the decision . . . is wrong, and that more good than harm would result from changing it at this time.”16 The Court identified other authorities that overruled precedent for “cogent reasons” where there was “a clear manifestation[] of error” and where “more mischief w[ould have] be[en] produced by adhering to [the] error [than] by retracting it.”17 The Court thus departed from its prior opinions to avoid perpetuating “an erroneous and dangerous construction of our Constitution.”18

While Justice Scott’s dissent in Ex parte Hunt and the opinion in Brickhouse suggest that egregious mistakes in constitutional interpretation justified a departure from precedent, the Court more often than not deferred to its prior construction of constitutional provisions. In a 1938 case, O’Daniel v. Brunswick Balke Collender Co., 19 the Court explained:

A cardinal rule in dealing with constitutional provisions is that they should receive a consistent and uniform interpretation so that they shall not be taken to mean one thing at one time, and a different thing at another time. Certainly, when a constitutional provision . . . has been construed, and that construction followed for many years, such construction should not be changed.20

Ironically, to give the relevant constitutional provisions and statutes a more “consistent and uniform interpretation,” O’Daniel overturned precedent that would have limited the Court’s jurisdiction.21

The next year, the Court applied stare decisis when construing Art. 19, sec. 22 of the Arkansas Constitution.22 While the Court cited only one case of precedential value, the Court noted that the precedent thoroughly discussed the relevant constitutional issue; thus, it would be “a work of supererogation to review a question so thoroughly considered in that opinion by the late Chief Justice McCulloch.”23

The Court thus tended to adhere to precedent on issues of constitutional interpretation unless an interpretive error was so egregious that the precedent simply could not stand.

B. Now

The Court still generally defers to precedent interpreting the state constitution when the precedent is clear, consistent, and well-established.24 The role of stare decisis is less apparent when precedent is inconsistent.25 For instance, in Board of Trustees of University of Arkansas v. Andrews, the Supreme Court relied on “six decades of . . . precedent” when it found that Art. 5, sec. 20 of the Arkansas Constitution barred suit against the state under the Arkansas Minimum Wage Act.26 However, in doing so, the Court overruled recent cases that had

served as precedent for 20 years.27

Also, while the Court generally defers to precedent, it will not defer to an egregious error—although the Court may not expressly overrule the erroneous precedent. In Edwards v. Thomas, the Court held that a statute did not violate the separationof-powers doctrine in the Arkansas Constitution although the statute contained certain procedural components. Justice Womack, concurring in part and dissenting in part, argued that this ruling did not square with Johnson v. Rockwell Automation, Inc., 28 which created a bright-line rule that a statute is unconstitutional if it contains any procedural components.29 He urged the Court to overrule Johnson because “[a]ny respect due Johnson and its progeny under the doctrine of stare decisis does not warrant perpetuating the error within th[at] decision.”30 The majority neither applied the Johnson rule nor expressly overruled it.

So what is the present state of the stare decisis principle as to constitutional interpretation? While the Court may cite stare decisis as a basis for its opinions, it is not inclined to let interpretive errors dictate the outcome of any case—particularly where errors are egregious and significant.

II. Stare Decisis in Statutory Interpretation

It is said that courts are less likely to overrule precedent interpreting a statute than precedent interpreting a constitution. The rationale is that if courts interpret a statute incorrectly, the legislature can amend the law to correct the error. Not so with the constitution. Thus, “[s]tare decisis applies with special force to questions of statutory construction.”31

Is that true in Arkansas? The record is mixed. Although the Arkansas Supreme Court has said that its statutory interpretations should rarely be overruled, the Court is inclined to do just that when it believes prior interpretations are erroneous.

A. Then

The Court first considered whether to overrule a statutory-interpretation opinion in 1850 in Byrd v. Chase. 32 The Court agreed that its three-year-old opinion was “not altogether free from doubt,” but the Court, without elaborating, declined to overrule the case because it did “not feel at liberty to” do so.33

But in 1852, the Court overruled a twoyear-old case regarding whether a statute required a bond for costs from probate court.34 The next year, the Court overruled a case it had decided a year before regarding the statute of non-claims.35 And in 1897, the Arkansas Supreme Court overruled a 20-year-old case that had “overlooked or failed to consider the changes made by the [C]ode [of Criminal Conduct].”36 So, in the early years, while acknowledging stare decisis, the Arkansas Supreme Court was willing to correct prior errors in statutory interpretation.

B. Now

The Court continues to speak the language of stare decisis, sometimes following it, sometimes not. In the 1991 case of Scarbrough v. Cherokee Enterprises, the Court declined to reinterpret a workers’-compensation statute: “[W]e feel the constraint of stare decisis, especially when dealing with legislative intent in the interpretation of a statute.”37 And in Morris v. McLemore, the Court declined to overrule a statutory interpretation that had stood for a century:

A cardinal rule in dealing with a statutory provision is to give it a consistent and uniform interpretation so that it is not taken to mean one thing at one time and something else at another time. . . . As time passes, the interpretation given a statute becomes a part of the statute itself.38

Although Morris and Scarbrough are informative, it is unclear in either case whether the Court thought its prior decisions were incorrect or whether the Court relied on stare decisis simply to support its opinion.

When the Court concedes that its prior interpretation is incorrect, the tendency is to overrule.39 In Moore v. Moore, the Arkansas Supreme Court overruled 30 years of precedent.40 Discussing the statutory definition of “marital property,” the Court corrected prior cases in which it had misread the definition.41 The Court acknowledged that “[t]he policy behind stare decisis is to lend predictability and stability[,]” but it explained that precedent should be overruled “when there has been a palpable error in legal analysis” or where decisions “clearly conflict with the statutory scheme.”42

Likewise, in Lineham v. Hyde, the Court overruled cases in which “judicially created tests . . . ha[d] moved termination-ofguardianship cases too far from the statute,” thereby delaying the return of children to fit parents.43 The tests, the Court said, were “divorced from the statutory text, [and] [t]he best path [wa]s to abandon the tests and bring termination-of-guardianship cases in line with the statute.”44

In State v. Griffin, however, because lower courts had relied on the precedent for two decades, the Court declined to overrule precedent that was admittedly erroneous.45 The Court had held “that the statutory requirement of parental consent to a juvenile’s waiver of the right to counsel applie[d] only to proceedings in juvenile court.”46 In Griffin, however, the Court said the statute did not limit the consent requirement to juvenile proceedings, but stated that it was “bound by the principles of stare decisis” even though “the result may seem egregious.”47 The Court pointed out that “[t]he legislature is . . . familiar with this [C]ourt’s interpretation . . . , and if it disagrees with that interpretation, it can amend the statute.”48

So, what to make of stare decisis when it comes to statutory interpretation? If you ask the Court to overrule a case, first convince the Court that the prior interpretation was incorrect. Then show that the conflict between the statute’s text and the prior interpretation is clear. Better yet, persuade the Court, if you can, that the error is recent, that no reliance interests have sprung up around the error, and that the correct reading is more just. If you can do those things, then you might avoid the application of stare decisis to your statutoryinterpretation argument.

III. Stare Decisis in Rules of Property

Rules of property are “rules governing the descent, transfer or sale of property, and the rules which affect the title and possession

thereto.”49 Stare decisis is strongest with such rules because property rights “become vested in reliance on the precedents.”50 Thus, “[a] precedent that creates a rule of property . . . is generally treated as inviolable.”51

A. Then

The Arkansas Supreme Court has long held to this rule. In Mack v. Johnson, an 1894 decision, the Court considered whether a prior case misinterpreted an Arkansas statute.52 It determined that

even if the decision in [the prior case] was erroneous, we should feel constrained to uphold it. This court, by an undeviating line of decisions, has recognized its binding authority ever since its rendition, and it would be nothing less than calamitous to repudiate it now. Property rights have grown up under it, and to overrule it might throw the law into a state of inextricable confusion.53

In Maulding v. Scott, the Court noted that “[a] series of adjudications have established a definite meaning to these words until they have become a rule of property, which we should be careful not to invade.”54 And in Ford v. Burks, the Court said “a rule of property . . . cannot be safely disturbed, save by the prospective operation of a statute.”55

The 1886 case of Taliaferro v. Barnett sums up the Court’s approach to stare decisis and rules of property in the 1800s: “When erroneous precedents have become a rule of property, the tender regard the courts entertain for interests that have grown up under and are dependent upon them, causes them to stand by the established error. The doctrine of stare decisis is then the prevailing rule.”56

B. Now

The Court continues its strong adherence to stare decisis involving rules of property: “[A] rule of property is rarely, if ever, overturned, so that the bar can rely on the rule in drafting long term instruments and advising clients.”57 In Otter Creek Development Company v. Friesenhahn, the Court declined to overrule a case involving the rule against perpetuities, noting that the Court “should rarely overrule an earlier decision when the decision has become a rule of property.”58 The Court also noted that, even if it did overrule a rule of property, it could do so prospectively only.59

For issues that do not clearly qualify as a rule of property, stare decisis holds less sway. For instance, in Low v. Insurance Company of North America, the Court overruled a 2002 case that had broken with its “well-settled interpretation of the charitable-immunity doctrine and directaction statute.”60 In Arkansas, charitable immunity historically has operated as a rule of property.61 However, Low considered the issue one of statutory interpretation, overruling its more recent opinion in favor of older precedent.62

Thus, the Court adheres strongly to precedent involving rules of property, but a litigant might persuade the Court to overrule precedent by arguing that the issue is one of contract, tort, or anything other than property.

IV. Conclusion

In reviewing Arkansas jurisprudence, the Arkansas Supreme Court’s deference to precedent is mixed. Sometimes the Court affirms erroneous precedent for the sake of consistency; sometimes it overrules precedent to achieve accuracy. But this is not surprising, for as we note at the outset of this article, stare decisis is “not a mechanical formula of adherence to the latest decision.”63

Yet a pattern emerges: Stare decisis is a must with rules of property. With statutory interpretation, deference to precedent is strongly favored but not absolute. And with constitutional interpretation, the Court may give stare decisis consideration, but accuracy is generally paramount. Recognizing this pattern and the nuances therein may help lawyers craft arguments for following or overruling precedent in a manner more likely to achieve favorable results.

Endnotes:

1. Zinger v. Terrell, 336 Ark. 423, 430–31, 985 S.W.2d 737, 741 (1999) (quoting Payne v. Tennessee, 501 U.S. 808, 828–29, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991)). 2. Roane v. Hinton, 6 Ark. 525, 527 (1846). 3. Smith v. Henry, 7 Ark. 207, 213 (1846) (reversing Byers & Minniken v. Aiken, 5 Ark. 419, as “unsupported” and “opposed to the whole weight of authority both English and American”). 4. See, e.g., Edwards v. Thomas, 2021 Ark. 140, 625 S.W.3d 226; City of Fort Smith v. Merriott, 2020 Ark. 94, at 5–6, 593 S.W.3d 481, 484 (describing stare decisis as a “slender reed”) (quoting Schwarzschild v. Tse, 69 F.3d 293, 297 (9th Cir. 1995)). 5. We do not address in this article stare decisis in the interpretation of court rules, but see the following trilogy of recent cases on that issue when it comes to Arkansas Rule of Criminal Procedure 36: Collins v. State, 2021 Ark. 80; Treat v. State, 2019 Ark. 326, 588 S.W.3d 10; Pettry v. State, 2020 Ark. App. 162, 595 S.W.3d 442. 6. We take no position on whether the Arkansas Supreme Court’s application or non-application of stare decisis in any particular case was or was not the correct decision. 7. Jonathan F. Mitchell, “Stare Decisis and Constitutional Text,” 110 Mich. L. Rev. 1, 2–3 (2011) (indicating that the rationales for stare decisis rest on a “controversial” premise: “that good consequences suffice to justify a judicial practice or doctrine”). 8. Ward Sch. Bus Mfg., Inc. v. Fowler, 261 Ark. 100, 114, 547 S.W.2d 394, 402 (1977); Ark. Const. Amend. 80. 9. Mitchell, supra note 7. The Supreme Court is tasked with serving as the “final arbiter of issues involving the Arkansas Constitution.” Unborn Child Amend. Comm. v. Ward, 318 Ark. 165, 168, 883 S.W.2d 817, 819 (1994). 10. Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 Const. Comment 289, 290–91 (2005). 11. 10 Ark. 284 (1850). 12. Id. at 289. 13. Id. 14. Id. 15. 167 Ark. 513, 268 S.W. 865 (1925) (overruling Hildreth v. Taylor, 117 Ark. 474, 175 S.W. 40 (1915)). 16. Id. at 519, 268 S.W. at 867. 17. Id. (citing Whittington v. Flint, 43 Ark. 504 (1884); Collier v. Davis, 47 Ark. 367, 1 S.W. 684 (1886)). 18. Brickhouse,167 Ark. at 521, 268 S.W.

at 867. 19. 195 Ark. 669, 674, 113 S.W.2d 717, 719 (1938) (recognizing that the rule at issue had been in place, and the relevant constitutional provisions construed, for 52 years). 20. Id. 21. Id. 22. Coulter v. Dodge, 197 Ark. 812, 125 S.W.2d 115 (1939). 23. Id. at 819, 125 S.W. at 118. But see id. at 829, 125 S.W.2d at 122 (Mehaffy, J., concurring) (cautioning against “generally rely[ing] on case law, regardless of existing reasons that may appeal from righteous judgment”) (citation and internal quotations marks omitted). 24. See Sw. Ark. Commc’ns., Inc. v. Arrington, 296 Ark. 141, 145, 753 S.W.2d 267, 269 (1988) (citing O’Daniel, 195 Ark. at 674, 113 S.W.2d at 719) (“Our interpretation of Amendment 60 has been a part of the law of this State for almost five years, and we will not change it without sufficient reason.”); Box v. State, 348 Ark. 116, 123–24, 71 S.W.3d 552, 556–57 (2002) (applying a 30-year-old precedent and finding that the right to fair trial included the right to be tried in something other than prison garb). 25. Certainly, “any inconsistency between precedents set by the supreme court and the court of appeals must be resolved in favor of the precedent announced by the supreme court . . . .” Box, 348 Ark. at 124, 71 S.W.3d at 557 (internal quotations omitted). 26. 2018 Ark. 12, at 11, 535 S.W.3d 616, 622. 27. Id. at 11–12, 535 S.W.3d at 623. 28. 2009 Ark. 241, at 7, 308 S.W.3d 135, 141. 29. Edwards, 2021 Ark. 140, at 13, 625 S.W.3d at 233 (Womack, J., concurring in part and dissenting in part). 30. Id. at 24, 625 S.W.3d at 238. Justice Webb went even further, arguing that “[t]he highest value of stare decisis— respecting past decisions that are wrong to keep the law settled—is not the priority when the Constitution is the thing that has been wrongly decided.” Id. at 29, 625 S.W.3d at 240–41 (Webb, J., concurring in part and dissenting in part). She considered four factors relevant to stare decisis: (1) whether the precedent was erroneously and egregiously decided; (2) whether the precedent has resulted in significant negative consequences; (3) whether overruling the precedent would upset reliance interests; and (4) the age of the precedent. Id. at 30–32, 625 S.W.3d at 241–42. Given those considerations, Justice Webb urged the Court to overrule Johnson. Id. at 33, 625 S.W.3d at 243. 31. Bryan A. Garner et al., The Law of Judicial Precident 333 (2016). 32. 10 Ark. 602 (1850). 33. Id. at 604 (declining to overrule Fitzgerald v. Beebe, 7 Ark. 305 (1847)). 34. Biscoe v. Maddin, 12 Ark. 765, 766 (1852) (overruling Morrow v. Walker, 10 Ark. 569 (1850)). 35. Walker v. Byers, 14 Ark. 246, 260 (1853) (overruling Allen v. Byers, 12 Ark. 593 (1852), and Burton v. Lockhert, 9 Ark. 411 (1848)). 36. Read v. State, 63 Ark. 618, 621, 623, 40 S.W. 85, 87 (1897) (overruling McClellan v. State, 32 Ark. 609 (1877)); see also Hempstead Cty. v. McCollum, 58 Ark. 159, 162, 24 S.W. 9, 10 (1893) (overruling Fanning v. State, 47 Ark. 442, 2 S.W. 70 (1886)). 37. 306 Ark. 641, 644, 816 S.W.2d 876, 878 (1991). 38. 313 Ark. 53, 55, 852 S.W.2d 135, 136 (1993). 39. We do not eliminate the possibility that the Court, when it relies on stare decisis, is tacitly admitting that its prior decisions on the subject at hand are incorrect. 40. 2016 Ark. 105, at 8, 486 S.W.3d 766, 772 (overruling Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987); Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006); and Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008)). 41. Moore, 2016 Ark. 105 at 8, 486 S.W.3d at 772. 42. Id. at 8–9, 486 S.W.3d at 772 (citation and internal quotation marks omitted). 43. 2015 Ark. 289, at 8–9, 467 S.W.3d 129, 134 (overruling Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273; In re S.H., 2012 Ark. 245, 409 S.W.3d 307; and In re S.H., 2015 Ark. 75, 455 S.W.3d 313). 44. Id. at 9, 467 S.W.3d at 134. 45. 2017 Ark. 67, at 5, 513 S.W.3d 828, 831. 46. Id. at 3, 513 S.W.3d at 830. 47. Id. at 5, 513 S.W.3d at 831. 48. Id. 49. Gibson v. Talley, 206 Ark. 1, 7, 174 S.W.2d 551, 554 (1943) (quoting 54 C.J. 1110). 50. 20 Am. Jur. 2d Courts § 135 (“Property Rights”). 51. Garner, supra note 31, at 421. 52. 59 Ark. 333, 338, 27 S.W. 231, 232 (1894). 53. Id. 54. 13 Ark. 88, 93–94 (1852). 55. 37 Ark. 91, 94–95 (1881). 56. 47 Ark. 359, 363, 1 S.W. 702, 703 (1886). 57. Edmundson v. Estate of Fountain, 358 Ark. 302, 312, 189 S.W.3d 427, 434 (2004); see also Abrego v. United People Fed. Sav. & Loan Ass’n, 281 Ark. 308, 318, 664 S.W.2d 858, 862 (1984) (finding that an Arkansas rule of property “may be eliminated by a complete federal preemption of [a prior Arkansas case]”). 58. 295 Ark. 318, 321, 748 S.W.2d 344, 346 (1988). 59. Id. 60. 364 Ark. 427, 440, 220 S.W.3d 670, 680 (2005). 61. Courtney Jane Baltz, When Justice Should Precede Generosity: The Case Against Charitable Immunity in Arkansas, 2021 Ark. L. Notes 1, 12–13 (2021). 62. Low, 364 Ark. at 439–40, 220 S.W.3d at 679 (“When a statute has been construed, and that construction has been consistently followed for many years, such construction ought not be changed.”). 63. Zinger, 336 Ark. at 431, 985 S.W.2d at 741 (quoting Payne, 501 U.S. at 828–29). ■

Thank you to our Legal Leaders!

View the list of ArkBar Legal Leaders at arkbar.com /for-attorneys/leaders

A Report From the 2021 National Conference of Commissioners on Uniform State Laws

By J. Cliff McKinney II

The Uniform Law Commission (ULC) held its 130th annual National Conference via a hybrid method of inperson meetings in Madison, Wisconsin, and virtual meetings through Zoom in July 2021. Arkansas was represented by its commissioners, David Nixon, John Thomas Shepherd, Cliff McKinney, and Marty Garrity, who serves as an associate commissioner.

Arkansas’ New Uniform Acts

In 2021, the Arkansas General Assembly adopted three new uniform acts: Revised Uniform Limited Liability Company Act, Uniform Fiduciary Income and Principal Act, and Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images. All three passed the House and the Senate without a single no vote. Below is a brief summary of all three newly-adopted acts:

Uniform Limited Liability Company Act (Revised)

Act 1041 (SB 601); Ark. Code Ann. §§ 4-38-101 et seq.

The Uniform Limited Liability Company Act (Revised) is a modernized replacement for Arkansas’ current limited liability company act, which is known as “The Small Business Entity Tax Pass Through Act,” which was adopted in Arkansas on April 1, 1993. This uniform act provides refinements and modern legal updates. Twenty states plus the District of Columbia have adopted this uniform act, most recently Alabama in 2019. Two other states (South Carolina and Wisconsin) introduced the uniform act in their legislatures in 2021. The uniform act was endorsed by the Real Property, Probate, and Real Estate Sections of the American Bar Association.

Uniform Fiduciary Income and Principal Act

Act 1088 (HB 1693); Ark Code Ann. §§ 28-77-101 et seq.

The Uniform Fiduciary Income and Principal Act is an updated version of the Uniform Principal and Income Act, which has been adopted in 47 jurisdictions. The Act provides rules for allocating receipts and disbursements between income and principal accounts of a trust in accordance with the fiduciary duty to treat all beneficiaries loyally and impartially unless the terms of the trust specify otherwise. This revision includes provisions allowing conversion of a traditional trust with income and principal beneficiaries into a total-return unitrust when all beneficiaries consent.

Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act

Act 420 (HB 1645); Ark. Code Ann §§ 16-129-101 et seq.

The Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act addresses an increasingly common form of abuse that causes immediate, and in many cases, irreversible harm. The act creates a cause of action for unauthorized disclosure of private, intimate images. The act also outlines procedures enabling victims to protect their identity in court proceedings. In addition, the act provides various remedies for victims, including actual damages, statutory damages, punitive damages, and attorney’s fees.

The ULC's 2021 Proposed Acts

The ULC’s rules for approving proposed uniform acts typically require consideration at two consecutive annual meetings. Following is a brief description of the acts that were approved on final reading this year.

Uniform Cohabitants’ Economic Remedies Act

The Uniform Cohabitants’ Economic Remedies Act is intended to enable cohabitants to exercise the usual rights of individual citizens of a state to contract and to successfully maintain contract and equitable claims against others in appropriate circumstances. The Act is intended to affirm the capacity of each cohabitant to contract with the other and to maintain claims with respect to “contributions to the relationship” without regard to any intimate relationship that exists between them and without subjecting them to hurdles that would not be imposed on litigants of similar claims.

Uniform College Athlete Name, Image, or Likeness Act

Until recently, college athletes have not been allowed to receive compensation for the use of their name, image, or likeness (NIL) while still maintaining athletic eligibility. The Uniform College Athlete Name, Image, or Likeness Act allows college athletes to earn compensation for the use of their NIL while also providing reasonable protections to educational institutions, athletic associations, and conferences.

J. Cliff McKinney II is a Managing Member of Quattlebaum, Grooms & Tull PLLC.

Uniform Community Property Disposition at Death Act

Community property acquired by a married couple retains its character as community property even when the couple relocates to reside in a non-communityproperty state. This Act provides a structure for non-community-property states, like Arkansas, to handle these situations. Arkansas currently has the 1971 version of this Act, which this Act is intended to replace.

Uniform Personal Data Protection Act

The Uniform Personal Data Protection Act is intended to apply fair information practices to the collection and use of personal data from consumers by business enterprises. The Act is intended to provide a reasonable level of consumer protection without incurring the compliance and regulatory costs associated with some existing state regimes.

Uniform Restrictive Employment Agreement Act

This Act regulates restrictive employment agreements, which are agreements that prohibit or limit an employee or other worker from working for other employers after the work relationship ends. The Uniform Restrictive Employment Agreement Act addresses the enforceability of these agreements, notice and other procedural requirements, choice of law issues, and remedies.

Uniform Unregulated Child Custody Transfer Act

In some cases, parents find that, after the birth or adoption of their child, they experience considerable difficulty or even inability in caring for or effectively managing the child's behavior, which sometimes leads to families transferring a child to another person outside of the courts and the child welfare system. Without specific regulations directed at these types of unregulated transfers, a transfer of custody might go unnoticed within the child welfare system. The Act addresses the transfer of children in these types of cases.

Amendments to the Uniform Common Interest Ownership Act

The Uniform Common Interest Ownership Act governs the formation, management, and termination of common interest communities, including condominiums, homeowner associations, and real estate cooperatives. The 2021 amendments to the Act update it to address recent legal and technological developments.

You can find more information about each of these acts at www.uniformlaws.org. This website has a copy of each act along with supporting information. The Arkansas delegation is honored to represent our state at the Commission and is happy to assist with any questions. ■

Editor’s Note: See the Fall 2021 issue of The Arkansas Lawyer for articles on the Uniform Limited Liability Company Act and the Uniform College Athlete Name, Image or Likeness Act.

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