Opinion No. ( 2001 )

The Honorable Sarah S. Agee State Representative 11898 Sage Road Prairie Grove, Arkansas 72753-9168

Dear Representative Agee:

I am writing in response to your request for an opinion on the current situation in Lincoln, Arkansas, with regard to its "city court." You relay the following facts:

In 1997, Lincoln, Arkansas became a city of the first class. The Lincoln Municipal Code § 2.48.01 established a "City Court"¹ and was not changed when Lincoln became a city of the first class.

The Mayor of Lincoln contacted the Municipal League and told them that the City Attorney stated that the court should be operating as a Police Court. The City Court system has not been in question since 1997 until now and they have had the same City Attorney since the time that the City became a city of the first class.

Since Amendment 80 went into effect on July 1, 2001, the City has a problem with changing to a police court since they feel that the new Amendment states there will be NO more police courts established. The City does NOT want to change to a police court. It wants to remain a city court.

You pose the following questions with regard to these facts:

1. Should Lincoln have gone to a police court in 1997?

2. Since Lincoln did not go to a police court in 1997 when it became a city of the first class, does it have to revert back to a city of the second class to keep its city court?

3. Does Lincoln have the option to remain a city of the first class and retain its city court?

4. Does Amendment 80 of 2001 change this option?

5. Can Lincoln maintain its city court by passing a new city ordinance or do they even need to go that far?

RESPONSE

In my opinion the answer to your first and second questions is "no." The answer to your third question is "yes." The answer to your fourth question is "no," so long as the city court in Lincoln was in existence at the time of the effective date of Amendment 80. In my opinion the City of Lincoln is not required to pass a new ordinance to retain its city court, and in fact Amendment 80 would prohibit such an ordinance.

Question 1 — Should Lincoln have gone to a police court in 1997?

In my opinion the answer to this question is "no."

The history of police courts and mayor's courts (now called "city courts") in Arkansas can be traced back to at least Act 1 of 1875. Act 1 was a large act entitled "AN ACT to be entitled an act for the incorporation, organization and government of municipal corporations." In Act 1, the mayors of incorporated towns and cities of the second class were invested with all the power and jurisdiction of a Justice of the Peace for acts committed within the limits of the corporation. See Acts 1875, §§ 45 and 48. See also current A.C.A. § 14-44-108 and § 14-45-106. This power of such mayors came to be known as the "mayor's courts," later renamed "city courts." See Acts 1971, No. 153.

In cities of the first class, however, Act 1 instead made provision for a "police court." Acts 1875 No. 1 at § 54. See also current A.C.A. §§16-18-101 to -109, and A.C.A. § 14-43-318 (referring to police courts in cities of the first class).

Thus, under Act 1 of 1875, cities of the first class were to have police courts, and cities of the second class and incorporated towns were to have mayor's courts or what later became known as "city courts."² With regard to the power of first class cities, however, this apparently changed in 1995, with the passage of Act 175 of 1995. That act is entitled "AN ACT to Amend Arkansas Code 16-18-111 and 16-18-112 to Establish a City Court for Cities of the First Class With Populations Less Than 5,000; to Repeal Authority for Police Courts; and for Other Purposes."³ This is the first instance I can find of an act authorizing a city of the first class to have a "city court." The population limit of 5,000 was raised to 7,000 by Act 1645 of 2001.

In answer to your first question therefore, the City of Lincoln was authorized, when it was a city of the second class, to have a city court. See A.C.A. § 14-44-108. When Lincoln became a city of the first class in 1997, the existence of Act 175 of 1995 authorized Lincoln to have a city court as long as the City's population did not exceed 5,000.See A.C.A. § 16-18-111. In my opinion, therefore, the answer to your first question is "no."

Question 2 — Since Lincoln did not go to a police court in 1997 when itbecame a city of the first class, does it have to revert back to a cityof the second class to keep its city court?

No. See discussion above.

Question 3 — Does Lincoln have the option to remain a city of the firstclass and retain its city court?

Yes, as long as its population does not exceed 7,000. See A.C.A. §16-18-111, as amended by Act 1645 of 2001.

Question 4 — Does Amendment 80 of 2001 change this option?

Amendment 80 substantially revises the judicial branch of state government. It provides in Section 19 (B)(2) that newly created "District Courts" shall have the jurisdiction vested in Municipal Courts, Corporation Courts, Police Courts, Justice of the Peace Courts and Courts of Common Pleas at the time Amendment 80 takes effect (July 1, 2001). It also provides, however, that District Courts shall assume this jurisdiction on January 1, 2005. With regard to "city courts," Amendment 80 provides that such courts "shall continue in existence after the effective date of this Amendment [July, 2001] unless such City Court is abolished by the governing body of the city or by appropriate action of the General Assembly." I have previously opined that no new city courts may be created after July 1, 2001, but that those in existence on the effective date of Amendment 80 shall continue in existence until abolished as provided above. Op. Att'y Gen. 2001-255.⁴ In my opinion, therefore, so long as the City of Lincoln had a city court in existence at the time of the effective date of Amendment 80, Amendment 80 does not change my opinion on your preceding questions.

Question 5 — Can Lincoln maintain its city court by passing a new cityordinance or do they even need to go that far?

In my opinion the City of Lincoln need not pass a new city ordinance to authorize a city court. The authorization for a city court in Lincoln is found, as you note, at Lincoln Municipal Code § 2.48.01, which I assume continued in effect when Lincoln became a city of the first class. Assuming this portion of the Lincoln Municipal Code was validly adopted, I can find no requirement that the City of Lincoln reenact this authorization for it to be controlling when the City became a city of the first class. Cf. however, Landthrip v. City of Beebe, 268 Ark. 45,593 S.W.2d 458 (1980) (where no valid ordinance was passed, creation of police court in city of the second class under former A.C.A. § 16-11-110 or under A.C.A. § 16-18-111 when the city became a city of the first class was defective, but led to existence of "de facto" court). As noted above, Act 175 of 1995 authorizes first class cities to have a city court. In addition, any new attempt to create a city court by the passage of a new ordinance would contravene the limitation set out in Amendment 80, § 19 (B)(2). See again Op. Att'y Gen. 2001-255.

Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:ECW/cyh

¹ You do not indicate the date of adoption of this provision of the Lincoln Municipal Code. Correspondence attached to your request indicates that it was in "1986 or even before that time." October 31, 2001 letter from Attorney J. Chris Bradley, on behalf of the Arkansas Municipal League to Mayor Vol West, City of Lincoln at 1.

² Cities of the second class were later given authority to create "police courts" under Acts 1949, No. 215. This act was repealed, however, by Acts 1995, No. 175.

³ Despite Act 175's reference to the repeal of authority for police courts, Act 1245 of 1995 (passed at the same general session) amended and retained the authority for police courts in cities of the first class.See A.C.A. § 16-18-101 to 109. Act 175's reference to the repeal of authority for police courts presumably refers to its repeal of A.C.A. §16-18-110, which authorized cities of the second class to have police courts.

⁴ I have not opined on whether any new police courts may be created after the effective date of Amendment 80, but prior to the District Courts' assumption of jurisdiction on January 1, 2005.