Opinion No.

The Honorable Steve Harrelson State Representative 300 North State Line Avenue Texarkana, Arkansas 71854-5926

Dear Representative Harrelson:

I am writing in response to your request for an opinion on the following question:

What is the correct procedure for circuit clerks to charge for copies of documents as outlined in A.C.A. § 21-6-402?

You further expand upon this question as follows:

Various clerks are charging and/or applying fees inconsistently. As an example, 21-6-402(a)(3) imposes a fee of $0.60 per motion, rule, answer, set of interrogatories or other miscellaneous filings. Some clerks charge $0.60 per filing of each document, while other clerks charge $0.60 per copy of filed documents (and some don't charge at all). Can you provide assistance in helping determine which approach and/or application of the filing charge is correct?

RESPONSE:

Although the answer to this question is not easily gleaned from A.C.A. § 21-6-402 as worded, it is my opinion that the prescribed fees generally are not chargeable for copies of a document, but instead are to be charged only for the original document filing or issuance.

The statute as currently worded provides:

(a) Except as provided in subsection (b) of this section, the fees for clerks of circuit courts in this state shall be as follows:

(1) For drawing and issuing, sealing any summons, subpoena...................................................... $2.50

(2) For taking and entering a bond, civil or criminal..... .60

(3) For every motion, rule, answer, interrogatories, or other miscellaneous filings ..................................................... .60

(4) For entering every order or decree ........................ $2.00

(5) For entering each judgment .................................... $3.00

(6) For swearing jury ..................................................... $2.00

(7) For trial before court ............................................... $1.00

(8) For scire facias ......................................................... $15.00

(9) For writs or executions ........................................... $10.00

(10) For certificate and seal ......................................... $5.00

(11) For each page in making and preparing any transcript..... ................................................................. $1.50

(12) For indexing each page .......................................... .10

(13) For certifying costs ............................................... $1.00

(14) For issuing juror or witness certificates .............. .50

(15) For authentication certificate ................................ $5.00

(b) The fees to be charged by the circuit court clerks of this state to the Department of Finance and Administration shall be as follows:

(1) For filing a certificate of indebtedness issued by the Department of Finance and Administration ................. $8.00

(2) For filing a release of a certificate of indebtedness... ................................................................ $6.00

(3) For an execution on a certificate of indebtedness filed by the Department of Finance and Administration.......... $10.00

A.C.A. § 21-6-402 (2007).¹ It is well-established that fees are allowed to public officers only to the extent allowed by law. As stated by the Arkansas Supreme Court inAikens v. State, 368 Ark. 641, 645, 249 S.W.3d 788 (2007): "This court has consistently maintained that fees may only be charged by public officials if authorized by a statute or rule." (citing Wood v.Tyler, 317 Ark. 319, 877 S.W.2d 582 (1994) and Huddleston v. CraigheadCounty, 128 Ark. 287, 194 S.W. 17 (1917)).² It has been held that officers are not entitled to collect fees absent express statutory authority to do so and unless they perform the service for which the fee is chargeable. E.g., Campbell v. White, 294 Ark. 656, 746 S.W.2d 42 (1988). Additionally, statutes authorizing the imposition of fees must be strictly construed against the official claiming them. HempsteadCounty v. Harkness, 73 Ark. 600, 84 S.W. 799 (1905). In my opinion, therefore, any fees imposed by a circuit clerk under A.C.A. § 21-6-402 must fall within the express language of the statute. In this regard, section 21-6-402 plainly prescribes the fees for certain actions taken by the clerk. Compare A.C.A. § 21-6-502 (Repl. 2004) ("For issuing a subpoena or warrant of arrest and for summoning or arresting the witnesses, officers shall be allowed the same fees as are allowed to clerks and sheriffs for similar services.") (Emphasis added.) Seealso Op. Att'y Gen. 2008-021 (noting the duties of circuit clerks, set out generally at A.C.A. §§ 16-20-101 — 108, and observing that section 21-6-402 "addresses fees for certain actions taken by the circuit clerk.") With regard, specifically, to the example you have presented concerning "every motion, rule, answer, [or] set of interrogatories," the fee plainly applies for "filings" of these documents. A.C.A. § 21-6-402(a)(3). I cannot conclude, in light of the above precepts, that such fee is chargeable for copies of the filed documents. There is no suggestion in the statute that the clerk performs any particular service in connection with copies of filed or issued documents; and the fee is only prescribed for a document's filing or issuance.

Construing the statute strictly against the official claiming the fee, therefore, consistent with the above precepts, it is my opinion that the prescribed fees generally are not chargeable for copies of a document, but instead are to be charged only for the original document filing or issuance.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL Attorney General

¹ It should be noted that the statute was recently amended in the current legislative session. As amended by Act 328 of 2009 (without an emergency clause), subsection 21-6-402 provides:

(a) Except as provided in subsection (b) of this section, the fees for clerks of circuit courts in this state shall be as follows:

(a)(1) The fees to be charged by the clerks of the circuit courts for the following matters in the circuit courts in the state shall be as prescribed in this section.

(2) No portion of these fees shall be refunded.

(b) The fees shall be:

(1) For drawing and issuing, sealing any summons, subpoena..................... $2.50

(2) For taking and entering a bond, civil or criminal.............................. .60

(3) For every motion, rule, answer, interrogatories, or other miscellaneous filings... ............................................... .60

(4) For entering every order or decree......................................... 2.00

(5) For entering each judgment................................................... 3.00

(6) For swearing jury............................................................... 2.00

(7) For trial before court........................................................... 1.00

(8) For scire facias.................................................................. 15.00

(9) (2) For writs or executions....................................... 10.00 20.00

(10) (3) For certificate and seal.................................................. 5.00

(11) (4) For each page in making and preparing any transcript......... 1.50 2.50

(12) (5) For indexing each page.................................................. 10 .25

(13) (6) For certifying costs.................................................. 1.00 2.50

(14) For issuing juror or witness certificates......................................... .50

(15) (7) For authentication certificate................................................ 5.00

(8) For filing an application for appointment to serve civil process under Supreme Court Administrative Order Number 20....................................... 140.00

(9) For filing a renewal of an appointment to serve civil process under Supreme Court Administrative Order Number 20................................................. 50.00

(b) (c) The fees to be charged by the circuit court clerks of this state to the Department of Finance and Administration shall be as follows:

(1) For filing a certificate of indebtedness issued by the Department of Finance and Administration....................... 8.00

(2) For filing a release of a certificate of indebtedness......................... 6.00

(3) For an execution on a certificate of indebtedness filed by the Department of Finance and Administration.......................... 10.00

² In Aikens, supra, the court held that a $3.00 bailiff fee for obtaining juror information was unauthorized where not referred to in A.C.A. §§ 16-10-301 — 305 or A.C.A. §§ 21-6-402 — 406.