Judges: STEVE CLARK, Attorney General
Filed Date: 9/25/1989
Status: Precedential
Modified Date: 7/5/2016
The Honorable Mike Todd State Representative 333 W. Court Street Paragould, Arkansas 72450
Dear Representative Todd:
This is in response to your request for an opinion concerning Act 931 of 1989. Specifically, you pose the following question regarding that act:
Does Act 931 of 1989 provide that a municipal court judgment is a lien on the real estate owned by the defendant if the judgment has NOT been filed with the circuit clerk?
It is my opinion that the answer to your question is "no".
Act 931 of 1989 amends A.C.A.
A judgment in the Supreme Court or chancery or circuit courts OR MUNICIPAL COURTS of this state and in the United States district court within this state shall be a lien on the real estate owned by the defendant in the county in which the judgment was rendered from the date of its rendition only if the clerk of the court which rendered the judgment maintains a permanent office within the county, at which office permanent records of the judgments of the court are continuously kept and maintained AND THE JUDGEMENT [sic] HAS BEEN FILED WITH THE CIRCUIT CLERK. [Emphasis added.]
The emphasized language is the only language of Act 931 of 1989 which differs from the existing statute.
At first blush, the language of the act appears unambiguous. Given closer scrutiny, however, and when viewed along with the other provisions of A.C.A.
The first possible interpretation of the act is to construe the words just as they read. Words in a statute must be given their usual and ordinary meaning, and if there is no ambiguity, the statute should be given effect just as it reads. CHANDLER v. PERRY-CASA PUBLIC SCHOOLS DIST. NO. 2,
Additional, however, each section of an act must be read in light of every other section, and the object and purposes of the act must be considered. CHISM v. PHELPS,
(2)(A) If a judgment is rendered by one (1) of the courts in a county where the clerk of the court does not maintain a permanent office at which permanent records are maintained, the judgment shall not be a lien on the land of the defendant in that county until a certified copy of the judgment is filed in the office of the clerk of the circuit court of that county.
The problem with a "plain meaning" construction of the new language is that it would result in an implied repeal of the section above. Such repeals are not favored in construing statutes. FIREMAN'S FUND INS. CO. v. POLK COUNTY,
The second way to construe the act is to read the word "and" found in the last phrase of A.C.A.
The problem with reading the last phrase of (a)(1)(A) in the disjunctive is that to do so would render (a)(2)(A) redundant. This is so because under a disjunctive construction, (a)(1)(A) would already provide the alternate method of lien creation set out in (a)(2)(A). Statutes must be construed, if possible, so that all of the parts will be effective. TOWN OF WRIGHTSVILLE v. WALTON,
Additionally, a disjunctive construction would not require a municipal court judgment to be filed with the circuit clerk prior to becoming a lien on the defendant's property in the county, (so long as the municipal court clerk maintains a permanent office in the county and permanent judgment records.) Under this construction, the answer to your question would be "yes". It is my opinion, however, that this conclusion would not be consistent with the legislative intent.
Thus, we are left with inherent construction problems in construing the word "and" in the statute as EITHER conjunctive or disjunctive. How then, must we construe it? As stated previously, this question must be resolved with the legislative intent in mind. It appears that this statutory scheme began in 1891 and has been amended more than several times. The problem in construing the statute now is that over the years, instead of rewriting the entire statute, amendments have been made which left much of the original language intact.
With this in mind, it is my opinion that the legislative intent behind this latest amendment was to allow for municipal court judgments to become liens on real property just as circuit, and chancery judgments, etc., become liens, except it is my opinion that the legislature intended that municipal court judgments not become liens until filed with the circuit clerk. This conclusion is drawn from the fact that the only words added to the statute by Act 931 of 1989 are "or municipal courts", and "and the judgement [sic] has been filed with the circuit clerk".
Although this conclusion results in a slightly different rule for municipal courts than the statute requires for other named courts, it is my opinion that in light of the relevant rules of statutory construction, this is the result which is nearest to the perceived legislative intent.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.