Dark Money, and other 2021 Legislative Priorities

One of the primary functions of the Arkansas Bar Association is to consider changes to the laws of the State of Arkansas, debate the desirability and necessity of such changes, and then lobby for any agreed proposals with the legislature.  The Bar always wants the public to participate in this process, but getting the public’s attention in these matters is not always easy.  The Bar’s current highest legislative priority is to prevent “dark money” from influencing Supreme Court and Court of Appeals elections in the State.  This was a major issue in the 2018 Arkansas Supreme Court race, and so far nothing has been done to address it.  The Bar has, upon careful and lengthy consideration, developed a proposal.  You can see the entirety of it below, but in short it is to require anyone other than the candidate spending money on behalf of the candidate to register as a “committee” with the state, and then comply with all state and federal campaign financing laws.  This will theoretically provide transparency about who exactly is spending money in Arkansas judicial elections, and will also allow citizens of the State of Arkansas to sue those people in Arkansas courts if they violate the law.

 

If you have thoughts about this, or any Arkansas Bar issues, please feel free to send an email to Todd Watson, who is a current trustee of the Arkansas Bar, at [email protected]  He would be happy to discuss this with you, and convey your concerns to the Bar president.

 

Please find the rest of the Arkansas Bar’s current legislative priorities listed below:

 

Arkansas Bar Association

2021 Legislative Package Overview

 

INDEPENDENT EXPENDITURE

  1. Intent

The disclosure, rulemaking and enforcement provisions of the act are necessary to protect public confidence in the integrity of appellate judicial elections.

  1. Covered Elections

The bill addresses elections for Arkansas Supreme Court and Court of Appeals.

  1. Separation from Existing Independent Expenditure Law

Current independent expenditure law, which applies to all political and judicial races, is not amended by this bill and will remain in effect.  This bill defines non-candidate expenditures in appellate judicial races as ones not disclosed as independent expenditures under Ark. Code Ann. § 7-6-220.

  1. Non-Candidate Independent Expenditures and Committees

The bill defines a non-candidate expenditure as a communication that “names or provides a photograph or other image of a specific candidate or specific set of candidates for the office of Court of Appeals Judge or Supreme Court Justice within 120 days before an election,” and is targeted to or expected to be received by 1,000 or more voters.

A non-candidate expenditure committee is a person that accepts contributions from 1 or more persons in order to make a non-candidate expenditure for an appellate judicial election and is registered as a non-candidate expenditure committee under § 7-6-235 prior to making a non-candidate expenditure.

Exceptions include:

(i) A news, editorial, or opinion article or statement (as further defined),

(ii) a communication between an organization and a member of the organization as reflected in the organization’s membership records,

(iii) a communication between 2 or more members of an organization as reflected in the organization’s membership records, or

(iv) an informational guide to candidates (as further defined) disseminated in printed form or on the internet.

  1. Reporting of Non-Candidate Expenditures and Contributions to Committees

The bill requires a non-candidate expenditure committee, that accepts contributions or makes non-candidate expenditures in a calendar year that exceed an aggregate amount or value of $1,000, to file reports with the Secretary of State no later than: 60, 30 and 15 days before a preferential primary election, general election, or special election, in addition to a final report 30 days after the end of the month in which the last election is held.

  1. Contents of Verified Reports

As for non-candidate expenditures for committees, the report must contain the same expenditure detail required for candidate campaigns for statewide office under § 7-6-207(b)(1). For individuals, the report must contain their identifications and the expenditure detail.

As for contributions (including in-kind) to committees, the report must contain information to identify each contributor who contributed more than $250, along with the amount, and the balance of funds in the account.  Individual volunteer service is excluded.

The Arkansas Ethics Commission will promulgate rules governing expenditures, contributions and reporting, and reports will be filed in searchable, electronic format with the Secretary of State.

  1. Registration of Non-Candidate Expenditure Committees

Registration is required before making expenditures, and all committee members must be disclosed on forms approved by the Arkansas Ethics Commission. Registrations are renewed annually.

An out-of-state non-candidate expenditure committee shall comply with the registration and reporting requirements if the committee makes expenditures within the State of Arkansas that exceed $1,000 during a calendar year.

  1. Restrictions

A non-candidate expenditure shall not be made in arrangement, cooperation, or consultation between a candidate or an authorized agent of the candidate and the person making the expenditure or an authorized agent of that person.

A contributor to a non-candidate expenditure committee shall not contribute funds received by transfer from another person.

Contributions to a non-candidate expenditure committee shall comply with the limitations imposed on contributions to candidates and independent expenditure committees under § 7-6-205.

A non-candidate expenditure committee that makes a non-candidate expenditure shall maintain any funds in a segregated account.

  1. Record Keeping

Committee records shall be made available to the Arkansas Ethics Commission and the prosecuting attorney and maintained for a period of 4 years.

The commission and the prosecuting attorney in the district in which the candidate resides are delegated the responsibility of enforcement.

  1. Citizen Suits

An Arkansas registered voter may bring an action pursuant to the Arkansas Rules of Civil Procedure against a non-candidate expenditure committee in circuit court to force compliance with the act.

If the registered voter prevails in an action, the voter shall be entitled to reimbursement of expenses and reasonable attorney’s fees from the defendant.

  1. Ethics Commission Rulemaking

The Arkansas Ethics Commission shall promulgate rules to implement the act.

  1. Implementation

The registration and reporting requirements created by this act are not required for the 2022 Nonpartisan Judicial General Election held on the date of the preferential primary for other offices.

The registration and reporting requirements created by this act shall be required for the 2022 November Nonpartisan Judicial Runoff Election, with registration and reporting to begin on July 1, 2022.

 

UNIFORM LAW: LLC ACT

The Uniform Limited Liability Company Act (ULLCA) permits the formation of limited liability companies (LLCs), which provide owners with the advantages of both corporate-type limited liability and partnership tax treatment. The 2011 and 2013 amendments, enacted as part of the Harmonization of Business Entity Acts project, updated and harmonized the language in this Act with similar provisions in other uniform and model unincorporated entity acts.

 

UNIFORM LAW: INCOME AND PRINCIPAL ACT

The Uniform Fiduciary Income and Principal Act (UFIPA) is a revision of the former Uniform Principal and Income Act with a new name to differentiate the act from its three predecessor versions. While older trusts often had clear delineation between income and principal interests, modern trust accounting requires flexibility. Trustees now tend to invest for the greatest total return, and then adjust between interest and principal to produce a fair result for all the beneficiaries. UFIPA recognizes this trend toward total-return investing and includes unitrust conversion rules to allow even older trusts to take advantage of modern investment trends. UFIPA gives estate planning attorneys additional flexibility to tailor a trust for each client’s needs and includes a new governing law section to help avoid jurisdictional disputes.

 

UNIFORM LAW: CIVIL REMEDIES FOR THE UNAUTHORIZED DISCLOSURE OF INTIMATE IMAGES ACT

The Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act (UCRUDIIA) addresses the disclosure of private images of nudity or sexual conduct without consent. The UCRUDIIA creates a civil cause of action; protects victims’ identities; and provides various remedies.

 

 

POWER OF ATTORNEY CHANGE

Proposed Amendments to Ark. Code. Ann. §§ 18-12-501 and 18-12-502 The purpose of these amendments is to replace the outdated term “letter of attorney” with the common usage “power of attorney”. The terms “letter of attorney” or “letters of attorney” are not found elsewhere in the Arkansas Code. These code sections can be difficult to find using any modern legal research database as the terms “letter of attorney” and “letters of attorney” are not commonly used.

Arkansas Discovery Farms

Since the 19th century, the University of Arkansas Division of Agriculture has one of the country’s leading agricultural sciences programs.  The Arkansas Agricultural Experiment Station (AAES) was initiated with federal funding in 1888 in Fayetteville, with branch stations in Newport, Pine Bluff, and Texarkana.  One of the innovative practices of AAES is the system of Discovery Farms.  These are private farms that have agreed to partner with the University of Arkansas to study the effect of different agricultural methods in key native ecosystems.  The partnerships last five to seven years and aim to discover the secrets to long-term sustainability by studying water and soil quality.  To learn more about Arkansas Discovery Farms, kick back and watch this excellent video:

Voiding Contracts for Fraudulent Misrepresentation

Misrepresenting a good or service, in order to sell that good or service, is fraud.  In the case of Clay v. Brand, the Arkansas Supreme Court said that “misrepresentation of a material fact is actionable fraud.”  You cannot promise to sell someone a box of hammers, and sign a contract with them for “tools,” then send them a box of wrenches, and say “sorry, you signed a contract.”  If you promised hammers as the foundation for the contract, you must provide hammers.

Usually, in contract disputes, parties are not allowed to bring in external evidence (called “parol evidence” in legalese) of the terms of the contract.  That is, you usually cannot say, “yeah, I know the contract say x, but we really agreed to y, and here’s some evidence to show we really agreed to y.”  The primary rule is – if the contract states the terms of the agreement clearly, in black and white, then those are the terms of the agreement.

Fraudulent misrepresentation is something of an exception.  In the case of Sellers v. West-Ark Contruction Co., the Arkansas Supreme Court noted that parol evidence is usually off limits in contract cases, but said, “Parol evidence, however, is admissible to show fraudulent inducement to contract.”  That is, if the contract was based on fraud, you can prove the fraud to void the contract.

The party that wants to void a contract on the grounds of fraudulent misrepresentation has to prove the fraud to the satisfaction of the Court by a three-part test.  In the case of Croley v Baker, the Arkansas Supreme Court said, “In order to establish fraudulent misrepresentation, it must be shown by the party seeking rescission that the person making the representations knew them to be false, or else, not knowing, asserted them to be true;  that it was the first party’s intent to have the other party rely on them to its injury;  and that the representations were, in fact, relied on.”  That is, the party seeking to void a contract for fraudulent misrepresentation has to show: 1. the other party made material representations that he knew or should have known were false; 2. the party that made those representations intended for the other party to rely on them – that his purpose in making them was to induce the other party to sign a contract;  and 3. that the other party did in fact rely on those representations when they signed a contract.

If you think that this situation might have happened to you, and you want to determine whether or not you can void a contract that you signed on the basis of it, call the Law Offices of Watson & Watson for a consultation today.  Our firm has successfully litigated lawsuits in this specific field of law, we know what to look for, and how to handle them.  Our attorneys at one of our three offices would be happy to discuss your case with you.

Can You Go To Jail For Failing to Pay Child Support?

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Can You Go To Jail For Failing To Pay Child Support?

The State of Arkansas rigorously enforces child support obligations.  If a payor gets behind on payments, the Office of Child Support Enforcement (OCSE) will often garnish the payor’s wages.  This ensures that the payor meets his or her monthly obligation, and pays down any debt that has accumulated.  In some situations, however, garnishment is not possible.  A payee often has little recourse but to file a lawsuit to hold the payor in contempt of court.  In these lawsuits, jail time is indeed a possibility.

The Arkansas Supreme Court recently clarified the law on imprisonment for failure to pay child support.  We do not have debtor’s prison in Arkansas, but a court can sentence you to jail for contempt.  That is, a court cannot sentence you to jail for being unable to pay.  A court can sentence you to jail for refusing to pay.  Therefore the law requires courts to first assess a payor’s ability to pay.  If the court determines that the payor has the ability to pay child support, but refuses to, then the court can impose a sentence of jail time.

Take Action

If you are behind on child support for any reason, your should contact the OCSE and make sure they understand your reasons.  The competent professionals there will work with you and help you meet your obligations.  If you have been sued for unpaid child support, however, you should immediately contact an Arkansas family lawyer.  Family lawyers can help you prove that you were unable to pay child support at the time, or help you limit the damage if you were.  Watson & Watson, Attorneys at Law, has many years of experience in family and domestic law in the state of Arkansas, and will fight to help you get back on track.

Why Do You Need A Will?

will-writing

One of the most common duties of general practice attorneys in Newport AR, or any other place, is assisting clients with the preparation of wills and trusts.  These are legal instruments that allow a person to determine where their property will go upon their death.  To understand why you might need or want to devise a will or a trust for your property, it may be helpful to consider what would happen to your property if you passed without a will or a trust.

In Arkansas, if you pass away without a will or a trust, your assets will go to your nearest relatives according to the laws of “intestate succession.”  This means that, after your widow (if any) and creditors take a large portion, your assets and property (your “estate”) will pass in roughly the following manner:

  1. To your surviving children in equal shares. If one of your children passes away before you, and that child had children (your grandchildren), the share that would have gone to the deceased child passes to the grandchildren to divide equally.
  2. If there are no surviving children or descendants of children, your widow will take your entire estate.
  3. If there are no surviving children or descendants of children, and there is no widow, your parents will take your entire estate.
  4. If there are no surviving descendants, widows, or parents, your brothers and sisters (or their descendants) will take your entire estate.
  5. If there are no surviving descendants, widows, parents, or siblings or descendants of siblings, your grandparents, aunts and uncles, or their surviving descendants, will take your entire estate.
  6. If there are none of the above, your surviving great grandparents, great aunts, and great uncles, or their surviving descendants, will take the entire estate.
  7. If there are none of the above, but you have a surviving spouse who you were married to for less than three years (and did not include in a will), then that surviving spouse or her surviving descendants will take your entire estate.
  8. Finally, if none of the above exists, your entire estate will go to the county that you resided in at the time of death.

The laws of intestate succession were designed with general fairness in mind and do not take into consideration the deceased’s individual wishes.  For that, you need a will.  Moreover, if you acquire unique property after the creation of a will, and that property is not allocated according to that will or any other instrument (such as a trust), then that property will pass according to the laws of intestate succession.  Therefore, if you have specific ideas about how you would like to leave any or all of your property upon your death, call an experienced lawyer in Northeast Arkansas today for help planning your estate.

***DISCLAIMER*** The laws of intestate succession described above are written here casually for the purposes of this blog post only and should not be relied upon as a primary source.  As with any sensitive legal matter, you should seek the advice of a licensed attorney before making decisions about your estate.

What You Need To Know If You Have Been In A Car Wreck In Arkansas

Arkansas Personal Injury Law

cartoon-car-crash-accident-132146

In the modern era of mass marketing, we have all become familiar with the clever and humorous mascots for insurance companies.  The Aflac duck, the Geico gecko, the deep-voiced gentleman from Allstate – these characters are as familiar as Mickey Mouse and Superman to American television viewers.  They present an image of insurance companies as caring, friendly entities that want nothing more than to help you in your time of need.  But if you have been in a car accident in Arkansas, you know that nothing could be further from the truth.

The first thing you need to know if you have been in a car accident in Arkansas is that the other party’s insurance company is going to view you, and treat you, as an enemy.  They are not there to help you.  They are there to save as much money as possible.  Therefore our advice is usually to refuse to give insurance companies recorded statements or to describe your injuries for them before speaking to an attorney.  Their intention is often to encourage you to say things like “I wasn’t really hurt” so that they can use those statements against you.  You are not obligated to answer their questions when they call.

The second thing you need to know if you have been in a car accident in Arkansas is that you have three years to make a claim, so there is no rush (Ark. Stat. Sec. 16-56-104).  Insurance companies generally want you to sign a release agreeing not to sue them as soon as possible.  They will often contact you immediately after the accident with offers of fast cash in exchange for your signature, and suggest that their offer will be taken off the table soon if you don’t agree.  You should call their bluff.  You have three long years from the date of the accident to make them pay, and therefore you should feel free to seek medical attention for your injuries without worrying about the insurance company losing patience.

Unfortunately personal injury is a complicated field of the law with different rules in each state.  Insurance companies are armed with intimate knowledge of these laws and are prepared to take advantage of that knowledge to limit the amount that they pay injured people to the greatest extent possible.  Therefore, if you are injured in a car wreck or in any other type of accident, your best course of action is almost always to hire a personal injury attorney with the skill and knowledge necessary to prevent insurance companies from taking advantage of you and to secure for you the full settlement that you deserve.  Even after your attorney’s fee is paid, the difference between what an insurance company will offer you up front and what an attorney can get for you is often extreme.

Watson & Watson, Attorneys at Law, have been practicing for 45 years and have some of the best rates anywhere in the state.  The typical attorney’s fee in the state of Arkansas is 33% of the total settlement for negotiated settlements, and 40% for cases that go into litigation.  Watson & Watson is a family firm with low overhead, and therefore offers fees of 25% for negotiated settlements, and 33% for cases that go into litigation.  What this means is that you will receive the same total settlement from Watson & Watson that you would receive from any skilled personal injury firm in the state, but you will get a larger share of it for yourself.  Therefore, if you have been injured in an accident that was not your fault, call Watson & Watson today for a free consultation.