AAC F A M I L Y A N D F R I E N D S » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » Civil process reserved exclusively
to sheriffs & deputy sheriffs Clarification, modernization, case law and AG opinions
courts under Administrative Order No. 20. Some civil process is reserved exclusively for sheriffs and deputy sheriffs to serve and execute. However among the most burdensome, complicated and time sensitive aspects of civil process are called “writs of execution.” Writs of execution are a manner in which civil judgments are satisfied by the court direct- ing the sheriff to locate and seize property of the judgment debtor and sell it at public auction. Originally, writs were letters from the king to his sheriffs to have the law, i.e., “the will of the king” performed. In legal terminology a “writ” is defined by Black’s Law Dictionary, Sixth Edition, as: “A written judicial order to perform a specified act or giving authority to have it done.” A.C.A. 16-66-101 et seq., reserves exclusive authority to sheriffs and their deputies in Arkansas to serve writs of execution. As a result of our legal heritage, the sheriffs continue to serve and execute writs within the original 13 colonies and the subsequently formed sov- ereign States of the United States. No other law enforcement officers or appointed civil process servers may perform the duties directed by the court under a writ of execution. When defendants are unable to pay their judgments, plaintiffs must
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resort to civil process tools such as writs of execution to satisfy judgments, collect money for their clients’ damages, costs and attorney’s fees. Te manner in which sheriff deputies handle writs of execution reflects on the sheriff and the sheriff’s office. Also, as will be discussed further below may expose the sheriff to personal liability. Mike Rainwater, Association of Arkansas Counties Risk Management Fund (AACRMF) contract at- torney, myself and various law enforcement officers have conducted train- ing on civil process and writs of execution at AAC or in conjunction with the Criminal Justice Institute, the Arkansas Law Enforcement Training Academy (ALETA), or last December at the sheriffs new-elect school at ALETA. It can easily be said that the law in Arkansas on writs of execu- tion is in need of some clarification and modernization by the Arkansas General Assembly. We also anticipate conducting a class for sheriffs and deputies here at AAC to be sponsored by the AACRMF and ALETA this Spring.
A.C.A. 16-66-205 was amended in 2003 to clearly declare that nonfea-
sance by a sheriff must be willful in order to subject a sheriff to personal liability or to recover on a bond in favor of the sheriff. Attorney General Opinion No. 2007-228 stated that the law of Arkansas requires the ele- ment of a willful mental state of the sheriff to support imposing personal liability upon a sheriff who has failed to levy upon an execution within the prescribed time period. Te AG said: “Ordinarily, the provisions of an act adopted later in time repeal the conflicting provisions of an earlier act. Daniels v. City of Fort Smith, 268 Ark. 157, 594 S.W.2d 238 (1980). To the extent that this statute might be read as subjecting a sheriff to personal liability for mere negligence in failing to levy an execution, it should in all likelihood be deemed superseded by A.C.A. § 16-65-202, which by 2003 amendment clearly declared that any such nonfeasance must be willful in order to subject a sheriff to personal liability.” It was also noted that the courts have found that laws seeking to expose sheriffs to personal li-
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heriffs and sheriff deputies have duties to act as an “Officer of the Court” under Title 16 of the Arkansas Code including the duty to secure and execute civil process. Some civil process services are performed by process servicers appointed by the
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ability for simple negligence in executing writs are highly penal in nature. Further, A.C.A. 16- 66-119 adopted in 1991 granted immunity to sheriffs and deputies. Simple legislative clarifi- cation is warranted. Te insertion of the word “willful” in A.C.A. 16-66-118 will make the law clear and consistent and avoid sheriffs be- ing sued absent requisite culpability, i.e., act- ing in bad faith. Te AG also concluded in AG Opinion No. 2007-228 that in enacting A.C.A. § 21-2-701 et seq., the legislature unequivocally declared that participation in the Self-Insured Fidelity Bond Program is in lieu of any other applicable bonding requirements and relieves the bonding re- quirements under A.C.A. § 14-14-1201. Te Self-Insured Fidelity Bond Program secures only the participating governmental entities against the fraudulent and dishonest acts of their officers and employees. Te AG found no merit in the assertion of a law firm that the bond under A.C.A. § 21-2-701 was for private individuals to sue the county, county officials or county employees. But there are indemnity bonds that may be posted on writs of execution to protect the sheriff. A.C.A. 16-66-405 allows the sheriff to require the creditor to post bonds for personal property where the ownership of the personal property is in doubt. Tis section pertains to personal property only and the sheriff must not act arbitrary in arriv- ing at doubt in all cases. However, a reasonable rule may be justified. See: Mayfield v. Lewis, 89 Ark. 488 (1909); Endicott-Johnson Corp v. Davis, 186 Ark. 788 (1933); and Williams v. Brooks, 3 Ark. App. 130 (1981). A.C.A. 16-66-118 enacted over a century ago is clearly outdated. Te
Mark Whitmore AAC Chief Counsel
Arkansas Rules of Civil Procedure afford 120 days for service of summons under Rule 4. Yet, A.C.A. 16-66-118 requires a sheriff or deputy perform duties directed under the writ of execution in 60 days or less. Just finding the defendant to serve them may takes weeks or months or be wholly unsuccessful. Te sheriff has only the period of 60 days from receipt of the writ of execution to either make return of the writ and report that they were unable to locate the defendant or property of the defendant; or to make return of the writ and report obedience to the writ. Te du- ties under the writ of execution may include: to serve and execute on the writ, locate and seize personal or real property of the judgment debtor, levy on the personal or real property, address the judgment debtor claims for exemptions, post or publish notice of the sale (provide no less than 10 days of notice of sale for personal property), sell the property seized at public auction, distribute the proceeds of the sale and then return the writ of execution to the issuing court clerk reporting the satisfaction or partial satisfaction of the underlying judgment due to the foregoing activities. Joint owners are afforded 15 days of notice of sale and if they object an ap- praisal of the property must be made as per A.C.A. 16-66-403. Often the defendant files bankruptcy, but if not, you can see the time frame adopted a century ago is not sufficient for the modern world. In the early 1900’s a sheriff could find the defendant and their property simply by going to their farm or house. Nowadays the defendant may be in another state or
“Civil Process” Continued to Page 38 >>> COUNTY LINES, WINTER 2013
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