Is Arkansas's 'drunken, insane, or disorderly persons' arrest statute (Ark. Code Ann. § 12-11-110) constitutional, and can district courts assess fines or court costs under it?

Plain-English summary

State Representative Dwight Tosh asked the AG for an opinion on Ark. Code Ann. § 12-11-110, a short statute requiring "[a] law enforcement officer [to] arrest a drunken, insane, or disorderly person whom he or she finds at large and not in the care of a competent person." The questions focused on whether the statute was constitutional, whether district courts could assess fines or court costs under it (either as a criminal offense or as a violation, or against a person with mental illness who had not committed a crime), what the remedy would be if such fines had already been collected, and whether nonpayment could be the basis for further arrest or fines.

AG Leslie Rutledge declined to answer all five questions. The reason was procedural: litigation was already pending in Craighead County (Burcham v. Craighead Cty., No. CV-16-401, filed June 10, 2016) that put essentially the same statute and the same fact patterns in front of the trial court. The AG's office has a long-standing policy of not issuing opinions on matters pending before the courts, on the ground that the executive branch should not be perceived as influencing live judicial proceedings.

The AG offered one substantive footnote citing the U.S. Supreme Court's decision in Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804 (1979). Addington recognized two distinct state interests that bear on these statutes:

• A parens patriae interest in providing care to citizens "who are unable because of emotional disorders to care for themselves," and
• A police-power interest in "protect[ing] the community from the dangerous tendencies of some who are mentally ill."

The footnote did not resolve the constitutional question; it just acknowledged that states have recognized constitutional interests in this area.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Burcham litigation has had subsequent procedural history, and § 12-11-110 itself may have been amended or interpreted by later courts since 2016. Anyone facing a current question about the statute should check the current text of § 12-11-110, the docket of Burcham and any related cases, and any post-2016 Arkansas appellate decisions.

Background and statutory framework

The statute

Ark. Code Ann. § 12-11-110 is a one-sentence statute in the chapter titled "Prevention of Public Offenses." It directs an officer who encounters a "drunken, insane, or disorderly person . . . at large and not in the care of a competent person" to make an arrest. The statute has been on the books in some form since the 19th century. It does not, on its own text, criminalize any conduct or authorize a fine or court costs. It authorizes (or requires) an arrest, with the implication that the arrestee will then be processed through some judicial system, often a local district court.

Why district court fines were on the legislator's mind

The questions the Representative posed suggest that, at least in some Arkansas jurisdictions, district courts had been assessing fines and court costs against people arrested under § 12-11-110, including against people who were "at large" not because of any criminal act but because of mental illness. That is the practice that Burcham v. Craighead Cty. was apparently challenging.

Why the AG declined

The AG's stated policy, citing Op. Att'y Gen. 2015-140 and 2015-005 among others, is to step back from a question when courts are actively addressing it. Two reasons:

1. Comity. The executive branch should not be perceived as taking sides in a live judicial proceeding.
2. Mootness. The Arkansas judiciary will resolve the question on a developed record, with adversarial briefing. An AG opinion based on a hypothetical record could mislead more than help.

The AG acknowledged that the constitutionality question (Question 1) was not, strictly speaking, the same question pending in Burcham (which appears to have been more about specific application). But the AG explained that addressing constitutionality would require interpreting the statute, and statutory interpretation was at issue in the litigation. So the constitutional question was practically inseparable.

What Addington v. Texas says

The AG's footnote citation to Addington v. Texas deserves a note. Addington held that civil commitment requires proof by "clear and convincing evidence," not the lower preponderance-of-the-evidence standard. In doing so, the Court accepted the legitimacy of the state's interests in parens patriae care and police-power protection. The AG's footnote did not say § 12-11-110 was constitutional; it said only that the state has constitutional latitude in this area. The actual application of that latitude to § 12-11-110, especially as applied to mental-health-related arrests with no underlying crime, remained an open question that the courts would have to work out.

Common questions

Q: Did the AG say § 12-11-110 is constitutional?
A: No. The AG explicitly declined to address constitutionality because of the pending litigation. The footnote cited Addington v. Texas for the general principle that states have legitimate interests in this area, but that is not an opinion on this Arkansas statute.

Q: Can district courts charge fines and court costs against people arrested under § 12-11-110?
A: The AG did not answer. That was one of the questions presented and the AG declined all five.

Q: What was Burcham v. Craighead Cty. about?
A: The opinion identifies only the case caption and filing court. The case appears to have been a challenge to local practice involving arrests, fines, and court costs under § 12-11-110, but the AG did not describe the case in detail. The pendency was the relevant fact for the AG.

Q: Why didn't the AG at least give the Addington analysis directly?
A: The AG limited the Addington citation to a footnote and characterized it as background. Applying Addington to § 12-11-110 would have required statutory interpretation, which was off-limits because of the pending litigation.

Q: What should a person arrested under § 12-11-110 do?
A: That is a fact-specific question outside the scope of an AG opinion. The AG declined to address it, and the opinion offers no guidance. Anyone in that situation should consult counsel and watch the resolution of Burcham and any related cases.

Citations and references

Statute:

• Ark. Code Ann. § 12-11-110 (Supp. 2015), arrest of drunken, insane, or disorderly persons

Cases:

• Burcham v. Craighead Cty., No. CV-16-401 (Craighead Cir., Western Dist., Civ. Div., filed June 10, 2016)
• Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804 (1979) (U.S. Sup. Ct.)

Prior AG opinions on the decline-due-to-pending-litigation policy:

• Op. Att'y Gen. 2015-140, 2015-005

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-027
June 22, 2016

The Honorable Dwight Tosh
State Representative
4513 Butler Road
Jonesboro, AR 72404-8829

Dear Representative Tosh:

This is in response to your request for my opinion regarding Ark. Code Ann. § 12-11-110 (Supp. 2015). This statute, found in a chapter of the Arkansas Code entitled "Prevention of Public Offenses," states in its entirety: "A law enforcement officer shall arrest a drunken, insane, or disorderly person whom he or she finds at large and not in the care of a competent person."

You pose the following questions in this regard:

1. Is Ark. Code Ann. § 12-11-110 (Drunken, Insane, or Disorderly Persons) constitutional?

2. May a district court judge assess fines or court costs under Ark. Code Ann. § 12-11-110 as either a criminal offense or a violation?

3. May a district court judge assess fines or court costs under Ark. Code Ann. § 12-11-110 against a person with mental illness who has not committed a crime or violation and is not accused of committing a crime?

4. If fines or court costs under Ark. Code Ann. § 12-11-110 are illegal, what is the legal remedy involving fines and costs that have been assessed and collected?

5. If fines and court costs under Ark. Code Ann. § 12-11-110 are illegal, is it permissible for an individual, who has been assessed fines and court costs under Ark. Code Ann. § 12-11-110, to be arrested and/or fined for nonpayment of those fines and court costs assessed illegally under Ark. Code Ann. § 12-11-110?

RESPONSE

I must respectfully decline to answer your questions because of pending litigation. It is the long-standing policy of the Attorney General's office, as a member of the executive branch, to decline to issue opinions on matters that are pending before the courts for resolution.

I regret that I cannot be of more assistance in this matter. Please do not hesitate to contact me if I may be of future assistance in some other respect.

See Burcham v. Craighead Cty., No. CV-16-401 (Craighead Cir., Western Dist., Civ. Div., June 10, 2016).

See Ops. Att'y Gen. 2015-140, 2015-005 (and opinions cited therein). While your first question, concerning the statute's constitutionality, is not directly implicated in the litigation, I cannot address that question without interpreting the statute; and the statute's interpretation is in litigation. I will nevertheless note that the United States Supreme Court, in addressing a similar statute in a sister state, made clear a state's interest and authority in this area:

The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.

Addington v. Texas, 441 U.S. 418, 426, 99 S. Ct. 1804, 1809 (1979).

Sincerely,

LESLIE RUTLEDGE
Attorney General