Charles L. Robinson, CPA Legislative Auditor Legislative Joint Auditing Committee State Capitol Building Little Rock, Arkansas 72201
Dear Mr. Robinson:
You have requested an official Attorney General's opinion concerning the following questions:
1. May a municipal court judge appoint himself as referee for the small claims division of municipal court and receive the five dollar ($5.00) fee as compensation?
2. If the answer to number 1 is "yes", must such funds be appropriated?
3. If the answer to number 1 is "no", must the municipal judge repay such funds received as referee for the small claims division of municipal court?
4. What is the proper disposition of the filing fees received by the small claims division of municipal court?
Ark. Stat. Ann. 22-758.1 provides in part as follows:
"(b) If in the judgment of the said judge or judges it is necessary for the prompt and official disposal of cases filed in the small claims division to have a referee to take the testimony, the said judge, or a majority of the judges, may appoint a referee to conduct hearings and make his recommendations of law and fact to the judge;" (Emphasis added)
The language of the statute cited above clearly discloses the legislative intent to be that of allowing an overworked judge to appoint another person to serve as referee who, in turn, is required to report his findings of fact and law to the judge. It is totally inconsistent with the express language of this section that a municipal court judge could appoint himself to make recommendations of law and fact to himself and in any way alleviate his crowded docket and further the prompt and efficient disposal of cases filed in the small claims division of his court.
In view of the unequivocal intent of the legislature as expressed in the response to your first question, it must necessarily follow that any municipal judge making a contrary interpretation of this statute thereby receiving such funds would necessarily be required to make restitution of all funds received by virtue of serving as his own referee for the small claims division of his municipal court.
In response to your remaining question, Ark. Stat. Ann. 758.1 subsection (e), requires that the fees collected by the small claims division shall be kept in a separate fund, any compensation due referees utilized shall be paid to the appropriate referee bimonthly from this separate fund by the municipal clerk and, as no provision to the contrary is stated, remaining fees would be disbursed based on the underlying statutory distribution mechanism of the court as between the city and county.
The foregoing opinion, which I hereby approve, was prepared by Chief Deputy Attorney General Dan Kennett.