Arkansas's Retroactive-Legislation Doctrine - Arkansas Law Review

Arkansas’s Retroactive-Legislation Doctrine 

Brandon J. Harrison ∗ 

Hans J. Hacker ∗∗ 

I. INTRODUCTION 

Our interest in the retroactive application of legislation by 

Arkansas appellate courts began about three years ago. This 

interest emerged when the lead author lost an appeal before the 

Arkansas Supreme Court. The client he helped represent would 

have prevailed had the supreme court not applied a statute 

retroactively to the final summary-judgment order entered by the 

circuit court. That event led us to review cases across 165 years 

of Arkansas Supreme Court jurisprudence involving the 

retroactive application of legislation enacted by the Arkansas 

General Assembly. 1 We then expanded our analysis to include 

Arkansas Court of Appeals cases. Our efforts span nearly the 

entire history of the Arkansas Supreme Court, and the full 

history of the Arkansas Court of Appeals. 2 The goal is to 

provide enough discussion of the caselaw to give you an 

informed sense of how Arkansas courts have forged and applied 

∗ Mr. Harrison practices law at his own firm in Fort Smith where he concentrates on 

civil and criminal appeals and litigation in state and federal courts. He can be contacted at 

bharrison@brandonharrisonlaw.com. 

∗∗ Dr. Hacker received a Ph.D. in political science from Ohio State University in 2000 

and currently serves as assistant professor of political science at Arkansas State University. 

He can be contacted at hhacker@astate.edu. 

1. “The adjective ‘retroactive’ has several definitions, one of which is simply that 

which acts upon a thing which is past.” Gannett River States Pub. Co. v. Ark. Judicial 

Discipline & Disability Comm’n, 304 Ark. 244, 248, 801 S.W.2d 292, 295 (1990) (citing 

BLACK’S LAW DICTIONARY 1184 (5th ed. 1979)). “Another definition of ‘retroactive law’ 

is one which has the effect of disturbing a vested right.” Id. (citing Harrison v. Matthews, 

235 Ark. 915, 362 S.W.2d 704 (1962); State v. Kansas City & M. Ry. & B. Co., 117 Ark. 

606, 174 S.W. 248 (1915); Williams Bros. Lumber Co. v. Anderson, 78 S.E.2d 612 (Ga. 

1953); Pepin v. Beaulieu, 151 A.2d 230 (N.H. 1959); Silver King Coalition Mines Co. v. 

Indus. Comm’n., 268 P.2d 689 (Utah 1954)). 

2. The Arkansas Supreme Court was created in 1836. See Supreme Court, 

ARKANSAS JUDICIARY, http://courts.arkansas.gov/supremecourt/ (last visited Oct. 17, 

2011). The Arkansas Court of Appeals was created in 1978. See Court of Appeals, 

ARKANSAS JUDICIARY, http://courts.arkansas.gov/coa/ (last visited Oct. 17, 2011).

904 ARKANSAS LAW REVIEW [Vol. 64:903 

the retroactive-legislation doctrine over a long period of time, 

and where the doctrine rests today. 

In a question-and-answer session at Indiana University’s 

law school, Chief Justice John Roberts, Jr. reportedly stated that 

he typically avoids reading law reviews because they usually do 

not offer practical reading for lawyers or judges. 3 We agree that 

the bench and bar need practical discussions about important 

doctrinal patterns. To that end, this article serves as a reservoir 

of caselaw and observations from which the practicing lawyer, 

or sitting judge, can draw when needed. For example, we 

discuss the seminal retroactive-doctrine precedents in varying 

degrees of detail. The Appendix at the end of this article lists 

the cases that we believe are the most telling and important 

ones. 4 It also lists other sources an interested reader may want 

to consult. 

In addition to offering a reservoir of caselaw, our topic is 

important on an abstract level because it concerns the 

separation-of-powers doctrine, a fundamental principle of state 

(and federal) constitutional law. 5 This article is also a request to 

the Arkansas General Assembly and the Arkansas Supreme 

Court: each institution should better explain whether legislation 

should be applied retroactively, and if so, why. For decades, the 

Arkansas Supreme Court and the Arkansas Court of Appeals 

have too often applied legislation retroactively without 

providing or identifying the necessary “legislative intent” to do 

so. 

Things were not always that way. During its early history, 

parties appearing before the Arkansas Supreme Court could be 

more certain about how the court would analyze a retroactivelegislation 

issue. Our reading of the cases has convinced us that 

early supreme court precedents established a rule contrary to the 

3. Jess Bravin, Chief Justice Roberts on Obama, Justice Stevens, Law Reviews, More, 

WSJ.COM, http://blogs.wsj/com/law/2010/04/07/chief-justice-roberts-on-obama-justicestevens-law-reviews-more 

(Apr. 7, 2010, 7:20 PM). 

4. If nothing else, you may want to place the Appendix in a research folder. 

5. See ARK. CONST. art. 4, § 1 (division of governmental authority); ARK. CONST. art. 

5, § 1 (legislative power). For a recent analysis of the history of dividing governmental 

power, see generally ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN 

FEDERALISM (Harvard Univ. Press 2010). Professor LaCroix’s book does not focus much 

on intra-state power divisions, but it does include some general ideas regarding the division 

between federal-governmental and state-governmental powers.

2011] RETROACTIVE-LEGISLATION DOCTRINE 905 

modern, and essentially per se, rule that has formed and 

hardened over the past forty years or so. Under the modern rule, 

the Arkansas General Assembly has in many cases allowed the 

appellate courts to determine when to apply legislation 

retroactively. This injects uncertainty into the law and puts our 

appellate courts in a role that is best held by the legislature. 

The general rule concerning when a legislative act becomes 

binding law is this: the effective date of an act passed by the 

Arkansas General Assembly, absent an emergency clause 

declaring a specific effective date, is not legally binding “until 

90 days after the adjournment of the legislative session at which 

it was enacted.” 6 But in recent decades, our appellate courts 

have routinely applied legislation in a retroactive manner rather 

than the prospective manner that has long ruled the interpretive 

landscape. They have done so even though the Arkansas 

General Assembly has, literally, said nothing on the subject. 

The per se rule has taken this form: when our appellate courts 

have characterized a legislative act as being “remedial” or 

“procedural” in nature, they apply the legislation retroactively— 

even if the Arkansas General Assembly has provided no indicia 

of intent on the question. 7 

The retroactivity doctrine walks among us today, deciding 

cases. As the Appendix to this article shows, more than fifty 

cases have collectively been decided by the Arkansas Supreme 

Court and the Arkansas Court of Appeals on whether an act (or 

court rule) should be applied retroactively. The total number is 

higher, but we have discussed only published decisions having 

precedential power. 8 Eleven cases listed were decided during 

the past decade. Eight cases have been decided during the past 

six years. These numbers are significant and may strongly 

influence future decisions. 

It is time to return to the bedrock principle that legislation 

should not be applied retroactively unless the general assembly 

provides some meaningful and articulable signs directing courts 

6. Littles v. Flemings, 333 Ark. 476, 484, 970 S.W.2d 259, 264 (1998). 

7. See, e.g., Steward v. Statler, 371 Ark. 351, 353-54, 266 S.W.3d 710, 713 (2007). 

8. The bulk of the cases discussed were issued before the Arkansas Supreme Court 

amended the Arkansas Supreme Court and Arkansas Court of Appeals Rule 5-2. That 

amendment declared that all decisions announced after July 1, 2009, are precedent. ARK. 

SUP. CT. R. 5-2 (2011).


to apply a statute retroactively. The salutary effect would be 

that all parties could be more certain of what the law is, and will 

be, in any given case. From a theoretical standpoint, the 

separation-of-powers doctrine would be more consistently 

applied. 

II. DISCUSSION & ANALYSIS 

A. The General Rule on When Legislation Should Be 

Given Retroactive Effect 

Corpus Juris Secundum guides our discussion because 

what it reports about the “general rule” on the issue of statutes 

applying backward in time—to a date before they were enacted 

by a legislative body—is a good starting point. The legal 

encyclopedia is worth a hearty quote because it provides the 

basic tenets: 

As a general rule, statutes are construed to operate 

prospectively unless the legislative intent that they be given 

retrospective or retroactive operation clearly appears from 

the express language of the acts, or by necessary or 

unavoidable implication. 

In accordance with fundamental notions of justice that 

have been recognized throughout history, retrospective or 

retroactive legislation is not favored. Hence, it is a wellsettled 

and fundamental rule of statutory construction that 

unless it is expressly stated, statutes should not be 

construed so as to be retroactive, but should be construed 

prospectively, from their effective date. 9 

Note the encyclopedia’s machine-gun spray of adjectives 

that courts have used when stating the guiding principles for 

when a statute may be applied retroactively—try to keep up: 

“[S]tatutes generally will operate prospectively unless the 

legislature makes its intent that it operate retrospectively clear, 

express, plain, obvious, unequivocable, distinct, manifest, 

9. 82 C.J.S. Statutes § 415 (2009) (footnotes omitted). American Jurisprudence has 

at least three sections touching on this topic. See 73 AM. JUR. 2D Statutes §§ 8, 247 

(2001); 16A AM. JUR. 2D Constitutional Law § 296 (2009). For example, “[a]n enactment 

extinguishing a cause of action or barring a party from prosecuting a cause of action affects 

substantive rights and, therefore, is not remedial.” 73 AM. JUR. 2D Statutes § 8 (2001). 

The Arkansas Supreme Court has recently cited American Jurisprudence in a retroactivedoctrine 

case. See McMickle v. Griffin, 369 Ark. 318, 339, 254 S.W.3d 729, 747 (2008).


positive, explicit, unambiguous, or unmistakable; or shows this 

intent by direct command, or by a very clear, fair, necessary, 

unavoidable, or unequivocable, implication.” 10 Here is that list 

again, with three additional catch words from the Arkansas 

Supreme Court: 

Clear Express 

Plain Obvious 

Unequivocable Distinct 

Manifest Positive 

Explicit Unambiguous 

Unmistakable Rarely 11 

Never 12 Definite 13 

The standard a party must satisfy to establish that 

legislation applies to a date before its enactment should be a 

high, even an onerous, one. In modern Arkansas practice, 

however, it is a low standard. As a result, the Arkansas 

Supreme Court and Court of Appeals too often apply statutes 

retroactively without identifying what legislative indicia they 

relied upon to determine whether statutes should apply 

retroactively. 14 Arkansas law used to be more exacting in this 

sense. 15 

10. 82 C.J.S. Statutes § 415 (2009) (footnotes omitted). 

11. See Ark. Dep’t of Human Servs. v. Walters, 315 Ark. 204, 212, 866 S.W.2d 823, 

827 (1993) (Brown, J., concurring) (“Most legislative enactments could be construed as 

remedial in one way or another, and the retroactive application of state law be employed in 

the rarest of instances.”). 

12. See Rhodes v. Cannon, 112 Ark. 6, 11-12, 164 S.W. 752, 753 (1914) (quoting 

N.Y. & Oswego Midland R.R. Co. v. Van Horn 57 N.Y. 473 (1874); Dash v. Van Kleek, 7 

Johns. 477 (N.Y. Sup. Ct. 1811)). Rhodes contains a treasure trove of citations to early 

authorities that support the prospective-only application of statutes. See Rhodes, 112 Ark. 

6, 164 S.W. 752. 

13. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 298, 9 S.W.3d 520, 

527 (2000) (“This is not a definite statement that the Act will apply retroactively.”). 

14. If deemed a pleading requirement, then the general rule, as stated by one 

commentator, is to avoid retrospective application unless the legislature clearly intends 

otherwise. See EARL T. CRAWFORD, THE CONSTRUCTION OF STATUTES § 289 (1940) 

[hereinafter CONSTRUCTION OF STATUTES]. Crawford wrote: “Where the action is 

pending at the time the statute modifying or amending existing rules of pleading becomes 

effective, the statute should, unless it clearly appears to be intended otherwise, be held 

inapplicable.” Id. § 289, at 588. He also advised that a statutory “amendment will have no 

retrospective operation, unless its terms clearly indicate a different intent. There is also a


B. The Retroactive-Legislation Doctrine’s History in 

Arkansas Appellate Courts 

Though the retroactive-legislation doctrine in Arkansas 

dates back to at least 1846, 16 we begin in 1884, the year the 

presumption that amendments are effective prospectively.” Id. § 295, at 597 (footnote 

omitted). 

Arkansas law has long recognized the same prospective-application presumption. 

See, e.g., Special Sch. Dist. of Texarkana v. Bd. of Improvement, 127 Ark. 341, 343, 191 

S.W. 918, 918 (1917) (“We start out with the presumption that all legislation is intended to 

act only prospectively . . . .”); Rhodes, 112 Ark. at 11-13, 164 S.W. at 753-54; Beavers v. 

Myar, 68 Ark. 333, 336, 58 S.W. 40, 41 (1900). A treatise on constitutional law first 

published in 1868, which the Arkansas Supreme Court relied heavily on when it began to 

formulate its retroactivity doctrine, recognized this presumption: 

There is no doubt of the right of the legislature to make laws which reach 

back to and change or modify the effect of prior transactions . . . . But 

legislation of this description is exceedingly liable to abuse; and it is a sound 

rule of construction to give a statute a prospective operation only . . . . And 

some of the States have deemed it important to forbid such laws altogether 

by their constitutions. 

THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS 370 (The Legal Classics Library, 

special ed. 1987) (1868). Thomas M. Cooley was a Justice and Chief Justice of the 

Michigan Supreme Court in the late 1800s. He was an influential jurist of his time. See 1 

THE HISTORY OF LEGAL EDUCATION IN THE UNITED STATES 387 (Steve Sheppard ed., 

1999). 

The “all legislation” category has collapsed upon itself. As we discuss throughout 

this article, since the early 1960s a decisive divide between remedial-procedural and 

substantive legislation has diminished the power of the prospective-only presumption. 

15. See Green v. Abraham, 43 Ark. 420, 423 (1884). 

16. Couch v. McKee, 6 Ark. 484, 493-95 (1846). Vaughan v. Bowie, 30 Ark. 278 

(1875). Bowie was essentially a subject-matter jurisdiction case that asked if the legislature 

could constitutionally confer jurisdiction on courts of equity (and divest it from the law 

courts) to enjoin the collection of an illegal school tax. Id. at 281. The Bowie court upheld 

the Arkansas General Assembly’s decision to alter jurisdiction by statute, reasoning that 

given the 1868 Constitution “under which this suit was commenced, and the act of 24th of 

April, 1873, was passed, authorized the Legislature to confer such jurisdiction as it might 

see proper upon inferior courts.” Id. at 283. The court in Bowie did not cite to a specific 

state constitutional provision that it thought empowered the legislature to alter the 

jurisdictional status quo. The Arkansas Supreme Court has not often referenced particular 

state constitutional provisions when deciding cases in the retroactive-legislation context. 

The supreme court in Bowie wrote, “[e]ven if the court did not have jurisdiction at 

the inception of this case, did not the statute cure the defect? All constitutional objection 

aside, and we see none, in this case, the effect of the statute is retrospective in its operation 

upon all undetermined cases.” Id. at 282. Bowie is also noteworthy because the Arkansas 

Supreme Court’s primary support for the retrospective holding was Justice Thomas M. 

Cooley’s treatise. See id. at 283. Nine years later, in Green v. Abraham, the court again 

cited Justice Cooley’s treatise as a main authority on the retroactivity issue. 43 Ark. 420, 

424 (1884). 

The Arkansas Supreme Court has not been alone in its evident fondness for Justice 

Cooley’s treatise. In 1871, Oliver Wendell Holmes, Jr. wrote a review on Cooley’s treatise


Arkansas Supreme Court decided Green v. Abraham. 17 That 

case addressed whether the legislature had the power to alter 

retroactively the process by which deeds of trust provided notice 

to subsequent purchasers despite “defective” 

acknowledgements. 18 We start with Green because the 

Arkansas Supreme Court applied a core principle when 

reviewing the retroactivity doctrine in Arkansas. Here are some 

contextual facts: 

Green brought replevin against Abraham for thirty bushels 

of corn. The plaintiff’s title was derived from a deed of 

trust upon an unplanted crop, executed March 1, 1882, by 

one McReynolds to the plaintiff as trustee for Porter & 

Reeves. The deed was acknowledged before the plaintiff 

himself as a notary public and was spread upon the record 

of the county of the maker’s residence. The defendant as 

constable of Caddo township had, in October, 1882, seized 

the corn, part of said crop, under an execution to him 

directed against the goods and chattels of said McReynolds. 

The cause was tried in August, 1883 . . . and the Circuit 

Court [ruled] that the deed of trust was void as against the 

defendant by reason of its defective acknowledgement and 

gave judgment accordingly. 19 

The Arkansas Supreme Court then stated: “The 

acknowledgement, having been taken and certified by an officer, 

who was a party to the deed, did not entitle the instrument to 

record and the record of it imparted no notice to subsequent 

purchasers or incumbrancers.” 20 By ruling that the selfinterested 

March 1, 1882 acknowledgement was void, the court 

teed up the relevant question for our purposes: what effect did a 

legislative act that was passed on March 8, 1883, have on the 

in the American Law Review, an influential legal periodical of the day. See Oliver Wendell 

Holmes, Jr., 6 AM. L. REV. 140 (1871), reprinted in 1 THE COLLECTED WORKS OF JUSTICE 

HOLMES: COMPLETE PUBLIC WRITINGS AND SELECTED JUDICIAL OPINIONS OF OLIVER 

WENDELL HOLMES 268-69 (Sheldon M. Novick ed., 1995) [hereinafter THE COLLECTED 

WORKS OF JUSTICE HOLMES]. Holmes, for what it is worth, generally approved of Justice 

Cooley’s work: “We have made a good deal of use of this book, and have carefully 

compared the text with the authorities in many places. We consider it a very laborious, 

clear, and valuable work upon a subject equally new and well chosen.” THE COLLECTED 

WORKS OF JUSTICE HOLMES, supra note 16, at 269. 

17. 43 Ark. 420. 

18. Id. at 422-23. 

19. Id. at 422. 

20. Id.


legally defective March 1, 1882 acknowledgment? Legislation 

the Arkansas General Assembly enacted March 8, 1883, 

entitled, “an Act for the better quieting of titles,” helps answer 

the question. 21 

The act mandated: 

[T]hat all deeds and other conveyances recorded prior 

to January 1, 1883, purporting to have been 

acknowledged before any officer, and which have not 

heretofore been invalidated by any judicial proceeding 

shall be held valid to pass the estate which such 

conveyance purports to transfer, although such 

acknowledgement may have been on any account 

defective [minus two exceptions]. 22 

The act’s “proviso declares that the record of all such 

instruments shall be as valid as if they had been acknowledged 

and recorded according to law.” 23 The Arkansas Supreme Court 

held, after little written discussion, that the law-changing act 

was “a retrospective law” that “was made to operate on past 

transactions, and conveyances.” 24 The holding raises good 

questions. 

First, was the enactment of the retroactive law 

constitutional under the Arkansas Constitution? The Arkansas 

Supreme Court thought so in 1884, devoting twenty words to the 

issue: “our constitution contains no inhibition against legislation 

of this kind, provided the obligation of the contract be not 

thereby impaired.” 25 We will not examine in detail the 

theoretical basis or authority upon which the Arkansas Supreme 

Court based that legal pronouncement. Instead, we will sidestep 

any involved constitutional analysis on this point, presume the 

21. Id. at 423. 

22. See Green, 43 Ark. at 423. 

23. Id. (internal quotation omitted). 

24. Id. States like Florida first ask whether a legislative act alters caselaw or 

statutory law because the retroactive-application doctrine is applied differently based on 

the answer. See Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007) (finding change in 

substantive law and denying retroactive effect of legislation). The caselaw-versus-statute 

debate in this context was addressed by a divided Arkansas Supreme Court in Frakes v. 

Hunt, 266 Ark. 171, 583 S.W.2d 497 (1979). 

25. Green, 43 Ark. at 423 (citing State v. Squires, 26 Iowa 340 (1868); THOMAS M. 

COOLEY, CONSTITUTIONAL LIMITATIONS 460-79 (4th ed. 1878); A. C. FREEMAN, VOID 

EXECUTION, JUDICIAL AND PROBATE SALES 90 (1887); T. M. COOLEY, The Limits to 

Legislative Power in the Passage of Curative Laws, 12 CENT. L.J. 2 (1881)).


constitutional correctness of the decision, and press on with 

Green v. Abraham. In Green, the Arkansas Supreme Court 

noted that various strands comprise the retroactive-application 

doctrine in general, including the rule former Michigan Supreme 

Court Justice Thomas M. Cooley espoused: 

The bringing of suit vests in a party no right to a particular 

decision; and his case must be determined on the law as it 

stands, not when the suit was brought but when the 

judgment is rendered. . . . And if a case is appealed, and 

pending the appeal the law is changed, the appellate court 

must dispose of the case under the law in force when their 

decision is rendered. 26 

Ultimately, the Arkansas Supreme Court applied Justice 

Cooley’s view and reversed the circuit court’s judgment, 

ordering it to hold a new trial and give effect to the law. 27 

Less than ten years after it decided Green v. Abraham, the 

Arkansas Supreme Court began citing its prior decision (and 

Justice Cooley’s treatise) in retroactive-legislation cases. 28 A 

notable post-Green case is Sidway v. Lawson. 29 There, the 

Arkansas Supreme Court addressed property conveyances and 

homestead rights. 30 Specifically, the court reviewed a circuit 

court’s decision to cancel a mortgage and note because they 

were “tainted with usury.” 31 The supreme court disagreed, 

concluding that “there [was] no usury in the note or 

mortgage.” 32 But Lawson went beyond a no-usury ruling; the 

supreme court also discussed legislation entitled “An act to 

render more effectual the constitutional exemptions of 

homesteads,” which was approved March 18, 1887. 33 

Appellee Lawson argued that the conveyance of land that 

constituted a homestead was void because the conveyance was 

not executed in accord with an act approved in March 1887. 34 

After reciting the ripening Green rule, the Arkansas Supreme 

26. Green, 43 Ark. at 424 (quoting COOLEY, supra note 14, at 476). 

27. Id. at 424-25. 

28. See, e.g., Sidway v. Lawson, 58 Ark. 117, 121, 23 S.W. 648, 649 (1893). 

29. 58 Ark. 117, 23 S.W. 648. 

30. Id. at 119, 23 S.W. 648. 

31. Id. 

32. Id. 

33. Id. at 119-20, 23 S.W. at 648. 

34. Sidway, 58 Ark. at 119-20, 23 S.W. at 648.


Court warned that the power to cure defects in proceedings, 

conveyances, and acknowledgements by a retrospective statute 

is limited. 35 Limited? How so? Here is the separation-ofpowers 

limitation, as the supreme court expressed it in Sidway: 

The legislature cannot, by the enactment of a retrospective 

statute, exercise a power in its nature clearly judicial. It is 

prohibited from so doing by the constitution. 

. . . . 

But the legislature can enact statutes on subjects which 

properly come within the cognizance of courts, which may 

form the basis of judicial consideration and judgment in 

suits pending at the time of their enactment. Curative 

statutes, when valid and applicable, should govern the 

courts in such cases, unless pending suits are excepted. 36 

The supreme court ultimately reversed the circuit court and 

held that the mortgage was valid. 37 The curative legislation 

concerning conveyances affecting homestead rights saved the 

mortgage. 38 In other words, the Arkansas Supreme Court 

permitted the Arkansas General Assembly’s act to cure the 

contested conveyance because “[t]he legislature undertook to 

create no interest or estate by the act” and thus only gave “effect 

to the act of the parties, according to their intent.” 39 Finding no 

breach in the separation-of-power wall, the court upheld the 

legislature’s statute. 

35. Id. at 121, 23 S.W. at 649. 

36. Id. at 121-22, 23 S.W. at 649 (emphasis added); see also ARK. CONST. art. 4, § 1. 

The constitution states: 

The powers of the government of the State of Arkansas shall be divided into 

three distinct departments, each of them to be confided to a separate body of 

magistracy, to wit: Those which are legislative, to one; those which are 

executive, to another, and those which are judicial to another. 

ARK. CONST. art. 4, § 1; Chaffin v. Ark. Game & Fish Comm’n, 296 Ark. 431, 443, 757 

S.W.2d 950, 956 (1988) (“The Arkansas Constitution contains explicit separation of 

powers provisions which declare that one branch cannot exercise any power belonging to 

another branch.”). As we read the court’s opinion, a curative statute does not necessarily 

fix a defect in a pending suit, unless the general assembly expressly says so. Thus, curative 

acts are not automatically retroactive in a legal sense. They may, in other words, be 

intended to act prospectively only. 

37. Sidway, 58 Ark. at 124, 23 S.W. at 650. 

38. Id. 

39. Id.


We fast forward about thirty years to 1914, when the 

Arkansas Supreme Court decided another case involving 

retroactive legislation. The main issue on appeal in State ex rel. 

Moose v. Kansas City & Memphis Railway & Bridge Co. was 

the constitutionality of an “amendatory act of 1913,” whose 

purpose, according to the supreme court, “was to give a 

complete remedy for the recovery of back taxes due by a 

corporation upon any property then in the state, which belonged 

to any corporation at the time such taxes should have been 

properly assessed and paid.” 40 In that case, the legislature had 

expressly declared that the act operated retrospectively and 

prospectively. 41 

State ex rel. Moose is worth discussing here for three 

reasons. First, the supreme court noted a doctrinal point that 

still guides courts today. Second, the supreme court recited 

some general rules that our state appellate courts use today— 

though the potency of the rules has been qualitatively 

diminished. Third, the opinion is illuminating because in recent 

decades, up to and including Steward v. Statler, 42 the Arkansas 

Supreme Court has stopped requiring anything resembling an 

express legislative directive that a statute be applied 

retroactively before applying a statue retroactively. 43 

In Moose, the supreme court addressed the difference 

between the rule that courts may broadly construe remedial 

legislation versus the “established rule” that “all statutes are to 

be construed as having only a prospective operation, unless the 

purpose and intention of the Legislature to give them a 

retrospective effect is expressly declared or is necessarily 

implied from the language used.” 44 The two statements are in 

tension. It should not matter whether a statute is called 

remedial, procedural, or something else. In any event, our 

40. Id. at 613, 174 S.W. at 252. 

41. State ex rel. Moose v. Kansas City & Memphis Ry. & Bridge Co., 117 Ark. 606, 

608, 174 S.W. 248, 250 (1914) (noting that the legislation stated, “this act shall be 

construed as retrospective as well as prospective in operation”). We need more statements 

like that in Moose to curb litigation on whether statutes should be applied retroactively or 

prospectively only. 

42. 371 Ark. 351, 266 S.W.3d 710 (2007). 

43. The same point applies to the Arkansas Court of Appeals, though it has decided 

the issue fewer times. 

44. State ex rel. Moose, 117 Ark. at 611, 174 S.W. at 251.


courts should make more plainly reasoned statements on why 

they find an express or necessarily implied intent from the 

general assembly that legislation should be applied retroactively 

in a case. 

As an interesting side note given the modern doctrine, 

Moose could have ended abruptly given the court’s finding of an 

express legislative intent. Why did the supreme court turn a 

short opinion into a long one? Because, as we read the case, it 

may have been troubled that the general assembly did not 

expressly apply its intent “to each separate provision.” 45 The 

Moose court also reiterated its prior Green v. Abraham rule that 

“[t]here is no direct constitutional prohibition against 

retrospective legislation . . . .” 46 Gaining confidence, the court 

did not cite Justice Cooley’s treatise, or any prior Arkansas case, 

for the proposition concerning the retroactive-application 

doctrine. Despite its conclusory foundation, there has long been 

a rule that civil laws may be applied back in time without 

violating state constitutions—absent, of course, an express 

constitutional provision forbidding such legislation. 47 At least 

one state has a constitutional article that expressly forbids 

retroactive legislation. 48 

The year 1914 was particularly important in Arkansas’s 

development of the retroactive-application doctrine because, 

during that year, our supreme court also decided Rhodes v. 

Cannon. 49 Rhodes is a key case, though it is not as influential as 

some other cases if we judge its influence by the number of 

times Arkansas appellate courts have cited to it on the 

retroactive-application question. Silence may of course be a 

calculated avoidance of a specific precedent; and in this 

instance, avoiding certain precedents can influence a doctrine’s 

development. Whatever the case, Rhodes is worth dusting off. 

In Rhodes, the Arkansas Supreme Court addressed whether 

a claim against an estate can be revived by an executor’s or 

45. Id. at 612, 174 S.W. at 251. 

46. Id. at 613, 174 S.W. at 255. The more provocative question is whether any 

express, enumerated power in the current Arkansas Constitution gives the Arkansas 

General Assembly the power to enact legislation retroactively. We have found none. 

47. See 16A C.J.S. Constitutional Law § 559 (2011). 

48. See OHIO CONST. art. II, § 28. The prohibition is not absolute. Instead, it appears 

to limit the retroactive application of laws that affect substantive rights. 

49. 112 Ark. 6, 164 S.W. 752 (1914).


administrator’s acts once the claim is barred by a statute of 

nonclaim. 50 Here is how the supreme court presented the issues: 

Able and exhaustive briefs have been filed in the 

cause, and two questions are chiefly discussed: First, 

whether the act of 1911 is retroactive; and, second, whether 

one can have a vested right in the defense of the statute of 

limitations, where the bar of the statute has once attached as 

it had here. 51 

Addressing the first question, which primarily concerns us 

here, the supreme court expressed a general disapproval for 

retrospective legislation: “This condition of affairs demonstrates 

the wisdom of holding that no statute will be given retroactive 

effect, if susceptible of any other construction.” 52 To support its 

statement—perhaps drawing from the “[a]ble and exhaustive 

briefs” on file 53 —the Arkansas Supreme Court relied on a New 

York case: 54 “A law is never to have retroactive effect, unless its 

express letter or clearly manifested intention requires that it 

should have such effect. If all its language can be satisfied by 

giving it prospective operation, it should have such operation 

only.” 55 

The Arkansas Supreme Court did not stop at the New York 

precedent; it also cited ten additional cases, across multiple 

jurisdictions, including one from the United States Supreme 

Court. 56 Here is the United States Supreme Court’s language 

that the Arkansas Supreme Court quoted in Rhodes v. Cannon: 

“A statute should not be construed to act retrospectively or to 

50. Id. at 10, 164 S.W. at 752-53. 

51. Id. at 11, 164 S.W. at 753. 

52. Id. 

53. Id. 

54. N.Y. & Oswego Midland R.R. Co. v. Van Horn, 57 N.Y. 473 (1874). 

55. Rhodes, 112 Ark. at 12, 164 S.W. at 753 (quoting Van Horn, 57 N.Y. at 477). 

56. Id. at 12-13, 164 S.W. at 753-54 (citing Beavers v. Myar, 68 Ark. 333, 58 S.W. 

40 (1900); City Ry. Co. v. Citizens’ St. R. Co., 166 U.S. 557 (1897); Fayetteville Building 

& Loan Ass’n v. Bowlin, 63 Ark. 573, 39 S.W. 1046 (1897); Berley v. Rampacher, 5 Duer 

183 (N.Y. 1856); Palmer v. Conly 4 Denio 374, 376 (N.Y. Sup. Ct. 1847); People v. 

Columbia Cnty. Sup’rs, 10 Wend. 363 (N.Y. Sup. Ct. 1833); Hackley v. Sprague 7 Wend. 

113, 114 (N.Y. Sup. Ct. 1833); Sayre v. Wisner, 8 Wend. 661 (N.Y. Sup. Ct. 1832); 

Jackson v. Van Zandt, 12 Johns. 169 (N.Y. Sup. Ct. 1815); Dash v. Van Kleeck, 7 Johns. 

477 (N.Y. Sup. Ct. 1811)).


affect contracts entered into prior to its passage, unless its 

language be so clear as to admit of no other construction.” 57 

After providing a detailed account of the caselaw (state and 

federal), the Arkansas Supreme Court held that it would not 

apply the act retroactively because the clear-and-certain test was 

not satisfied: “There is nothing in the language of the 

amendment of May 10, 1911, which makes it clear and certain 

that it refers to claims already barred by the statute of 

nonclaim.” 58 The statute’s application in Rhodes could have 

been denied solely because the legislature had disturbed a vested 

right by enacting the May 1911 amendment. Disturbing a 

vested right has historically been a reason to deny a retroactive 

application of legislation. 59 On this point, the Arkansas 

Supreme Court had some colorful words for the general 

assembly: 

The proposition that the Legislature has the power to take 

the property of one man and transfer it to another is at once 

monstrous and absurd. And what is the difference between 

th[at] proposition and the one that the Legislature has the 

power to deprive a man of legal defense against a demand 

set up against him? 60 

The memorable expression aside, Rhodes shows how strongly 

the Arkansas Supreme Court once believed in the presumption 

against retroactive legislation. 

In 1918, the Arkansas Supreme Court was again faced with 

a “curative act” case—this time the issue was whether the 

legislature could cure the invalid organization of road 

improvement district No. 7, which Act 338 of 1915 had 

57. Id. at 12-13, 164 S.W. at 753 (quoting City Ry. Co. v. Citizens’ St. R.R. Co., 166 

U.S. 557, 565 (1897)); see also Shreveport v. Cole, 129 U.S. 36, 43 (1889) (“Constitutions 

as well as statutes are construed to operate prospectively only, unless, on the face of the 

instrument or enactment, the contrary intention is manifest beyond reasonable question.”) 

(emphasis added). 

58. Rhodes, 112 Ark. at 13, 164 S.W. at 754 (emphasis added). 

59. See State ex rel. Moose v. Kansas City & Memphis Ry. & Bridge Co., 117 Ark. 

606, 612, 174 S.W. 248, 251 (1914). 

60. Rhodes, 112 Ark. at 14, 164 S.W. at 754 (quoting Couch v. McKee, 6 Ark. 484, 

495 (1846)). The Arkansas Supreme Court wrote in Couch: “The great injustice of 

retrospective legislation has been frequently exposed by courts of justice, and their 

disapprobation of such laws has been expressed in the strongest language.” Couch, 6 Ark. 

at 493.


previously created. 61 Faver v. Wayne showcases the Arkansas 

Supreme Court’s early fidelity to the principle that retroactive 

legislation was heavily disfavored. The court would remain 

faithful to that principle for decades. 

The curative legislation at issue in Faver was titled partly: 

“An act to cure all irregularities in the organization of road 

improvement district No. 7 . . . and to establish the same as a 

road improvement district under the terms of Act 338 of the 

session of 1915.” 62 More important than the title are section 1’s 

words, which expressly communicated the legislature’s intent to 

enact legislation that reached back in time to alter prior 

legislation the Arkansas Supreme Court had invalidated: 

All irregularities and errors in the organization of Road 

Improvement District No. 7 of Pulaski county are hereby 

cured, and said district is hereby established as a road 

improvement district under the terms of the Act of the 

General Assembly of the State of Arkansas of the year 

1915, entitled, “An Act providing for the creation and 

establishment of road improvement districts for the purpose 

of building, constructing and maintaining the highways of 

the State of Arkansas,” approved March 30, 1915, being 

Act No. 338 of the Session of that year, with all the powers 

granted and all the liabilities imposed by the terms of said 

act. 63 

In Faver, the Arkansas Supreme Court upheld the circuit 

court’s decision to apply the curative act by relying on Green v. 

Abraham. 64 As we have seen, in Green the supreme court relied 

on Justice Cooley’s constitutional-law treatise. 65 So important 

was Justice Cooley’s work to the Arkansas Supreme Court that 

it quoted the book again thirty years later in Faver. 66 The Faver 

court upheld the retroactive application of the legislation 

because the general assembly had provided an express directive 

61. Faver v. Wayne, 134 Ark. 30, 31, 203 S.W. 22, 22 (1918). 

62. Id. at 31-32, 203 S.W. at 22. 

63. Act 115, 1917 Ark. Acts 599. 

64. See Faver, 134 Ark. at 34-35, 203 S.W. at 23 (citing Green v. Abraham, 43 Ark. 

420 (1884)). 

65. See Green, 43 Ark. at 423 (citing THOMAS M. COOLEY, CONSTITUTIONAL 

LIMITATIONS 460-79 (4th ed. 1878)). 

66. 134 Ark. at 34-35, 203 S.W. at 23. The court then said that Justice Cooley’s rule 

“has been repeatedly followed since” the case Green v. Abraham. Id. The Arkansas 

Supreme Court also provided a string citation to its own precedent. See id.


to apply Act 115 of 1917. 67 Consequently, Faver presented a 

straightforward and uncontroversial case on the retroactivelegislation 

doctrine. The court could have cited State ex rel. 

Moose v. Kansas City & Memphis Railway & Bridge Co. but did 

not do so. 68 In any event, Faver (more or less) squares with 

State ex rel. Moose and other extant cases on topic when the 

Arkansas Supreme Court decided Faver. 

The year 1926 stands out not only because Jean Baptiste 

Perrin won the Nobel Prize in Physics for his work on the 

discontinuous structure of matter and his discovery of 

sedimentation equilibrium. 69 It was also the year the Arkansas 

Supreme Court decided Elrod v. Board of Improvement. 70 

There, the supreme court said plainly that it was “committed to 

the following rule: ‘No statute will be given retroactive effect if 

it is susceptible of any other construction.’” 71 Commitment has 

its limits, as we will see. Still, the Arkansas Supreme Court 

respected its doctrinal roots in large measure for another thirty 

years (save the inevitable exception). 

In Allen v. Harmony Grove Consolidated School District, 

the Arkansas Supreme Court held that irregularities in orders of 

a board of education that consolidated school districts were 

cured by subsequent legislation enacted by the Arkansas General 

Assembly: “This curative act was obviously passed for the 

purpose of curing any defective proceedings in the 

consolidation, etc., of school districts, such as are found to exist 

in the proceedings here under review.” 72 “Obviously” 

retroactive in its operation? That is a strong statement for an 

appellate court to make regarding the presence of legislative 

67. Faver, 134 Ark. at 33, 203 S.W. at 23; see also Act 115, 1917 Ark. Acts 599, 601 

(“[T]his Act shall take effect and be in force from and after its passage.”). One could fairly 

argue that Act 115’s curative effect, plenary though it was in substance, did not cover 

defects that predated the enactment of Act 115 of 1917. 

68. 117 Ark. 606, 174 S.W. 248 (1914); see also Special Sch. Dist. of Texarkana v. 

Bd. of Improvement, 127 Ark. 341, 343, 191 S.W. 918, 918-19 (1917) (citing to Moose for 

the proposition that there is a “presumption that all legislation is intended to act only 

prospectively”). 

69. The Nobel Prize in Physics 1926, 

http://www.nobelprize.org/nobel_prizes/physics/laureates/1926 (last visited Oct. 19, 2011). 

70. 171 Ark. 848, 286 S.W. 965 (1926). 

71. Id. at 851, 286 S.W. at 966 (quoting Rhodes v. Cannon, 112 Ark. 6, 11, 164 S.W. 

752, 753 (1914)). 

72. 175 Ark. 212, 215, 298 S.W. 997, 998 (1927).


intent. Yet, a review of the act’s language, some of which the 

supreme court did not quote in its opinion, justifies the tag. 

Section 2 of Act 156 clearly ratifies and validates all prior acts 

that boards of education had taken: “any and all acts and 

proceedings heretofore done and had by county boards of 

education are hereby ratified and declared valid.” 73 Given the 

Act’s words, the supreme court in Harmony Grove was wholly 

justified in applying Act 156 retroactively. 74 

Notably, section 3 of the act at issue in Harmony Grove 

expressly repealed “[a]ll laws and parts of laws in conflict 

herewith . . . .” 75 Harmony Grove is a valuable case because it 

serves as a point of comparison between cases where the 

Arkansas General Assembly has made its intent regarding the 

temporal reach of legislation clear, and when it has not. The 

case also exemplifies Sir Edward Coke’s belief that a legislature 

“can, in short, do every thing that is not naturally impossible.” 76 

In 1933, the Arkansas Supreme Court addressed another 

curative-legislation issue. In Howington v. Friend, the court 

decided whether the Arkansas General Assembly, by a 

subsequent act, could validate a prior liability contract that a 

levee district had made with a landowner. 77 Below is the gist of 

what the supreme court had to say on the matter; let us 

appreciate most how the legislature communicated its desire—in 

section 1 of Act 14, also included below—that the legislation be 

applied backward in time: 

Notwithstanding, the board of directors of St. Francis 

Levee District had no authority under the law to make a 

contract with [C.W. Friend] at the time this one was made, 

we are of the opinion that this contract has been validated 

by Act No. 14 of 1932 (Second Ex. Sess.) and is now a 

binding obligation of the district. Section 1 of Act No. 14 

p. 31 of the Second Extraordinary Session of the 

73. Act 156, 1927 Ark. Acts 549, 550. 

74. See 175 Ark. at 215, 298 S.W. at 998. 

75. Act 156, 1927 Ark. Acts 549, 551. In Harmony Grove, the Arkansas Supreme 

Court again cited Green v. Abraham, Cooley’s Constitutional Limitations, and the string 

citation the Supreme Court provided in Faver v. Wayne. See 175 Ark. at 215-16, 298 S.W. 

at 998 (citing Faver, 134 Ark. 30, 35, 203 S.W. 22, 23 (1918); Green, 43 Ark. 420 (1884); 

COOLEY, supra note 14, at § 483). 

76. LACROIX, supra note 5, at 15. 

77. 187 Ark. 411, 61 S.W.2d 62 (1933).


Legislature of 1932, in part, reads as follows: “Section 1. 

In all cases where the board of directors or commissioners 

of any levee district has, prior, or subsequent to the 

passage of this Act, agreed, contracted or promised, 

formally or informally, to pay any landowner or 

landowners for damages . . . shall be valid and enforceable 

between the parties.” 78 

That is a plain statement of retroactive intent. Though it 

did not need to dogpile, the supreme court also invoked Faver v. 

Wayne, 79 Allen v. Harmony Grove Consolidated School 

District, 80 and the 1884 case Green v. Abraham 81 to support its 

holding. 82 By 1933 the Arkansas Supreme Court had 

established a firm line of precedent to invoke when deciding 

retrospective-legislation cases. And in Howington the court 

rallied that support for its holding. 

Nothing noteworthy happened in the latter half of the 

1930s. In 1941, however, the Arkansas Supreme Court 

reaffirmed in strong terms its prior cases on the subject. The 

vehicle for reaffirmation was Hardin v. Ft. Smith Couch & 

Bedding Co., 83 and it deserves a brief mention. Hardin 

concerned a dispute between a couch-and-bedding company and 

the commissioner of revenues—the issue was whether the 

commissioner of revenues could collect money from the 

company for its 1940 income for income tax based upon the 

rates set by Act 129 of 1941. 84 The Arkansas Supreme Court 

held that the trial court had correctly enjoined the commissioner 

of revenues from collecting the new rates of tax on 1940 

income. 85 The supreme court ultimately denied the 

commissioner his money; the court did so largely because it 

declined to apply legislation retroactively. 86 

78. Id. at 413-14, 61 S.W.2d at 63 (emphasis added). May the legislature 

subsequently “validate” an unauthorized contract? The Arkansas Supreme Court did not 

address this question. 

79. 134 Ark. 30, 203 S.W. 22. 

80. 175 Ark. 212, 298 S.W. 997. 

81. 43 Ark. 420 (1884). 

82. Howington, 187 Ark. at 414-15, 61 S.W.2d at 63. 

83. 202 Ark. 814, 152 S.W.2d 1015 (1941). 

84. Id. at 816, 152 S.W.2d at 1016. 

85. Id. at 821, 152 S.W.2d at 1019. 

86. Id. at 820-21, 152 S.W.2d at 1018-19.


The supreme court was bound by its own precedent to not 

apply the tax legislation retroactively. 87 Below is an excerpt 

from Hardin that showcases the court’s application of the first 

principles that should animate and guide the retroactivity 

doctrine’s application today: 

There are two well settled rules for statutory 

construction in this State. One is that, “It is presumed that 

all legislation is intended to act only prospectively and all 

statutes are to be construed as having only a prospective 

operation unless the purpose and intention of the 

Legislature to give them a retroactive effect is expressly 

declared or necessarily implied from the language used . . . 

.” Now, to give this statute the construction contended for 

by appellant would be in the very teeth of this rule. There 

are no express words giving it a retroactive effect and we 

find no language in the emergency clause . . . that 

necessarily so implies. At least we cannot say that the 

statute is not susceptible of any other construction. If the 

legislature intended to make the Act retroactive . . . it 

certainly did not choose definite language to express such 

intention. 88 

And so it went for approximately twenty additional years. 

Then, a shift in doctrine occurred, which affects actual and 

would-be litigants today. 

The lightning bolt that energized the move in Arkansas’s 

retroactive-legislation doctrine was Harrison v. Matthews, an 

appeal the Arkansas Supreme Court decided in 1962. 89 Writing 

for the supreme court, Justice George Rose Smith held that a 

statute authorizing Arkansas’s trial courts “to enter personal 

judgment against a nonresident defendant who was domiciled in 

this state either at the time the cause of action arose or at the 

time he was served with process” under Act 54 of 1961 should 

apply retroactively. 90 The precise issue was the effect of a trialcourt 

order that quashed service of process and dismissed the 

case against Matthews because Act 54 did not apply to a “case 

87. A more practical reason might have been that taxes, a divisive subject, was at 

issue. 

88. Hardin 202 Ark. at 820, 152 S.W.2d at 1018 (emphasis added) (citations 

omitted). 

89. 235 Ark. 915, 362 S.W.2d 704 (1962). 

90. Id. at 916-17, 362 S.W.2d at 704-05.


involving a cause of action that antedated the statute.” 91 After 

stating some facts and the issue, Justice Smith quoted State ex 

rel. Moose v. Kansas City & Memphis Railway & Bridge Co., 92 

drawing from that 1914 case the proposition that statutes which 

“do not disturb vested rights” should get “a more liberal 

construction, and should be given a retrospective effect 

whenever such seems to have been the intention of the 

Legislature.” 93 The meaningful point here is that, about the time 

Harrison was decided, the qualifying phrase “whenever such 

seems to have been the intention of the legislature” drops 

precipitously in its power to keep Arkansas’s appellate courts 

from applying legislation retroactively. 

In Harrison, the supreme court decided that Act 54 did not 

create any new substantive rights because it “merely provid[ed] 

in this instance a new forum for the enforcement of existing 

rights.” 94 The court held essentially that the act authorized trial 

courts “to enter personal judgment against a nonresident 

defendant who was domiciled in [Arkansas] either at the time 

the cause of action arose or at the time he was served with 

process under the act.” 95 Although the supreme court in 

Harrison found Act 54 to be procedural in nature, it also stated 

that “the act applies to all cases filed after it became effective.” 96 

We do not mean to quibble, but it appears that the court 

misstated its position because it actually applied the legislation 

retroactively—not prospectively as its statement seems to 

indicate. Typos happen. The important point is the question you 

should have asked yourself: what indicia of legislative intent did 

the Arkansas Supreme Court reference in Harrison to justify the 

retroactive application of Act 54? The answer is none. The 

act’s “effective date” was June 7, 1961, a date which was after 

the accident that started the case and the same day that the suit 

91. Id. at 916, 362 S.W.2d at 705. 

92. 117 Ark. 606, 174 S.W. 248 (1914). 

93. Harrison, 235 Ark. at 917, 362 S.W.2d at 705 (quoting State ex rel. Moose, 117 

Ark. at 612, 174 S.W. at 251). Harrison was not the first time the Arkansas Supreme 

Court relaxed the rule that, absent an expressed legislative intent to the contrary, the 

general assembly enacts laws prospectively only. That case did, however, mark a 

consistent doctrinal shift that endures. 

94. Harrison, 235 Ark. at 917, 362 S.W.2d at 705. 

95. Id. at 916, 362 S.W.2d at 704. 

96. Id. at 917, 362 S.W.2d at 705.


was filed in the trial court. 97 Defendant Matthews “was 

domiciled in Arkansas when the accident happened, but he left 

the state before this suit was filed . . . .” 98 Recall that the main 

issue in Harrison was whether Act 54 applied “to a case 

involving a cause of action that antedated the statute.” 99 On the 

retroactive-intent question, however, there is no express 

statement, not even a hint, that the Arkansas General Assembly 

intended Act 54 to reach back and clutch a claim that accrued 

before it was enacted. 100 

97. See id. at 916, 362 S.W.2d at 704. 

98. Id. 

99. Harrison, 235 Ark. at 916, 362 S.W.2d at 705. 

100. Judge the justices for yourself. Does Act 54 of 1961 tell you that it should be 

applied retroactively? Act 54 reads as follows: 

When a defendant is out of this State, the plaintiff or his attorney may 

take a copy of the complaint, certified by the clerk, with a summons annexed 

thereto, warning such defendant to appear and answer the complaint within 

thirty (30) days after the same shall have been served upon him as provided 

herein, and cause a copy thereof to be sent by registered or certified mail, or 

cause a copy thereof to be delivered to such defendant anywhere by some 

person to whom he is personally known. Proof of service shall be made by 

entering the defendant’s written return receipt in the office of the clerk of the 

court wherein the action is brought, if by registered or certified mail; and 

proof of service if by delivery shall be made by the affidavit of the person 

making it, endorsed on or annexed to the certified copy and summons, in 

which the tie and place of the delivery, and the fact that the defendant was 

personally known to the affiant, shall be stated. The officer before whom the 

affidavit is made shall certify that the affiant is personally known to him to 

be worthy of credit. 

The defendant’s written return receipt, or the certified copy of the 

complaint and summons with the affidavit and certificate, as provided in this 

section, being returned and filed in the action, shall be deemed an actual 

service of the summons in due time for trial on the first day the court meets 

in regular or adjourned session not less than thirty (30) days after such 

service. 

No personal judgment shall be rendered against a defendant 

constructively summoned under this Section, who has not appeared in this 

action, except that a personal judgment may be rendered against a defendant 

summoned out of this State, as provided herein if such defendant was, at the 

time he was served or at the time the cause of action arose, a domiciliary of 

this State. 

. . .That Section 445 of the Code of Practices in Civil Cases in this 

State, (Section 29-409, Ark. Stats., (1947)) is hereby repealed. 

. . .All laws and parts of laws in conflict herewith are hereby repealed. 

. . . If any provision of this Act or the application thereof to any 

person or circumstance is held invalid, such invalidity shall not affect other 

provisions or applications of the Act which can be given effect without the


It is true that the Harrison court presented some analysis on 

why it thought Act 54 should be applied in a retrospective 

manner, but there is no adherence to the court’s then-existing, 

settled precedents that “[a] law is never to have retroactive 

effect, unless its express letter or clearly manifested intention 

requires that it should have such effect. If all its language can be 

satisfied by giving it prospective operation, it should have such 

operation only.” 101 It is fair to surmise—given the numerous 

precedents existing on the subject when Justice Smith wrote for 

the supreme court in Harrison—that the court decided to ignore 

contrary precedents and thereby expand the judiciary’s power 

over the application of legislation to cases before it. Why it 

chose to reach escape speed and free itself from the pull of stare 

decisis is a question we will not try to answer here. The wise 

remark that “[o]nly a judge can get into the mind of a judge” 102 

counsels silence. We will say that the law in this area was 

moved in the direction of applying legislation retroactively 

much more often and with, in many cases, less analytical rigor 

than before Harrison. 

Shortly after Harrison, the Arkansas Supreme Court issued 

an opinion in Safeway Stores, Inc. v. Shwayder Bros., Inc. 103 

Safeway Stores shows the practical importance of Justice George 

Rose Smith’s opinion in Harrison. Safeway Stores addressed, 

among other things, whether process served on Shwayder 

Brothers—the company that manufactured the chair that 

collapsed and injured a party—was proper under Arkansas 

law. 104 The relevant issue for us is whether “[t]he trial court 

erred in granting [Shwayder Brothers’s] motion to quash on the 

invalid provision or application, and to this end the provisions of this Act are 

declared to be severable. 

APPROVED: February 7, 1961. 

Act 54, 1961 Ark. Acts 110, 111-12 (internal quotation marks omitted). 

101. Rhodes v. Cannon, 112 Ark. 6, 12, 164 S.W. 752, 753 (1914) (quoting N.Y & 

Oswego Midland R.R. Co. v. Van Horn, 57 N.Y. 473 (1874)). 

102. Douglas O. Linder, How Judges Judge: A Study of Disagreement in the United 

States Court of Appeals for the Eighth Circuit, 38 ARK. L. REV. 479, 483 (1985). Mr. 

Linder’s article is excellent. Much of the article’s content is based on interviews he 

conducted with judges on the United States Court of Appeals for the Eighth Circuit. See 

id. 

103. 238 Ark. 768, 384 S.W.2d 473 (1964). 

104. See id.


ground that Act 101 of 1963 cannot apply retroactively.” 105 The 

supreme court mentioned that “the decisive issue . . . is whether 

said Act 101 deals with procedure or with the substantive rights” 

of Shwayder Brothers. 106 It reasoned, “In our opinion the Act 

deals only with procedure (in this case), as contended by 

appellant, and is therefore governed by our decision in the case 

of Harrison v. Matthews . . . .” 107 The Arkansas Supreme Court 

in Safeway Stores quoted Harrison and Moose and ultimately 

concluded that Act 101 was “remedial only and therefore must 

be construed retrospectively in this case.” 108 Query: what rule 

of law or fundamental notion of fairness supported the supreme 

court’s statement in Safeway Stores that a remedy-focused 

statute “must be construed retrospectively?” 

The break with the then-established caselaw is apparent. In 

Safeway Stores, the supreme court applied a per se rule favoring 

retroactive application of an act—despite the established 

precedent to the contrary. And it did so with what is essentially 

an absolute if-then proposition. The proposition operates as a 

per se rule that did not exist, in print at least, before the 

Arkansas Supreme Court’s opinions in Harrison and Safeway 

Stores. 

The supreme court in Safeway Stores did not cite cases like 

Rhodes v. Cannon, Harding v. Ft. Smith Couch & Bedding Co., 

or the many cases the supreme court cited in Rhodes that 

involved the retroactive-legislation doctrine. 109 Instead, the 

court in Safeway Stores turned from precedent and entrenched 

more deeply a per se rule—one that has in deed, if not in word, 

105. Id. at 771, 384 S.W.2d at 475. 

106. Id. 

107. Id. 

108. Safeway Stores, Inc., 238 Ark. at 772, 384 S.W.2d at 476 (emphasis added). 

109. Seventh Circuit Court of Appeals Judge Richard Posner has written: 

Often “following” precedent really means making a policy-based 

choice among competing precedents or a policy-influenced interpretation of a 

precedent’s scope. Because judges are reluctant to overrule decisions—their 

preference is for “distinguishing” them to death rather than explicitly 

overruling them, in order to preserve the appearance of the law’s continuity 

and stability—the landscape of case law is littered with inconsistent 

precedents among which current judges can pick and choose, resurrecting if 

need be a precedent that had died but had not been given a decent burial. 

RICHARD A. POSNER, HOW JUDGES THINK 45 (First Harvard University Press Paperback 

ed. 2010).


been applied more frequently ever since. Our reading of the 

cases convinces us that the Arkansas Supreme Court has 

virtually stopped identifying the indicia of legislative intent for 

retroactive effect in the cases it has decided since Harrison and 

Safeway Stores. 

Time for a brief digression, as we turn to a pre-Harrison- 

Safeway Stores opinion to gain a bit more historical context. 

Justice Mehaffy, in a dissenting opinion in Fort Smith Gas Co. 

v. Kincannon, tried to right the ship more than two decades 

before the Harrison-Safeway Stores-inspired rule solidified. 110 

Specifically, in 1941, he wrote, in a case involving venue 

legislation (Act 314 of 1939), “It seems clear to me that if the 

Legislature had intended that the act apply to pending actions, or 

actions that had already been brought, it would have said so.” 111 

Justice Mehaffy so concluded after observing the following 

about the phrase “shall be brought,” an observation worth 

quoting: 

I do not agree that the phrase “shall be brought” has any 

reference to past actions, but refers wholly to actions 

brought thereafter. 

I think the Legislature and the people, when this act 

was adopted, intended just what they said; that is, they 

intended that no action should thereafter be brought except 

in the manner provided by the act. 

It is said in the majority opinion that Act 314 is a 

venue act . . . . It would have been an easy matter, if the 

Legislature had intended that it apply to pending litigation, 

to have said so; and it is a general rule that all statutes must 

be construed to be prospective only in operation, unless 

otherwise expressly declared or a clear intent otherwise is 

shown. 112 

We are much of Justice Mehaffy’s mind. 

110. 202 Ark. 216, 224-25, 150 S.W.2d 968, 971-72 (1941) (Mehaffy, J., dissenting). 

111. Id. at 224, 150 S.W.2d at 971. 

112. Id. The Fort Smith Gas Co. majority opinion is also mentioned in Justice 

Mehaffy’s dissent for its treatment of the word “shall” and whether it should be used in the 

past or future tense. See id. Some word experts have agreed that, when used in a temporal 

sense, the word “shall” communicates the idea of futurity. See H.W. FOWLER, A 

DICTIONARY OF MODERN ENGLISH USAGE 548-50 (2d ed. 1965); cf. BRYAN A. GARNER, 

GARNER’S MODERN AMERICAN USAGE 720-21 (2003).


We move forward now to 1979, about fifteen years after 

Harrison and Safeway Stores were decided. In that year, the 

Arkansas Supreme Court seemed to back away from Harrison’s 

abrupt break with precedent concerning the retroactive 

application of statutes, meaning the court once again began to 

respect more fully the legislature’s prerogative to choose for 

itself when an act will operate retrospectively. For example, in 

Lucas v. Handcock the court considered Act 1015 of 1979, 

which concerned an out-of-wedlock child’s right to inherit 

property from natural parents. 113 Regarding the retroactiveapplication 

question that Handcock presented, the supreme court 

ruled that Act 1015 was “a matter of substantive, rather than 

procedural, law, so it ha[d] no application to pending cases, at 

least when there is no express declaration, or necessary 

implication from the language used, of legislative intent that it 

shall so apply.” 114 The court also stated, “There is, of course, a 

presumption against the retroactive application of a legislative 

act. Legislation will not be construed as retroactive when it may 

reasonably be construed otherwise.” 115 After discussing a 

treatise on statutory construction and prior cases, the supreme 

court practically strengthened, if only for a brief time, the rule 

that retroactive legislation is heavily disfavored: “[t]here is no 

language from which a legislative intention that Act 1015 should 

have retroactive effect can be implied.” 116 

In Handcock, the contested issue was straightforward, for 

the Arkansas General Assembly had included an “express 

declaration” in Act 1015 that the Act was effective “from and 

after its passage and approval.” 117 The general assembly’s 

forward-looking declaration rendered unnecessary any long 

treatment of the retroactivity question—even setting aside that 

substantive property rights were raised in Handcock. Though 

the per se rule favoring retroactive application of laws has 

emerged most obviously in the class of cases where the law at 

issue was characterized as being procedural or remedial, the 

Handcock case shows that the Arkansas General Assembly 

113. 266 Ark. 142, 583 S.W.2d 491 (1979). 

114. Id. at 152, 583 S.W.2d at 496. 

115. Id. (citations omitted). 

116. Id. at 153, 583 S.W.2d at 496. 

117. Id.


knows how to tell the bench and bar when it wants legislation to 

be applied retroactively. Knowing this, our appellate courts 

should be more circumspect when faced with the choice of 

applying legislation backwards in time or not. In 2000, the 

Arkansas Supreme Court believed the same words evinced a 

legislative intent to apply an act prospectively rather than 

retroactively. 118 

“We find no constitutional or statutory prohibition to 

prevent the application of this statute in this case,” wrote the 

supreme court in Forrest City Machine Works, Inc. v. Aderhold, 

a case that challenged the circuit court’s application of a 1973 

statute adopting strict liability in tort. 119 The Supreme Court 

applied the statute against Forrest City Machine Works because 

a type of cart it had manufactured in 1956 caused an injury in 

1977. 120 Forrest City Machine Works argued that it should not 

be held strictly liable based on a statute that was enacted long 

after it had designed or built the grain cart. 121 

In Forrest City Machine Works, the supreme court 

mentioned specific constitutional-law provisions in the 

retroactivity context. Specifically, it referenced the Arkansas 

Constitution’s prohibition of bills of attainder and ex post facto 

laws. 122 The court observed, “[m]any types of retroactive laws 

are not covered by these express prohibitions.” 123 More to our 

point, the supreme court called the act procedural rather than 

substantive, because the essential issue, as the court saw it, was 

one of the burden of proof. 124 And “[a]s to appellee, this is a 

118. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 298, 9 S.W.3d 520, 

527 (2000) (Smith, J.) (“This is not a definite statement that the Act will apply 

retroactively.”); see also Ark. Rural Med. Practice Student Loan & Scholarship Bd. v. 

Luter, 292 Ark. 259, 263, 729 S.W.2d 402, 403 (1987). The Luter court stated: 

Turning to Act 797, we find no express language that the act is intended to 

operate retroactively. In fact the only express language is to the contrary— 

that the act will take effect on passage and approval (April 3, 1985). In 

other cases we have considered such contradictions to weight against 

retroactivity. 

Luter, 292 Ark. at 263, 729 S.W.2d at 403 (footnote omitted). 

119. 273 Ark. 33, 40, 616 S.W.2d 720, 724 (1981). 

120. Id. at 36, 616 S.W.2d at 722. 

121. Id. 

122. Id. at 40, 616 S.W.2d at 724. 

123. Forrest City Mach. Works, 273 Ark. at 40, 616 S.W.2d at 724. 

124. Id. at 40-41, 616 S.W.2d at 724-25.


procedural matter . . . .” 125 The supreme court also noted “that 

the legislation is remedial is also significant.” 126 What is 

missing from the opinion, however, are words telling us why the 

supreme court believed that the Arkansas General Assembly had 

intended that the strict-liability law be applied retroactively. 

Consequently, the long-established and required query of 

whether the general assembly had intended the act to be 

retroactive was not undertaken. This lapse occurred despite the 

supreme court’s decision to quote Moose, a case that plainly 

restricts retroactive application of a statute to instances 

“whenever such seems to have been the intention of the 

Legislature.” 127 

We move now from the Arkansas Supreme Court to the 

Arkansas Court of Appeals. Four noteworthy cases decided by 

the court of appeals are discussed in this article. The Arkansas 

Court of Appeals did not play a historically prominent role in 

the retroactive-legislation doctrine sooner because it was not 

established by the general assembly until 1979. 

The lead-off case is a bit confusing. In 1983, the court of 

appeals addressed whether an amendment to Act 290 of 1981 

applied to the worker’s compensation case before it. 128 Here is 

how the court framed the issue on appeal in Popeye’s Famous 

Fried Chicken v. Willis: “This is an employer’s appeal from the 

Workers’ Compensation Commission and the question presented 

is whether the commission erred in authorizing a claimant to see 

another doctor at the employer’s expense.” 129 The court of 

appeals held that the statute applied as amended, meaning the 

court could affirm the administrative law judge’s decision that 

“the claimant had shown circumstances justifying a change of 

physician as provided by Ark.Stat.Ann. § 81-1311, as amended 

by Section 3 of Act 290 of 1981 . . . .” 130 Popeye’s Famous 

Fried Chicken is interesting because of the following statement 

by the court of appeals: “If there is a question of whether the 

125. Id. at 41, 616 S.W.2d at 725. 

126. Id. at 42, 616 S.W.2d at 725. 

127. Id. (quoting State ex rel. Moose v. Kansas City & Memphis Ry. & Bridge Co., 

117 Ark. 606, 612, 174 S.W. 248, 251 (1914)). 

128. Popeye’s Famous Fried Chicken v. Willis, 7 Ark. App. 167, 646 S.W.2d 17 

(1983). 

129. Id. at 168, 646 S.W.2d at 18. 

130. Id. at 170, 646 S.W.2d at 19.


1981 act applies retrospectively, the answer seems clear.” 131 

First, a legitimate question on retroactivity was raised—the 

court of appeals itself observed that the commission had split on 

the retroactive-application issue. 132 Second, it is unclear what 

the court of appeals meant by stating that the retroactive 

question “seems clear.” 133 In the end, the court of appeals did 

not retroactively apply the statute because “when the claimant 

requested the commission to authorize her to see another doctor, 

the provisions of section 81-1311 as amended by the 1981 act 

were in effect.” 134 

In the 1982 case of Aluminum Co. of America v. Neal, 135 

the Arkansas Court of Appeals joined the Arkansas Supreme 

Court in moving this state’s retroactive-legislation doctrine 

away from earlier precedents like Green and Rhodes. At issue 

in Neal was Act 215 of 1979, which became effective on March 

1, 1979. 136 The act “authorized lump sum attorney’s fees in 

Workers’ Compensation cases,” and it was a legislative response 

to prior Arkansas Supreme Court precedent that had invalidated 

lump-sum attorney’s-fees awards. 137 In Neal, the court of 

appeals addressed a workers’ compensation dispute in which the 

commission awarded a lump-sum attorney’s fee to the 

claimant’s attorney. 138 Then-judge Glaze, writing for the court 

of appeals, held that “the Commission was correct in its decision 

to award the lump sum attorney’s fee to claimants’ counsel.” 139 

The court of appeals presented the specific dispute in Neal 

like this: “Alcoa brings this appeal, raising the primary issue of 

whether Act 215 of 1979 applies to attorney’s fees earned and 

awarded prior to the 1979 Act and are still being paid at a 

weekly rate.” 140 Alcoa argued that Act 215 should apply only to 

attorney’s-fee awards made after March 1, 1979. 141 In addition, 

the company argued that “statutes are to be construed as having 

131. Id. at 171, 646 S.W.2d at 19. 

132. Id. at 170, 646 S.W.2d at 19. 

133. Popeye’s Famous Fried Chicken, 7 Ark. App. at 171, 646 S.W.2d at 19. 

134. Id. at 171, 646 S.W.2d at 19. 

135. 4 Ark. App. 11, 626 S.W.2d 620 (1982). 

136. Id. at 13, 626 S.W.2d at 620. 

137. Id. at 13, 626 S.W.2d at 620-21. 

138. Id. at 14, 626 S.W.2d at 621. 

139. Id. at 15-16, 626 S.W.2d at 622. 

140. Neal, 4 Ark. App. at 14, 626 S.W.2d at 621. 

141. Id. at 14-15, 626 S.W.2d at 621.


a prospective operation, unless the purpose and intent of the 

Legislature to give it retrospective effect is expressly declared or 

is necessarily implied from the language used.” 142 The court of 

appeals responded—this is an important point—that “this rule 

does not apply to remedial acts or statutes which do not disturb 

vested rights or create new obligations.” 143 Thus the court of 

appeals applied the Arkansas Supreme Court’s Harrison- 

Safeway Stores per se rule. 144 To be clear, after those cases our 

appellate courts began excepting out remedial and procedural 

statutes from the age-old prohibition against retroactive 

legislation, absent a clear legislative intent to the contrary. 145 

The court of appeals continued with an analysis that exists 

today, one that arguably conflates separate concepts. In our 

opinion, the Arkansas Supreme Court has done the same thing. 

Legislation has, broadly speaking, a substantive scope and a 

temporal scope. Combining the concepts of how a statute’s 

substantive scope should be applied (liberal vs. strict) with the 

separate concept of when a statute should be applied in time 

(backward vs. forward) yields four potential scenarios in a case. 

See Figure 1. 

Figure 1 

Substantive Scope Temporal Application 

Broad Retroactively 

and Prospectively 

Broad Prospectively Only 

Narrow Retroactively 

and Prospectively 

Narrow Prospectively Only 

142. Id. at 15, 626 S.W.2d at 621-22. 

143. Id. at 15, 626 S.W.2d at 622. 

144. See id. 

145. Recall the machine-gun spray of catchwords at this article’s beginning that 

courts have used to express the strength of that prohibition. See supra Part II.A.


Put into words, Figure 1 can be explained this way: a 

statute’s substantive scope may be broad, and its temporal scope 

may be retroactive and prospective; a statute’s substantive scope 

may be broad, and its temporal scope may be prospective only; a 

statute may be narrowly construed and intended to operate 

retroactively and prospectively; and, finally, a statute’s 

substantive reach may be narrow, and be intended to operate 

prospectively only. 

The animating concept behind Figure 1 is that substantivescope 

notions like “narrow or broad construction” and “remedial 

statutes” are not coterminous with temporal notions like 

“prospective” and “retrospective.” But it appears that at times 

the Arkansas Supreme Court and Court of Appeals have treated 

them as such. For example, though the Arkansas Court of 

Appeals in Neal invoked Moose as establishing essentially the 

proposition that “remedial legislation” is coterminous with 

“retrospective intent,” 146 doing so misapplies the Arkansas 

Supreme Court’s opinion in Moose and other cases. 

This fact has a consequence. The effect of conflating 

different concepts is that an appellate court allows itself more 

power to apply legislation retroactively when it deems such to 

be “remedial” in nature. This is what the Arkansas Court of 

Appeals and Arkansas Supreme Court have been doing for 

decades. A review of the principal cases reveals that, in a large 

percentage of cases where a retrospective-prospective question 

arose, when an act was deemed remedial, our appellate courts 

have applied it retroactively. 147 In doing so, they often neglect 

to identify any express declaration by the Arkansas General 

Assembly that its legislation was meant to act retroactively 

rather than prospectively only. Or they do not explain why 

retroactive application is necessarily implied, not even when a 

party expressly raises the point. 148 

146. See Neal, 4 Ark. App. at 15, 626 S.W.2d at 622. 

147. Again, “principal cases” are marked with an asterisk in the Appendix to this 

article. We have called a case a principal one primarily based on how many times 

Arkansas’s appellate courts have cited it and on a case’s perceived influence on the 

doctrine’s development. Our characterization is, therefore, a subjective one. 

148. Compare Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007), with St. 

Bernards Medical Center, Kristi Statler, M.D. & Kim Davis, M.D. Supplemental Brief at 

Arg 9-10, Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007) (No. 06-1306), 2007 

WL 6080992.


Neal is a good example of the silent, per se rule that now 

arguably exists in Arkansas’s retroactive jurisprudence. Never 

did the Neal court state why it believed Act 215 was expressly 

destined to be applied retroactively. Nor did the court explain 

why retroactivity was necessarily implied. These omissions 

create uncertainty and confusion. It was equally plausible, for 

example, to hold that Act 215 changed the supreme court’s 

holding in U.S. Fidelity & Guaranty Co. v. Potter, 149 and thus 

was intended to affect lump-sum attorney’s-fees awards in 

future cases only. Recall that longstanding Arkansas Supreme 

Court precedent stating that: “A law is never to have retroactive 

effect, unless its express letter or clearly manifested intention 

requires that it should have such effect. If all its language can be 

satisfied by giving it prospective operation, it should have such 

operation only.” 150 But this high standard has been diluted since 

the early 1960s in particular. 

The court of appeals signaled its own break with the first 

principles more starkly in the 1987 case Fowler v. McHenry. 151 

There, the workers’ compensation arena was again the subject of 

the court of appeals’s application of the retrospective-legislation 

doctrine. 152 This time the subject was a statutory amendment 

requiring administrative law judges to “weigh the evidence 

impartially and without giving the benefit of the doubt to any 

party.” 153 The retroactive-application question arose because 

“Fowler’s injury occurred, and his claim was filed, prior to the 

effective date of the act. The decisions of both the 

[Administrative Law Judge] and the Commission, however, 

were rendered after the act went into effect.” 154 The court of 

appeals declared the legislative change to be procedural because 

“the burden of proof has always rested upon the claimant and 

this rule was not affected by the amendment.” 155 

149. 263 Ark. 689, 567 S.W.2d 104 (1978). 

150. Rhodes v. Cannon, 112 Ark. 6, 12, 164 S.W. 752, 753 (1914) (quoting N.Y. & 

Oswego Midland R. R. Co. v. Van Horn, 57 N.Y. 473 (1874)); see also COOLEY, supra 

note 14. 

151. 22 Ark. App. 196, 737 S.W.2d 663 (1987). 

152. See id. at 198-99, 737 S.W.2d at 664. 

153. Id. at 199, 737 S.W.2d at 664 (quoting Act 10, 1986 Ark. Acts 2907, 2919-20). 

154. Id. 

155. Id. at 200, 737 S.W.2d at 665. The Arkansas Supreme Court in Forrest City 

Machine Works, Inc. v. Alderhold, had previously deemed a burden-of-proof issue to be


The following statement by the court of appeals, however, 

may be more important: “The Arkansas Supreme Court has said 

that the rule by which statutes are construed to operate 

prospectively does not ordinarily apply to procedural or 

remedial legislation.” 156 What does the qualification, “does not 

ordinarily apply,” really mean? There are several options. The 

court of appeals cited two cases to support the “does not 

ordinarily apply rule”; neither case stands for the proposition 

that the prospective-application presumption does not apply to 

procedural or remedial legislation. 157 True, the Arkansas 

Supreme Court applied legislation retroactively in those cases, 

but it is too much of a stretch to state that Fowler’s embedded 

precedents preclude outright the prospective-only application of 

legislation when the legislation is deemed procedural or 

remedial rather than substantive. 158 If you believe, as we do, 

that our state appellate courts have been continually expanding 

their “power” to apply legislation retroactively—intentionally or 

unintentionally—then Fowler is an example of this expansion. 

Fowler breaks faith with prior precedent (excluding the 

outliers like Harrison and Safeway Stores) for other reasons. 

For example, the Arkansas Court of Appeals in Fowler quoted 

from a 1952 case decided by the United States Emergency Court 

of Appeals. 159 That curious citation to the all-but-unknown 

federal court was not innocuous. Observe how the Emergency 

Court of Appeals opinion, upon which the Arkansas Court of 

Appeals relied, runs directly contrary to multiple Arkansas 

Supreme Court precedents: 

We think that this conclusion is in accord with the 

settled rule that changes in procedural or remedial law are 

generally to be regarded as immediately applicable to 

existing causes of action and not merely to those which 

procedural in nature. 273 Ark. 33, 45, 616 S.W.2d 720, 727 (1981) (Hickman, J., 

concurring). 

156. Fowler, 22 Ark. App. at 200, 737 S.W.2d at 665 (citing Forrest City Machine 

Works, 273 Ark. 33, 616 S.W.2d 720; Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 

704 (1962)). 

157. See id. (citing Forrest City Machine Works, 273 Ark. 33, 616 S.W.2d 720; 

Harrison, 235 Ark. 915, 362 S.W.2d 704). 

158. See Forrest City Machine Works, 273 Ark. 33, 616 S.W.2d 720; Harrison, 235 

Ark. 915, 362 S.W.2d 704. 

159. Fowler, 22 Ark. App. at 200, 737 S.W.2d at 665 (quoting Dargel v. Henderson, 

200 F.2d 564 (Emer. Ct. App. 1952)).


may accrue in the future unless a contrary intent is 

expressed in the statute. 160 

In addition to relying on an unusual federal court, in 

Fowler the Arkansas Court of Appeals made a statement that 

reversed the established rule of construction and application: 

“Had the legislature intended that the new rule be applied only 

to claims filed after the effective date of the act it could have 

said so.” 161 This statement communicates a rule directly 

opposite the long-standing presumption that favors heavily a 

prospective application of legislation. And it is fair to argue that 

the Arkansas Court of Appeals pulled that notion directly from 

the Emergency Court of Appeals’s Dargel opinion. 

Not long after the Arkansas Court of Appeals decided 

Fowler, it issued an opinion in City of Fayetteville v. Bibb, 

which involved the retroactive application of a statute governing 

attorney fees in a contract case; the statute was the now familiar 

section 16-22-308 of the Arkansas Code. 162 Bibb is notable 

because the court of appeals entertained and rejected the 

following “best argument” against the retrospective application 

of section 16-22-308: 

The best argument to be made against the retrospective 

application of the attorney’s fee statute here is that the 

attorney’s fees statutes [sic] “deals not with the procedure 

for enforcing a remedy . . . but rather with the substance of 

the remedy itself,” i.e., it provides for the award of an 

attorney’s fee where none could be awarded before. We 

reject the argument. 163 

160. Dargel, 200 F.2d at 566 (collecting cases). The Emergency Court of Appeals in 

turn cited some cases, including one from the United States Court of Appeals for the 

Eighth Circuit. See id. at 566 n.5 (citing e.g., Benas v. Maher, 128 F.2d 247, 251 (8th Cir. 

1942)). The Arkansas Court of Appeals’s citation to the Emergency Court of Appeals is 

not limited to one case; the court relied upon Dargel again in City of Ozark v. Nichols, 56 

Ark. App. 85, 89, 937 S.W.2d 686, 688 (1987) (“We find that the amendment to Ark. Code 

Ann. § 18-15-605 was procedural in nature and was instantly applicable to existing causes 

of action.”). The Arkansas Court of Appeals’s statement regarding the instant applicability 

of the statute is questionable despite the citation to Dargel because the court did not state 

what indicia of legislative intent the Arkansas General Assembly provided to warrant 

retroactive application. 

161. Fowler, 22 Ark. App. at 202, 737 S.W.2d at 666. 

162. 30 Ark. App. 31, 36-37, 781 S.W.2d 493, 495 (1989). 

163. Id. at 38, 781 S.W.2d at 496 (citation omitted).


The court again looked to other jurisdictions (Oklahoma, 

Illinois, and Texas) to decide whether section 16-22-308 should 

be applied retroactively. 164 The court ultimately applied the 

attorney’s-fee statute retroactively because the “general rule that 

statutes will be given prospective operation only does not apply 

to statutes effecting procedure.” 165 

We return to the Arkansas Supreme Court to complete this 

review of Arkansas’s retroactive-legislation doctrine. Gannett 

River States Publishing Co. v. Arkansas Judicial Discipline & 

Disability Commission is relevant because, in that 1990 case, the 

supreme court addressed in some detail the retroactivity 

doctrine. 166 Incidentally, the year 1990 also basically marks the 

point after which the Arkansas Court of Appeals decided few 

“published” retroactivity issues. 167 

The supreme court, in Gannett River, reviewed a Freedom 

of Information Act (FOIA) action to decide whether to apply a 

new or old version of the Arkansas Supreme Court’s rule of 

confidentiality governing Arkansas Judicial Discipline and 

Disability Commission proceedings. 168 The old rule arguably 

provided more protection to judges concerning how much 

information could be obtained by a FOIA request. 169 Gannett 

River States Publishing Company “sought disclosure, in 

accordance with the new rules, of commission actions which 

occurred before the new rules came into effect and which would 

have been protected from disclosure under the old rules and 

statutes.” 170 The supreme court affirmed the circuit court and 

upheld the commission’s decision to decline to furnish the 

requested information. 171 Why the supreme court decided to 

restrict access to information under the new rule partly involves 

the retroactive-legislation doctrine. 

In stark contrast to the Arkansas Court of Appeals 1980s 

cases, the Arkansas Supreme Court relied heavily on “[t]he 

established rule . . . that all statues are to be construed as having 

164. See id. at 38-39, 781 S.W.2d at 496. 

165. Id. at 39, 781 S.W.2d at 496. 

166. 304 Ark. 244, 801 S.W.2d 292 (1990). 

167. See Appendix. 

168. Gannett River, 304 Ark. at 245, 801 S.W.2d at 293. 

169. See id. at 245-46, 801 S.W.2d at 293-94. 

170. Id. at 245, 801 S.W.2d at 293. 

171. Id.


only a prospective operation, unless the purpose and intention of 

the Legislature to give them a retrospective effect is expressly 

declared or is necessarily implied from the language used.” 172 

That was exactly the correct starting point for any analysis 

related to the doctrine. Quoting the United States Supreme 

Court, the Arkansas Supreme Court also wrote, the “rule of 

prospectivity applies unless the intent that the law be retroactive 

‘be the unequivocal and inflexible import of the terms and the 

manifest intention of the legislature.’” 173 The majority in 

Gannett River also discussed briefly the “effect on antecedent 

rights” of judges who “may have been investigated and cleared 

or reprimanded under the assumption that the nondisclosure rule 

applied.” 174 Translated: we believe that judges’ substantive, 

vested rights are at issue; therefore, we are more reticent about 

applying the disclosure-rule change retroactively. Whatever you 

think the court may have meant by “antecedent rights,” the 

Arkansas Supreme Court invoked retroactivity tenets that it had 

previously avoided in more than a few cases that preceded 

Gannett River. 

Justice Newbern, writing for the majority in Gannett River, 

provided interpretive definitions of the word “retroactive.” 175 

This fact also makes Gannett River noteworthy in a broad 

survey such as this one. It is unclear, however, to what extent 

the peculiarity governed the decision. Here are the two 

definitions Justice Newbern raised: (1) “The adjective 

‘retroactive’ has several definitions, one of which is simply that 

which acts upon a thing which is past”; 176 and (2) another 

definition of retroactive law “is one which has the effect of 

disturbing a vested right.” 177 Did the definitions have a 

significant effect on the doctrine? Practically speaking, the 

answer is no because neither the Arkansas Supreme Court nor 

the Arkansas Court of Appeals has concentrated on Justice 

172. Id. at 248, 801 S.W.2d at 295 (emphasis added) (quoting State ex rel. Moose v. 

Kansas City Ry. & Bridge Co., 117 Ark. 606, 611, 174 S.W. 248, 251 (1914)). 

173. Gannett River, 304 Ark. at 248, 801 S.W.2d at 295 (quoting United States v. 

Sec. Indus. Bank, 459 U.S. 70, 79 (1982)). 

174. Id. 

175. See id. 

176. Id. (citing BLACK’S LAW DICTIONARY 1184 (5th ed. 1979)). 

177. Id.


Newbern’s distinctions since Gannett River was decided more 

than twenty years ago. 

In another 1990 case, Goldsmith v. Arkansas Department of 

Human Services, Chief Justice Holt wrote for the Arkansas 

Supreme Court and rejected the appellant’s request to apply 

retroactively the repeal of a statute concerning the termination of 

parental rights. 178 The Goldsmiths appealed (in pre-Amendment 

80 terms) a chancery court’s order finding them unfit parents 

and terminating their parental rights. 179 On appeal, the 

Goldsmiths argued that the “order terminating [their] parental 

rights was entered on May 18, 1989, and specifically 

incorporated the authority of Ark. Code Ann. § 9-9-303 (1987) 

as a basis for the order.” 180 Section 9-9-303 was repealed by the 

Arkansas General Assembly’s Act 273 of 1989, which took 

effect on August 1, 1989. 181 The Goldsmiths argued that, based 

on Green v. Abraham, 182 the chancery court’s order should be 

reversed. 183 Their argument was one for the retrospective 

application of Act 273 of 1989 because the chancery court’s 

final order was entered on May 18, 1989, two months before the 

repeal of the detrimental statutory sections. 184 

The Supreme Court in Goldsmith did not find its prior 

Green opinion controlling because “Green dealt with the 

retrospective application of a curative law concerning the 

quieting of title to real property.” 185 It is true that the subject in 

Green differed, but that is usually the case in retroactivedoctrine 

cases. The Goldsmith court concluded by stating: “In 

contrast, Act 273 is not retrospective and only became effective 

after the final order of the probate judge. As a result, the 

178. 302 Ark. 98, 99, 787 S.W.2d 675, 675-76 (1990). 

179. Id. 

180. Id. at 101, 787 S.W.2d at 676-77. 

181. Act 273, 1989 Ark. Acts 486, 555. 

182. 43 Ark. 420 (1884). 

183. Goldsmith, 302 Ark. at 101, 787 S.W.2d at 677. 

184. See Act 273, 1989 Ark. Acts 486, 555. Section 47 of the act expressly repealed, 

among other sections, 9-9-303(a)-(e). Section 48 expressly repealed all laws and parts of 

laws in conflict with Act 273. Section 49 states that “[t]his act shall become effective 

August 1, 1989.” Whether section 48 includes a repeal of the associated common law is 

another matter. See Jasper Bogus McCloud & Pepe Le Peu, Legislative and Judicial 

Dynamism in Arkansas: Poisson v. d’Avril, 22 ARK. L. REV. 724, 741-44 (1969) 

(parodying task of construing a fictitious general-repealer clause in an imaginary case). 

185. Goldsmith, 302 Ark. at 101, 787 S.W.2d at 677.


subsequent repeal of section 9-9-303 does not affect the validity 

of the probate judge’s final order entered before the effective 

date of Act 273.” 186 

In Goldsmith, the supreme court did not cite its prior cases 

when it held that Act 273 was prospective only. 187 Instead, it 

appears to have simply read the act, found no express legislative 

intent for a retroactive effect, and then determined that a 

prospective application was the way to go. The supreme court’s 

approach in Goldsmith provides a clear example of how a 

reviewing court can simply and straightforwardly address a case 

that concerns the retroactivity doctrine. 

A bit more on Goldsmith before we move on. Regarding 

Act 273’s words, section 2 states that the “act shall be liberally 

construed to the end that its purposes may be carried out . . . .” 188 

Nonetheless, the supreme court did not make an overt 

procedural-remedial or vested-rights analysis. 189 Again, given 

the express statement in section 49 of Act 274 that the “act shall 

become effective August 1, 1989,” 190 the supreme court in 

Goldsmith was justified in avoiding a more technical analysis. 

Moreover, because Act 274 is a comprehensive treatment of 

delicate and highly important issues relating to juveniles, it is 

easier to understand why the court did not long dwell on the 

subject of retroactive application. 

Barnett v. Arkansas Transport Co., again addressed the 

retroactive effect of section 16-22-308 of the Arkansas Code— 

the now familiar attorney’s-fee statute that was revised to 

include the term “breach of contract.” 191 The retroactivity 

question was raised because appellants Barnett and others 

argued that the circuit court erred when it awarded attorney’s 

fees to Arkansas Transport Co. 192 Here is how the supreme 

court set up the retroactive-application issue: 

In this case, the jury returned a verdict in favor of 

Transport on June 1, 1989. Section 16-22-308 was revised 

to include the term “breach of contract” and was made 

186. Id. at 101, 787 S.W.2d at 677. 

187. See id. 

188. Act 273, 1989 Ark. Acts 486, 486. 

189. See generally Goldsmith, 302 Ark. 98, 787 S.W.2d 675. 

190. Act 273, 1989 Ark. Acts 486, 555. 

191. 303 Ark. 491, 497, 798 S.W.2d 79, 83 (1990). 

192. Id. at 496-97, 798 S.W.2d at 83.


effective by Act 800 of 1989 on July 3, 1989. The trial 

court subsequently entered its judgment on October 24, 

1989. The appellants[’] claim, while recognizing the court 

of appeals’ decision in City of Fayetteville v. Bibb, 30 

Ark.App. 31, 781 S.W.2d 493 (1989), that it is improper to 

retroactively apply a statute that has the effect of declaring 

fees to be an element of consequential damages. 193 

Without providing any historical or legal analysis of its 

own caselaw, the supreme court “adopt[ed] the court of appeals’ 

rationale in holding that a statute providing for attorney’s fees to 

be taxed as costs is to be given retrospective application.” 194 

Consequently, the supreme court affirmed the circuit court’s 

attorney’s-fee award “[s]ince . . . judgment was not entered until 

after the statute went into effect . . . .” 195 Why was retroactivity 

an issue if the judgment was not entered until after this statute 

became effective? A dispute over retroactivity is manifestly 

about a statute’s temporal application, be it forward or backward 

in time. 

We should consider Barnett with care for several reasons. 

First, Barnett’s procedural posture shows that the supreme court 

based its retroactive-application decision on the presumption 

that Act 800 reached back to when the breach-of-contract claim 

accrued (not when the claim was filed). This has to be the case, 

because the circuit court had not entered judgment on the jury 

verdict before Act 800 became effective. 196 Thus, an argument 

that Act 800 altered the effect of a final judgment, for example, 

was not viable. Rather than conclude that the act had not 

disturbed a final judgment, however, the court in Barnett held 

essentially that the right to attorney’s fees under section 16-22- 

308 turned on the point in time at which the contract claim had 

accrued; if claim accrual was not the pivotal date, then there was 

no need to even address the retroactive-application question. 197 

Second, Act 800 does not expressly declare that it must be 

retroactively applied. 198 Nor do we see any express statement 

193. Id. at 497, 798 S.W.2d at 83. 

194. Id. at 498, 798 S.W.2d at 84. 

195. Id. 

196. See Barnett, 303 Ark. at 497, 798 S.W.2d at 83. 

197. Id. at 495-96, 798 S.W.2d at 82 (“In this case, the main issue before the trial 

court was whether the appellants had breached an insurance contract with Transport.”). 

198. See Act 800, 1989 Ark. Acts 1895.


that Act 800 is “remedial” in nature. 199 Because there is 

arguably no express support in Act 800’s words for a retroactive 

application, the court had to wholly rely on the Arkansas Court 

of Appeals’s opinion in Bibb. 200 Though persuasive, court of 

appeals’s opinions do not bind the supreme court. Further, Bibb 

is a weak precedent regarding the retroactive-legislation doctrine 

for reasons discussed earlier. Another point is that the supreme 

court held in Barnett that section 16-22-308 was to be applied 

retroactively even though it made no serious mention about the 

indicia of retroactive intent that the general assembly 

provided. 201 

Arkansas Department of Human Services v. Walters, 

decided in 1993, is one of the most comprehensive opinions in 

this state’s jurisprudence regarding the retroactive application of 

legislation, if measured in terms of the number of words the 

Arkansas Supreme Court used to address the issue. 202 Simply 

summarized, Walters concerned the application of a statute 

enacted after the circuit court had entered an order declaring 

invalid trust provisions that suspended payment upon the trustsettlor’s 

entrance into a nursing home. 203 The specific issue was 

appellee Lillian Walters’s right to Medicaid—she had a “trust 

for her ‘education, support, and general welfare’ while living a 

normal life, but, in order to become artificially impoverished 

and therefore eligible for Medicaid, she suspended the trustee’s 

power to pay her maintenance if she were placed in a nursing 

home.” 204 More detail is unimportant to the question of whether 

a February 5, 1993 circuit court order requiring the state to 

reimburse the trust for more than the $14,000 it had paid to the 

nursing home was correct, “even though the trust was not a party 

to the appeal . . . .” 205 

Justice Dudley wrote for the majority, declaring “[t]he first 

question is whether this court can apply [section 28-69-102 of 

the Arkansas Code] since it was enacted after the lower court 

199. See Act 800, 1989 Ark. Acts 1895. 

200. See Barnett, 303 Ark. at 497-98, 798 S.W.2d at 83-84 (citing City of 

Fayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 493 (1889)). 

201. See id. 

202. 315 Ark. 204, 866 S.W.2d 823 (1993). 

203. Id. at 206-08, 866 S.W.2d at 823-24. 

204. Id. at 206, 866 S.W.2d at 823. 

205. Id. at 206-07, 866 S.W.2d at 824.


entered its order.” 206 The circuit court entered its reimbursement 

order on February 5, 1993; more than two months later section 

28-69-102 became law. 207 Invoking United States Supreme 

Court precedent, the majority in Walters held that the State of 

Arkansas could “retroactively impose taxes” without violating 

any constitutional provisions. 208 The Arkansas Supreme Court 

cited Ziffrin, Inc. v. United States, 209 where the United States 

Supreme Court wrote: “A change in the law between a nisi prius 

and an appellate decision requires the appellate court to apply 

the changed law.” 210 

After deciding that the retroactive application of section 28- 

69-102 was constitutionally permissible, the Arkansas Supreme 

Court stated, “The second issue is whether this remedial act 

should be applied.” 211 To answer the second question, the 

Walters court reasoned, “The General Assembly, without 

question, intended to put an end to such contrivances” as 

allowing a Medicaid applicant to “artificially impoverish[] 

himself or herself in order to become eligible for Medicaid.” 212 

That legislative goal is almost certainly correct; of course, that 

does not necessarily answer the question why the act should 

overcome the heavy presumption favoring prospective 

legislation and thus be applied retroactively. Moreover, note 

that the court—contrary to the Harrison-Safeway Stores line of 

cases—did not necessarily assume that the remedial statute was 

exempted from the rule favoring prospective-only application. 

So how well did the court follow through? It returned to 

the general rule that “statutes are to be given only prospective 

application,” that “statutes can be construed to operate 

retroactively so long as they do not disturb contractual or vested 

rights, or create new obligations,” and that “remedial legislation 

is more often given retroactive application.” 213 The Arkansas 

206. Id. at 207, 866 S.W.2d at 824. 

207. Walters, 315 Ark. at 207, 866 S.W.2d at 824. 

208. Id. at 207-08, 866 S.W.2d at 824-25. 

209. Id. at 207, 866 S.W.2d at 824 (citing Ziffrin, Inc. v. United States, 318 U.S. 73 

(1943)). 

210. 318 U.S. at 78. The term nisi prius means a law or ruling that is not yet final. 

10 THE OXFORD ENGLISH DICTIONARY 435 (2d ed. 1989). 


212. Id. 

213. Id. at 209-10, 866 S.W.2d at 825 (citing Barnett v. Ark. Transp. Co., 303 Ark. 

491, 798 S.W.2d 79 (1990); Ark. Rural Med. Practice Student Loan & Scholarship Bd. v.


Supreme Court then applied Act 1228 of 1993 retroactively. 214 

And it did so despite a clear statement to the contrary by the 

general assembly. 215 Section 5 of the act states partly: “an 

emergency is hereby declared to exist and this Act being 

immediately necessary . . . shall be in full force and effect from 

and after its passage and approval.” 216 The Act was approved on 

April 20, 1993. 217 No language in it tells courts to apply it 

retroactively. In fact, the directive that the act “shall be in full 

force and effect from and after its passage and approval” 

reasonably precludes any retroactive application. 218 Yet, the 

Walters court applied the act retroactively. 219 Moreover, the 

Arkansas Supreme Court formed an opposite opinion years later 

while reading those same words. 220 

We should pause here and consider the Arkansas Supreme 

Court’s statement that remedial legislation is more often given 

retroactive application. This phrase (or rule) has not gotten the 

attention it deserves. The rule, on its own terms, means that not 

every piece of “remedial” legislation must be applied 

retroactively. Maybe a good portion of remedial legislation will 

be so applied; but by definition not all remedial acts will be, or 

should be, mechanically applied retroactively. The notion 

“more often” is not equivalent to “always,” for example. A 

judge-based, per se rule that remedial legislation must always be 

retroactively applied would conflict with a barrel full of prior 

Arkansas Supreme Court cases that favor heavily the 

presumption that all legislation should be applied prospectively 

only, absent a contrary and clear legislative attempt or a 

necessary implication. 

Walters also raises this recurring question of great 

importance: should appellate courts delve meaningfully into 

questions of public-policy preference while analyzing whether 

Luter, 292 Ark. 259, 729 S.W.2d 402 (1987); Harrison v. Matthews, 235 Ark. 915, 362 

S.W.2d 704 (1962)). 

214. Id. at 212, 866 S.W.2d at 827. 

215. See Act 1228, 1993 Ark. Acts 3976, 3987. 

216. Act 1228, 1993 Ark. Acts 3976, 3987. 

217. Act 1228, 1993 Ark. Acts 3976, 3988. 

218. Act 1228, 1993 Ark. Acts 3976, 3987 (emphasis added). 


220. See Bean v. Office of Child Support Enforcement, 340 Ark. 286, 296-99, 9 

S.W.3d 520, 526-28 (2000).


to apply statutes retroactively? The Arkansas Supreme Court 

has done so. Walters is an example: “If the public policy set out 

in the act [under consideration] offends our sense of justice, we 

will not apply it retroactively, but if it does not offend our sense 

of justice, we can apply it retroactively.” 221 Because a majority 

of justices believed the act at issue in Walters “serve[d] the 

general welfare of the public,” and only slightly disrupted settlor 

Lillian Walters’s expectations, the court found, upon its own 

“weighing,” that “the elementary considerations of fairness and 

justice strongly prevail in favor of the retroactive application of 

the Act.” 222 That the supreme court itself weighed competing 

policy interests is clear. 

The Walters court also placed a legislative imprimatur on 

its own judicial-based policy decision: “Accordingly, we hold 

that the legislative intent may be given effect, and the Act may 

be applied retroactively.” 223 But, there was no express 

legislative intent for the retroactive application of Act 1228 of 

1993.The supreme court did not mention any express words in 

the act, nor was there any reason why the act’s words 

necessarily implied a retroactive application. 

Not every member of the court wholly agreed with the 

reasoning in Walters. Justice Brown concurred with the result 

but added that a law should be rarely retroactively applied: 

I agree with the result but would not apply Act 1228 

of 1993 retroactively on the basis that it is “remedial.” 

Most legislative enactments could be construed as remedial 

in one way or another, and the retroactive application of 

state law must be employed in the rarest of instances. 

Rather, the device used by [Walters] was a subterfuge 

and directly contrary to the overall intent of the Medicaid 

program to provide welfare benefits to the aged who are 

impoverished. The fact that a precise state regulation did 

not prevent [Walters’s] artifice is not determinative in my 

opinion. Her trust was clearly at odds with the purpose 


222. Id. at 211-12, 866 S.W.2d at 826. 

223. Id. at 212, 866 S.W.2d at 827.


behind the Medicaid program and that is enough to 

mandate a reversal. 224 

As we have seen, our courts do not retroactively apply 

those laws that affect substantive rights. In Estate of Wood v. 

Arkansas Department of Human Services, the Arkansas 

Supreme Court declined to apply Act 415 of 1993 retroactively 

because the act “appears to create a new legal right which allows 

DHS to file a claim against the estate of a deceased” and seek 

reimbursement from property “exempted during the life of the 

recipient [that] are no longer exempt.” 225 The court observed 

that the Arkansas General Assembly had not directed “that the 

Act was to be applied retroactively, [so] the only basis upon 

which we might approve retroactive application is its ‘remedial’ 

nature.” 226 Finding no expressed remedial intent, as the supreme 

court had historically used the term, the court declined to apply 

the act retroactively. 227 Estate of Wood is a modern, albeit 

unadorned, retroactive-legislation case involving substantive 

rights and the decision not to apply an act retroactively because 

a substantive right was at issue. It also, of course, tacitly states 

the per se rule that once legislation is deemed remedial, then it is 

virtually destined to be applied retroactively. 

As far as the retroactive-legislation doctrine is concerned, 

the 1990s were capped by two Arkansas Supreme Court 

opinions, issued two months apart. We address them here, in 

chronological order, starting with City of Dover v. Barton. 228 

There, the supreme court decided a dispute between the city of 

Dover and some landowners. 229 Specifically, Dover appealed “a 

224. Id. (Brown, J., concurring) (emphasis added). Twelve years later, Justice Brown 

restated his position that legislation should not usually be applied retroactively. See 

Dickson v. Fletcher, 361 Ark. 244, 254-58, 206 S.W.3d 229, 236-38 (2005) (Brown, J., 

dissenting). 

225. 319 Ark. 697, 700, 894 S.W.2d 573, 575 (1995). 

226. Id. at 701, 894 S.W.2d at 576. 

227. The Arkansas Supreme Court wrote: 

Despite the laudable legislative intent argued by DHS, the Act is not 

“remedial” in the sense required to allow its retroactive application. To 

apply the Act in this instance would not merely recognize a new remedy for a 

previously existing right on the part of DHS. [Instead,] the authority to 

collect Medicaid payments from a decedent’s estate is new . . . . 

Id. at 702, 894 S.W.2d at 576. 

228. 337 Ark. 186, 987 S.W.2d 705 (1999). 

229. Id. at 188, 987 S.W.2d at 707.


final decree enjoining Dover from constructing, operating, or 

maintaining a sewage-treatment facility due to a violation of Act 

1336 of 1997 . . . . Because the trial court applied Act 1336 

retroactively and because the [landowners] failed to exhaust 

their administrative remedies,” the court reversed and 

remanded. 230 Concentrating solely on the supreme court’s 

decision to apply Act 1336 prospectively only, the essential 

question in City of Dover was whether the city had to conduct a 

“feasibility study justifying construction outside the corporate 

limits,” because prior to August 1, 1997, “the statute that Act 

1336 amended provided that municipalities had jurisdiction for 

ten miles outside of their corporate limits for the purpose of 

building sewage-treatment facilities.” 231 In May 1997, the city 

had contracted “to buy fifteen acres near Baker’s Creek to build 

the [sewage-treatment] facility, which is within ten miles of the 

Dover corporate limits.” 232 The core facts are that the circuit 

court issued a temporary injunction after concluding that Dover 

had not complied with Act 1336 and thus enjoined further 

construction. 233 A final decree enjoining the project was issued 

on June 24, 1998. 234 

“Because this appeal turns on whether Act 1336 was 

appropriately applied to this project, the effective date of Act 

1336 is all important,” wrote the supreme court. 235 The court 

determined that the effective date was August 1, 1997—more 

than a month after the trial court’s final decree enjoining the 

sewage-treatment project. 236 The retroactive-application issue in 

City of Dover was an easy one because, as the Arkansas 

Supreme Court wrote, “There is no language in Act 1336 stating 

that the Act is to be applied retroactively.” 237 The court could 

have stopped there, and it would have decided the issue under 

settled law (if we set aside game-changers like Harrison and 

Safeway Stores, for example). But the supreme court went on, 

and in doing so recited familiar principles like “[a]ny doubt on 

230. Id. at 187-88, 987 S.W.2d at 706. 

231. Id. at 189-90, 987 S.W.2d at 707-08. 

232. City of Dover, 337 Ark. at 188, 987 S.W.2d at 706-07. 

233. Id. at 189, 987 S.W.2d at 707. 

234. Id. 

235. Id. 

236. Id. 

237. City of Dover, 337 Ark. at 189, 987 S.W.2d at 707.


the matter is resolved against retroactive application,” and “[i]t 

is presumed that the General Assembly intended prospective 

application unless the language of the act clearly admits no other 

construction.” 238 

The second case was Bruner v. Tadlock, where the 

Arkansas Supreme Court addressed the Uniform Child Custody 

Jurisdiction Act (state law) and the Parental Kidnapping 

Prevention Act (PKPA) (federal law). 239 Bruner held that the 

PKPA applied to the case, though the applicable law “was 

enacted about two months after the Tadlocks obtained their 

visitation orders . . . .” 240 The supreme court concluded that “the 

law is remedial and should be given a retrospective effect 

whenever such seems to have been the intention of the 

Legislature,” and, curiously, cited to state precedent addressing 

when a federal law should be given a retroactive effect. 241 

Citing state precedent as it determined whether the federal law 

should apply retroactively (there is no mention of federal 

congressional intent on the subject), the Arkansas Supreme 

Court relied primarily on its prior case Barnett v. Arkansas 

Transportation Co. for the proposition that “[t]he rule by which 

statues are construed to operate prospectively does not ordinarily 

apply to procedural or remedial legislation.” 242 Here, in our 

opinion, is Harrison hard at work thirty years after it was issued. 

The new millennium has brought more of the same. In 

2001, for example, the Arkansas Supreme Court decided City of 

Cave Springs v. City of Rogers, which involved a declaratory 

judgment action filed by the city of Cave Springs in Benton 

County Circuit Court. 243 Cave Springs sought a determination 

that Act 779 of 1999 was unconstitutional. 244 The circuit court 

ruled that Cave Springs could not maintain its action and granted 

a motion to dismiss, reasoning that the act “only allow[ed] 

238. Id. (citing Ark. Dept. of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 

823 (1993); Ark. Rural Med. Practice Student Loan & Scholarship Bd. v. Luter, 292 Ark. 

259, 729 S.W.2d 402 (1987)). 

239. 338 Ark. 34, 991 S.W.2d 699 (1999). 

240. Id. at 40, 991 S.W.2d at 603. 

241. Id. at 40, 991 S.W.2d at 603 (citing Barnett v. Ark. Transp. Co., 303 Ark. 491, 

798 S.W.2d 79 (1990)). 

242. Id. (quoting Barnett, 303 Ark 491, 798 S.W.2d 79). 

243. 343 Ark. 652, 37 S.W.3d 607 (2001). 

244. Id. at 655, 37 S.W.3d at 609.


annexation after the municipality in which the land is located 

has first had the opportunity to provide the requested 

services.” 245 On appeal, Cave Springs raised six points, but only 

one point is relevant to this article—namely, Cave Springs 

argued that Act 779 was unconstitutional because it operated 

retroactively. 246 Regarding the constitutional attack, the 

Arkansas Supreme Court recited its general rule that “all 

legislation is presumed to apply prospectively unless the 

legislature expressly declares, or necessarily implies by the 

language used, an intent to give a statute retroactive effect,” and 

that “[a] statute will not be given a retroactive application when 

it takes away a vested right unless such is the unequivocal and 

inflexible import of the terms and the manifest intention of the 

legislature.” 247 After reviewing Act 779 of 1999, the supreme 

court determined that “there is nothing explicit or implicit in the 

language of Act 779 to indicate that it is to apply retroactively. 

This Act simply creates a mechanism by which landowners may 

obtain basic municipal services.” 248 

Using a first-principles analysis, the supreme court could 

have simply held that the act was prospective in reach only. 

That reasoning would have alone supported its decision to reject 

Cave Springs’s argument that Act 779 “provides for an 

unconstitutional retroactive application.” 249 But the court went 

further because it seems to have considered (and rejected) an 

atypical type of vested-rights argument that Cave Springs 

raised. 250 The opinion is murky on precisely how the result was 

reached. But the supreme court acknowledged that nothing in 

the language of Act 779 evinced a retroactive intent, rejected 

“some type of fundamental right in property” argument, and 

then upheld the dismissal. 251 Again, the circuit court’s dismissal 

of the case was apparently based partly on the idea that Act 779 

acted retrospectively because the act was not enacted until 

March 22, 1999. 252 According to the opinion, the City of Rogers 

245. Id. at 655-56, 37 S.W.3d at 609. 

246. Id. at 656, 37 S.W.3d at 610. 

247. Id. at 660, 37 S.W.3d at 612 (citations omitted) (internal quotations omitted). 

248. City of Cave Springs, 343 Ark. at 660, 37 S.W.3d at 612. 

249. Id. at 661, 37 S.W.3d at 612. 

250. Id. 660-61, 37 S.W.3d at 612. 

251. Id. at 660-61, 37 S.W.3d at 612-13. 

252. See id. at 655-56, 37 S.W.3d at 609.


did not mail a letter to Cave Springs requesting sewer service 

and municipal water until August 4, 1999. 253 Because the letter 

was mailed months after Act 779 was enacted, the City of 

Rogers necessarily responded after Act 779’s enactment, when it 

declined to “provide the services requested.” 254 

Incidentally, retroactive issues have arisen in the criminalprocedure 

context too. In 2004, in Jackson v. State, for 

example, a criminal appeal went before the Arkansas Supreme 

Court where the court, among other things, addressed whether 

section 9-2-317 of the Arkansas Code applied retroactively. 255 

If so, then the circuit court may have erred below by denying a 

then-juvenile’s motion to suppress statements he made to police 

in March 2000 and March 2001. 256 The supreme court held that 

Jackson’s reliance upon section 9-27-317 was misplaced 

because the statute “had not yet been enacted at the time he was 

questioned . . . .” 257 

Here is how the supreme court decided the issue of 

retroactive application: 

Although the statute in question was enacted in April 2001, 

we have a duty to construe statues as having only a 

prospective operation unless the purpose and intention of 

the legislature to give them a retroactive effect are 

expressly declared or necessarily implied by the language 

used. Since the statute in question contained neither an 

emergency clause nor any language indicating that it was to 

be applied retroactively, we hold that it can only be applied 

prospectively. 258 

Jackson makes these pages because the Arkansas Supreme 

Court did not engage in the typical substance-procedural, 

vested-rights analysis that has often accompanied its modern 

holdings in retroactive-doctrine cases. Consequently, the usual 

253. City of Cave Springs, 343 Ark. at 656, 37 S.W.3d at 609. 

254. Id. 

255. 359 Ark. 87, 194 S.W.3d 757 (2004). 

256. Id. at 89-90, 92, 194 S.W.3d at 759-60. 

257. Id. at 92, 194 S.W.3d at 760-61. 

258. Id. at 92, 194 S.W.3d at 761 (citation omitted) (citing Littles v. Flemings, 333 

Ark. 476, 970 S.W.2d 259 (1998)).


presumption that all legislation gets only prospective treatment 

decided Jackson. 259 

Back to civil cases. The Arkansas Supreme Court’s 

treatment of retroactive legislation in MacSteel Division of 

Quanex v. Arkansas Oklahoma Gas Corp. emphasizes a 

particular point worth mentioning. 260 The 2005 case of 

MacSteel essentially involved a dispute between a natural-gas 

supplier, contractor, and sub-contractor over the conveyance of 

an easement. 261 The court determined whether the conveyance 

of an easement was governed by the procedures set out in 

section 14-16-105 of the Arkansas Code. 262 An easement was at 

issue because MacSteel had contracted with Parnell Consultants, 

Inc., who then contracted with appellant R & R Pipeline 

Construction and Repair, Inc., to construct an underground 

natural-gas pipeline to directly connect MacSteel’s plant to gas 

from the interstate natural-gas market rather than from the 

Arkansas Oklahoma Gas Corporation (AOG) facilities. 263 

Parnell Consultants asked Sebastian County for an easement so 

the company could install pipe on county land. 264 A Sebastian 

County judge eventually conveyed an easement for 

consideration. 265 AOG then filed a declaratory judgment case in 

circuit court, seeking to have the easement declared null and 

void pursuant to section 14-16-105(f)(1)(A) of the Arkansas 

Code. 266 

MacSteel presented a choice on how to apply the statute 

because, in 2005, the Arkansas General Assembly amended 

section 14-16-105 to “exempt conveyances of all easements 

from the statute.” 267 MacSteel argued that the 2005 amendment 

directed that some procedures, which appeared in the prior 

version of section 14-16-105, no longer applied. 268 AOG argued 

259. See id.; see also Special Sch. Dist. of Texarkana v. Bd. of Improvement, 127 

Ark. 341, 343-44, 191 S.W. 918, 918 (1917); Rhodes v. Cannon, 112 Ark. 6, 12, 164 S.W. 

752, 753 (1914). 

260. 363 Ark. 22, 210 S.W.3d 878 (2005). 

261. Id. at 27, 210 S.W.3d at 880-81. 

262. Id. at 27, 210 S.W.3d at 881. 

263. Id. 

264. See id. 

265. MacSteel, 363 Ark. at 27, 210 S.W.3d at 881. 

266. Id. at 27-28, 210 S.W.3d at 881. 

267. See id. at 31, 210 S.W.3d at 883. 

268. Id. at 31, 210 S.W.3d at 883-84.


to the circuit court that the procedures for easement conveyances 

were not (admittedly) followed by Sebastian County. 269 The 

circuit court agreed with AOG, granted summary judgment to 

AOG, and voided the easement. 270 Given these facts, whether 

the Arkansas Supreme Court applied the prior or amended 

section 14-16-105 on review would likely determine a key issue. 

Taking judicial notice of Act 1240 of 2005, the supreme 

court addressed its applicability to the pending appeal. 271 The 

court wrote: “Even though the amendment was not in effect at 

the time the complaint was filed, we may consider it if the 

General Assembly did not change the prior law, but merely 

intended to clarify it.” 272 The talk about changing or clarifying 

the law that began the court’s analysis regarding the retroactivelegislation 

doctrine is an important nuance to the doctrine. 

Commentators have generally agreed that an act’s title does not 

alone decide a statutory-construction issue. 273 As the supreme 

court itself observed in MacSteel: “This court has long held that 

the title of an act is not controlling in its construction, although 

it is considered when such meaning is otherwise in doubt. The 

title may only be examined for the purpose of shedding light on 

the intent of the legislature.” 274 Indeed, the court rejected the 

idea that Act 1240 of 2005 was “an act to ‘clarify’ the 

procedures for sale and conveyance of county property” because 

“the text of the amendment reveals that the Act is changing prior 

law, in that it is adding exemptions to § 14-16-105.” 275 

The MacSteel court cited Gannett River States Publishing 

Co. v. Arkansas Industrial Development Commission as it 

analyzed whether Act 1240 was “curative,” “clarifying,” or 

“merely remedial or procedural in nature” so that the act should 

269. Id. at 27-28, 210 S.W.3d at 881. 

270. MacSteel, 363 Ark. at 28, 210 S.W.3d at 881. 

271. Id. at 31 n.3, 210 S.W.3d at 884 n.3. 

272. Id. at 32, 210 S.W.3d at 884 (citing Baker Refrigeration Sys., Inc. v. Weiss, 360 

Ark. 388, 201 S.W.3d 900 (2005); Pledger v. Baldor Int’l, Inc., 309 Ark. 30, 827 S.W.2d 

646 (1992)). 

273. See, e.g., 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION 

§ 47:3 (7th ed. 2007). 

274. 363 Ark. at 32, 210 S.W.3d at 884 (internal citation omitted). 

275. Id. Two years later the court rejected a different party’s argument that the 

general assembly clarified, rather than changed, statutory law. See Steward v. Statler, 371 

Ark. 351, 355, 266 S.W.3d 710, 714 (2007).


(or could) be applied retroactively. 276 After employing a vestedright 

theory, the supreme court decided that the act was 

substantive and declined to apply it retroactively. 277 “[W]e will 

not construe the statute to disturb the public’s then-existing 

vested right to be informed of the county’s conveyance of the 

easement.” 278 It is not important for our purposes here to contest 

whether MacSteel was best decided as a case involving a vested 

right of the sort the Arkansas Supreme Court had historically 

protected from the retroactive effect of legislation. 

We now come to the case that initially fueled our interest in 

researching the retroactive doctrine. In 2007, the Arkansas 

Supreme Court decided Steward v. Statler. 279 In that case the 

court resolved—with the aid of intervening legislation—the 

issue of whether a personal representative or special 

administrator needs letters of administration in hand before 

filing a tort complaint in circuit court. 280 The defendants in 

Steward persuaded the circuit court to grant their summaryjudgment 

motions and end the case because the special 

administrators had filed their tort complaint in the civil division 

before they received letters of administration from the probate 

division. 281 Prior precedent from the Arkansas Supreme Court, 

and the usual tenets of statutory construction, supported the 

circuit court’s decision. 282 The special administrators appealed, 

and the Arkansas Supreme Court took the case. 283 

While the appeal was pending, the Arkansas General 

Assembly enacted Act 438 of 2007. 284 The act changed the 

statutory law on the issue being litigated before the supreme 

court. 285 Simply put, the act rendered nugatory the supreme 

court case Jenkins v. Means and empowered personal 

276. MacSteel, 363 Ark. at 32, 210 S.W.3d at 884 (citing Gannett River States Publ’g 

Co. v. Ark. Indus. Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990)). 

277. Id. at 32, 210 S.W.3d at 885. 

278. Id. 

279. 371 Ark. 351, 266 S.W.3d 710 (2007). 

280. Id. at 355-56, 266 S.W.3d at 714. 

281. Id. at 353, 266 S.W.3d at 712-13. 

282. See id. at 353, 266 S.W.3d at 713. 

283. See id. 

284. Steward, 371 Ark. at 353, 266 S.W.3d at 713. 

285. Act 438’s full title is “An Act to Amend Arkansas Code § 28-48-102 to Clarify 

the Effect of a Probate Order and the Purpose of Letters of Administration; and for Other 

Purposes.” Act 438, 2007 Ark. Acts 2283.


representatives and special administrators to file tort complaints 

once they had a proper order from the probate division of a 

circuit court. 286 Letters of administration are no longer a legal 

prerequisite for standing to sue in tort in the civil division of the 

circuit courts. 287 

The supreme court received supplemental briefs and heard 

oral arguments on why Act 438 should or should not be applied 

retroactively to undo a ten-month-old final order being 

challenged on appeal. 288 The court held that Act 438 should 

apply retroactively to the pending appeal; it therefore reversed 

the summary judgment and remanded the case to the circuit 

court for further proceedings. 289 

Like many post-Harrison-Safeway Store cases, the supreme 

court provided no specific reason why the act should be applied 

retroactively. Nothing in Act 438 indicates that it was intended 

to “cure” all existing instances where a party prematurely filed a 

tort complaint before completing all the statutory steps, which 

included getting letters of administration. 290 The best indicium 

of retroactive intent is, arguably, Act 438’s title. 291 But a 

majority of the Arkansas Supreme Court rejected that notion. 292 

Further, the court noted that “[p]rocedural legislation is more 

often given retroactive application.” 293 As we noted earlier, 

contained in that qualified proposition is the fact that there are 

times when not even procedural legislation should be applied 

retroactively. The deciding event in either case is, or should be, 

whether the general assembly intended its new law to be so 

applied. The court decided to stay silent on this vital point. 294 

Steward shows that, in practice, the supreme court essentially 

286. Steward, 371 Ark. at 355-56, 266 S.W.3d at 714 (citing Jenkins v. Means, 242 

Ark. 111, 411 S.W.2d 885 (1967)). 

287. See id. 

288. Id. at 355, 266 S.W.3d at 714. 

289. Id. at 354-56, 266 S.W.3d at 714-15. 

290. Act 438, 2007 Ark. Acts 2283. 

291. Act 438, 2007 Ark. Acts 2283. 

292. See Steward, 371 Ark. 351, 266 S.W.3d 710. 

293. Id. at 354, 266 S.W.3d at 713. 

294. See Appellees’ Petition for Rehearing, Steward v. Statler, 371 Ark. 351, 266 

S.W.3d 710 (2007) (CA 06-1306). The court did not address the acceptance requirement 

either; a moot point given the denial of rehearing and, more importantly, that lawyers and 

the courts have seemingly moved past challenging how the letters-of-administration 

requirement affects a party’s power to sue in tort.


has more or less a per se rule that procedural (and remedial) 

legislation will be applied retroactively, even to pending appeals 

involving months-old final orders. 295 

In 2008, the Arkansas Supreme Court addressed, among 

other issues, whether Act 1516 of 2001 should be applied 

retroactively. 296 The case of McMickle v. Griffin gave the court 

the opportunity to apply a damage element backwards in time, 

and it did so. 297 At issue was McMickle’s legal ability to seek 

damages for loss of life under section 16-62-101(b) of the 

Arkansas Code (the wrongful-death statute). 298 The circuit court 

rejected McMickle’s retroactive-application argument; the 

Arkansas Supreme Court reversed, invoking three of its prior 

decisions as it did so. 299 The supreme court simply believed that 

a plaintiff’s legal right to ask for an additional $3.1 million in 

damages based on a totally new damage element was “only a 

new remedy to an already existing right.” 300 

In 2009, the Arkansas Supreme Court addressed in some 

detail the retroactivity doctrine as it applied to Act 60 of 2007, 

which amended a child-support arrearage statute. 301 There, the 

State of Arkansas Office of Child Support Enforcement (OCSE) 

295. We do not argue that a legislature is precluded from altering the legal effect of 

judgments (final orders) on appeal if it clearly indicates that the change in the law reaches 

those on appeal. Two hundred years ago, Chief Justice John Marshall wrote in United 

States v. Schooner Peggy: 

It is in the general true that the province of an appellate court is only 

to enquire whether a judgment when rendered was erroneous or not. But if 

subsequent to the judgment and before the decision of the appellate court, a 

law intervenes and positively changes the rule which governs, the law must 

be obeyed, or its obligation denied. . . . It is true that in mere private cases 

between individuals, a court will and ought to struggle hard against a 

construction which will, by a retrospective operation, affect the rights of 

parties . . . . 

5 U.S. 103, 110 (1801). 

296. McMickle v. Griffin, 369 Ark. 318, 339, 254 S.W.3d 729, 747 (2008). 

297. Id. 

298. Id. at 337, 254 S.W.3d at 746. 

299. Id. at 338-39, 254 S.W.3d at 746-47 (quoting JurisDictionUSA, Inc. v. 

Loislaw.com, Inc., 357 Ark. 403, 412, 183 S.W.3d 560, 565-66 (2004) (citing Padgett v. 

Haston, 279 Ark. 367, 651 S.W.2d 469 (1983)); Bean v. Office of Child Support 

Enforcement, 340 Ark. 286, 296-97, 9 S.W.3d 520, 526 (2000)). 

300. Id. at 339, 254 S.W.3d at 747. 

301. Office of Child Support Enforcement v. Jones, 2009 Ark. 620, at 1, 2009 WL 

4723355, at *1. Act 60 of 2007 took effect on July 31, 2007. See id. at 4, 2009 WL 

4723355, at *2.


appealed a circuit court’s order that vacated appellee’s childsupport 

arrearage section 9-10-115(f)(1)(C) of the Arkansas 

Code. 302 The issue on appeal was whether “the circuit judge 

erred by retroactively applying section 9-10-115(f)(1), as 

amended by Act 60 of 2007, to vacate a judgment for a childsupport 

arrearage, which was granted prior to the effective date 

of Act 60.” 303 

More specifically, the appeal addressed whether Act 60 

extinguished the appellee’s obligation to satisfy the unpaid 

balance of the arrearage due to OCSE. 304 In his March 2008 

motion to vacate, the appellee “conceded that he was not entitled 

to a refund of the payments made against the arrearage prior to 

the date of the hearing.” 305 OCSE argued that a judgment 

entered before Act 60’s effective date could not be retroactively 

vacated because “the General Assembly neither stated expressly 

nor implicitly that the amended statute was to have retroactive 

effect, and . . . to do so would interfere with its vested right to 

recover the child-support arrearage from [the appellee].” 306 

The supreme court reasoned that it “first must determine 

whether the circuit judge applied the amended version of section 

9-10-115(f)(1) prospectively or retroactively. In doing so, we 

must pinpoint the event around which prospective and 

retroactive application of amended section 9-10-115(f)(1) 

turns.” 307 OCSE argued that the salient event was the “original 

order fixing the arrearage amount at $14,342.51, which was 

entered on May 31, 2006. Jones maintain[ed] that the triggering 

event” was the subsequent order vacating the obligation to 

satisfy unpaid support still owed; that order was entered on 

December 10, 2009. 308 Ultimately, the Arkansas Supreme Court 

held that the circuit court correctly applied “Act 60 to a 

determination of an adjudicated father’s obligation to pay the 

unpaid balance of the child-support arrearage from the date of 

the December 10, 2008 order, which was after the effective date 

302. Id. at 1, 2009 WL 4723355, at *1. 

303. Id. 

304. Id. at 4, 2009 WL 4723355, at *2. 

305. Id. at 5, 2009 WL 4723355, at *2. 

306. Jones, 2009 Ark. 620, at 5, 2009 WL 4723355, at *2. 

307. Id. at 5, 2009 WL 4723355, at *3. 

308. Id. at 5-6, 2009 WL 4723355, at *3.


of the Act . . . .” 309 In short, the circuit court applied amended 

section 9-10-115(f)(1)(C) prospectively as the plain language of 

the Act required it to do. 310 The supreme court did not delve 

into a substantive-procedural analysis. 

Jones serves as a good reminder that a dispute concerning 

the retroactivity doctrine can turn on how parties identify the 

issues and frame the event that might trigger prospective or 

retroactive application of a statute. 311 

C. Our Courts’ Role in a System of Checks and Balances 

As we have seen, the doctrine of retroactively applying 

legislation can be divided into three eras: (1) from the midninteenth 

century to the mid-twentieth century, the Arkansas 

Supreme Court and Court of Appeals based decisions whether to 

apply legislation retroactively on a principle that assumed a 

prospective-only application unless the Arkansas General 

Assembly expressed a contrary intent; (2) beginning with the 

Arkansas Supreme Court’s decisions in Harrison v. Matthews 

(1962) and Safeway Stores, Inc. v. Shwayder Bros., Inc. (1964), 

it and the Arkansas Court of Appeals began assuming 

retroactive application when legislation has (or is assumed to 

have) particular characteristics; and (3) since the 1960s, 

Arkansas courts have applied legislation retroactively though 

they had no expressed legislative reason to do so, often deciding 

the issue without comment. 

In this section, we briefly address the proper role of courts 

in the theoretical terms of their role in a democracy, and the 

consequences for a democratic political culture when courts 

practically assume the role of a “third branch of the 

legislature.” 312 To that end, we outline some justifications that 

scholars have provided for maintaining a separation of powers 

among the branches and for investing a review power—not a 

legislative power—in the courts. While much study of legal 

culture in the United States has focused on courts’ use of the 

309. Id. at 6, 2009 WL 4723355, at *3. 

310. Jones, 2009 Ark. 620, at 6, 2009 WL 4723355, at *3 (citing Ark. Dep’t of 

Human Servs. v. Walters, 315 Ark. 204, 209, 866 S.W.2d 823, 825 (1993)). 

311. Id. at 5, 2009 WL 4723355, at *3. 

312. It makes no meaningful difference to us that we are discussing the role of state 

courts instead of federal courts.


judicial-review power, we grant that this article’s topic does not 

technically implicate the question of whether courts should pass 

on the constitutionality of legislative acts. Our main topic is 

more akin to a type of statutory interpretation. Yet, the question 

of when courts should retroactively apply legislation feels like 

something more than merely giving meaning to words on a page 

or computer screen while employing the often contradictory and 

slippery statutory-interpretation canons. 

Some things can be said in favor of the modern doctrine. 

For example, you may believe that, in some instances, courts are 

better equipped to act quickly to avoid unequal and unfair 

outcomes and otherwise maintain the integrity of a complex 

justice system. And given that jurists in Arkansas are directly 

elected, you may say that voters exercise an important check on 

judicial power when it is employed unwisely. So maybe it is a 

good thing to allow Arkansas courts to assume a “small” 

legislative function so they may more easily inject efficiency, 

fairness, and equality into the administration of justice. We 

happen to hold the opposite opinion, believing that the act of 

deciding whether legislation should be retroactively applied is 

best left to the general assembly absent extraordinary 

circumstances, or a clearly stated legislative directive to the 

contrary. 

Constitutional-law scholars have long studied the 

implications of judicial power in a democratic system. In fact, 

much of their time has been taken up with the question of how 

we can determine if a court acts properly within the scope of its 

powers, or instead has set itself up as a super-legislature passing 

upon the wisdom and propriety of legislative acts and subverting 

the will of the representative majority. The specific question on 

which most scholars have written in this general area concerns 

the United States Supreme Court’s use of the judicial-review 

power. Wrapped up in that question, however, are concerns 

about how any court—state or federal—functions within a 

government. Here, we deal in particular with a court’s role as 

interpreter of a legislature’s words and as the political body that, 

for constitutional purposes, serves a legitimizing function in a 

governmental system through the use of judicial-review powers. 

The primary concern for the function of courts within a 

democratic system has usually been a court’s use of judicial


restraint when determining the constitutionality of a legislative 

act or when interpreting a statute and applying it to a concrete 

case. These concerns emerged most prominently from the early 

twentieth century legal-pragmatist and realist movements, and it 

continued to get the lion’s share of scholarly dialogue 

throughout the twentieth century. 313 One early proponent of 

restraint was Judge Billings Learned Hand. 314 He argued for a 

strictly curtailed use of the judicial power, a use which 

Alexander Bickel refers to as “the therapy of nearly total 

abstinence.” 315 Hand, while confessing that the power to pass 

judgment on the acts of other branches of government “is not a 

logical deduction from the structure of the Constitution but only 

a practical condition upon its successful operation,” 316 justified 

investing some legislative power in the courts by relying on a 

topic closely related to this article—discerning and 

implementing legislative intent. 317 This is one reason why 

Hand’s comments are included here. 

Judge Hand justified this power—specifically, the power to 

pass upon the constitutionality of a legislative act and to 

determine the conditions of its application—through the value of 

judicial restraint and through faith in a political process capable 

of resolving social conflict. 318 But courts should exercise this 

power only so long as they refrain from judging the wisdom of 

the legislature and limit their inquiry to whether the legislature 

has the authority to enact the laws in dispute. 

Hand asked what courts should do when a legislature has 

remained silent (as the Arkansas General Assembly has often 

been on the issue of retroactive application), or when a 

legislature has failed to consider the application of a statute to 

some contingency that did not or could not exist when the 

313. Legal pragmatists, progressives, and legal realists argued for limited use of the 

judicial power while identifying social, political, and other factors as legitimate concerns 

for determining “the rules by which men should be governed.” OLIVER WENDELL 

HOLMES, JR., THE COMMON LAW 1 (1881). Although Holmes argued that judges are often 

called upon to choose among competing political, economic, moral, and social values, 

judges should limit their inquiry to the consequences that attend various options when 

selecting from among competing values. 

314. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 48 (1962). 

315. Id. 

316. LEARNED HAND, THE BILL OF RIGHTS 15 (1960). 

317. Id. at 14-30. 

318. Id.


statute was enacted. Hand’s answer—that a judge can avoid 

substituting his personal and subjective values for the values of 

the elected representatives of the people by imagining “how the 

authors of the statute would have dealt with the occasion” 319 —is 

tempered by his belief that a court should restrain itself from 

functioning as a third representative chamber. 320 In Hand’s 

view, no democratic theory that can justify courts assuming such 

a role: “I have never been able to understand on what basis [for 

the notion that courts may serve as super-legislatures] does or 

can rest except as a coup de main.” 321 

The dialogue over judicial restraint did not begin or end 

with Judge Hand. But he represents a philosophy of law that 

emphasizes practical principles and procedural applications in 

the service of a healthy and vibrant political community. Judge 

Hand’s view of the courts’ roles within a democratic political 

system is apt when addressing the task of interpreting legislative 

acts. It defines the values of a particular legal culture in which 

courts act to resolve certain kinds of problems and leave other 

problems to the political process. His vision, at base, strives to 

place courts within a meaningful system of checks and balances. 

This article’s aim is to do just that by bringing to light a doctrine 

that has veered from its first principles, ones that more often 

constrained an Arkansas appellate court’s power to apply 

legislation retroactively. 

III. CONCLUSION 

For more than 100 years, the Arkansas Supreme Court 

applied legislation retroactively when the Arkansas General 

Assembly had expressly communicated that intent. The 

Arkansas Court of Appeals, in its early years, also held steadfast 

to the rule that all statues were presumed to operate 

prospectively only—absent a clear, contrary intent from the 

general assembly. But around 1960 the crystal cracked. After 

that time, the Arkansas Supreme Court began to soften 

considerably its doctrine disfavoring retroactive legislation. In 

time, the Arkansas Court of Appeals followed suit. 

319. Id. at 24. 

320. See BICKEL, supra note 315, at 48. 

321. HAND, supra note 317, at 55.


Today, the Arkansas Supreme Court no longer needs any 

express declaration from the Arkansas General Assembly that it 

intends legislation to be applied backward in time. Much less— 

even total silence—will not prevent the retroactivity doctrine 

from being used. An essentially unwritten, per se rule has thus 

emerged: regardless of whether the Arkansas General Assembly 

expressly states that an act should be applied retroactively, our 

appellate courts may do so, especially if they determine 

legislation is procedural or remedial. 

A perfect line of clear communication between the 

legislative and judicial branches is impossible. We do not 

advocate perfection. But the number of times our appellate 

courts must decide issues on whether an act applies 

retroactively—and always at the time and expense of courts and 

clients—can be appreciably diminished if the Arkansas General 

Assembly will more often expressly declare when it wants a 

legislative act applied retroactively or prospectively only. And 

even when the general assembly remains silent, the courts 

should return to first principles and apply legislation 

retroactively in the rarest of instances; and in any case, only 

when courts can tell litigants, in a transparent manner, why they 

have concluded that the general assembly intended a law to have 

a retroactive reach.


APPENDIX 

Arkansas Cases 

(The more important cases are denoted with an *) 

1. Vaughan v. Bowie, 30 Ark. 278 (1875) (Act of April 24, 

1873, applied to pending cases) (school tax). 

2. *Green v. Abraham, 43 Ark. 420 (1884) (Act of March 8, 

1883, retroactive) (quiet-title statute). 

3. Beard v. Dansty, 48 Ark. 183, 2 S.W. 701 (1887) (Act of 

March 8, 1883, retroactive) (quiet-title statute). 

4. *Sidway v. Lawson, 58 Ark. 117, 23 S.W. 648 (1893) (Act of 

April 13, 1893, retroactive) (curative statute on homestead rights 

of married men). 

5. *State ex rel. Moose v. Kansas City & Memphis Ry. & 

Bridge Co., 117 Ark. 606, 174 S.W. 248 (1914) (Acts of 1913, 

724, retroactive) (collection of overdue taxes from 

corporations). 

6. *Rhodes v. Cannon, 112 Ark. 6, 164 S.W. 752 (1914) (Act 

256 May 10, 1911 prospective only) (statute of nonclaim). 

7. *Special Sch. Dist. of Texarkana v. Bd. of Improvement, 127 

Ark. 341, 191 S.W. 918 (1917) (Act 527 of 1913, prospective) 

(assessment of school property by improvement district). 

8. *Louis Werner Sawmill Co. v. Dyer, 132 Ark. 78, 200 S.W. 

281 (1917) (Act 364 of 1914, prospective) (statute-of-limitations 

defense recognized). 

9. Faver v. Wayne, 134 Ark. 30, 203 S.W. 22 (1918) (Act 115 of 

1917, retroactive) (road-improvement-district legislation).


10. *Foster v. Graves, 168 Ark. 1033, 275 S.W. 653 (1925) 

(Laws 1923, 136, retroactive) (chancery court stenographerappointment 

statute). 

11. Elrod v. Bd. of Improvement, 171 Ark. 848, 286 S.W. 965 

(1926) (Act 184 of 1925, prospective) (statute limiting cost of 

improvement district No. 45). 

12. *Allen v. Harmony Grove Consol. Sch. Dist. No. 19, 175 

Ark. 212, 298 S.W 997 (1927) (Act 156 of 1927, retroactive) 

(school-district legislation). 

13. *Howington v. Friend, 187 Ark. 411, 61 S.W.2d 62 (1933) 

(Act 14 of 1932, retroactive) (authorizing damages for 

withdrawal of levee protection). 

14. Coco v. Miller, 193 Ark. 999, 104 S.W.2d 209 (1937) (Act 

36 of 1935, prospective) (statute affecting scope of vendor’s 

lien). 

15. Fort Smith Gas Co. v. Kim Cannon, 202 Ark. 216, 150 

S.W.2d 968 (1941) (Act 314 of 1939, retroactive) (venue 

legislation). 

16. Hardin v. Ft. Smith Couch & Bedding Co., 202 Ark. 814, 

152 S.W.2d 1015 (1941) (Act 129 of 1941, prospective only) 

(tax legislation). 

17. Cook v. Ark. State Rice Milling Co., 213 Ark. 396, 210 

S.W.2d 11 (1948) (Act 135 of 1947, prospective) (tax-collection 

legislation). 

18. Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958) (Act 

191 of 1955, prospective) (common-law rule regarding 

plaintiff’s right to recover damages despite own contributory 

negligence applied, not statute).


19. *Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 

(1962) (Act 54 of 1961, retroactive) (service-and-venue statute). 

20. Safeway Stores, Inc. v. Shwayder Bros., Inc., 238 Ark. 768, 

384 S.W.2d 473 (1964) (Act 101 of 1963, retroactive) (serviceof-process 

statute). 

21. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979) 

(Act 1015 of 1979, prospective) (non-marital child’s right to 

inherit property from natural parents). 

22. Frakes v. Hunt, 266 Ark. 171, 583 S.W.2d 497 (1979) (ARK. 

STAT. ANN. § 61-141, inheritance by non-marital child from 

natural father and his bloodline) (retroactive effect of opinion by 

Supreme Court of the United States declaring state statute 

unconstitutional). 

23. Compton v. White, 266 Ark. 648, 587 S.W.2d 829 (1979) 

(ARK. STAT. ANN. § 61-141, inheritance by non-marital child 

from natural father and his bloodline) (rejecting request to 

retroactively apply opinion by Supreme Court of the United 

States declaring state statute unconstitutional). 

24. *Forrest City Mach. Works, Inc. v. Aderhold, 273 Ark. 33, 

616 S.W.2d 720 (1981) (Ark. Stat. Ann. § 85-2-318, retroactive) 

(adoption of strict liability in products-liability context). 

25. Aluminum Co. of Am. v. Neal, 4 Ark. App. 11 (1982) (Act 

215 of 1979, retroactive) (statutory attorney-fee award under 

workers’ compensation law). 

26. *Padgett v. Haston, 279 Ark. 367, 651 S.W.2d 460 (1983) 

(Act 340 of 1947, retroactive) (real-estate law as applied to 

marriages). 

27. Popeye’s Famous Fried Chicken v. Williams, 7 Ark. App. 

167, 646 S.W.2d 17 (1983) (Act 290 of 1981, retroactive)


(workers’ compensation claimant’s ability to select second 

physician at employer’s expense). 

28. City of Ozark v. Nichols, 56 Ark. App. 85, 937 S.W.2d 686 

(1987) (Act 1207 of 1995, retroactive) (eminent domain and 

damages). 

29. *Ark. Rural Med. Practice Student Loan & Scholarship Bd. 

v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987) (Act 797 of 

1985, prospective only) (Rural Medical Student Loan and 

Scholarship Act). 

30. Ark. State Police v. Welch, 28 Ark. App. 234, 772 S.W.2d 

620 (1989) (Act 10 of 1986, prospective) (wage-loss-benefits 

statute). 

31. Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 

(1987) (Act 10 of 1986, retroactive) (no party to get the benefit 

of the doubt on burden of proof in workers’ compensation 

cases). 

32. City of Fayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 

493 (1989) (Act 519 of 1987, retroactive) (attorney-fee statute). 

33. Goldsmith v. Ark. Dept. of Human Servs., 302 Ark. 98, 787 

S.W.2d 675 (1990) (Act 273 of 1989, prospective) (parental 

rights). 

34. *Gannett River States Publ’g Co. v. Ark. Judicial Discipline 

& Disability Comm’n, 304 Ark. 244, 801 S.W.2d 292 (1990) 

(Act 637 of 1989, prospective) (confidentiality issues pertaining 

to investigating judiciary). 

35. *Barnett v. Ark. Transp. Co., 303 Ark. 491, 798 S.W.2d 79 

(1990) (Act 800 of 1989, retroactive) (attorney-fee statute, 

retroactive).


36. Woodhaven Homes, Inc. v. Kennedy Sheet Metal Co., 304 

Ark. 415, 803 S.W.2d 508 (1991) (contractor’s right to quantum 

meruit). 

37. Bolls v. Columbia Mutual Ins. Co., No. CA 91-462, 1992 

WL 139340 (Ark. Ct. App. June 17, 1992) (unpublished) (Acts 

209 and 1123 of 1991, prospective only) (underinsured-motorist 

coverage). 

38. *Ark. Dept. of Human Servs. v. Walters, 315 Ark. 204, 866 

S.W.2d 823 (1993) (Act 1228 of 1993, retroactive) (Medicaid 

eligibility). 

39. Estate of Wood v. Ark. Dept. of Human Servs., 319 Ark. 

697, 894 S.W.2d 573 (1995) (Act 415 of 1993, prospective only) 

(Medicaid-eligibility requirements). 

40. City of Dover v. A.G. Barton, 337 Ark. 186, 987 S.W.2d 

705 (1999) (Act 1336 of 1997, prospective only) (municipalityjurisdiction 

statute). 

41. Bruner v. Tadlock, 338 Ark. 34, 991 S.W.2d 600 (1999) 

(PKPA, as amended by Public Law No. 105-374, retroactive) 

(child-custody statutes). 

42. *Bean v. Office of Child Support Enforcement, 340 Ark. 

286, 9 S.W.3d 520 (2000) (Act 1091 of 1995, prospective only) 

(paternity acknowledgement). 

43. City of Cave Springs v. City of Rogers, 343 Ark. 652, 37 

S.W.3d 607 (2001) (Act 779 of 1999, retroactive) (annexation 

statute). 

44. *JurisDiction USA, Inc. v. Loislaw.com, Inc., 357 Ark. 403, 

183 S.W.3d 560 (2004) (Arkansas Rule of Civil Procedure 55(f), 

retroactive) (default judgments).


45. Jackson v. State, 359 Ark. 87, 194 S.W.3d 757 (2004) (Act 

273 of 1989, prospective only) (juvenile-rights statute). 

46. *Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005) 

(Arkansas Rule of Civil Procedure 60(c)(4), retroactive) (new 

trial grounds). 

47. *MacSteel Div. of Quanex v. Ark. Okla. Corp., 363 Ark. 22, 

210 S.W.3d 878 (2005) (Act 1240 of 2005, prospective only) 

(sale of county property). 

48. *Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007) 

(Act 438 of 2007, retroactive) (letters-of-administration statute). 

49. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2008) 

(Act 1516 of 2001, retroactive) (loss-of-life damages). 

50. Jackson v. Sparks Reg’l Med. Ctr., 375 Ark. 533, 294 

S.W.3d 1 (2009) (Arkansas Rule of Civil Procedure 54(b), 

retroactive) (appealable-order doctrine). 

51. Archer v. Sisters of Mercy Health Sys., 375 Ark. 523, 294 

S.W.3d 414 (2009) (Act 750 of 2007, retroactive) (direct-action 

statute). 

52. *Office of Child Support Enforcement v. Jones, 2009 Ark. 

620, 2009 WL 4723355 (ARK. CODE ANN. § 9-10-115(f)(1), as 

amended by Act 60 of 2007, retroactive) (child supportarrearage 

statute)). 

53. Gilbow v. Travis, 2010 Ark. 9, ___ S.W.3d ___ (Act 337 of 

2003, prospectively only) (child support arrearage statute).


Federal Cases 

1. United States v. Schooner Peggy, 5 U.S. 103 (1801). 

2. Shreveport v. Cole, 129 U.S. 36 (1889). 

3. City Ry. Co. v. Citizens’ St. R. Co., 166 U.S. 557 (1897). 

4. Kansas City of S. Ry. Co. v. McDaniel, 131 F.2d 89 (8th Cir. 

1942) (Act 315 of 1941, prospective) (joint-tortfeasor release 

statute). 

5. Ziffrin, Inc. v. United States, 318 U.S. 73 (1943). 

6. Dargel v. Henderson, 200 F.2d 564 (Emer. Ct. App. 1952). 

7. United States v. Security Indus. Bank, 459 U.S. 70 (1982). 

Law Review Articles 

1. Charles B. Hochman, The Supreme Court and the 

Constitutionality of Retroactive Legislation, 73 HARV. L. REV. 

692 (1960). 

2. Stephen R. Munzer, A Theory of Retroactive Legislation, 61 

TEX. L. REV. 425 (1982). 

3. Laura Ricciardi & Michael B.W. Sinclair, Retroactive Civil 

Legislation, 27 U. TOL. L. REV. 301 (1996). 

4. Elmer E. Smead, The Rule Against Retroactive Legislation: A 

Basic Principle of Jurisprudence, 20 MINN. L. REV. 775 (1936). 

5. Bryant Smith, Retroactive Laws & Vested Rights, 5 TEX. L. 

REV. 231 (1927).


6. Bryant Smith, Retroactive Laws & Vested Rights, 6 TEX. L. 

REV. 409 (1928). 

7. Edward S. Stimson, Retroactive Application of Law—A 

Problem in Constitutional Law, 38 MICH. L. REV. 30 (1939). 

8. Richard J. Wolf, Note, Judicial Review of Retroactive 

Rulemaking: Has Georgetown Neglected the Plastic Remedies?, 

68 WASH. U. L.Q. 157 (1990).

Arkansas's Retroactive-Legislation Doctrine - Arkansas Law Review

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