Stricken language would be deleted from and underlined language would be added to present law.
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State of Arkansas As Engrossed: S2/13/23 S2/22/23 1
94th General Assembly A Bill 2
Regular Session, 2023 SENATE BILL 121 3
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By: Senator M. Johnson 5
By: Representative Gazaway 6
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For An Act To Be Entitled 8
AN ACT TO AMEND THE ARKANSAS STATE CAPIT OL AND 9
HISTORICAL MONUMENT PROTECTION ACT; TO D ECLARE AN 10
EMERGENCY; AND FOR O THER PURPOSES. 11
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Subtitle 14
TO AMEND THE ARKANSAS STATE CAPITOL AND 15
HISTORICAL MONUMENT PROTECTION ACT; AND 16
TO DECLARE AN EMERGENCY. 17
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 20
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SECTION 1. Arkansas Code § 22 -3-2102, concerning definitions under the 22
Arkansas State Capitol and Historical Monument Protection Act, is amended to 23
add an additional subdivision to read as follows: 24
(6) “Temporary” means sixty (60) days or less. 25
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SECTION 2. Arkansas Code § 22 -3-2104(f), concerning the preservation 27
of historical monuments, is amended to add ad ditional subdivisions to read as 28
follows: 29
(3)(A)(i) If a waiver is not granted by the Arkansas History 30
Commission to remove a historical monument or memorial and the historical 31
monument or memorial is removed or has been removed without a waiver, a 32
citizen may bring an action in a court of competent jurisdiction to enjoin 33
the removal of the historical monument or memorial without a waiver. 34
(ii) The court of competent jurisdiction shall: 35
(a) Enjoin the removal of the historical 36 As Engrossed: S2/13/23 S2/22/23 SB121
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monument or memorial; or 1
(b) Order the governmental entity having title 2
to, or custody of, the removed historical monument or memorial to restore the 3
historical monument or memorial to its original condition and location. 4
(B) Subdivision (f)(3)(A) of this sectio n applies to a 5
historical monument or memorial: 6
(i) Removed without a waiver after April 28, 2021; 7
or 8
(ii) Partially removed by a public entity in the 9
last five (5) years and any portion removed is still in the possession of the 10
public entity. 11
(4) A grant of a waiver or denial of a waiver under this 12
subchapter is binding on the entity, and the entity is not authorized to 13
petition for the grant of a waiver absent a substantial change in 14
circumstances justifying the waiver. 15
(5) The decision of the Arkansas History Commission either 16
granting or denying a waiver under this subchapter shall be: 17
(A) In writing; and 18
(B) Maintained as a permanent record of the Arkansas 19
History Commission. 20
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SECTION 3. Arkansas Code § 22 -3-2105, concerning applicability under 22
the Arkansas State Capitol and Historical Monument Protection Act, is amended 23
to add additional subsections to read as follows: 24
(f)(1)(A) In any action to enforce the rights granted by this 25
subchapter, or in any appeal from an action under subsection (b) of this 26
section, the court of competent jurisdiction may assess against the defendant 27
reasonable attorney’s fees and other litigation expenses reasonably incurred 28
by a plaintiff who has obtained a ruling in favor of the plaintiff, unless 29
the court of competent jurisdiction finds that the position of the defendant 30
was substantially justified. 31
(B) For the purposes of this section, a proceeding is 32
"substantially justified" if it had a reasonable basis in law or fact at the 33
time it was initiated. 34
(2) If the defendant has substantially prevailed in the action, 35
the court of competent jurisdiction may assess expenses against the plaintiff 36 As Engrossed: S2/13/23 S2/22/23 SB121
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only upon a finding that the action was initiated primarily for frivolous or 1
dilatory purposes. 2
(g)(1) Notwithstanding subdivision (f)(1) of this section, the court 3
of competent jurisdiction shall not assess reasonable attorney’s fees or 4
other litigation expenses reasonably incurred by a plaintiff against the 5
State of Arkansas or a department, agency, or institution of the state. 6
(2)(A) A plaintiff who substantially prevails in an action under 7
this section against the State of Arkansas or a department, agency, or 8
institution of the state may file a claim with the Arkansas State Claims 9
Commission to recover reasonable attorney’s fees and other litigation 10
expenses reasonably incurred. 11
(B) A claim for reasonable attorney’s fees and litigation 12
expenses reasonably incurred in an action against the State of Arkansas or a 13
department, agency, or institution of the state shall be filed with the 14
Arkansas State Claims Commission under § 19-10-201 et seq. within sixty (60) 15
days of the final disposition of an action under this section. 16
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SECTION 4. EMERGENCY CLAUSE. It is found and determined by the 18
General Assembly of the State of Arkansas that the State Capitol, monuments, 19
veterans' cemeteries, and other historical monuments require additional 20
protection; that the historical monuments have an irreplaceable value to the 21
people of Arkansas who wish to preserve these venerated treasures; and that 22
this act is immediately necessary because there is a continuing and imminent 23
threat to historical monuments, and the preservation of these historical 24
monuments protects the public peace. Therefore, an emergency is declared to 25
exist, and this act being imm ediately necessary for the preservation of the 26
public peace, health, and safety shall become effective on: 27
(1) The date of its approval by the Governor; 28
(2) If the bill is neither approved nor vetoed by the Governor, 29
the expiration of the period of time during which the Governor may veto the 30
bill; or 31
(3) If the bill is vetoed by the Governor and the veto is 32
overridden, the date the last house overrides the veto. 33
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/s/M. Johnson 35
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