author: John I. Purtle, Justice. George Rose Smith, Justice,

text:
    David L. LASLEY v. STATE of Arkansas
    CR 81-22
    625 S.W. 2d 466
    Supreme Court of Arkansas
    Opinion delivered December 7, 1981

      Randall W. Ishmael and David N. Laser, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of capital murder and sentenced to life without parole. On appeal he argues the following four points (1) the trial court erred in denying the appellant’s motion for two separate juries; (2) the trial court erred in refusing to allow appellant’s counsel to voir dire prospective juror, Mr. Wood, out of the presence of the other prospective jurors, regarding a newspaper article that he had read concerning the case; (3) the court erred in not granting appellant’s motion for a mistrial; and, (4) the evidence was insufficient to support the verdict and the court erred in not directing a verdict of acquittal at the close of the state’s case and in not directing a verdict of acquittal at the close of all the evidence. We do not find prejudicial error in any of the points argued and therefore affirm the judgment rendered in the court below.

Wanda Turnbow, an employee of J. C. Penney Company, was murdered on the evening of December 28, 1979, while she and Thomas Lloyd, a fellow employee, were closing the store. Lloyd testified that while he and Turnbow were closing up he heard a knock on the outside door which was locked. He went to the door and saw the appellant, a former employee, and not being suspicious he opened the door and allowed him to come in. Lloyd testified that the appellant then pulled a gun, forced him to open up the safe, then caused Mrs. Turnbow and him to get up against the wall inside the vault. He said that appellant fired one shot which went by his left ear and clipped a part of his afro hairdo. He also heard the appellant shoot Mrs. Turnbow three times. Lloyd stated that when the bullet narrowly missed him he feigned death and slumped to the floor. He said he glanced up at the appellant as he was taking the money from the safe and leaving the vault. Lloyd alleged he stayed on the floor for several minutes after the appellant left and then attempted to pull the vault door open but was unable to do so. During the next few minutes he wrote a note on a piece of cardboard which stated that the appellant killed Wanda Turnbow.

When Mrs. Turnbow did not arrive home at the expected time her husband went to the store. He was able to enter through the unlocked door, then contacted Lloyd by voice through the vault door and upon opening the door found his wife’s body in a pool of blood and Mr. Lloyd standing with the note in his hand stating the appellant had been the perpetrator of the crime.

The appellant’s version of what happened is entirely different. He stated that he was on suspension as an employee of the store as a result of a $1500 shortage in company funds a few weeks earlier which he contended Thomas Lloyd had taken and given him a portion of to remain quiet. He further testified that he received a call from Lloyd on the morning of the murder. He said Lloyd requested him to bring a pistol to the store at closing time, which would be used to make it look like there had been a robbery although Lloyd was really going to pull an inside job. Appellant stated he secured his father’s pistol and delivered it to Lloyd at the door of the store about 9:15 p.m. on the date of the murder. He alleged that Lloyd told him to return in 15 or 20 minutes and at that time Lloyd appeared at the door and handed him a money bag containing some money and the pistol which he had given Lloyd earlier. Appellant stated Lloyd told him he had changed his mind but was giving him some money and returning the pistol because of the trouble he had gone through.

The appellant took a friend into his confidence later in the evening and told him he had received some money as a part of a robbery and wanted the friend to hide it. The friend hid the money bag. It contained $600 or $700 when discovered. The other bags and the balance of the money and checks were never recovered.

The police came to the murder scene and made a complete investigation. The report revealed a bullet hole two feet four inches above the floor with a hair-like object where the bullet had entered. A second bullet was located about five feet four inches above the floor. Appellant obtained this police report along with other items through Rule 17 discovery procedures. However, the day before the trial the officer who made the report decided that he had made a mistake as to which place the hair-like object was located. He changed his report to show that this item was found at the five feet four inch level rather than the two feet four inch level as shown on the report. This was reported immediately to the prosecuting attorney who changed his copy of the file report to reflect the new information. However, appellant did not learn of this change until the officer testified on the stand. He moved for a mistrial immediately which was denied. The appellant insisted that this surprise information amounted to a complete change of circumstances and required an entirely different approach to his defense. The hair-like object had not been analyzed nor was it introduced into evidence.

There is no need for us to take much time or space to dispose of the argument that the appellant was entitled to be tried by two juries. Our Criminal Code (Ark. Stat. Ann. § 41-1301 (Repl. 1977)) provides that the same jury shall both hear the evidence and determine the sentence in a bifurcated trial for capital murder. The argument that a death qualified jury is impermissible has been dealt with many times by this court and has been repeatedly rejected. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479, cert. denied 434 U.S. 894 (1977). We recognize that the case of Grigsby v. Mabry, 483 F. Supp. 1372 (E.D. Ark. 1980), was reversed and remanded in 637 F. 2d 525 (8th Cir. 1980) and is still pending. It is our understanding that the federal district court will deal with this problem. However, at this time we are unwilling to change our previous position on the matter.

The appellant argues that he should have been allowed to voir dire juror Wood out of the presence of the other jurors. Juror Wood had admitted reading something about the case in the newspaper. It might have been the better practice to question this juror out of the presence of the other jurors but we do not think it was prejudicial error to refuse the request. Appellant’s counsel may have felt compelled to curtail his inquiry because he was in the presence of all the jurors but, nevertheless, the juror responded to the court’s questioning that he would be able to lay aside any idea he had gained from reading the newspaper and try the case as presented. The appellant’s request for a sequestered jury for voir dire purposes was denied. We cannot say this constituted error but do note that the court eventually allowed them to be questioned one at a time from the witness stand while all the other jurors listened in. Timewise it would have been as expedient to have sequestered the jury. In any event, the appellant failed to exercise a peremptory challenge on juror Wood and thus has no standing to complain on appeal. Butler v. State, 264 Ark. 243, 570 S.W. 2d 272 (1978).

The third point argued by appellant is somewhat more difficult. However, we think the changed police report merely went to the credibility of the testifying officer. There is no question that the state’s attorney should have notified appellant’s attorney of this event but we cannot say that it was intentional on the part of the state. At the same time we can understand the appellant was surprised at the testimony which was not what he had been led to believe it would be. The hair-like object was not introduced at the trial nor was any great deal made about it during the presentation of the state’s evidence. Appellant was also allowed to impeach the witness’s testimony in regard to his prior inconsistent statement. Trial courts are granted a wide latitude of discretion in ruling on matters occuring during the trial and decisions of the trial courts will not be reversed in the absence of an abuse of discretion. Petty v. State, 245 Ark. 808, 434 S.W. 2d 602 (1968). In fact, we have many times held that a mistrial is such a drastic remedy that it is only appropriate if justice cannot be served by a continuation of trial and when it is obvious that any possible prejudice cannot be removed by any other means. Cobb v. State, 265 Ark 527, 579 S.W. 2d 612 (1979). We are not willing to state that the trial court abused its discretion in denying the mistrial in this case.

The fourth point argued by the appellant is that the evidence was insufficient to support the verdict. The pistol which was admittedly used in the perpetration of this crime was brought to the store by the appellant and was returned to his home after the crime. Also, he was found to have been in possession of one money bag from the robbery. The testimony of Thomas Lloyd clearly and unequivocally places the entire responsibility for this crime upon the appellant. We are unable to say that there was not sufficient evidence to support the verdict. The jury had the right to believe either of the witnesses and in this case they obviously believed Lloyd. When the facts are to be resolved by the jury, we do not disturb their finding. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979).

After reviewing the transcript of the proceedings and all rulings adverse to the appellant we have concluded that there was no prejudicial error in the court’s rulings and none which was not argued by the appellant.

Affirmed.

George Rose Smith, J., concurs.

George Rose Smith, Justice,

concurring. I do not find the appellant’s third point as troublesome as the majority opinion implies. It is virtually a physical impossibility that a bullet, traveling at several hundred feet a second, could have picked up a bit of human hair, carried it through the air, and left it on a wall in such a condition that the hair could be identified. If by some miraculous chance the hairlike object could have been identified as Lloyd’s hair, that would simply have corroborated Lloyd’s statement and have been of no benefit to the defendant. If the object could not have been identified, that would have been the natural and inevitable expectancy, again with no benefit to the defendant. Thus the trial court’s denial of a mistrial was so clearly right that I think a contrary ruling would have been a gross abuse of discretion.


source: Caselaw Access Project

author: Robert H. Dudley, Justice. Steele Hays, Justice,

license: Public Domain

text:
    Jones MORRISON et al v. Larone LOWE et al
    81-109
    625 S.W. 2d 452
    Supreme Court of Arkansas
    Opinion delivered December 7, 1981

      Charles S. Gibson, for appellants and cross-appellees

      Honey ir Rogers, by: Danny P. Rogers, for appellees and cross-appellants.
   Robert H. Dudley, Justice.

This case involves a dispute between two families who were adjoining neighbors in a rural part of Cleveland County. One of the Lowes, appellees, shot some of appellants’ hogs. That night a heated phone conversation took place and the next day a shoot-out occurred. Serious physical injury was done to appellee Larone Lowe and appellee Floy Lowe suffered a loss of consortium. In Morrison v. Lowe, 267 Ark. 361, 590 S.W. 2d 299 (1979), we reversed and remanded after the first trial because inadmissible and prejudicial testimony had been allowed. The case was retried and the result was a judgment in favor of appellees, with $350,000 in compensatory damages and $50,000 in punitive damages being awarded appellee Larone Lowe and with $100,000 being awarded Floy Lowe for loss of consortium. Appellants moved in the alternative that the judgments be reduced or that they be given a new trial. The trial court ordered a new trial if appellees did not agree to remittiturs of $200,000 by appellee Larone Lowe and $70,000 by appellee Floy Lowe. The appellees accordingly remitted part of the damage awards. Appellants subsequently filed this appeal on an evidentiary point and the appellees cross-appeal on the ground that the trial court erred by ordering them to remit. We affirm on direct appeal and affirm in part and reverse in part on cross-appeal.

Appellees, in order that they may present their cross-appeal, have deliberately chosen not to question the right of appellants to lodge this appeal. That issue, if it were before us, would be: Has a defendant impliedly consented to a reduced judgment and barred himself from appeal when he had previously moved in the alternative that a judgment against him be reduced or that he be granted a new trial and the judgment was reduced?

At trial the appellants sought to prove the emotional instability of appellee Floy Lowe in 1972. Dr. Crenshaw testified that he had not seen her in 1972 but that she had been seen by his associate. He then testified from their 1972 medical records. The attorney for appellants left the subject matter of medical records, an exception under Rule 803 (4), Arkansas Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), and asked about conclusions reached by the associate. Dr. Crenshaw testified that he did not recall his associate’s conclusion about Floy Lowe’s mental stability. A series of statements by the court and the attorneys took place and the witness was eventually asked if he testified about his associate’s conclusion at the first trial. Dr. Crenshaw recalled testifying, but did not think that he had testified about the conclusion of his associate. Appellant sought to put the former testimony in evidence but the court sustained an objection. Appellant contends that the trial court committed error because Rule 80 of the Arkansas Rules of Civil Procedure, Ark. Stat. Ann. Vol 3A (Repl 1979), as implemented by Rule 801 (d) (1) (i) of the Arkansas Rules of Evidence, supra, allows the introduction of former testimony. Rule 80 of the Arkansas Rules of Civil Procedure is as follows:

When admissible, the testimony of any witness given in any court at any former trial between the same parties or their privies and involving the same issue or claim for relief may be proved by the duly certified transcript thereof.

Rule 801 (d) (1) (i), Arkansas Rules of Evidence, is as follows:

Statements Which are Not Hearsay. A statement is not hearsay if: (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony and, if offered in a criminal proceeding, was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a disposition [deposition], . . .

The procedure of impeaching a witness by prior inconsistent statements is established by Rule 613.

If appellants were correct in their analysis, the question would be whether the former testimony can be considered to be inconsistent with the present disavowal of memory. See Chisum v. State, 273 Ark 1, 616 S.W. 2d 728 (1981). However, we do not reach that issue for the testimony, although admitted at the first trial, was hearsay testimony and could have been excluded at the first trial. Rule 80 does not change the general rule that testimony given by a witness at a first trial, if used at a subsequent trial, is open to all proper objections which would exclude the testimony on the basis of relevancy or competency. The ruling of the trial judge excluded this hearsay testimony and, while he gave the wrong reason, we will not reverse the ruling if it gives the correct result. Moose v. Gregory, 267 Ark. 86, 590 S.W. 2d 662 (1979). We affirm on direct appeal.

On cross-appeal the Lowes contend that the trial court erred in ordering them to remit a part of their judgments. The cross-appellees, Morrisons, contend that when the Lowes accepted the reduced judgments rather than have a new trial, they made an election of remedies and this precludes the remittitur from being reviewed on appeal. This is a matter of first impression in Arkansas. “. . .[T]he general rule seems to be that, when the trial court has ruled that the amount of the verdict is excessive, but has permitted the plaintiff to elect between a reduction of the verdict and a new trial, a plaintiff who has elected a reduction of his verdict is bound thereby and may not appeal. ”4 Am. Jur. 2d, Appeal and Error § 245 (1962) citing Fulton v. Ewing, 336 Mich. 51, 57 N.W. 2d 441 (1953); Sergeant v. Watson Bros. Transportation Co., 244 Iowa 185, 52 N.W. 2d 86 (1952), and Florida East Coast Railroad Co. v. Buckles, 83 Fla. 599, 92 So. 159 (1922). See also Annotation, 16 ALR 3d 1327, Party’s Acceptance of Remittitur in Lower Court As Affecting His Right to Complain in Appellate Court As To Amount of Damages for Personal Injury. The underlying objective of a plaintiff in accepting a judgment for a reduced amount is to avoid the delay and expense involved in an appeal. But if the defendant appeals, the objective is negated and the plaintiff is forced to undergo the delay and expense which he had hoped to avoid by accepting the lower amount. Under these circumstances it would be unfair to deny the plaintiff a review of the trial court’s action in reducing the damages. Plesko v. Milwaukee, 19 Wis.2d 210, 120 N.W. 2d 130, 16 ALR 3d 1315 (1963). It would be patently unfair in this particular case where the defendant has filed a direct appeal. The effect would be to hold that the plaintiff consented to the reduced judgment and is barred from appeal while the defendant supposedly did not consent to the judgment even though he asked for it and is not barred from appeal. We choose the more equitable procedure and hold that plaintiff’s election to accept the trial court’s conditional order by consenting to the remittitur does not bar plaintiff, upon defendant’s appeal, from cross-appealing.

The trial court’s order of remittitur recites that “compensatory damages for Larone Lowe and Floy Edelle Lowe were not given under the influence of passion or prejudice. . .” but that “compensatory damages for both were excessive based on evidence presented at trial and Larone Lowe should remit his compensatory damages from $350,-000 to $150,000 and Floy Lowe should remit her compensatory damages for loss of consortium from $100,000 to $30,000; otherwise a new trial would be ordered.” In his finding of fact the trial judge stated that the amount of damages is a matter of law and not a question of fact.

Ark. Stat. Ann. § 27-1903 (Repl. 1979) provides that in cases where damages are not susceptible of definite measurement a remittitur shall be ordered only where the judgment is rendered under the influence of passion and prejudice. This statute was not repealed by the Rules of Civil Procedure. See Per Curiam of statutes superseded, Compiler’s Notes to Rule 1, Ark. Stat. Ann. Vol. 3A (Repl. 1979). However, this statute is not the basic authority for the reduction of a jury verdict. Remittitur is within the inherent power of a court. Dorey v. McCoy, 246 Ark. 1244, 442 S.W. 2d 202 (1969). Our well established rule is that the jury has much discretion in determining the amount of damages in personal inj ury cases and we will not disturb a j ury’s verdict unless that verdict is shown to have been influenced by prejudice or is so grossly excessive as to shock the conscience of the court. Grandbush v. Grimmett, 227 Ark. 197, 297 S.W. 2d 647 (1957).

In the case at bar the trial court specifically found that compensatory damages were not given under the influence of passion and prejudice. Quite obviously a remittitur was not ordered on that ground. Neither did the trial court find that the amount of damages shocked the conscience of the court. A belief by a trial court that damages are excessive is not, standing alone, a sufficient ground for ordering a reduction. If that was the standard, the great discretion of the jury would be abrogated.

However, we sustain the trial court’s judgment if it is right, even though the court gives the wrong reason. Moose v. Gregory, supra. We have examined the record de novo to see if the amount of the judgment shocks the conscience of this court. If we find that it does, we may order a further reduction of the judgment, see Dierks Lumber & Coal Co. v. Noles, 201 Ark. 1088, 148 S.W. 2d 650 (1941), or we may restore some or all of the original judgment. We are not bound to affirm or reverse solely on the amounts of the original and reduced judgments. We have long recognized there is no definite and satisfactory rule to measure compensation for pain and suffering and that the amount of damages must depend on the circumstances of each particular case. Sterling Stores Co. v. Martin, 238 Ark. 1041, 386 S.W. 2d 711 (1965). In this case Larone Lowe’s medical bills were $6,500. He has suffered and will suffer extreme pain and mental anguish and has lost most of the use of his hands. He has lost his ability to do physical work and this disability will continue. He suffered gross and gory disfigurement to his hands when parts of both hands were blown away by high powered rifles. He lost fingers and the remaining parts of his hands are good only for a light pinching action. The original award of $350,000 to Larone Lowe was not made under the influence of passion or prejudice, nor is it so great that it shocks the conscience of the court. The order of remittitur in the case of Larone Lowe is reversed and the cause remanded with instructions to reinstate the judgment.

Floy Lowe’s recovery of $100,000 was based solely on loss of consortium. Her testimony about her loss of consortium is that her husband was hospitalized for five or six weeks and they did not sleep together for four or five months. No other proof going to a loss of consortium was in evidence and the jury could not speculate on other possible elements of damages. For example, they could not guess whether the partial loss of Larone Lowe’s hands interfered with their conjugal relationship. There is no testimony on this, or any other, element of damages in the loss of consortium except that they were unable to sleep together for four or five months. On the other hand, most of the rest of her testimony related to additional work she must do because of her husband’s disabilities. We have often reduced consortium awards to a wife because the jury considers matters of the husband’s recovery also to be matters embraced within consortium. Scheptmann v. Thorn, 272 Ark 70, 612 S.W. 2d 291 (1981); White v. Mitchell, 263 Ark. 787, 568 S.W. 2d 216 (1978); Scott v. Jansson, 257 Ark. 410, 516 S.W. 2d 589 (1974); Arkansas Louisiana Gas Co. v. Strickland, 238 Ark. 284, 379 S.W. 2d 280 (1964). The same is true in the case at bar. Construing the testimony most favorably to Floy Lowe, we cannot sustain an award of more than $30,000 for loss of consortium. The order of remittitur in the case of Floy Lowe is affirmed.

Affirmed on direct appeal.

Reversed on cross-appeal of Larone Lowe.

Affirmed on cross-appeal of Floy Lowe.

The Chief Justice and Justices Hickman and Hays concur in part and dissent in part.

Steele Hays, Justice,

concurring in part; dissenting in part. I agree with the majority opinion entirely up to the point of affirming the trial court’s reduction of the amount awarded for loss of consortium and there we part company.

The same principles govern the damages awarded Mrs. Floy Lowe for her loss as govern the damages awarded to Larone Lowe for his injuries and yet the majority opinion in effect approves one and disapproves the other with no satisfactory explanation. This action flies full in the face of Ark Stat. Ann. § 27-1903 (Repl. 1979), inasmuch as the trial judge made a finding that the verdicts were not the result of passion or prejudice.

As recently as March we reaffirmed the settled law that a jury verdict which does not shock the conscience of the court should not be reduced. Scheptman v. Thorn, 272 Ark. 70, 612 S.W. 2d 291 (1981). My conscience is not shocked in the least by the amount awarded to Mrs. Lowe under the circumstances of this case. Her husband was grossly disfigured and permanently disabled as the result, not of negligent acts, but of calculated and intentional acts. To suggest that her loss was confined to the four or five months she slept alone while her husband was hospitalized and recuperating ignores both the evidence and common experience. I respectfully dissent from the part of the opinion.

Adkisson, C.J. and Hickman, J., join in this concurrence and dissent.


author: Steele Hays, Associate Justice.

text:
    Jewel Smith CONSER and Shirley Smith BRENNEMAN v. Jessye S. BIDDY, Ellen S. BRIDGES and Rabye S. McCALL
    81-67
    625 S.W. 2d 457
    Supreme Court of Arkansas
    Opinion delivered December 7, 1981

      Thomas G. Montgomery, for appellants.
    No brief for appellee.
   Steele Hays, Associate Justice.

The issue of this appeal is the constitutionality of yet another gender-based statute— Ark. Stat. Ann. § 50-415 (Repl. 1971), which reads:

Conveyance of homestead. — No conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.

The chancellor held the statute unconstitutional because the same privileges and protections given wives under the statute were not afforded husbands. Appellants ask that we reverse the decree but we decline, as the holding and the result are correct.

In July 1977, Marion T. Smith executed a-quitclaim deed to 80 acres to three daughters but reserved a life estate to himself and all rights of dower and homestead to his wife, Earline Smith, who did not sign the deed. After Smith’s death his daughters, the appellees, petitioned for a declaratory judgment to determine the validity of the quitclaim deed, naming the surviving spouse and six heirs as respondents. The chancellor awarded Earline Smith dower and homestead rights reserved under the deed and refused to declare the deed invalid under § 50-415, holding instead that the statute was unconstitutional. Two of the heirs have appealed, contending that the chancellor was in error. Just how their interest is affected is not apparent from the record.

This case pre-dates Act 714 of 1981 of the Arkansas Legislature, enacted shortly after the decree was entered, amending § 50-415 and numerous other statutes relating to the property rights of married persons, so as to comport with recent decisions of the United States Supreme Court and the Arkansas Supreme Court holding statutes mandating gender-based discrimination to be a violation of the Equal Protection Clause of the Fourteenth Amendment. Act 714 eliminates any discrimination by substituting a neutral-based treatment of married persons for a gender-based treatment. The statute now reads:

Conveyance of homestead. — No conveyance, mortgage or other instrument affecting the homestead of any married person shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his or her spouse joins in the execution of such instrument and acknowledges the same.

To be valid, gender-based discriminations must serve important governmental objectives and the discriminatory means employed must be substantially related to the achievement of those objectives. Wengler v. Druggest Mutual Insurance Company, 446 U.S. 142 (1980); Califano v. Westcott, 443 U.S. 76 (1979); Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102 (1979); Califano v. Goldfarb, 430 U.S. 199 (1977); Trimble v. Gordon, 430 U.S. 762 (1977); Stanton v. Stanton, 421 U.S. 7 (1975).

Undoubtedly, the gender-based discrimination of § 50-415 (Act 64 of 1877, § 1) is built on the assumption that in financial matters males are necessarily superior to females. Whatever rational basis may have existed a century ago in support of that concept has been dissipated by social and economic changes of the last half century. In several recent cases we have held this assumption impermissible by invalidating similar gender-based statutes and we can find no valid governmental interest served by this statute. Hall v. Hall, 274 Ark. 266, 623 S.W. 2d 833 (1981); Hess v. Wims, 272 Ark. 43, 613 S.W. 2d 85 (1981); Stokes v. Stokes, 271 Ark. 300, 613 S.W. 2d 372 (1981); Noble v. Noble, 270 Ark. 602, 605 S.W. 2d 453 (1980); Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979).

Appellants urge that if § 50-415 is to be declared unconstitutional the holding should be prospective only, as it would not be fair to apply it in this case. Standing alone, the argument has weight because the quitclaim deed was signed some 18 months prior to the decision in Orr v. Orr, supra, which sounded the death knell of gender-based discriminatory statutes. Hall v. Hall, supra. Hence, it could be argued that prospective treatment should be given here as in Lemon v. Kurtzman, 411 U.S. 192 (1973). However, we decline to take that course, but for an entirely different reason; we believe the statute has no application to this quitclaim deed and so the chancellor was right in the result as well as in the fundamental question of constitutionality. The purpose of this statute was to protect the wife by preventing the husband from making valid conveyance or encumbrance of the homestead unless she joined in the deed. Park v. Park, 71 Ark. 283, 72 S.W. 993 (1903). But where the instrument expressly recognizes her homestead and reserves that right to her, it is not an “instrument affecting her homestead” within the prohibition of § 50-415. Where the homestead is not curtailed by the conveyance, as in this case, to invalidate the deed would be a senseless and repugnant restraint on the right of alienation of real property. (See generally cases cited in 31 Corpus Juris Secundum, ESTATES, Alienation, § 8 (2), at page 26.)

The chancellor was correct in holding that the gender-based discrimination of Ark Stat. Ann. § 50-415, which existed prior to its amendment by Act 714, is unconstitutional and was correct in the result and accordingly, we affirm the decree.

Hickman, J., concurs.


author: Per Curiam.

text:
    Robert Lee BORECK v. STATE of Arkansas
    625 S.W. 2d 459
    Supreme Court of Arkansas
    December 7, 1981

      James E. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant Robert Lee Boreck has filed a motion for a rule on the clerk. His attorney, James E. Davis, has attached an affidavit to the motion admitting that the record was tendered late due to a mistake on his part. We hold that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our per curiam opinion dated February 5,1979,265 Ark. 964, In Re Belated Appeals in Criminal Cases. A copy of this opinion, pursuant to that per curiam, will be forwarded to the Committee on Professional Conduct.


author: Richard B. Adkisson, Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    M. M. MCALLISTER, et al v. FORREST CITY STREET IMPROVEMENT DISTRICT NO. 11, et al
    81-139
    626 S.W. 2d 194
    Supreme Court of Arkansas
    Opinion delivered December 14, 1981
    [Rehearing denied January 25, 1982.]

      William P. Van Wyke, East Arkansas Legal Services, for appellant.

      Knox. B. Kinney and Sharpe ir Morledge, P.A., for appellees.

      Richard B. McCulloch, pro se, appellee.
   Richard B. Adkisson, Justice.

Appellants are 12 property owners who have been assessed benefits by the city council of Forrest City pursuant to its establishment of Forrest City Improvement District No. 11, hereinafter District. The appellees include the District’s commissioners, assessors, its attorney at the time the District was formed, and the City of Forrest City. Appellants brought this suit on October 17, 1979, in the St. Francis County Chancery Court to enjoin the District from collecting assessments from the appellants, to require the District to assess lands in the District omitted by fraud from assessment, and to award damages to appellants for fraud. The complaint was dismissed for failure to state grounds upon which relief could be granted. This is an appeal from that judgment. We affirm in part and reverse in part.

In considering a motion for j udgment on the pleadings for failure to state facts upon which relief can be granted, Ark. Rules Civ. Proc. 12 (b) (6), the facts alleged in the complaint are treated as true and are viewed in the light most favorable to the party seeking relief. Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W. 2d 321 (1981). We have not considered any defenses that were raised or could have been raised in reaching our decision.

The District was created by Ordinance No. 1237 on June 9, 1969, pursuant to Ark. Stat. Ann. § 20-108 (Repl. 1968) which requires a finding by the city council that two-thirds of the property owners in value have signed the petition to create an improvement district. In 1970, Ordinance No. 1260 was enacted assessing benefits on specific parcels as recorded in the clerk’s office. Ark. Stat. Ann. § 20-413 (Repl. 1968). Notice of the establishment of the District and of the assessments was duly published and no action was initiated in chancery court challenging the establishment of the District or the assessments within the 30 days allowed by statute; on appeal this notice is not challenged and is presumed to be sufficient.

Ark. Stat. Ann. § 20-416 (Repl. 1968) provides that if a suit is not brought within 30 days “[A]ll objections to the creation of the district or the validity of the assessment shall be forever barred and precluded.” However, our cases have held that such districts can be collaterally attacked even after the 30-day limitation has expired if fraud or demonstrable mistake can be shown. Little Rock v. Katzenstein, 52 Ark. 107, 12 S.W. 198 (1889).

Appellants rely on a letter written by the attorney for the District as a basis for the fraud. This letter was addressed to a local attorney with information copies to the mayor, one of the commissioners, and Mr. Charles M. Achinakian. This letter makes it clear that the property to be benefited by the improvements was not of sufficient value to justify the bond issue. The letter sought to include industrial plants and downtown businesses in the District for the purpose of increasing the valuation of the property, thereby making it easier to acquire the signature of two-thirds by value of all owners within the District. This letter assured the commercial and industrial owners that no assessment of benefits would be made by the District against their property even though they would be in the District.

Article 19, § 27 of the Arkansas Constitution provides:

Local improvements — Municipal assessments. —Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected; but such assessments shall be ad valorem and uniform.

Cases interpreting this section have held that the inclusion of property in an improvement district is conclusive of the fact that such property is adjoining the locality to be affected by the improvement. Little Rock v. Katzenstein, supra. Furthermore, we stated in Freeze v. Improvement Dist. No. 16, 126 Ark. 172, 189 S.W. 660 (1916), that property adjoining the locality to be affected is any property adjoining or near the improvement which is physically affected, or the value of which is commercially affected, to a degree in excess of the effect upon the property in the city generally, no matter how slight the excess benefit. In this case, we can presume that the property owners, by signing the petition to create the District, acknowledged that they would be benefited in some way. Therefore, appellants’ argument that the commercial and industrial property owners received no benefits and were fraudulently included in the District is not well taken. Furthermore, appellants cannot rely on demonstrable mistake in the establishment of the District because the letter is not a part of the face of the record — the creation of the District was not void.

However, the trial court erred in dismissing the portion of the complaint which alleged fraud in the assessments of the District. Ark. Stat. Ann § 20-401 provides:

As soon as said board of improvement shall have formed said plan, and shall have ascertained the cost of the improvement, it shall report the same to the city or town council, which shall appoint three [3] electors of the city or town, who shall constitute a board of assessment of the benefits to be received by each lot or block, or other subdivision of land within said district, by reason of the proposed local improvement.

And, Ark. Stat. Ann. § 20-404 provides:

Each of said assessors shall, before entering upon the discharge of his duties, take oath that he will well and truly assess, to the best of his knowledge and ability, the value of all the benefits to be received by each landowner by reason of the proposed improvements affecting each of said lots, blocks, or parcels of land or railroad tracks and right-of-way within said district. . . .

The allegations of the complaint, which we must take as true, state that the District used its power to make certain that those who had received the letter were not assessed benefits by the District and that the appointed assessors did not in fact assess the property in the District. The complaint also states that the assessors omitted the description of certain lands from their original assessment list and systematically excluded high value property from assessment and included low value property.

Paving Dists. 2 & 3 of Blytheville v. Baker, 171 Ark. 692, 286 S.W. 945 (1926) upon which appellees rely, is distinguishable from our case. In Paving Dist. we assumed that assessors did in fact assess all the property in the district, although they did not assess benefits to all property. Here, the complaint alleges that the assessors did not assess at all and never intended to do so.

We have defined fraud in Collier v. Bd. of Dir., 106 Ark. 151, 153 S.W. 259 (1913) asan intentnot to exercise an honest judgment, and not to make a true finding but to disregard the facts and make a false finding. The fraud alleged in this case as to the assessments in the District meets the above definition. A court of equity may correct this fraud, if proven, by requiring all property within the District to be assessed and by awarding damages if necessary.

Appellants argue that several streets which by the original ordinance of the city council were to be paved, have not been paved, and no adjustment of their assessments has been made. This part of the complaint, taken as true and taken in the light most favorable to the appellants, is sufficient to raise an issue for revision of the assessments and may be properly considered by the trial court on remand.

Affirmed in part; reversed in part.

Hickman, J., concurs.

Purtle, J., concurs in part, dissents in part.

Darrell Hickman, Justice,

concurring. I agree with the result in this case but to avoid any confusion state that I understand the majority’s holding to be:

1. The trial court is affirmed in refusing to void the Improvement District.
2. The case is reversed and remanded to permit the appellants to proceed on two alternative prayers for relief.
(a) That the court consider entering an order requiring the assessor to retroactively assess land that was wrongfully omitted.
(b) That the court hear a claim for damages to the plaintiffs against those defendants who acted fraudulently as alleged in Paragraph J of the complaint.

John I. Purtle, Justice,

concurring in part; dissenting in part. I concur in that part of the majority opinion which holds that the persons who signed the petition are presumed to receive benefits and that appellants stated a cause of action which alleged fraud in the assessment of benefits.
I disagree with the majority where it is stated that the letter to the high value property owners was not a part of the record. If the letter was not a part of the record, then it amounted to a fraud upon the bond purchasers. They had the right to rely upon the map and description which purported to show the boundary lines of the property improvement district. The high value property excluded in the letter was included as a part of the district and thereby was a part of the security to the bond holders. On the other hand, if the letter was in the record, the bond purchasers were participants in the fraudulent scheme against the low value residential property owners. It is admitted that the district could not have been formed had the high value business property not been included within its boundaries.
I feel the appellants stated a cause of action as to both the fraudulent assessment and the formation of the district. At trial facts may develop which will overcome both allegations. However, the pleadings and inferences to be drawn from them standing alone state a cause of action on both counts.

I would reverse and remand as to both allegations.


author: George Rose Smith, Justice.

text:
    Johnny Ray JONES v. STATE of Arkansas
    CR 81-123
    625 S.W. 2d 471
    Supreme Court of Arkansas
    Opinion delivered December 14, 1981

      Frierson, Walker Snellgrove ¿r Laser, by: Glenn Lovett, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Jones was charged with sexual abuse in the first degree, in that he threw a nine-year-old boy on the ground and forcibly attempted to have anal intercourse with him. Ark. Stat. Ann. § 41-1808 (Repl. 1977). The j ury found the defendant guilty and imposed a five-year sentence. Both points for reversal relate to the admissibility of evidence. Our jurisdiction is based on Rule 29 (1) (c).

Defense counsel presented a pretrial motion asking the court to rule that if Jones elected to testify the prosecution could not impeach his credibility by showing that Jones had pleaded nolo contendere to an earlier charge of rape also involving a little boy. It was argued that the prejudicial effect of the earlier conviction would outweigh its probative value. Following the court’s denial of the motion Jones elected not to testify. The ruling is assigned as error.

The ruling was wrong. Uniform Evidence Rule 609 (a), Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides in part that “[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted only if . . . the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness.” An exception is made for crimes involving dishonesty or false statement, which may always be proved. Other details in the Rule are unimportant here.

The Uniform Rule unqestionably changed the Arkansas law, which formerly permitted proof of a conviction of any felony to impeach a witness’s credibility. Field, A Code of Evidence For Arkansas?, 29 Ark. L. Rev. 1, 27 (1975). The Uniform Rule is specifically directed to the conviction’s probative value with respect only to credibility, because under both our common law and the Uniform Rules proof of an earlier crime is not admissible merely to bolster the prosecution’s case by showing that the accused is a person of bad character, addicted to crime. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954); Uniform Rule 404 (b).

On the facts of this case the prejudicial effect of the previous conviction clearly outweighed its value as bearing on credibility. There may be instances in which proof of an earlier conviction for the same crime as that on trial may be admissible, but there are sometimes strong reasons for excluding such proof because of the pressure on lay jurors to believe that “if he did it before he probably did so this time.” Gordon v. United States, 383 F. 2d 936 (D.C. Cir. 1967), cert. denied 390 U.S. 1029 (1968). That is especially true in the case at bar, because sexual abuse of a child is a particularly shameful and outrageous crime. Moreover, at the pretrial hearing it was admitted by defense counsel that Jones’s two previous convictions for burglary and theft would be admissible if he testified. Thus the prosecutor would have been free to question Jones’s credibility, as a convicted felon, Proof of still a third conviction, for a similar sexual assault upon a little boy, would have been of scant probative value as compared to its significantly prejudicial effect on the jury.

Second, defense counsel also asked the trial judge to decide before the trial whether a certain line of inquiry by the defense would open the door to proof by the prosecution that Jones had previously been convicted of a similar sexual offense. Counsel now challenge the judge’s ruling that the proposed inquiry would have let in the proof.

The State meant to, and did, call the witness Spencer to testify that he had seen Jones and the child emerging from a wooded area with their trousers unbuttoned and that the child then told Spencer about the acts leading to the present prosecution. Defense counsel had a written statement in which Spencer had said: “I knew it was Johnny, because I was in the pen with him.” Counsel proposed to cross-examine Spencer about that statement and then show by Johnny’s father that Johnny had not been in the penitentiary at the time Spencer was there. The court ruled that the prosecution would then be entitled to prove that Jones’s penitentiary confinement had been for the prior sexual offense (the burglary-theft convictions having resulted in probation, not imprisonment).

All the facts are not before us, because after the court’s ruling the suggested course was not pursued. We do not disregard the possibility that the proof might not have developed just as counsel expected or that the court might have reconsidered its pretrial ruling, as it was entitled to do. Control Data Corp. v. International Business Mach. Corp., 421 F. 2d 323 (8th Cir. 1970); Nance v. Flaugh, 221 Ark. 352, 253 S.W. 2d 207 (1952). We must nevertheless decide the issue, a new trial being necessary.

We hold that if the proof develops as expected by defense counsel, his proposed inquiry would not open the door to proof of the reason for Jones’s imprisonment. Spencer’s statement that he knew it was Johnny because he had been in the penitentiary with him was not a mere collateral issue, injected only for the purpose of an impeaching contradiction. See Sellers v. State, 93 Ark. 313, 124 S.W. 770 (1910). To the contrary, the statement was an affirmative basis for Spencer’s identification of Jones and therefore subject to refutation without reference to the reason for Jones’s confinement. As far as Spencer’s credibility was concerned, the only relevant issue would be, Was Jones there?, not Why was he there?

Reversed and remanded for a new trial.

Adkisson, C.J., dissents as to the first point.


author: Frank Holt, Justice.

text:
    Carolyn Ann Pickett CASKEY v. Jerry D. PICKETT
    81-154
    625 S.W. 2d 473
    Supreme Court of Arkansas
    Opinion delivered December 14, 1981

      Henry C. Morris, for appellant.

      Michael Castleman, for appellee.
   Frank Holt, Justice.

This case involves the question of whether an Arkansas court has jurisdiction to modify a custody decree of a Texas court under our Uniform Child Custody Jurisdiction Act, Ark. Stat. Ann. § 34-2701 et. seq. (Supp. 1981), Act 91 of 1979, when the Texas court has continuing jurisdiction over the custody of the child. The chancellor held he had jurisdiction and modified the decree by changing the custody of the child from the appellant to the appellee, granting appellant certain visitation rights. For reversal the appellant asserts that the chancellor lacked jurisdiction to modify the Texas court decree. We agree.

The appellant and appellee are respectively the mother and father of Lori Ann Pickett. After several years of marriage, the appellee petitioned for divorce from the appellant in Harris County, Texas, where the divorce was granted November 8, 1974. The appellant was awarded custody of Lori, then 5 years of age. Appellee was awarded visitation rights and was not required to make child support payments. After the divorce the appellee moved to Lockesburg, Sevier County, Arkansas, where he has resided for several years with this third wife and her 7 year old son. The appellant, who continued to reside in Texas, moved to Georgetown (an Austin suburb), Texas, where she has resided for the past several years. She married her third and present husband there in 1978. In the summer of 1980, while Lori was making her annual visit with her father at his home in Lockesburg, he filed a petition in the Sevier County Chancery Court seeking to modify the Texas decree by being awarded custody of Lori, then 1VÁ years of age. Appellee alleged, inter alia, that due to an emergency situation the court could take jurisdiction to protect the child, pursuant to Ark. Stat. Ann. § 34-2703 (a) (2) (3) (Supp. 1981), because the child is neglected or dependent. The appellant responded by asserting the court lacked j urisdiction, citing § 34-2714, which reads:

(a) If a court of another state has made a custody decree, a court of this state shall not modify the decree unless: (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction and (2) the court of this state has jurisdiction (Italics supplied.)

Ark. Stat. Ann. § 45-403 (Supp. 1981), in pertinent part defines a dependent neglected child as a juvenile whose parent, by reason of immorality, is unfit to properly care for the minor child. The trial court agreed with the appellee and found that Lori is a dependent or neglected child as defined by § 45-403. The chancellor made a finding of fact that the appellant had an immoral and adulterous affair with a man when she was recently and temporarily separated from her husband and her conduct so disturbed Lori that her best interests required that appellee have custody of her.

Lori was the principal witness. She testified that her mother and stepfather had worked out an arrangement that during their recent two months trial separation her mother and he could have dates and that she had observed her mother dating. She did not believe that this was right and wanted to stay wi th her father in Arkansas and attend school there. This was her decision and uninfluenced by her father. She testified that she loved her mother, who is good to her as is her stepfather. She has a nice home. However, she objected to her mother’s dating other men. This behavior affected her grades and upset her. She was apprehensive that this conduct would continue. She did not want to stay with her mother until her mother decides what she is going to do. The mother candidly admitted that on two or three occasions she had had intimate relations with another man during the trial separation with her husband in the summer of 1980. She felt the child was unaware of this. This separation, beginning in May, lasted about two months, and upon reconciliation with her husband, this affair had ended. She has had no other affairs during the marriage. Lori is active in sports and Girl Scouts. Her husband verified her testimony and told the court that he loved Lori and that he would not have spent the money and made two trips to Arkansas to attend the custody hearings if he were not sincere in his desire that his wife retain custody of the child. This is his first marriage. He contributes to Lori’s support. Lori periodically attends a local Sunday School. A clinical psychologist, appellee’s witness, testified that Lori is a well adjusted child who made no complaint about mistreatment or abuse by her mother or stepfather; that Lori has a good moral background; that she is distressed, does not approve of her mother dating other men, and prefers staying with her father. If her mother provided her with moral security, he saw no “particular difference” between the competing parents. If she were sent back to her mother against her wishes, it would place some stress on her; it would not be a “disastrous blow, disappointed perhaps.” She appears sufficiently well adjusted to adapt to a disappointment.

Jurisdiction predicated on § 34-2703 (a) (3) is to be used only in extreme or extraordinary situations where the immediate health and welfare of the child is at stake. See De Passe v. De Passe, 421 N.Y.S. 2d 497 (1979); In Re Marriage of Schwander, 145 Cal. Rptr. 325 (1978); and Roberts v. District Court of Larimer Cty., 596 P. 2d 65 (Colo. 1979). The Commissioners’ note following the Uniform Child Custody Jurisdiction Act (9 U.L.A.) § 3 (Master Edition), p. 124, states that under paragraph (3) of subsection (a), “[tjhis jurisdiction exists when a child has been abandoned and in emergency cases of child neglect.... This extraordianry jurisdiction is reserved for extraordinary circumstances .... When there is child neglect without emergency or abandonment, jurisdiction cannot be based on this paragraph.”

Here, the evidence is insufficient to justify the Arkansas court preempting the continuing jurisdiction of the “home state” court to modify the custody award on an emergency basis for the child’s best interests. In fact, it appears that the asserted emergency had ceased to exist since there is a reconciliation of her mother and stepfather. The record does not reflect that the Texas court is without jurisdiction nor that it has declined to exercise jurisdiction. Texas is the child’s “home state” and she was in Arkansas only for visitation with her father in compliance with the Texas court order.

Our legislature, in § 34-2701, stated the general purposes of this act were to avoid jurisdictional competition and conflict in other states on matters of child custody; to assure that custody litigation takes place ordinarily in the state which has optimum access to matters concerning the custody; the courts of this state should decline jurisdiction when the child and family have a closer connection with another state; to promote cooperation with the courts of other states in order to insure that the determination of custody is made by the court which can best decide the interest of the child; to avoid relitigation of custody decisions of other states insofar as feasible; to promote and expand the exchange of information and mutual assistance between the courts of this state and other states on custody matters; make uniform the law of child custody among the states; and that this Uniform Act shall be construed to promote these general purposes.

The merits of this custody case should be determined by the Texas court which has continuing jurisdiction. To hold otherwise under the facts in this case would undermine the policy and purpose of the Uniform Child Custody Act which our legislature has so recently enacted.

The appellant is awarded her costs and $500 for her attorney for his services on appeal.

Reversed and dismissed.


author: Darrell Hickman, Justice.

text:
    C. B. RITCHEY, et ux v. Nora MURRAY
    81-165
    625 S.W. 2d 476
    Supreme Court of Arkansas
    Opinion delivered December 14, 1981

      Jay W. Dickey, Jr., for appellants.

      Laser, Sharp & Huckabay, for appellee.
   Darrell Hickman, Justice.

Habit is defined as “an acquired or developed mode of behavior or function that has become nearly or completely involuntary.” Webster’s Third New International Dictionary (1967). The issue in this case is whether the evidence of behavior offered and rejected by the trial court amounted to habit. We cannot say the trial court was clearly wrong in rejecting the proffered evidence and affirm the judgment.

The case arose over an automobile accident that occurred April 13, 1979, about 7:45 a.m. on Highway 15, approximately 3.8 miles south of Pine Bluff. The appellant testified that he thought the driver of an approaching vehicle, who had veered into appellant’s lane, was going to cross to the appellant’s shoulder. So the appellant swerved into the lefthand lane to avoid an accident. Instead, the other vehicle crossed back into the lefthand lane and the vehicles collided. The driver of the other vehicle, Coy Murray, was killed.

Before trial the appellee , Coy Murray’s widow, filed a motion in limine to prohibit the introduction of testimony that Murray regularly weaved back and forth over the center-line. The appellants argued that Murray delivered newspapers in his vehicle, and, as he was throwing papers, he sometimes crossed the centerline. There was also testimony that Murray was a tobacco chewer whose left arm was cut off below the elbow, and as he sought a chew while driving, his vehicle would weave across the centerline because he needed two hands for such a maneuver, but had only the use of one.

The parties stipulated as to what the proffered testimony would be and only one part approaches what could be considered evidence of a habit. That is:

[V]arious times that they [the witnesses] would either be meeting Coy Murray or following him when he would for unknown reasons — sometimes to throw papers but sometimes unknown reasons — could cross the center line and then weave back into his own lane of traffic . . . [M]any times ... he [Murray] would appear like he was intoxicated sometimes — he would weave back and forth. But all the witnesses . . . would say that he would come across the center line and then usually jerk back as if he was distracted or looking away from the way that he was going.

The appellants sought to have this testimony admitted under Ark. Stat. Ann. § 28-1001, Rule 406 (Rep. 1977). That rule reads:

Rule 406. Habit — Routine Practice. — (a) Admissibility. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
(b) Method of Proof. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

Our rule permitting evidence of a relevant habit is in accordance with leading authorities. McCORMICK ON EVIDENCE § 195 (2d ed.); IWIGMORE ON EVIDENCE § 97 (3rd ed.). But the question is always what behavior constitutes habit? McCormick defines it as a person’s “. . . regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.” McCORMICK ON EVIDENCE, supra.

The proffer of testimony in this case did not show that at the time of the accident the decedent was delivering papers, or that he was attempting to obtain a chew of tobacco. There is nothing in the proffer to show that he was on a route where he delivered papers. The trial judge in his discretion found the evidence to be inadmissible. To reverse that decision we would have to find the decision clearly erroneous. Based on the proffer made we cannot say that.

Affirmed.


author: John I. Purtle, Justice. Darrell Hickman, Justice, Richard B. Adkissqn, Chief Justice,

text:
    Thomas CHAPMAN v. HAMBURG PUBLIC SCHOOLS
    81-130
    625 S.W. 2d 477
    Supreme Court of Arkansas
    Opinion delivered December 14, 1981

      Cearley, Gitchel, Mitchell ¿r Bryant, by: Richard W. Roachell, for appellant.

      Arnold, Hamilton & Streetman, by: Herman L. Hamilton, Jr., for appellee.
   John I. Purtle, Justice.

The appellant was a nonprobationary teacher who was placed on probation pursuant to his contract for the 1979-80 school year. The appellee, Board of Education of the Hamburg Public School District, refused to renew appellant’s contract for the 1980-81 school year. The Ashley County Circuit Court affirmed the action of the Board. On appeal appellant urges three points for reversal: (1) that the court erred in finding none of the teacher’s federal constitutional rights were involved; (2) that the court erred in not reversing the Board’s action because they decided to terminate appellant before affording him a hearing; and, (3) that the court erred in failing to review the record of the Board’s action before making a decision.

In upholding the trial court we find no prejudicial error inasmuch as the Board complied with the provisions of Act 766 of 1979 and substantially complied with the provisions of its own policies adopted pursuant to Act 400 of 1975.

The facts in this case reveal that Thomas Chapman, appellant, had been employed by the appellee, Hamburg Public Schools, for eleven years prior to the nonrenewal of his contract in March 1980. The contract which he was given for the 1979-80 school year had a probation provision in it which stated:

.. . band performances and ratings must show marked improvement over past years or this will serve as grounds for non-renewal of contract.

As early as 1974 the school board had considered not renewing appellant’s contract. In fact, on March 19, 1974, the Board voted not to renew appellant’s contract for the year 1974-75. The appellant was notified by letter dated March 21,1974. However, the Board scheduled a hearing which was held on April 9,1974. At this hearing the Board reconsidered its prior decision and renewed the contract for 1974-75 on a probationary basis. At a special Board meeting on March 19, 1975, the Board voted to renew appellant’s contract for the year 1975-76 on the same probationary basis as the contract for 1974-75. The reasons given for this probation were conflicts with students and band parents and disciplinary procedures used. On March 16, 1976, the appellant was reprimanded for leaving students in the band hall unsupervised. At the Board meeting of March 20, 1979, the Board extended appellant’s contract from nine to ten months, without additional pay, and tacked on the provision earlier quoted about marked improvement being required. This 1979-80 contract was signed on May 7,1979, by the appellant with the probation and restrictions contained on the face of the contract. Appellant’s record also revealed an official reprimand from the superintendent for failure to attend a faculty workshop on March 15, 1979, which included a statement that he had a right to appear before the Board to challenge the reprimand and contract extension. The superintendent held a conference with the appellant at the beginning of the 1979-80 school year and made recommendations concerning discipline and band practice sessions. This conference was acknowledged by the appellant by his signature on the superintendent’s notes. The record also contained other comments about the band not doing a good job and the band hall not being in proper order. On March 18, 1980, the Board voted not to renew the appellant’s contract. This decision was apparently made in a routine manner much the same as the renewal or nonrenewal for all other teachers in the district were made. There does not appear to have been any hearing or discussion concerning the renewal of appellant’s contract on this date. The appellant received a letter following this meeting which stated that the Board’s decision not to renew his teaching contract was based upon a determination by the Board that he had failed to show the degree of marked improvement in the performance of his duties as had been expressed in the conditions of his probationary contract for the year to end on June 30, 1980. The letter also notified appellant that he could request a hearing before the Board. A hearing was requested and held on the nonrenewal of appellant’s contract at which time a considerable amount of evidence was presented both for and against the appellant. There was substantial evidence for either decision the Board wished to make.

The appellant’s first argument is that he had a right to procedural and substantive due process of law because he had a protected property interest in the expected renewal of his contract. Appellant admits that Act 74 of 1970, the predecessor to Act 766 of 1979, did not give rise to the expectation of continued employment which would create a property right. However, he insists that the new act does rise to this level. The pertinent part of Act 766 is codified as Ark. Stat. Ann. § 80-1264.9 (b) (Repl. 1980):

Any certified teacher who has been employed continuously by the school district [for] three (3) or more years may be terminated or the board may refuse to renew the contract of such teacher for any cause which is not arbitrary, capricious, or discriminatory, or for violating the reasonable rules and regulations promulgated by the school board. . . .

Additionally, the appellant insists that the Board voluntarily gave the appellant property rights when it adopted its policy No. III.C.4 as follows:

When the Board receives evidence which it considers sufficient to terminate a teacher either by dismissal or non-renewal of contract, it shall send to the teacher by certified mail with return receipt a notice of his proposed termination. The teacher may request that a statement of reasons be mailed to him; this request shall be in writing to the superintendent of schools. A statement of reasons will be mailed, after written request, in the same manner as the notice of proposed termination. The teacher will be advised in this second letter that upon request in writing to the president of the Board, with a copy to the superintendent within thirty (30) days of receipt of the Board notice, he will be accorded a hearing before official action is taken by the Board.

It is undisputed that at the Board meeting at which nonrenewal was voted, the appellee did not provide prior notice to appellant nor was evidence received other than the recommendation of the superintendent. Such procedure is obviously contemplated by the Board’s policy as set out above. However, instead of sending the notice of “proposed termination” the Board sent a notice of “nonrenewal.” The notice sent to the appellant followed the Board’s policy in all other respects including giving him notice that he was entitled to a hearing before the Board. There is no question but that the same rights of production of evidence and opportunity of examination and cross-examination were afforded appellant as were intended by both the Board policy and state law. If we were to uphold appellant’s contention, it would mean a duplication of the hearing process with its attendant requisites. It seems that there could be no complaint by the appellant in the present case (at least as to procedure) if the initial letter had stated that the Board proposed not to renew his contract rather than stating that they had voted not to renew it.

It is not disputed by appellant that the matter of renewal or nonrenewal of the appellant’s contract was within the discretion of the Board. This was subject, of course, to certain restrictions which are not involved in this case. In finding that the Board followed the terms of its policy with the exception of the unfortunate wording “voted not to renew” instead of “proposed not to renew,” we decide that the Board has substantially complied with its own policies. There was no argument that they did not follow the state statute as to procedure.

We have discussed appellant’s second point urged for reversal to some extent in our discussion on the first point. However, it should be mentioned again. We are not backing away from our decision in Maxwell v. Southside School District, 273 Ark. 89, 618 S.W. 2d 148 (1981). In Maxwell we determined that there was not substantial compliance with the Board’s own policy as it related to the renewal of a contract for either probationary or nonprobationary teachers. There was no question raised as to the circuit court’s jurisdiction in the case. One readily distinguishable feature between Maxwell and the present case is that there was obviously a hearing in the Maxwell case before the teacher was given an opportunity to appear. In the present case there was no hearing as such until after the teacher had been notified. We are able to determine from the record before us everything that was considered by the Board. In Maxwell we were unable to determine from the record all of the matters considered by the Board prior to voting not to renew Maxwell’s contract.

The present case is factually similar to McElroy v. Jasper School District, 273 Ark. 143, 617 S.W. 2d 356 (1981). McElroy was a probationary teacher. The Board voted not to renew her contract but gave her an opportunity to come before the Board and present any material she desired and to have representation of her own choosing. In all of these cases the school board furnished a court reporter and a transcript of the proceedings without cost to the teacher. After the hearing in McElroy the Board again voted to not renew her contract. Basically, the chief difference between McElroy and the present case is that the appellant here was a nonprobationary teacher even though he was on contractual probation for other reasons. He was nonprobationary in the sense that he had been employed for more than three consecutive years by the district. It is our opinion that the appellee actually intended its letter of March 18,1980, to be a notice of intent to not renew the contract. Viewing this instrument in this light there was little question that the Board followed all other procedures completely. A full-blown hearing was held prior to the time the appellant was officially notified that his contract would not be renewed.

Finally, the appellant argues that the court erred in failing to review the record prior to making its decision. We agree with the appellant that Act 766 gives a nonprobationary teacher the right to go into circuit court on appeal upon allegation that his contract was nonrenewed for prohibited reasons. Such appeal would clearly be reviewable by the circuit court. However, the record in the present case contained three pages of findings of facts and conclusions of law. The judgment clearly indicates the trial court reviewed the record of the Board’s hearing. In the judgment, the court stated it had jurisdiction of the parties and the subject matter. Therefore, there is no dispute but that this matter was reviewable on appeal through the circuit court. Neither can it be disputed that the matter was in fact considered by the court.

Since this determination not to renew the appellant’s contract was a matter within the discretion of the school board, the reviewing court could not substitute its opinion for that of the Board in the absence of an abuse of discretion by the Board. Safferstone v. Tucker, 235 Ark. 70, 357 S.W. 2d 3 (1962). In reviewing this case we do so pursuant to the clearly erroneous standard. In other words, if the trial court was not clearly erroneous, then we will affirm. Tedder v. Blackmon’s Auctions, Inc., 274 Ark. 241, 623 S.W. 2d 516 (1981).

Affirmed.

Hickman, J., concurs.

Adkisson, C.J., and Hays, J., dissent.

Darrell Hickman, Justice,

concurring. I fully concur with the result reached in this case because I am convinced that the school board had not formally decided not to renew the contract of Thomas Chapman. While it is true that the written policies of the school board appear to be contrary to Arkansas law, I am convinced that this technical infraction should not control the outcome of the litigation; the school board intended to notify Chapman he would not be rehired, but reserved to Chapman the right to a formal hearing.

There is no doubt that the school boards and the teachers will continue to adjust to the Teachers Fair Dismissal Act. Ark. Stat. Ann. § 80-1264 et seq. (Repl. 1980). All school boards should make certain that their policies are in compliance with the new law and that their policies are consistent with the new law.

In a series of cases we have tried to interpret the Teachers Fair Dismissal Act and it may be that some of our decisions appear to be inconsistent. For that reason I file this concurring opinion.

We decide our cases on the basis of the case and controversy theory. That is, we make our decisions based on the facts and issues that are presented to us on appeal and no other. That is what we are supposed to do. Using that method we have dealt with this Act in seven cases. We have decided that a probationary teacher, that is, one who has not completed three successive years of employment, is not entitled to a hearing before the school board if that teacher’s contract is not renewed. That principle was set forth in McElroy v. Jasper School District, 273 Ark. 143, 617 S.W. 2d 356 (1981), and confirmed in our decisions of this date in the cases of Nordin v. Hartman Public Schools and Allred v. Little Rock School District. In McElroy there was no question raised on appeal of whether the teacher had a right. to a hearing or whether the right existed to appeal from a decision by the school board to not renew a contract. The school board on its own decided to give the teacher a hearing. The decision was appealed to the circuit court and appealed to us without regard to any question of the right to a hearing or to an appeal. The question was directly raised in the Allred case and we have confirmed that the Teachers Fair Dismissal Act does not give a probationary teacher a right to a hearing or a right to appeal from a school board decision. These two decisions might appear to be inconsistent with our decision in Springdale School District v. Jameson, 274 Ark. 78, 621 S.W. 2d 860 (1981) which was before us on a petition for a writ of prohibition. Numerous issues were raised in the Jameson case and because of the unusual and extraordinary nature of a writ of prohibition, we declined in that case to issue one. In my judgment Jameson did not mean and should not be interpreted to mean that there is a right to appeal to circuit court.

In the case of Maxwell v. Southside School District, 273 Ark. 89, 618 S.W. 2d 148 (1981), we found that the school board had not substantially complied with its own policies; it had in fact heard evidence before it decided to give Maxwell a hearing, then decided to give Maxwell a hearing at which it confirmed its original decision. We said that this was a violation of its own policies. Whether Maxwell was entitled to a hearing in the first place under the Teachers Fair Dismissal Act was not a question raised below. Nor was the question raised of whether Maxwell had a right to appeal from the decision. Since neither of those questions was raised on appeal we did not consider them in our decision.

In five cases we have held that the school board must substantially comply with either its procedures or the Teachers Fair Dismissal Act. That principle was announced in Maxwell v. Southside School District, supra; McElroy v. Jasper School District, supra; Allred v. Little Rock School District, supra; Fullerton v. Southside School District, 272 Ark. 288, 613 S.W. 2d 827 (1981); and now in this case.

In dictum in the McElroy case we indicated that a probationary teacher did have a right to a hearing if that teacher was terminated during the term. In Allred v. Little Rock School District, supra, and Nor din v. Hartman Public Schools, supra, the majority confirms the dictum in McElroy. My concurrence with all the decisions in this matter has been on the basis of my understanding of our holdings as I have stated them in this opinion. There are several issues we have not decided. I will reserve judgment on those until they are presented on appeal.

Richard B. Adkissqn, Chief Justice,

dissenting. The majority have held that the Hamburg School Board, hereinafter Board, has substantially complied with its own rules adopted pursuant to Act 400 of 1975, and has complied with the Teacher’s Fair Dismissal Act of 1979 (Act 766). I disagree. The purpose and intent of the Board rules are contrary to the purpose and intent of state law, Act 766 of 1979; the Board has complied with its own rules, but not with Act 766.

On March 18, 1980, the Hamburg School Board gave appellant, a nonprobatiohary teacher, notice of its decision not to renew his contract for the following year. This was done in accordance with its adopted policy No. III.C.4:

When the Board receives evidence which it considers sufficient to terminate a teacher either by dismissal or non-renewal of contract, it shall send to the teacher by certified mail with return receipt a notice of his proposed termination. The teacher may request that a statement of reasons be mailed to him; this request shall be in writing to the superintendent of schools. A statement of reasons will be mailed, after written request, in the same manner as the notice of proposed termination. The teacher will be advised in this second letter that upon request in writing to the president of the Board, with a copy to the superintendent within thirty (30) days of receipt of the Board notice, he will be accorded a hearing before official action is taken by the Board. (Emphasis added)

The Board’s policy contemplates a preliminary decision not to renew a teacher’s contract prior to giving him notice of his proposed termination. This provision is in accordance with prior law, Act 319 of 1941, which provided that the school board give the notice of nonrenewal. Ark. Stat. Ann. § 80-1304 (b) (Repl. 1980). This part of Act 319 has been changed by Act 766 of 1979 which contemplates that school boards not make a decision, preliminary or otherwise, not to renew before giving the teacher notice and a hearing.

The Teacher’s Fair Dismissal Act of 1979 (Act 766), Ark. Stat. Ann. §§ 80-1264 — 1264.10 (Repl. 1980) provides in § 1264.3 that “the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed.” And § 1264.8 provides that a nonprobationary teacher who “receives a notice of recommended nonrenewal may file a written request with the school board of the district for a hearing,” and further provides for making a record of the hearing. Section 1264.9 (b) provides that upon completion of such hearing, the Board is to make its decision within ten days from the date of the hearing and allows a nonprobationary teacher an appeal to circuit court. This Act clearly anticipates that the nonprobationary teacher will be given notice of the superintendent’s recommendation and an opportunity to be heard before the school board makes a decision on non-renewal of the teacher’s contract.

The appellee has simply failed to update its procedural rules to conform with state law. The Board followed its written rules but ignored Act 766 of 1979 and “voted not to renew” the teacher’s contract prior to notifying him of its proposed actions. There could be no clearer violation of a teacher’s right to procedural due process.

Act 766 was no doubt enacted, at least partially, to avoid just such a situation as we have here. The superintendent of schools was purposefully placed between the teacher and the Board so that the Board would not be required to make a determination before having heard the teacher. This is not to say, however, that the school board cannot act without the recommendation of the superintendent. In Fullerton v. Southside School Dist., 272 Ark. 288, 613 S.W. 2d 827 (1981) we held a school board could give the necessary notice of proposed nonrenewal where the superintendent was unwilling to do so. The school board has the ultimate responsibility for the operation of the school district.

I am hereby authorized to state that Hays, J., joins me in this dissent.


author: Robert H. Dudley, Justice. Richard B. Adkisson, Justice, Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    David NORDIN v. HARTMAN PUBLIC SCHOOLS
    81-131
    625 S.W. 2d 483
    Supreme Court of Arkansas
    Opinion delivered December 14, 1981

      Cearley, Gitchel, Mitchell ¿r Bryant, by: Richard W. Roachell, for appellant.

      Bethell, Callaway & Robertson by: Edgar B. Bethell, for appellee.
   Robert H. Dudley, Justice.

The sole issue in this case is whether the Teacher Fair Dismissal Act, Ark. Stat. Ann. §§ 80-1264 — 80-1264.10 (Repl. 1980) confers jurisdiction on the circuit court to hear an appeal from the decision of a school board to nonrenew the teaching contract of a probationary teacher when no constitutional issues are involved. Appellant, David Nordin, taught school in the Hartman Public School District under a one-year contract for the 1979-80 school year. The superintendent notified appellant by letter that he would not recommend renewal of appellant’s contract. Appellant then requested and was granted a hearing before the school board. The board followed the superintendent’s recommendation and voted for nonrenewal. Appellant subsequently filed a notice of appeal in the Johnson County Circuit Court. The appeal stated that the school board’s violation of its own policies and of state law constituted a breach of contract. The school board moved to dismiss the appeal. The circuit court refused to dismiss the appeal holding that a right of appeal exists if the probationary teacher was nonrenewed on constitutionally impermissible grounds. The board did not appeal that ruling and that issue is not before us. Counsel then stipulated that no federal constitutional issues were involved. The board subsequently filed a motion to dismiss and the trial court held that the Teacher Fair Dismissal Act does not confer jurisdiction on the circuit court to hear an appeal from the decision of a school board to nonrenew the teaching contract of a probationary teacher when no constitutional issues are involved.

Appellant now contends that the circuit court erred in dismissing the case because the act provides the right to an appeal to circuit court by a probationary teacher. Appellee does not cross-appeal that part of the ruling holding that there is a right of appeal when constitutional issues are involved. We affirm the trial court’s action in dismissing the appeal.

A thorough analysis of the Teacher Fair Dismissal Act, supra, reveals that it symmetrically deals with separate categories of school employees, “teachers” and “probationary teachers.” Section 80-1264.1 provides:

The term“teacher” as used in this Act [§§ 80-1264 — 80-1264.10] shall be defined as any person, exclusive of the superintendent or assistant superintendent(s), employed in an Arkansas public school district who is required to hold a teaching certificate from the Arkansas Department of Education as a condition of employment.
The term “probationary teacher” as used in this Act shall be defined as a teacher who has not completed three (3) successive years of employment in the school district in which the teacher is currently employed.

Nowhere in the act is there a specific provision for appeal to circuit court by a probationary teacher whose contract has not been renewed. Appellant contends that the last sentence of the appeals section, § 80-1264.9 (b), should be interpreted to provide a right of appeal to probationary teachers. It states:

. . . The exclusive remedy for any person aggrieved by the decision of the school board shall be appealed [an appeal] therefrom to the circuit court of the county in which the school district is located, within thirty (30) days of the date of written notice of the action of the school board.

We reject the contention that this sentence is applicable to this case for a number of reasons. First, § 80-1264.9 (a) rather than (b) is the section which deals with probationary teachers and § (a) does not provide a right to appeal for nonrenewal by probationary teachers. Second, § (b), which gives the right of appeal in event of nonrenewal, is applicable to the category it mentions in the first sentence, “Any teacher who has been employed continuously by the school district for three years or more. . .” Third, such a strained interpretation would break the symmetry and logic of the act. The act provides that any teacher, probationary or otherwise, is entitled to a hearing before the school board and a subsequent appeal to circuit court when the contract is “terminated” as opposed to “nonrenewed.” §§ 80-1264.4, 1264.5 and 1264.9. In the case at bar we are not concerned with termination as this probationary teacher’s contract was nonrenewed. The nonrenewal sections of the act provide that all teachers’ contracts shall be renewed each year unless the teacher is given proper notice of nonrenewal. § 80-1264.3. After the notice is given, meaningful statutory differences exist between probationary teachers and other teachers. A teacher who has completed three successive years of employment in the school district is entitled to a statement of reasons for nonrenewal. § 80-1264.3. Nó similar statutory provision is made for probationary teachers. Since the reasons for nonrenewal need not be given, and since a hearing does not have to be held, there simply is nothing to appeal to circuit court. There is no logical basis for an appeal from nothing.

We interpret the appeal statute, § 80-1264.9 to provide for an appeal by any teacher in case of termination and to provide for an appeal upon renewal by a teacher who has completed three successive years of employment in the school district. We do not interpret it to provide for appeal by a probationary teacher on nonconstitutional grounds.

Recently we have dealt with a number of cases involving the Teacher Fair Dismissal Act, but this is the first time this particular issue has been squarely before us. In the cases of Maxwell v. Southside School District, 273 Ark. 89, 618 S.W. 2d 148 (1981) and. McElroy v. Jasper School District, 273 Ark. 143, 617 S.W. 2d 356 (1981) we discussed appeals by probationary teachers to the circuit court, but the statutory right to appeal was not put in issue. The case of Springdale School District v. Jameson, 274 Ark. 78, 621 S.W. 2d 860 (1981) was before us on a writ of prohibition and we held that the circuit court could not be said to be wholly without jurisdiction.

Affirmed.

Adkisson, C.J., concurs.

Richard B. Adkisson, Justice,

concurring. The majority have apparently held that a probationary teacher has a right to appeal to circuit court from a decision of the school board where (1) a constitutional issue is involved, and (2) where a hearing has been held by the Board for termination of such a teacher.

The Teacher’s Fair Dismissal Act of 1979 (Act 766) Ark. Stat. Ann. § 80-1264 — 1264.10 (Repl. 1980), does not give a probationary teacher the right to appeal to circuit court under any circumstances. Section 80-1264.9 sets out the procedure to be followed after the Board has granted a hearing. Subsection (a) applies to probationary teachers and subsection (b) applies to nonprobationary teachers:

(a) Upon conclusion of its hearing with respect to the termination or nonrenewal of a teacher contract of a teacher who has been employed as a full-time teacher by the school district for less than three (3) continuous years, the board shall take action on the recommendations by the superintendent with respect to the termination or nonrenewal of such contract.
(b) Any certified teacher who has been employed continuously by the school district [for] three (3) or more years may be terminated or the board may refuse to renew the contract of such teacher. . . The exclusive remedy for any person aggrieved by the decision of the school board shall be appealed [an appeal] therefrom to the circuit court of the county in which the school district is located, within thirty (30) days of the date of written notice of the action of the school board.

The provision for appeal to circuit court is found only in subsection (b) which by its introductory sentence applies specifically to nonprobationary teachers. If it had been intended that probationary teachers have an appeal to circuit court, the last sentence in subsection (b) would have been set apart as subsection (c) or be contained wholly in another section.

Springdale School District v. Jameson, 274 Ark 78, 621 S.W. 2d 860 (1981) involved an appeal to circuit court from a Board decision to not renew the contract of a probationary teacher, but was before this Court on a petition for writ of prohibition testing circuit court jurisdiction; we held that “The subject matter jurisdiction for breach of contract is cognizable in circuit court.” Springdale School Dist. is limited to the narrow issue.decided. We could have but did not state the obvious, that is, that the remedy for breach of contract is to file an original action in circuit court.

As stated in the majority opinion, Maxwell v. Southside School Dist., 273 Ark. 89, 618 S.W. 2d 148 (1981) and McElroy v. Jasper School Dist., 273 Ark. 143, 617 S.W. 2d 356 (1981) also involved appeals by probationary teachers to circuit court from a school board decision; however, the statutory right to appeal was not in issue.

The remedy of a probationary teacher for breach of contract is the same as for anyone else — to file a lawsuit. Act 766 of 1979 does not provide an appeal to circuit court by a probationary teacher for any reason or under any circumstances.

Darrell Hickman, Justice,

concurring. See concurring opinion in Chapman v. Hamburg Public Schools, 274 Ark. 391, 398, 625 S.W. 2d 477 (1981).

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Not only do I find no substantial evidence to support the majority opinion but I find the opinion clearly erroneous and decidedly against the preponderance of the evidence. In fact, I am 100% in disagreement with this opinion. Act 766 of 1979 codified in Ark Stat. Ann. §§ 80-1264 — 80-1264.10 (Repl. 1980) very clearly intended to vest all rights of appeal pursuant to the act in the circuit court. The act covers members of the teaching profession employed in public schools. One of the chief goals of the act is to insure that teachers are not terminated or nonrenewed for reasons which are arbitrary, capricious or unsubstantiated. In fact, the title of the act is referred to as “The Teacher Fair Dismissal Act of 1979. ” It is not titled the “Nonprobationary Teacher Fair Dismissal Act” as the majority seem to interpret it.

The term “teacher” as used in the act includes all employees, except superintendents and assistant superintendents, who are required to hold a certificate as a condition of employment. Obviously, this includes probationary teachers. The only distinction between the two classes of teachers is the length of employment. During the first three years the teacher is not entitled, as a matter of right, to a hearing or to be given a cause for nonrenewal. However, this does not mean the same teacher may be terminated and/or nonrenewed for invalid reasons. In such case the teacher certainly would have the right of appeal to circuit court.

Section 5 of the act provides that a teacher may be terminated during the term of any contract period for any cause which is not arbitrary, capricious or discriminatory. Section 6 provides for the immediate suspension of a teacher when in the opinion of the superintendent it is necessary and in the best interest of the district. The only section in the whole act dealing with appeals is Section 10 and the appeal is extended to any person aggrieved by a decision of the school board.

I consider Section 10 (Ark. Stat. Ann. § 80-1264.9) of the act to be controlling as to the matter of jurisdiction. Section 10 (a):

Upon conclusion of its hearing with respect to the termination or nonrenewal of a teacher contract of a teacher who has been employed as a full-time teacher by the school district for less than three (3) continuous years, the board shall take action on the recommendations by the superintendent with respect to the termination or nonrenewal of such contract.

Subsection (b) deals with teachers who have been employed for three or more years and whose contract is terminated or not renewed. In both Sections (a) and (b) the school board is required to take action. The concluding sentence of Subsection (b) states:

The exclusive remedy for any person aggrieved by the decision of the school board shall be an appeal therefrom to the circuit court of the county in which the school district is located, within thirty (30) days of the date of written notice of the action of the school board.

Surely the General Assembly intended “any person” to mean any teacher under the act.

As a practical matter, allowing the probationary teacher to appeal the nonrenewal of a contract to circuit court would greatly simplify the entire process. It would keep all appeals under the act in the same court; and, in my opinion, it would reduce the judicial case load and litigation costs in the long run. If, for example, a teacher’s contract was not renewed for a second year and the teacher filed a notice of appeal to the circuit court, the school board could simply respond by saying “It is true, we did not renew the teacher’s contract.” The issues would be joined and the whole record would be before the circuit court and the matter could be disposed of in a very short sentence by simply stating: “The court finds that the Board did not act within its discretion and remands the case for a hearing.” There is no question that a second year teacher whose contract was not renewed because of race or religion would have a cause of action in the circuit court. Therefore, why should the person who did not receive a renewal of his contract for other reasons not be also allowed to follow the same course of action? I submit that it was clearly the intent of the legislature, as well as the common sense approach, to allow the circuit court to maintain jurisdiction of all cases arising under Act 766 of 1979.