author: Robert H. Dudley, Justice. Darrell Hickman, Justice, David Newbern, Justice, John I. Purtle, Justice, Tom Glaze, Justice,

text:
    Mercedes McCAMBRIDGE and Richard L. Lawrence, Executor of the Estate of John Lawrence Markle v. The CITY OF LITTLE ROCK; Arkansas Gazette Company; Attorney General Steve Clark; Little Rock Newspaper, Inc., Intervenors
    87-352
    766 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered March 13, 1989
    [Rehearing denied April 17, 1989.]

      Bell, Bilheimer & Associates, P.A., by: Harvey L. Bell and Stephen P. Bilheimer, for appellant Mercedes McCambridge.

      William L. Owen, for appellant Richard L. Lawrence.

      Mark Stodola, City Attorney, for appellees City of Little Rock and Sgt. Edward Alexander.

      Rose Law Firm, A Professional Association, by: Phillip Carroll, for intervenor The Arkansas Gazette Company.

      Steve Clark, Att’y Gen., by: Jeffery A. Bell, Deputy Att’y Gen. and Connie C. Griffin, Asst. Att’y Gen., for intervenor Attorney General Steve Clark.

      Wright, Lindsey & Jennings, for intervenor Little Rock Newspapers, Inc.

      Purtle, J., would grant rehearing.

   Robert H. Dudley, Justice.

The primary issue in this case is whether the constitutional right to privacy should bar disclosure of public records which would otherwise be available for public inspection under the Arkansas Freedom of Information Act.

I. FACTS

Richard Lawrence, an attorney, testified at trial that he received a telephone call from his client, John Markle, at four o’clock on the morning of November 16, 1987. Lawrence disclosed to the police what Markle had said, but, asserting the attorney-client privilege at trial, refused to testify to more than that Markle asked him to come to his residence at 1820 Main Street in Little Rock. After Markle hung up, Lawrence tried to call him back, but was unsuccessful. Although we do not know from the trial testimony what Markle told Lawrence, it must have been alarming for it caused Lawrence to call the police to request that a patrol unit meet him at the Markle residence. Markle was in serious financial trouble and possibly faced criminal charges. When Lawrence arrived at the house, he found no policemen, so he circled the block and then noticed two patrol cars at a Safeway store at 17th and Main Streets. Lawrence described his plight to the officers, and Patrolman Armstrong agreed to go with Lawrence to the Markle house. They approached the house together. An outer storm door was unlocked. The main door was ajar about half an inch. Lights were on inside the house. Lawrence could see a black briefcase inside the house, and taped to it was a piece of paper bearing Lawrence’s name and address in red ink. Patrolman Armstrong went in and saw Markle’s body in an office which was just off the front hallway to the house. Markle had been shot. Patrolman Armstrong radioed for assistance and asked Lawrence to go back to the front porch. Another policeman came quickly, and they carefully began to search the house. They found the bullet-riddled bodies of Markle’s wife, Christine, and their young daughters, Amy and Suzanne. The two policemen secured the crime scene and called for detectives.

In conducting the crime scene search the detectives seized items they thought might constitute evidence in a criminal trial. This included guns found inside the house, and the black briefcase. In addition, crime scene and pathologist photographs were taken.

The detectives found a note from Markle stating that he had murdered his wife and daughters and committed suicide. The detectives photocopied the contents of the black briefcase and returned the briefcase and its original contents to Lawrence. Those photocopies are now in the Little Rock Police Department’s official files and include copies of:

1. two handwritten letters from Markle to his attorney, appellant Lawrence;
2. a diary containing Markle’s notes;
3. a handwritten letter from Markle to his mother, appellant McCambridge; and
4. miscellaneous notes.

Subsequent scientific tests proved that Markle had fired a gun, or guns, just before his death, and that the guns found at the scene were the ones that fired the bullets which killed the victims. The Little Rock Police Department considers the matter a closed case.

Appellants Lawrence and McCambridge filed suit against both the City of Little Rock and the Little Rock Police Department seeking to restrain the department from releasing the items listed above and the photographs from the department’s official files. Appellant McCambridge, Markle’s mother, is an Academy Award winning actress, and as such she is a public figure. The Little Rock Police Department asked the trial court to rule that it did not have to release information gained from informants. The trial court ruled that all of the items mentioned must be disclosed under the Arkansas Freedom of Information Act. We granted a temporary stay which prevented disclosure of any of the items. We dissolve that stay. For clarity, we discuss separately the points of appeal asserted by Lawrence, McCambridge, and the police department.

II. LAWRENCE’S POINTS OF APPEAL

Both of Lawrence’s points involve state law only. First, he argues that the police and pathologist photos are not public records under the act. The argument is without merit. As originally enacted, the act applied only to “records made, maintained or kept by any public or governmental body.” Act 93 of 1967, Section 3. The definition of “public records” has now been broadened to provide that public records are those “required by law to be kept” or “otherwise kept and which constitute a record of the performance or lack of performance of official functions. . . .” Ark. Code Ann. § 25-19-103(1) (1987).

Police crime scene photographs and pathologist photographs are obviously “otherwise kept” for evidence in criminal cases as an “official function” of a police department. A citizen could examine crime scene photographs and pathologist photographs and, to some extent, evaluate the performance of a police department. The photos are public records and subject to the act. City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988).

Second, appellant Lawrence argues that the attorney-client privilege precludes disclosure of the two letters written to him by his client, Markle, and left in the briefcase. This argument is also without merit.

Appellant is attempting to create an exemption to the act other than those listed in Ark. Code Ann. §• 25-19- 105(b) (Supp. 1987). Twice previously, we have rejected such arguments. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987).

There are two reasons for the rejection" of the argument. First, the Freedom of Information Act should be broadly construed in favor of disclosure, and exceptions construed narrowly in order to counterbalance the self-protective instincts of the governmental bureaucracy. Second, the attorney-client privilege, A.R.E. Rule 502, is an evidentiary rule limited to court proceedings. A.R.E. Rule 101. It has no application outside of court proceedings and, therefore, cannot create an exception to a substantive act. Scott v. Smith, 292 Ark. at 176.

III. McCAMBRIDGE’S POINTS OF APPEAL

McCambridge asserts nine (9) points which in turn contain twenty-eight (28) subpoints based upon both state and federal law. She seeks to prevent release of Markle’s two letters to Lawrence, Markle’s letter to her, Markle’s diary, and the photographs. Many of the subpoints are so wholly without merit that we treat them summarily.

Appellant McCambridge contends that the Arkansas Freedom of Information Act is unconstitutional (a) on its face, and (b) as applied in this case. She contends that the act violates the Constitution of Arkansas, Article 2, Sections 2,3,6,8,15,18,21, 22, and 29. She also contends that the act violates the first, fourth, fifth, ninth and fourteenth amendments to the Constitution of the United States.

Her constitutional arguments can be reduced to five basic assertions. They are: (A) the Arkansas Freedom of Information Act provides for a warrantless search and seizure without probable cause; (B) it provides for a taking of property without due process; (C) it violates the doctrine of equal protection; (D) it unduly chills free speech; and (E) it violated her constitutionally protected right to privacy.

A.

First, McCambridge lacks standing to raise the search and seizure issue, for fourth amendment search and seizure rights are personal and may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128 (1978). She had no expectation of privacy in the place searched, which was not her house, or the things seized, which did not belong to her. Second, the act, on its face, simply does not provide for searches or seizures. Third, the search and seizure did not violate either the federal or state constitutions.

An emergency or dangerous situation, described in our cases as “exigent circumstances,” will justify a warrantless entry into a house for the purpose of either arrest or search. Here, Markle’s personal attorney invited the patrolman to accompany him into his client’s house because he stated some danger or harm may have come to the family based upon the call from Markle. Once inside, the patrolman found Markle in a pool of blood. It was reasonable for the patrolman to see if the killer was still on the premises, and if the other family members were safe or needed help. The United States Supreme Court has held:

[W]hen the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. . . . And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.

Mincey v. Arizona, 437 U.S. 385, 392-93 (1978). The briefcase was in plain view and its seizure as evidence was not unlawful. Therefore, the act, as applied, did not amount to an unconstitutional seizure.

B.

The Freedom of Information Act, on its face, does not provide for the taking of property without due process. Further, there is no taking under the act, as applied. A “seizure” of evidence by the police does not constitute a “taking” in the constitutional sense. Porter v. United States, 473 F.2d 1329, 1337 (5th Cir. 1973). Neither does the release of information pursuant to the Freedom of Information Act. There was no denial of due process in this case.

C.

The Freedom of Information Act provides for ten (10) exemptions from disclosure. Appellant McCambridge complains about number seven (7) which is for: “Unpublished memoranda, working papers, and correspondence of the Governor, Legislators, Supreme Court Justices, and the Attorney General;” Ark. Code Ann. § 25-19-105(b)(7) (Supp. 1987). She argues that it violates equal protection. No “suspect class” or “fundamental right” is involved in the exception to the act. Hence, the proper test is whether a rational basis exists for the legislation. Clements v. Fashing, 457 U.S. 957 (1982). Certainly, there is a rational basis for protecting the working papers of the Governor, the legislators, and the Supreme Court Justices from public disclosure. Such protection promotes and encourages free exchange of thought in each of the three branches of government.

D.

Appellant McCambridge alleges that the act chills free speech because citizens refuse to give statements to the police for fear that their statements will be made public under the act. However, she has no standing to challenge the act on free speech grounds as she does not assert that her speech has been chilled.

E.

McCambridge does, however, have a valid privacy argument. The Little Rock Police Department has completed its investigation of the crimes and now considers the case closed. The department is now ready to release the photographs and copies of items which were in the briefcase. Appellant McCambridge contends that the photographs and copies of writings are personal to her and are potentially embarrassing and harmful if disclosed. She argues that their release will violate her constitutional right of privacy.

In Paul v. Davis, 424 U.S. 693 (1976), the Supreme Court held that the constitutional right to privacy does not prevent disclosure of “a record of an official act such as an arrest.” Id. at 713. The holding does not extend to information off the public record. Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981). In Whalen v. Roe, 429 U.S. 589, 598-600 (1977), the Court recognized a right to nondisclosure of personal matters: “Appellees contend that the statute invades a constitutionally protected ‘zone of privacy.’ The cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” (Emphasis supplied.) In a footnote to the above quote the Court cited with approval an article by Professor Philip Kurland which identifies one facet of constitutional privacy as “the right of an individual not to have his private affairs made public by the government.” The Court further expressed sensitivity to the need for nondisclosure privacy protection:

We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed.

Id. at 605 (emphasis supplied).

Since then, the majority of the federal courts have interpreted Whalen v. Roe, id., as recognizing a constitutional right to nondisclosure of personal matters. Comment, A Constitutional Right to Avoid Disclosure of Personal Matter: Perfecting Privacy Analysis in J.P. vs. DeSanti, 653 F.2d 1080 (6th Cir. 1981), 71 Geo. L.J. 219 (1981).

In Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 455 (1977), the Court expressly discussed the topic under the heading “Privacy,” and said even the President of the United States was entitled to at least a limited right of privacy:

One element of privacy has been characterized as “the individual interest in avoiding disclosure of personal matters. . . .” Whalen v. Roe, 429 U.S. 589, 599 (1977). We may agree with appellant that, at least when Government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity.

Id. at 457.

In Paul v. Davis, 424 U.S. 693, 713 (1976), the Court expressly stated that fundamental privacy interests include family relationships. In addition, the right to nondisclosure by the government is “independent of the question of ownership of the materials. . . '' Nixon v. Administrator of Gen. Serv., 433 U.S. at 458. In summary, appellant McCambridge has a right to avoid disclosure by the government of some personal matters.

The obvious next question is, do the items at issue in the instant case involve personal matters? In that part of Whalen v. Roe, quoted previously, the Court indicated that a personal matter was a matter “personal in character and potentially embarrassing or harmful if disclosed.” Falby, in his Georgetown Law Journal comment, writes that a “personal matter” ought to be information: (1) that the individual wants to and has kept private or confidential, (2) that, except for the challenged government action, can be kept private or confidential, and (3) that to a reasonable person would be harmful or embarrassing if disclosed. 71 Geo. L.J. at 240. Falby’s test for determining “personal matters” is a fair standard. The first part of the test encompasses information the individual wants to keep and has kept private. One should not expect to keep private information he has indiscriminately exposed in public. The items in the case at bar satisfy this part of the test as appellant McCambridge has not disclosed anything, and, in fact, has filed this lawsuit to prevent disclosure.

The second part of the test excludes matter which is already on the public record. The items at issue here were not already a part of the public record.

The third part of the test involves an objective test, whether the matter would be highly offensive to a reasonable person. This third part of the test is satisfied with respect to: (1) the two letters from Markle to his attorney; (2) the diary containing' Markle’s notes; (3) the letter from Markle to his mother; and (4) the photographs. The reasons therefore will be apparent in the discussion of balancing of interests below. Accordingly, we hold that those items are personal matters. The third part of the test, however, is not met with respect to the six pages of miscellaneous notes written by Markle. We can summarily say that appellant has no privacy interests in them as they cause her no harm or embarrassment.

Having determined the items that involve personal matters, the final question is whether the governmental interest in disclosure under the Freedom of Information Act outweighs the appellant’s privacy interest in the nondisclosure of the personal matters. Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 458 (1977).

The strength of appellant McCambridge’s individual privacy interest in nondisclosure varies among the items. The police crime scene photographs and pathologist photographs are horrible and sickening, as are all such multiple murder photographs. Appellant will naturally be sensitive to the pictures, but balanced against the appellant’s interest in preventing dissemination of the photographs are the government’s strong interests in depicting how the multiple murders occurred, why the police consider the case closed as a triple murder-suicide matter, and why no further action should be taken. This is a highly valued governmental interest. Accordingly, we hold that the photographs should be released under the Freedom of Information Act.

Similarly, appellant will be sensitive to the matters revealed in her son’s diary because the diary reflects Markle’s serious financial troubles, possible criminal charges against him, and his thoughts of suicide. However, these are probative and relevant to the nature and course of the crime. Again, this is a highly valued governmental interest, and it outweighs McCambridge’s interest in nondisclosure.

In the briefcase, Markle left two letters to his lawyer, appellant Lawrence. Again, McCambridge’s sensitivity to some of the information contained in these letters is understandable, but the State’s interest in disclosure is very strong. The first paragraph of the first letter is a “Review of Conversation” of the telephone call to Lawrence at four o’clock on the morning of November 16. It states, “I murdered my wife, and 2 children and committed suicide.” Further, the letters direct Lawrence about how to close Markle’s personal and business affairs. The information confirms the conclusions reached by the police. The public has a strong interest in the announced solutions to crimes.

The last item in the briefcase is the letter from Markle to appellant McCambridge. The letter is from an angry son to his mother. For the most part it deals with their lives and relationships and is most sensitive. While public figures cannot expect the same degree of privacy as private citizens, they can reasonably expect privacy in personal letters to or from their children. Even the President of the United States has a privacy interest. Accordingly, McCambridge’s interest in nondisclosure of this letter is very high.

However, the letter also discloses Markle had traded McCambridge’s stock market account on a discretionary basis and apparently did the same for Stephens, Inc., an investment banking company. In the letter Markle admits, “I added funds to your account; I added losses to the Stephens’ account.” The letter does not disclose the exact amount Markle shorted Stephens, but the figures given indicate it was well over a million dollars. It reveals that he had been caught “so now I and my whole family are dead — so you can have the money. . . .” The information bears on the suicide-murders and is relevant in determining a solution to the homicides. The public has a very strong interest in announced solutions to crime, and, here, the public’s interest outweighs McCambridge’s privacy interest.

Aside from her five constitutional arguments, appellant McCambridge asks us to construe the act under state law in such a way that police records are exempt from disclosure. We summarily reject the request because the appellant does not present a convincing argument nor authority, and the merits of the argument are not readily apparent. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

IV. LITTLE ROCK POLICE DEPARTMENTS POINTS OF APPEAL

The Arkansas Freedom of Information Act contains a “law enforcement” exemption. Ark. Code Ann. § 25-19-105(b)(6) provides that “undisclosed investigations by law enforcement agencies of suspected criminal activity” are not subject to public inspection. See J. Watkins, The Arkansas Freedom of Information Act 67 (1988) for discussion.

The police file in this case included statements from confidential informants. The department does not want to release those statements and argues that such disclosure will detract from effective law enforcement to such a degree that it will operate in derogation, and not in support, of the public interest. Included among the reasons for providing this exemption by interpretation are the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative so that police officers might be completely candid in recording their observations, hypotheses, and interim conclusions. The argument could be well addressed to the General Assembly. We can only interpret the exemption as it is written.

The only purpose of the exemption, as written, is to prevent interference with ongoing investigations. When a case is closed by administrative action, as this one was, the reason for the exemption no longer exists, and the trial court correctly ordered the statements released. Accordingly, we affirm the ruling of the trial court that the police reports are to be released.

Hickman, Hays, and Newbern, JJ., concur.

Purtle and Glaze, JJ., concur in part and dissent in part.

Darrell Hickman, Justice,

concurring. I agree with the result reached by the majority, but I write to emphasize two things.

First, I don’t find the “letter” to Ms. McCambridge to be a document in which she has any constitutionally protected interest, whatever this right to privacy may be. The letter undoubtedly aided the police in determining the fact that Markle murdered his family and then killed himself. It also shed light on his motive for doing so. While the letter was addressed to Markle’s mother, it was not delivered. She has never seen it. It was found at the scene of the crime. It was legitimate evidence, lawfully gained and properly used in the investigation of a crime. It was not, therefore, a purely personal document entitled to any privacy that the constitution may grant. See Nixon v. Administrator of General Services, 433 U.S. 425 (1977), where the Court spoke of personal letters “unrelated to any acts done ... in [a] public capacity.”

That means that under Arkansas law, the document is subject to public examination. City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988). When Markle killed his family and then himself, he made his actions a public matter; he opened the door to an investigation of what happened and why. With that comes the right to examine all the available evidence relative to his motive and actions. The police copied all the documents in the briefcase and have those copies in their official files. The officers testified they found these documents relevant to the crime. Under Arkansas law, they are public documents.

Second, the City of Little Rock wants us to rewrite the Freedom of Information Act. It clearly states that all public records of law enforcement agencies shall be available for inspection except for those contained in “undisclosed” investigations of suspected criminal activity.

The word “undisclosed” is not vague or hard to interpret — it is just not the word the city wants. See City of Fayetteville v. Rose, supra. The city and law enforcement officials should take up this question with the legislature.

David Newbern, Justice,

concurring. I join the majority opinion but wish to write separately to state my views on the right of privacy.

There is no doubt that the document in question here, the letter from Mr. Markle to Ms. McCambridge, is being maintained in a public office and is presumed to be a public record. Ark. Code Ann. § 25-19-103 (1987). Thus, it is open to inspection and copying, Ark. Code Ann. § 25-19-105 (1987), unless it falls within a statutory exception or disclosure of it would violate a constitutional right. None of the exceptions of Ark. Code Ann. § 25-19-105 (1987) applies, so the only question is the constitutional one.

The majority opinion is correct in stating that the United States Supreme Court recognized the right to non-disclosure by government of private matters in Whalen v. Roe, 429 U.S. 589 (1977). It is also correct in pointing out that it was again recognized in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). However, the recognition came as obiter dicta in those cases. The Whalen case held that New York’s laws safeguarding the release of drug treatment information contained in state computer information banks were sufficient to protect whatever privacy interest patients may have had in the information. In stating that which the court did not decide, Mr. Justice Stevens wrote: “We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data — whether intentional or unintentional — or by a system that did not contain comparable security provisions.” 429 U.S. at 605-607. To me it is clear the Supreme Court would have protected the information at stake had it not been for the safeguards. The only basis for the protection would have been the privacy right not to have the information disclosed. The court was hardly disavowing the privacy right by making that statement. The Nixon case held the former president’s privacy interest would not preclude a limited invasion for the purpose of separating personal from public materials.

Neither of the cited cases, when limited to its holding, can stand for the proposition that there is a right of privacy requiring the government not to disclose sensitive, personal, private, information. Realizing that there is no holding supportive of the right of privacy where it was asserted to prevent governmental disclosure of personal information, we could refuse to recognize it, knowing full well that the right is there. We should, however, do as the majority opinion has done and ascertain the law on the basis of our prediction as to how the United States Supreme Court would determine this issue.

Griswold v. Connecticut, 381 U.S. 479 (1965), is typical of the cases recognizing the right of privacy citizens have in making decisions with respect to their intimate personal conduct. That statement of constitutional protection of the privacy right is clear. In Stanley v. Georgia, 394 U.S. 557 (1969), it was held that the power of a state to regulate pornography did not extend to condemning possession of it in one’s home. The court quoted with approval Mr. Justice Brandeis’s dissenting opinion in Olmstead v. United States, 277 U.S. 438 (1928), in which he wrote that the authors of the Constitution “conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man. [227 U.S. at 478].” What a citizen chooses to think or to expose himself or herself to is also protected. The right of privacy thus was held to extend beyond the personal conduct to which it applied in the Griswold case.

Here we are not balancing the right of the state to regulate a perceived evil against the right of privacy. Rather, we are balancing the right of the citizens to information which reveals the nature and operation of government against the right of a citizen not to have intimate personal matters disclosed. If that right did not exist, the Supreme Court would have simply said so in the Whalen and Nixon cases and would not have scrutinized the schemes designed to protect it. Instead, the court wrestled the right of government to have the information in question against the right of the citizen not to disclose it to the government, and the ultimate discussion was about whether the government procedures would protect sufficiently the right of the citizen not to have the information disclosed publicly. Neither case held the right existed, but both of them found it necessary to discuss it, and I find that to be a clear recognition of it.

The right to be let alone must, of course, yield to the police power when overbalanced by it. It should, likewise, yield to the interest and right of the citizenry to know and understand how their government is being conducted when overbalanced by that right. If the letter from John Markle to his mother had contained nothing relevant to the four homicides, I believe this court would protect Ms. McCambridge’s privacy right and not allow it to be disclosed. While the document is subject to the provisions of the Arkansas Freedom of Information Act, sections of which were cited at the outset of this opinion, the governmental interest protected by that act must be balanced against Ms. McCambridge’s constitutional right to privacy. We have engaged in the same sort of balancing conducted by the Supreme Court in the Whalen and Nixon cases and concluded the public’s right to know must prevail.

Hays, J., joins this opinion.

John I. Purtle, Justice,

concurring in part and dissenting in part. The circumstances of this case have convinced me that the letter from the deceased to his mother and the letters and other material specifically addressed to the attorney should be treated as though they had been delivered. The right of an individual not to have his personal and private affairs made public by the government unquestionably protects the privacy of these highly personal papers. It is my opinion that the “zone of privacy” is broad enough to cover a communication with one’s attorney and a letter to one’s mother.

Clearly the material in the briefcase was not a public record prior to being seized by the government. It was never intended to be a part of the public domain. The mere fact that the police may have had the right to look at these papers in the course of their investigation did not, by some process of governmental alchemy, transform this personal and private material into public property. The majority, by judicial fiat, wrongly converts the character of the briefcase contents and the final letter to Mr. Markle’s mother from the property of the mother and the attorney to the property of the police department. Although the police had the right to examine everything they discovered at the scene of the crime, they did not, in consequence, automatically have the right to keep everything they examined and make those items a matter of public record. The rationale behind the procedure endorsed today by the majority would, if carried to its logical conclusion, render the utmost secrets of a victim the property of the police department, and thus subject these secrets to public scrutiny and commercial exploitation.

The majority derives strength from the fact that personal and confidential letters and papers are not expressly exempted from disclosure under the Freedom of Information Act. The most compelling reason for not expressly excluding such information from the mandate of the F.O.I.A. is that the concept is so basic that it was not thought that anyone would claim such material was not privileged. There is no legitimate state purpose in releasing such material to the public.

To read the statute so broadly is not in keeping with the intent of the act. The majority’s interpretation would appear to allow the police to confiscate everything on the scene, including books, papers, articles, pictures, and other secret and personal effects, thereby making them available for public inspection. At the very least, I believe the majority should have exempted the letter from Markle to his mother from disclosure under the provisions of the Freedom of Information Act. The “zone of privacy” exception is also broad enough to include the material in the briefcase which was intended only for the deceased’s attorney. Every bit of information in this record indicates that John Markle fully expected privacy in these circumstances. When we allow personal and confidential letters to enter the public record after seizure by the authorities, we have taken a step toward becoming a police state. “The makers of our Constitution,” as Justice Brandéis observed in his dissent in Olmstead v. United States, 277 U.S. 438 (1928), “. . . conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”

My strongest objection to the majority decision concerns the release of the photographs of the victims of this tragedy. If these gruesome photographs ever served any purpose, that purpose has long since been accomplished. The photographs should then become, like witnesses, no longer a part of the record. There can be no legitimate expectation on the part of the media or the public to examine the horrendous and sickening photographs of every homicide case. All that need be said publicly about these photographs and this material is contained in the majority and concurring opinions.

The majority quotes from Whalen v. Roe, 429 U.S. 589 (1977), which holds that even public officials have a constitutionally protected privacy right in matters of their personal life unrelated to their function in their public capacity. An individual citizen certainly has a greater expectation of privacy and should be protected from governmental disclosure of purely personal matters. I do not understand how it can be asserted that the letter and the attempted communication with the attorney are not “personal in character and potentially embarrassing or harmful if disclosed.”

It is obvious that: (1) the deceased wanted to keep these matters confidential; (2) except for the government action, the material would have been kept confidential; and (3) the contents would be harmful or embarrassing to relatives and friends if they were disclosed. This material consequently meets the privacy test as stated in Whalen v. Roe, supra. Death has sealed the lips of John Markle and his wife and children. The media should not now be given license to expose every facet of his personal life and that of his family. Hopefully, those now entrusted with public disclosure of these materials will use common sense and respect the dignity of the surviving members of the family. The matter is in their hands.

There is of necessity a balancing of interests in this case. The items under consideration are obviously matters of a deeply personal nature which would never have been disclosed had it not been for their seizure by the state. The right of the public to know must be balanced against the right of the individual to privacy, even in cases of great notoriety. See Department of the Air Force v. Rose, 425 U.S. 352 (1976). The photographs add nothing to the government’s explanation of the murders and suicide. There is no doubt about what happened, and the pictures and personal letters and instructions add not one scintilla to the strength of the state’s conclusions. Nothing about the photographs would remotely assist the members of the public in evaluating the duties of the police department.

For the very reasons set out in the majority opinion, I would hold the personal diary to be protected by the constitutional right of privacy. The diary may have some remote relevance to the other materials to be released under the majority opinion, but it does not in any way aid in the solution of the crime. Nor does release of the diary enhance any legitimate expectation of commercial enterprises to delve into the gory details of this sad event.

In my opinion, neither the deceased’s letter to his mother nor the contents of the briefcase intended for his lawyer are items covered by the Freedom of Information Act. Moreover, common decency and respect for the dead and the living surely demand that this material not be commercialized. I read the material and looked at some of the photographs only because it was my duty to do so. Having done so, I am absolutely persuaded that there is no valid reason to reveal this information to the public. Even if there should be any such reason, its validity is far outweighed by the reasonable expectation of privacy existing at the time the writings were committed to paper. So far as I am concerned, there is no right to exhibit gruesome photographs of dead people.

Tom Glaze, Justice,

concurring in part and dissenting in part. I depart from the majority in its holding that Ms. McCambridge has a valid privacy argument. The majority relies largely on the Supreme Court’s decision of Whalen v. Roe, 429 U.S. 589 (1977), when concluding McCambridge has a right to avoid disclosure by the government of a personal letter left her by her son. In my view, the court’s reliance is misplaced.

In this case, police officers obtained the Markle letter, which was directed to his mother as a result of a criminal investigation. The Little Rock Police Department later closed its investigation, finding that Markle killed his family and then committed suicide. At that point, the information gathered by the police became subject to disclosure under the Arkansas Freedom of Information Act (FOI Act), as we recently interpreted that Act in City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988). Although the majority suggests that, irrespective of the FOI Act, the disclosure of a personal letter from Markle to McCambridge is subject to the privacy right of McCambridge, I submit that the court in Whalen never intended to extend such a right to this type of fact situation.

Here, police officers conducted a proper fourth amendment search and seizure of the Markle residence, and as a result, they acquired Markle’s letter along with the other items and evidence found at the crime scene. Thus, we have no one’s privacy and security being arbitrarily invaded in violation of the fourth amendment. While we do not have the same concern that the court addressed in Katz v. United States, 389 U.S. 347 (1967), the court there did make it clear that the right of privacy under the fourth amendment cannot be translated into a general constitutional “right of privacy.” On this point, the majority court and the parties in this cause have failed to cite any cases that involve a privacy right to avoid disclosure of personal matters which the government acquired as a result of a criminal investigation. By the same token I am aware of none.

From my reading of the cases in this area, and I would be the first to admit that they are far from clear, I find no indication that the right of privacy applies to the disclosure of information obtained through a valid search and seizure. In my view, state law controls the disclosure issue before us, not the constitutionally protected right of privacy. McCambridge simply has no privacy right in this cause. The sole issue, in my judgment, is whether the Markle letter is subject to disclosure under the FOI Act, and considering this court’s recent decision in Rose, I have no doubt that it is.

       It may be worth noting that the federal Department of Energy, in dealing with an FOIA request, under 5 U.S.C. 552(b)(6), 10 C.F.R. 1004-10(b)(6), for the release of grisly photographs of the bodies of three persons killed in a reactor explosion, held that while disclosure would not invade the privacy of the deceased victims, the privacy protection of exemption 6 of the act extends to the individual’s immediate family. Thus, “release of the photographs would constitute a substantial invasion of the privacy of the victims’ families.” Independent Documentary Group, San Francisco, California, 7 DOE 80, 174 (1981). See also KUTV, Inc., 4 DOE 81, 150 (1979).


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Jackie Mitchell BATTLE and George Mitchell v. James A. (Al) HARRIS, Sheriff of Clark County
    88-231
    766 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered March 13, 1989

      Christopher C. Mercer, Jr., for appellant.

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: David M. Fuqua and James D. Lawson, for appellee.
   Tom Glaze, Justice.

This controversy centers on a writ of execution which was issued on the basis of a chancery court judgment for child support arrearages. Judy Battle obtained the judgment against her former husband, Willie Joe Battle, who is presently married to appellant Jackie Battle. Appellee’s office served the writ on Jackie Battle, and subsequently seized 140 personalty items to which Jackie, along with her father, George Mitchell, claimed ownership. Jackie claims that, after the items were seized, she gathered information to prove that she, not Willie Joe, owned the seized items, but before she could garner the information and petition to stay the execution, appellee sold all the items. The appellee sold the items twenty-nine days after they had been seized.

Jackie and her father filed suit in circuit court against appellee, alleging the denial of their rights of due process and seeking compensatory and exemplary damages for appellee’s wrongful, malicious and illegal taking and sale of their personal-ties. Appellee filed a motion to dismiss pursuant to ARCP Rule 12(b)(6). First, appellee argued that the appellants’ exclusive remedy to suspend or set aside the writ of execution was provided under Ark. Code Ann. §§ 16-66-301 to -304 and 16-66-401 to -409 (1987), and that appellants had failed to avail themselves of that remedy. Second, he claimed that, as a public official, he was immune from liability for damages pursuant to Ark. Code Ann. § 21-9-301 (1987). In finding merit in appellee’s argument, the trial court concluded the appellants’ due process rights had not been violated and granted appellee’s motion to dismiss the appellants’ action. We reverse.

We first note that Rule 12(b)(6) provides for the dismissal of a complaint for failure to state facts upon which relief can be granted. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). In Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985), we further noted that it is improper for the trial court to look beyond the complaint to decide a motion to dismiss pursuant to ARCP Rule 12(b)(6), unless it was treating the motion as one for summary judgment, and even if the court treated the motion as one for summary judgment, it is incorrect to base the decision on allegations in briefs and attached exhibits. Here, the trial court made no mention of treating the appellee’s Rule 12(b)(6) motion as one for summary judgment. Therefore, in considering a motion for judgment on the pleadings for failure to state facts upon which relief can be granted under ARCP 12(b)(6), the facts alleged in the complaint are treated as true and viewed in the light most favorable to the party seeking relief. McAllister v. Forrest City St. Imp. Dist., 274 Ark. 372, 626 S.W.2d 194 (1981).

We next look to the appellants’ complaint, which, among other things, alleges that Jackie Battle and her father were the owners of the 140 items of personal property that were unlawfully seized by the appellee from the appellants’ house. Appellants claimed that a deputy of appellee’s demanded and received the appellants’ keys to their house after the deputy threatened to “kick the door down.” Appellants further alleged that their home was stripped of all furniture and that the appellee refused to return the items after the appellants explained that the property solely belonged to the appellants. Appellants asserted they received no notice from the appellee before or at the time the appellee sold the 140 items of personal property at an auction twenty-nine days after the property was seized. Appellants further alleged the appellee and his agents had been specifically told that the seized items did not belong to the judgment debtor, Willie Joe Battle, and that, despite all protestations, objections and warnings, appellee deliberately and willfully seized and sold the appellants’ properties without just cause and in violation of their due process rights.

In view of the foregoing factual allegations, appellants’ complaint, at the very least, sets forth a cause of action based upon their claim that their due process rights had been violated. Although appellee’s counsel in oral argument indicated the appellants had received proper notice and had been afforded due process regarding the sale of the seized items, we find nothing in the record to substantiate that view.

Appellee answers the cause of action set out in appellants’ complaint by arguing the appellants were required to pursue only the remedy provided in §§ 16-66-301 to -304 and 16-66-401 to -409, which permits a person to stay, quash or set aside an execution, levy or sale. We agree that this statutory procedure or method of staying or vacating writs of execution on judgments appears to be exclusive. See Taylor v. O’Kane, 185 Ark. 782, 49 S.W.2d 400 (1932). However, this procedure does not preclude a person from seeking recovery for damages when, pursuant to a writ of execution, a sheriff intentionally or willfully takes property from persons who are in no way connected with the suit and judgment from which the execution ensued. See Wright v. Husband, 193 Ark. 347, 99 S.W.2d 583 (1936); Williams v. Brooks, 269 Ark. 919, 601 S.W.2d 592 (Ark. App. 1980).

Appellee also argues that the appellants’ action at best states a claim that appellee was negligent in the performance of his duties and that the trial court properly dismissed such a claim because the appellee is immune from tort liability under Ark. Code Ann. § 21 -9-301. Of course, our earlier consideration of the appellants’ complaint in view of ARCP Rule 12(b)(6) disposes of appellee’s premise that the appellants’ claim is based only upon negligence. Aside from what the proof might eventually show, we must, in this appeal, view the facts alleged in the appellants’ complaint as true and in the light most favorable to the appellants. In doing so, the appellants assert the sheriff or his agents intentionally violated the appellants’ due process rights by seizing properties that the appellee knew belonged to Jackie Battle and George Mitchell, not Willie Joe Battle, and by selling the properties without ^notice and in violation of the appellants’ due process rights. In sum, although we have held that the public officials named under § 21-9-301 are immune from tort liability, viz., negligent acts committed in the performance of their official duties, Autry v. Lawrence, 286 Ark. 501, 696 S.W.2d 315 (1985), we have never interpreted that immunity to include intentional torts committed by those officials. We reject any suggestion to do so now.

Because the appellants’ complaint states a cause of action for intentional or willful tort, we reverse and remand the case for further proceedings consistent with this opinion.


author: Tom Glaze, Justice. David Newbern, Justice,

text:
    Robert P. MALAKUL and Orathai Malakul v. ALTECH ARKANSAS, INC., Djaya Kusuma and Pauline Kusuma, and Ivan Spiker
    88-247
    766 S.W.2d 433
    Supreme Court of Arkansas
    Opinion delivered March 13, 1989
    [Rehearing denied April 10, 1989.]

      Roy Whitehead, Jr., for appellant.

      Satterfield Law Firm, P.A., by: Dennis C. Sutterfield, for appellees Altech Arkansas, Inc., Djaya Kusuma, and Pauline Kusuma.

      Randall W. Dixon, for appellee Ivan Spiker.
   Tom Glaze, Justice.

This case arises out of a partnership agreement between Mr. Malakul and Mr. Kusuma to develop fuel-alcohol plants. A corporation, Altech Arkansas, Inc. (Al-tech), was formed for carrying out the venture. Mr. and Mrs. Kusuma, individually and in behalf of Altech, filed suit in Johnson County Circuit Court against Mr. Malakul and his wife for fraudulently inducing the Kusumas to enter the aforementioned contract. The Kusumas alleged that the Malakuls refused to account for the monies the Kusumas invested in the parties’ venture. They sought the return of their monies and also requested punitive damages. Appellee, Ivan Spiker, subsequently intervened filing suit against all of the foregoing parties, alleging he incurred damages by furnishing material, labor and supplies in constructing equipment for the parties’ pilot plant which is located in Clarksville, Arkansas.

On the day of trial, the Kusumas narrowed their seven-page, six-count complaint, by explaining to the court that they were seeking equitable rescission of the parties’ contract based upon the Malakuls’ fraudulent misrepresentations. After all parties presented their respective cases, the chancellor awarded judgment against the Malakuls in favor of the Kusumas in the sum of $115,398.56, which represented the monies the Kusumas invested in the venture. In addition, Altech received a judgment against the Malakuls in the amount of $25,000, and the intervenor, Spiker, received a judgment of $50,450 against the Malakuls and Altech. Mr. Kusuma obtained a separate award against Altech in the sum of $54,681.91. The chancellor awarded no punitive damages. The Malakuls appeal from those judgments entered against them, raising seven points for reversal. We find none of the points have merit, and therefore affirm.

For the sake of clarity, we initially consider the four issues raised concerning whether the Kusumas’ judgment against the Malakuls should be set aside. Mrs. Malakul first contends the Kusumas’ complaint failed to state a cause of action against her, and for that reason, should be dismissed. We summarily dispose of this argument because it was never presented to the trial judge below. See Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987).

Next, both Malakuls argue that the Kusumas failed to meet their burden of proof in showing that either Mr. Malakul or Mrs. Malakul fraudulently induced the Kusumas to invest in the parties’ venture and further urge that the chancellor erred in determining damages. We again disagree.

A review of the evidence supports the finding that both Mr. and Mrs. Malakul played a role in fraudulently inducing the Kusumas to invest in a worthless venture. Mr. Kusuma was deputy director of the Accounts Division of the United Nations at the New York headquarters, and Mrs. Malakul was a member of his staff of 125 people. Kusuma actually first met Mrs. Malakul and her husband at a Christmas party on December 18,1981. At this meeting, Mr. Malakul told Kusuma that he had succeeded in inventing a low pressure distillation system and had discovered a special enzyme to produce alcohol from waste. Kusuma testified that Mr. Malakul had suggested that Kusuma should invest in the project, indicating that a demand existed for Malakul’s invention because it would lessen the dependence of countries on foreign oil. Malakul said that a large amount of money would be made once the machines producing the enzyme were manufactured. Kusuma further stated that Malakul represented (1) he had a degree in engineering and a masters degree in science from London College in England, (2) he had continued his research with a professor of Cornell University and had a company called Energy Development Systems International, (3) he had sold thirty-four pieces of his equipment to farmers in the United States, and (4) his machine would cost $18,000.00 and would be available on the market for $75,000.00.

Kusuma asserted that Mrs. Malakul corroborated her husband’s representations by saying he had spent a lot of time and money in discovering and producing his special enzyme. Mrs. Malakul attended some of the meetings held to discuss the venture, encouraged Kusuma to invest and said that Dr. Ward, an authority in his field, would be willing to give a letter of recognition of her husband’s work. Mrs. Malakul also gave Kusuma a brochure which assertedly compared Mr. Malakul’s system with others. Based on the foregoing and other information provided by the Malakuls, Kusuma said that he signed a partnership agreement to join in Mr. Malakul’s venture and invested substantial monies over the next few years in doing so. Sometime after signing the agreement, Malakul and Kusuma formed Altech for the purpose of manufacturing the equipment to be used to produce the fuel alcohol.

After signing the parties’ agreement and giving money to both Malakuls on a number of occasions, Kusuma made repeated demands for an accounting, which were refused. Kusuma said that he discovered that many of the representations previously made by Malakul were false. In particular, Kusuma finally received a letter from Dr. Ward, the expert mentioned earlier by Mrs. Malakul, and the letter reflected that Mr. Malakul did not possess the appropriate engineering credentials and experience to pursue the venture and that the brochure (which purportedly compared MalakuPs system with other systems) contained a series of unrelated graphs and charts. The Ward letter also revealed that Malakul’s patent related to ethylene glycol rather than alcohol. Spiker testified that Malakul had not developed the special enzyme, which was the integral part of the venture, but instead he had purchased the enzyme from another company. Spiker also revealed that when Kusuma’s attorney asked for Spiker’s “paper” on building the equipment for the pilot plant, Malakul wanted Spiker to prepare invoices that falsely reflected expenses not incurred so Malakul could use the invoices to get money from Kusuma.

Preponderance of the evidence is required to establish fraud in obtaining a contract by fraudulent representation. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). To prove an action for deceit, one must show: (1) the defendant made a false, material representation (ordinarily of fact); (2) he had knowledge the representation was false or asserted a fact which he did not know to be true; (3) he intended the plaintiff should act on the representation; (4) the plaintiff justifiably relied on the representation; and (5) plaintiff was damaged as a result of such reliance. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). Here, we conclude the Kusumas clearly met their burden of proof. The Malakuls specifically argue the evidence is insufficient as to Mrs. Malakul. We cannot agree. Mrs. Malakul was employed under Mr. Kusuma’s supervision, and she assisted in convincing Mr. Kusuma that her husband was an expert in this field of producing alcohol. Her statements regarding her husband’s research and discovery of the enzyme were shown to be false. Combined with this evidence, we note that most of the money Kusuma contributed to the venture was given to Mrs. Malakul who transferred those sums through her checking account. The evidence also reflects that Mr. Malakul’s presence in this country was due to a visa he obtained by virtue of Mrs. Malakul’s employment at the United Nations. From these facts, one could reasonably conclude that Mrs. Malakul played an important role, albeit supportive, in inducing the Kusumas to invest in Malakul’s venture. In sum, we are unable to say the chancellor was clearly erroneous in entering judgment against both Malakuls.

We also find no merit in the Malakuls’ assertion that the trial court erred in determining the measure of damages awarded the Kusumas. As noted earlier, the Kusumas sought restitution by their action and were apparently satisfied to recover their restitution in the form of money. In this respect, a plaintiff may sue in equity to rescind and if equity acquires jurisdiction for this purpose, it can proceed to order such monetary restitution as may be appropriate. See Dobbs, Remedies, § 9.4, p. 632 (1973); see also Massey v. Tyra, 217 Ark. 970, 234 S.W.2d 759 (1950). In Massey, the plaintiffs, the Tyras, sought rescission in equity of a contract for the purchase of land, requesting recovery of their down payment and reimbursement of expenses on the land. Tyras’ ground for rescission was misrepresentation. The court held that the Tyras, in rescinding the contract for the vendor’s fraud, could recover the amounts expended in good faith before discovering their right to rescind. See also Carter v. Matthews, 288 Ark. 37, 701 S.W.2d 374 (1986); Troxell v. Sandusky, 247 Ark. 898, 448 S.W.2d 28 (1969), Blythe v. Coney, 228 Ark. 824, 310 S.W.2d 485 (1958); Ballard v. Carroll, 2 Ark. App. 283, 621 S.W.2d 484 (1981).

In the instant case, the record reflects that the Kusumas gave the Malakuls checks totalling $115,509.56 and Kusuma testified that he had advanced the Malakuls $115,000.00 before the Clarksville plant was'opened. Kusuma also testified that Altech had given Malakul $25,000.00. Based upon our review of the evidence, we believe the record fully supports the chancellor’s award of $115,398.56 to the Kusumas and $25,000.00 to Altech.

The Malakuls next argue that Mr. Kusuma signed a release which was a valid settlement of all claims asserted by Altech and the Kusumas. Such an argument ignores the rule that misrepresentations amounting to fraud may be shown to set aside a release. Creswell v. Keith, 233 Ark. 407, 344 S.W.2d 854 (1961). It has also been held plaintiffs are entitled to assert the fraud they claim if the entire transaction fatally infects the release upon which the defendants rely. Schine v. Schine, 254 F. Supp. 989 (S.D. N.Y. 1966); see also Fitzwater v. Lambert & Barr, Inc., 539 F. Supp. 282 (W.D. Ark. 1982). Here, Kusuma testified that when he signed the release, he still believed Malakul’s representations that he had been putting his share of the money into the venture, that the equipment was free from debt, and that the plant which had been constructed was a commercial production facility. In short, these misrepresentations, and others, typified the entire transaction or venture which also led to Kusuma signing the release now in issue. Thus, the evidence supports the view that the release was fatally infected by the Malakuls’ overall fraudulent scheme, and we believe the chancellor was correct in deciding the release was not a valid settlement of the claims of Altech and the Kusumas.

The final two issues for consideration involve intervenor Ivan Spiker. Mrs. Malakul contends the court erred in awarding Spiker judgment against her because Spiker’s proof failed to show that she fraudulently induced him to participate in the venture, since he had never met her. Spiker counters, saying the evidence showed that Mrs. Malakul participated in her husband’s scheme and, for that reason alone, his judgment against her should stand. We agree. In White River Prod. Credit Ass’n v. Fears, 213 Ark. 75, 209 S.W.2d 294 (1948), this court recognized the rule that one who accepts the fruit of fraud, knowing the means by which they were obtained, is liable therefore even though he did not personally participate in the fraud. As discussed previously, the evidence shows not only that Mrs. Malakul obtained money from the Kusumas which she deposited in her personal account, but also that she actually participated in the scheme by selling the venture idea to the Kusumas and writing checks to Spiker and others whenever necessary.

Lastly, the Malakuls raise for the first time the argument that if Spiker was aware that Malakul was an agent for Altech or Kusuma, then Altech or Kusuma should be liable for the $50,450.00 judgment given Spiker, not the Malakuls. We dispose of this matter merely by noting this argument was not pled or argued below, therefore, we need not address it on appeal. See, e.g., Read v. Alcoholic Beverage Control Div., 295 Ark. 9, 746 S.W.2d 368 (1988).

Because we find no merit concerning the points raised by the Malakuls, we affirm.

Hickman, Dudley and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. The decision should be reversed and dismissed because the chancery court lacked jurisdiction of the subject matter of the action. The circuit court has jurisdiction of a civil action if jurisdiction has not been vested in another court established by the Arkansas Constitution. Ark. Const, art. 7, § 11.

The complaint in this case was plainly one for damages for deceit. Punitive damages were sought. As the majority opinion points out, the complaint was filed in the circuit court but, for reasons not disclosed by the record, transferred to the chancery court. At the outset of the hearing, the chancellor was apparently exploring with counsel the nature of the remedy sought.

BY MR. SUTTERFIELD [counsel for the plaintiffs Altech and Kusuma]:. . . .Your Honor, if I could make a very brief opening statement. Your Honor, essentially the claim being brought by my clients against Mr. Malakul is one based on equitable rescission of contract due to . . . fraudulent misrepresentation.

Counsel then explained the facts surrounding the entry of the agreement including misrepresentations on which the plaintiffs relied. He also explained the position of plaintiff Spiker who was one of the creditors and who allegedly had been asked by Malakul to participate in the fraud.

After responses by Mr. Whitehead, who represented the defendants, and Mr. Dixon representing Mr. Spiker, the court inquired of Mr. Dixon whether Spiker’s lien had been filed on time. Dixon replied that there was no lien, and that Spiker’s action was on his agreement with Malakul.

' BY THE COURT: You are suing for debt then?
BY MR. DIXON: Yes, sir. That’s basically what it is.
BY THE COURT: Let me ask one other thing. How did this get out of Circuit Court? Why is it out?
BY MR. SUTTERFIELD: It’s out based on —
BY THE COURT: Thickness of the file?
BY MR. SUTTERFIELD: Probably, your honor.

From that point on, the case became a jurisdictional charade which continues unabated in this court.

The complaint of the Kusumas sought compensatory damages and punitive damages. The proof went to their losses rather than to the restitutionary award which would have been proper had this truly been a rescission action. Although the trial court’s judgment and the majority opinion here both avoid use of the term “damages” (and no punitive damages were awarded), there is no other legitimate description for the money judgments which were sought and granted. The answer filed by the Malakuls stated that Mrs. Malakul was not a party to the “dealings” between Robert Malakul and Mr. Kusuma and it sought dismissal of the complaint against her. Not only was she not dismissed, the judgment, which can only be characterized as one for damages, was awarded jointly and severally against Mr. and Mrs. Malakul. There was not even an allegation that Mrs. Malakul was a party to the contract, although it was alleged, and there was evidence from which it could have been concluded, that she was a party to the tort of deceit. It is difficult to imagine how the court could award restitution against a person on the basis of rescission of a contract to which it was not even alleged she was a party.

In Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), and Carter v. Phillips, 291 Ark. 94, 722 S.W.2d 590 (1987), we noted that we would not raise the question of a chancery court’s jurisdiction on appeal unless it was wholly incompetent to have heard the case. That is the situation here. No equitable remedy was sought in the pleadings, and the weak statement of counsel that this was a rescission case is to no avail. If it were not clear enough at the trial that this was a deceit action, it becomes eminently so upon reading the majority opinion’s references to and reliance on the elements of a deceit action set out in Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987), which was clearly a tort action for deceit tried properly in the circuit court.

While I can understand the temptation to overlook the jurisdictional issue when the parties are unconcerned about it, and when raising it may seem to upset a fair result, we have held that “[w]hen a trial court enters an order without jurisdiction over the subject matter, the question cannot be overlooked even if not raised.” Larey v. Continental Southern Lines, Inc., 243 Ark. 278 at 286, 419 S.W.2d 610 at 615 (1967).

We have gone as far as we can or should go in effacing the jurisdictional lines between our chancery and circuit courts by our liberal interpretation of the cleanup doctrine. See, e.g., Liles v. Liles, supra. This case does not involve the cleanup doctrine. If the courts of law and equity are to be merged, leaving only the matter of jury trial dependent on the form of action or remedy sought, the constitution must be changed. It should not be done by judicial fiat.

Hickman, J., and Dudley, J., join this opinion.

       Along with this case, a lawsuit was filed against all the parties by Reece Brothers Apiaries, Inc. The circuit judge severed the present case and transferred it to the Johnson County Chancery Court.

       Because we hold the release invalid for other reasons, we need not address the effect of Kusuma’s signing a release for his wife and Altech.


author: Per Curiam.

text:
    Ronald Gene SIMMONS v. STATE of Arkansas
    CR 89-45
    766 S.W.2d 423
    Supreme Court of Arkansas
    Opinion delivered March 13, 1989

      Allen & O’Hern, by: Arthur L. Allen, for petitioner.
    No response.
   Per Curiam.

Petitioner has failed to show that he has standing to intervene in this cause. Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988).


author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    Charlene Diane HUTTON, Mother, David Edward Hutton, Father v. Michael SAVAGE, as Representative of the Arkansas Department of Human Services, Division of Children and Family Services
    88-274
    769 S.W.2d 394
    Supreme Court of Arkansas
    Opinion delivered March 20, 1989

      Jim Johnson, for appellant.

      Diane C. Boyd, Ass’t Gen. Counsel, for appellee Arkansas Dep’t of Human Services.
   Jack Holt, Jr., Chief Justice.

This appeal is from an order of the probate court finding that the two minor children of appellants Charlene and David Hutton (“Huttons”) continue to be dependent-neglected, that it is in the best interest of the children to have custody continue in the appellee Arkansas Department of Human Services (“Human Services”) for foster care placement, and that Hüman Services should petition for guardianship with authority to consent to adoption. The Huttons argue: (1) the juvenile master’s findings and conclusions, as adopted by the probate judge, are against a preponderance of the evidence; (2) the order of the probate court is void because the juvenile master acted in excess of the powers granted him by our code; and (3) the exercise of jurisdiction over dependent-neglected juveniles is not a permissible function of the probate courts under the Arkansas Constitution.

We agree with the Huttons’ second point that the participation of the juvenile master appointed to preside over this case exceeded that authorized by law. This raises the far more fundamental issue of the power of the probate court to vest in the master the right to preside over all juvenile cases in probate court. We conclude that the legislation which permits the use of masters and referees in juvenile cases, Act 14of 1987, § 6, Ark. Code Ann. § 9-27-310 (Supp. 1987), contravenes the delegation of judicial powers and duties as set forth in our constitution and constitutes an unauthorized grant of legislative authority. We reverse and remand for proceedings consistent with this opinion and address only such other issues as may arise on remand.

In December 1984 a petition was filed in the Benton County Juvenile Court on behalf of Arkansas Social Services requesting court ordered supervision of the home environment of the Huttons’ children, Christina and Lisa. The petition alleged that, in order to protect the health and well being of the children, the Huttons should be required to attend parenting classes and should make their home safe and clean.

Subsequently, on January 22,1985, Christina and Lisa were adjudicated dependent-neglected. It was determined that reasonable efforts had been made by social service agencies as of 1982 to provide supportive care and preventive services in order to keep the children in the home of their parents but that it was necessary to place the children in protective foster care in order to secure their health and welfare.

From February 1985until May 1988,at least thirteen orders were entered reflecting hearings on the issue of the Huttons’ care of Christina and Lisa. Prior to January 1987 it was determined at each hearing that custody of the children should remain with the Department of Human Services and that Human Services should continue to provide rehabilitative services and attempt to return custody to the Huttons.

On January 20, 1987, this court held that the exercise of exclusive jurisdiction over juveniles was not a permissible function of the county courts under the Arkansas Constitution. Walker v. Arkansas Dep’t. of Human Services, 291 Ark. 43, 722 S.W.2d 558 (1987). The legislature immediately responded by transferring jurisdiction of all matters pertaining to juveniles in need of supervision and dependent-neglected juveniles to the probate courts. Act 14 of 1987. As a result, the case at bar was transferred to the Benton County Probate Court.

On February 27, 1987, the Benton County Probate Court entered an order appointing a master to hear all juvenile cases in the probate court as provided in § 6 of Act 14. Between January and November 1987, at least four hearings were conducted by the master concerning the care of Christina and Lisa. During that period custody was returned to the Huttons in light of improvements in the home situation.

On April 15, 1988, a motion was filed by Human Services which requested that custody of the children be returned to them because the Huttons had failed to comply with the terms and conditions of the court’s orders and a change of custody was necessary to protect the health and welfare of the children due to a rapidly deteriorating home situation. Custody was temporarily returned to Human Services on April 19, 1988.

On May 24, 1988, the juvenile master of the probate court conducted a hearing. An order was entered on July 29, 1988, signed by the master and by the probate judge finding that custody should continue with Human Services for foster care placement and that Human Services should proceed with a petition for guardianship with authority to consent to adoption. From that order comes this appeal.

Use of the Juvenile Master

The Huttons argue that the order appealed from is void and of no effect as it was in form and substance a final order by the juvenile master, which is contrary to the directive in § 6 of Act 14 of 1987 [Ark. Code Ann. § 9-27-310 (Supp. 1987)] that all masters and referees appointed to hear juvenile cases shall only submit recommendations to the probate judge and shall in no event have the authority to issue a final order with respect to any matter referred to them. We agree that the master exceeded the powers which probate courts may vest in juvenile masters. Likewise, we note that his participation went beyond that contemplated by ARCP Rule 53 and our decisions in State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969), and Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988).

It is also clear to us that § 6 of Act 14 of 1987, which grants judges the right to appoint juvenile masters with such powers as the judges direct and which purports to vest in the masters the full authority of the judges of their respective divisions, constitutes an unauthorized grant of legislative authority and the impermissible creation of what amounts to substitute judges.

Because the grants of power found in § 6 of Act 14 go to the very essence of the exercise of jurisdiction over juvenile matters, we address the permissible use of masters and the provisions of Act 14 even though the parties did not present these issues at the trial level. It is well settled that on appeal this court may raise the issue of lack of jurisdiction notwithstanding that the parties did not question jurisdiction below. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988).

Act 14 of 1987, § 6, provides in part as follows:

The judge or judges of the juvenile division of the circuit court and the juvenile division of the probate court of each county may, by joint agreement, designate and appoint a referee or master. . . who shall have such power as may be granted by the judges of said divisions to hear juvenile cases within the jurisdiction of their respective courts, and submit recommendations to the judges. . . .
A referee (or master) so designated shall have all the authority and powers of the judges of their respective divisions, but all orders arising from cases referred to the referee (or master) shall be issued by the judges of their respective divisions, and in no event shall the referee (or master) have the authority to issue a final order with respect to any matter referred to them. Provided, however, that the respective judges of the juvenile division of the . . . probate court may authorize the referee (or master) to enter temporary orders in emergencies or under special circumstance, as authorized by such judge, which shall become final only on the approval and signature of the judge of the court from which such order is issued. [Emphasis ours.]

It was pursuant to § 6 of Act 14 that the Benton County Probate Court issued its order of February 27, 1987, appointing the juvenile master who presided over the Huttons’ case. The order provided in part as follows:

The Master shall have power to hear juvenile cases and make recommendations to the judges of their respective courts, pursuant to Act 14 of 1987. He shall have authority to enter temporary order in emergencies. . . but such order shall become final only on the approval and signature of the judge of the court from which such order is issued.

The order tracks the language of § 6, except it fails to set out that all orders arising from cases referred to referees or masters shall be issued by the probate judge and in no event shall the referees or masters have the authority to issue a final order with respect to any matter referred to them:

Following the master’s first hearing in this matter in March 1987, he filed “Findings of Fact and Conclusions of Law,” which were followed by an order signed by the probate judge which read, “The Court finds that the above findings of fact and conclusions of law should be and are hereby adopted.” However, as to all subsequent hearings the record is completely lacking in findings of fact or conclusions of law by the master, and nowhere in the record do we find that the master ever made “recommendations” to the probate judge.

In fact, the only documents of record which relate to the issues presented at subsequent hearings are final orders. Each order fully recites the findings and conclusions pertaining to the Huttons’ care of the children, decrees the rights of the parties, and concludes with the following (or substantially similar) language which appears at the conclusion of the order now on review:

THE COURT DOES, THEREFORE, CONSIDER, ORDER, ADJUDGE AND DECREE the above and foregoing.
IT IS SO ORDERED.
Blaine A. Jackson
JUVENILE REFEREE
BENTON COUNTY PROBATE COURT
JUVENILE DIVISION
Oliver A. Adams
PROBATE JUDGE

In determining whether we have before us an order of the probate judge which was merely signed by the master but indicates an appropriate review by the probate judge, or whether the order was a final order entered by the master and merely cosigned by the probate judge, we look to the comments of “the master” at the conclusion of the hearing which resulted in the order of July 29 and quickly find the answer.

[The Master] — The Court finds that some of the original conditions which necessitated removal from the home have not ever been removed since the filing of the Petition of December 13, 1984, and . . . [the] Court finds that Mr. and Mrs. Hutton are at this time unwilling and, even if willing, probably unable to make the changes necessary to properly care for, protect, train, educate and discipline their children, and continued removal of the children is necessary to provide the proper care for the children. The Court will, therefore, order that the children will continue in foster care at the present time; that the Arkansas Department of Human Services shall petition the Probate Court for guardianship with the right to consent to adoption as quickly as possible.
. . . If [appellants] can. . . straighten things up and make the improvements, then this Court will entertain a Motion to Vacate that Order for Petition for Guardianship. [Emphasis ours.]

Obviously, we are dealing with a final order entered by the master reflecting his findings and judgments rather than those of the probate judge.

This situation brings us to the more significant issue — the propriety of the legislature’s vesting circuit and probate judges with the power to appoint masters or referees to preside over juvenile cases who shall have all the authority and powers of the judges of their respective divisions. In Jansen v. Blissenbach, 214 Ark. 755, 217 S.W.2d 849 (1949), this court discussed the validity of Act 448, § 4, of 1941, which authorized chancellors to appoint a “referee in probate” in each county who would have the power to admit wills to probate and make:

proper orders in all cases where no contest or exceptions are filed, and make his report to the Court of his finding [s] of law and fact, for the further action of theProbate Court, in all cases where contests or exceptions are filed and heard by such Referee in Probate, and to do such other acts and perform all such other duties as may be ordered by the court appointing him.

The Act further provided that if no petition for review was filed within ninety days from entry of the referee’s, order, the order would become final as if performed by the chancellor.

In discussing the validity of section 4 of Act 448, this court noted that Ark. Const, art. 7, § 34, as amended by § 1 of Amendment 24, provided that the judge of the probate court shall try all issues of law and fact arising in causes or proceedings within the jurisdiction of the court. We went on to note that it was clear from the constitutional provision that exclusive original jurisdiction over matters relative to the probate of wills was vested in the “judge” of the probate court. 214 Ark. at 758. In concluding our discussion of the constitutionality of Act 448, we said,

To say the Legislature had such power would clothe that body with authority to create a second or deputy probate judge in the several counties and this it may not do under the Constitution. It follows that § 4 of Act 448 of 1941 is an unauthorized grant of legislative authority and, therefore, unconstitutional and void.

See also Mills v. Latham, 215 Ark. 128, 219 S.W.2d 609 (1949). The conclusions reached in Jansen apply with equal force to our consideration of § 6 of Act 14 of 1987.

We recognize that to facilitate the handling of juvenile matters, § 6 of Act 14 granted the circuit and probate courts the right to appoint masters or referees to aid judges in the performance of specific judicial duties as they arise. It was not the intent of the legislature to displace the judges of the respective courts, and with that limitation in mind, § 6 of Act 14 was drafted to provide that all orders arising from cases referred to the referees or masters should be issued by the circuit or probate judges and that the referees or masters should only submit recommenda tions and should in no event have the authority to issue final orders with respect to any matter referred to them.

However, the Act went further and gave the masters and referees authority and powers commensurate with the judges of their respective divisions, including “such power as may be granted by the judges of said divisions to hear juvenile cases.” Whether intended or not, the net effect, as evidenced by the order of the probate court appointing the master in this case, and by the facts of record, was to create substitute judges contrary to the provision in Ark. Const, art. 7, § 34, that the judge of the probate court shall try all issues of law and fact arising in causes or proceedings within the jurisdiction of that court. Accordingly, § 6 of Act 14 of 1987 is unconstitutional and void. Since § 6 applies with equal force to the use of masters in juvenile cases pending in circuit court, a similar conflict arises with respect to those courts.

In State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969), this court discussed the permissible functions of special masters.

[T]he chancellor appointed a Special Master, and instructed him to prescribe rules for the expeditious and orderly progress of the tasks with which he was charged, and to proceed with hearing [the] evidence and ruling upon all matters of fact and law incident thereto ... In this respect, the trial court was proceeding illegally. . . [T]he chancellor should hear the cause upon the pleadings and such evidence as may enable him to determine the principles to be applied in adjusting the equities of the parties and then make a reference to a master for such special inquiries or statements of accounts as may aid the court in making a definite decree . . . [T]he United States Supreme Court [has] stated that the use of masters was to aid judges in the performance of specific judicial duties as they arise and not to displace the court. [The Court] held that the appointment of a master and a reference at the inception of the case to take evidence and to report the same to the court with his findings of fact and conclusions of law was an action beyond the court’s powers.

We stated in Nelson that to support the reference by reason of anticipation of a lengthy trial, complexity of the issues and congestion of the court’s calendar does not constitute sufficient grounds for the virtual displacement of the court by a special master.

While we can conceive of situations in which a reference of particular matters may be made to a master during the course of litigation, a reference as broad as the one involved here is clearly in excess of the court’s jurisdiction and in that respect the court proceeded without authority of law.

Id. at 219 — 220. The same statements ring true in this case. See also Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988).

Excessive utilization of masters has been a serious concern of this court as recently noted by Justice Hickman in his concurring opinion in Walker, supra. “Referees and masters are simply substitutes for the judge, and there is no place in our judicial system for permanent substitutes forjudges.” 291 Ark. at 54. In that same vein, this court promulgated Rule 53(b) of the Arkansas Rules of Civil Procedure which specifies that the reference to a master shall be the exception and not the rule and, except in matters of accounting and difficult computation of damages, the reference shall be made only upon a showing that some exceptional condition requires it.

Having reviewed the record in this case, we are convinced that the participation of the juvenile master in the case before us far exceeded that permitted by our constitution, our case law, and ARCP Rule 53(b). Additionally, § 6 of Act 14 of 1987 impermissibly authorizes circuit and probate judges to appoint masters or referees to hear juvenile cases with such powers as may be granted by the circuit and probate judges and purports to vest those masters or referees with all the powers and authority of the judges. As such, § 6 of Act 14 of 1987 is unconstitutional.

Our opinion in Fortin v. Parrish & Reeves, 258 Ark. 276, 524 S.W.2d 236 (1975), contains dicta on the use of juvenile masters. We overrule Fortin to the extent that it is inconsistent with the position adopted in this opinion.

We recognize that in Fortin it was determined that the master would, in any event, be considered a de facto judicial officer whose acts would be valid even though his “title” might be derived from legislation found to be unconstitutional. Notwithstanding that the master might have the position of an officer de facto whose acts are binding as though done by one in office de jure, we have already determined that the case before us must be reversed in any event since the acts of the master were otherwise invalid once his participation exceeded that permitted by law.

Finally, it is well settled that where a statute or code provision is unconstitutional in part, the valid portion of the act will be sustained if complete in itself and capable of execution in accordance with apparent legislative intent. Jansen, supra. See also Ark. Code Ann. § 1-2-117 (1987). Since the remaining portions of Act 14 of 1987 are complete and capable of execution, they are not affected by this opinion.

In light of the foregoing, we reverse and remand to the probate court for such proceedings before the probate judge as are warranted under the circumstances to best serve the health, well being, and best interest of Christina and Lisa Hutton. In that regard the probate judge may, of course, employ the services of the master to the extent permitted by Rule 53 and should, pursuant to subsection (e), accept the master’s findings of fact unless clearly erroneous or, after a hearing, adopt, modify, or reject the master’s report as provided in subsection (e)(2). As in Walker, supra, it would be desirable to make our ruling prospective, but we do not have the power to hold a constitutional mandate in abeyance. City of Hot Springs v. Creviston, 288 Ark. 293-A, 713 S.W.2d 230 (1986).

Jurisdiction of the Probate Court

The Huttons’ next point is that the exercise of jurisdiction over dependent-neglected juveniles is not a permissible function of the probate courts under the Arkansas Constitution. We disagree.

As noted previously, this court held in Walker v. Arkansas Dep’t. of Human Services, 291 Ark. 43, 722 S.W.2d 558 (1987), that the exercise of exclusive jurisdiction over juveniles is not a permissible function of the county courts under the Arkansas Constitution. Our opinion specifically noted that Act 215 of 1911 had established a new court, known as the “Juvenile Court,” to be administered by the county judges, in contravention of Ark. Const, art. 7, § 1, which prohibits the creation of courts other than those provided for in the constitution. Further, the jurisdiction of county courts as set forth in Ark. Const, art. 7, § 28, did not encompass the jurisdiction of juvenile matters.

In Walker, we overruled former case law which conflicted with our new position, and we concluded with the statement that the matter of achieving a constitutional system for the administration of juvenile matters would be left to the legislature — the body equipped and designed to perform that function. 291 Ark. at 51.

In response to the decision in Walker, the legislature found that the impact of our decision upon the administration of the juvenile justice system of this state created a state of urgency necessitating the immediate designation of an appropriate court or courts within the judicial structure of the state to exercise jurisdiction over juvenile matters formerly vested in the juvenile court, until such time as more permanent provisions could be made. Act 14 of 1987. The Act provided that all jurisdiction, powers, functions, and duties of the juvenile court and of the county judge as judge of the juvenile court, as provided in the Arkansas Juvenile Code of 1975, and laws amendatory and supplemental thereto, would be vested in a juvenile division of the circuit courts of this state with respect to juvenile delinquents, and in a juvenile division of the probate courts with respect to juveniles in need of supervision and dependent-neglected juveniles.

The Arkansas Constitution, article 7, § 34, as amended by Amendment 24, provides that in each county the judge of the court having jurisdiction in matters of equity shall be the judge of the court of probate, and shall have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law. The italicized words distinguish the jurisdiction of the probate courts from that of the county courts in the critical sense that the jurisdiction which may be vested in the probate courts can be altered by act of the legislature.

Accordingly, in Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984), and Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976), this court emphasized that the jurisdiction of the probate court extended only to such matters as were expressly conferred by the constitution, or by statute, or as were necessarily incidental thereto. To that effect, Ark. Code Ann. § 28-1-104 (1987) now provides that the jurisdiction of the probate courts of this state extends, for example, to matters of adoption and to the persons and estates of minors. Ark. Code Ann. § 16-10-126 (1987) provides that the chancery and circuit courts of this state may authorize the Arkansas Department of Human Services to provide investigative assistance to the probate courts as to actions in probate concerning the guardianship of minors.

While we might resolve this issue on the basis of the express power of the probate courts to exercise jurisdiction over matters concerning the guardianship of minors, or over the persons of minors, we need only observe that the legislature has the power to enlarge upon the jurisdiction of the probate courts of this state. As such, it was within the power of the legislature to transfer the jurisdiction of matters touching upon juveniles in need of supervision and dependent-neglected juveniles to the probate court of each county.

At this juncture, we find it appropriate to note that Ark. Const, amend. 67, which deals with the jurisdiction of matters relating to juveniles and bastardy and which became effective as of January 1, 1989, reads in part as follows:

SECTION 1. The General Assembly shall define jurisdiction of matters relating to juveniles . . . and matters relating to bastardy and may confer such jurisdiction upon chancery, circuit or probate courts, or upon separate divisions of such courts, or may establish separate juvenile courts upon which such jurisdiction may be conferred, and shall transfer to such courts the jurisdiction over bastardy and juvenile matters now vested in county courts by Section 28 of Article 7 of this Constitution.

We conclude that jurisdiction of the case before us was proper in the probate court of Benton County. Having determined that this case must be reversed and remanded because the master’s participation exceeded that permitted by law and because § 6 of Act 14 of 1987 is unconstitutional and void, we do no respond to the Huttons’ other point challenging the sufficiency of the evidence.

Reversed and remanded.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I respectfully disagree with the majority that Section 6 of Act 14 of 1987 is unconstitutional. The majority ignores a cardinal rule of appeal and error in addressing points not first presented to the trial court, but rather decides a constitutional question sua sponte. We have repeatedly declined to consider even constitutional issues which are not first presented to the trial court. Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985); Pope County v. Street, 284 Ark. 416, 682 S.W.2d 749 (1985); Scottish Union & National Ins. Co. v. Wilson, 183 Ark. 860, 39 S.W.2d 303 (1931). And what of the attorney general? Ark. Code Ann. § 16-111-106 (1987) requires that the attorney general be given the opportunity to defend a statute against constitutional attack, and failure to do so is error. Prather v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).

The majority characterizes the constitutionality question as one of subject matter jurisdiction so as to provide this court with the proper avenue for raising this issue on our own. Although it is a well settled rule that subject matter jurisdiction may be raised for this first time on appeal, Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984), subject matter jurisdiction involves a court’s competence to hear a particular category of cases and the facts of this case involve the allocation of power. This appeal is from the orders of the probate judge. Surely the majority is not holding that orders of the probate court entered pursuant to Act 14 are rendered void by the retroactive operation of today’s holding. If so, I venture that will prove to be a difficult precedent to live with.

There is another compelling reason why the case should be affirmed. From the outset in 1984, the orders (and there are many, eighteen by actual count) were all signed by a referee or master and, following Act 14, were then approved by the probate judge. At no time until they reached this court did appellants ever object to the procedure or complain about the case being heard by a master or referee, or object that the master was exceeding his authority. No objection on any basis now argued on appeal appears throughout this entire record. The rule is almost universally recognized and followed that a party waives objection to the functioning of the master where not timely made. “If a party appears and participates in the taking of evidence before a master without objection, he cannot question the authority of the master to act, although the order or reference is defective or although no offer referring the case to the master has been entered.” Corpus Juris Secundum, Vol. 30A, § 531, p. 570. “If facts are known, parties are bound to make objections to disqualification of a master before issues are joined and before hearing commences, otherwise they will be deemed to have waived objection.” DeMoville v. Merchants & Farmers Bank, 186 So. 704 (Ala. 1939); Goodrum v. Merchants & Planters Bank, 102 Ark. 326, 144 S.W. 198 (1912). Proctor v. Bank of New Hampshire, 123 N.H. 395, 464 A.2d 263 (1983); Nystrom v. Nystrom, 105 So.2d 605 (Fla. Dist. Ct. App. 1958).

Appellants also complain in this court that the master failed to comply with ARCP Rule 53(e) in that he did not submit a report. However, the appellants registered no such complaint before the trial court. The master announced his findings and conclusions at the end of the hearing and the final order was not entered until some three months later, thus, appellants had ample opportunity to file objections. No objection on this, or any other ground, was ever offered in the trial court.

The majority concludes that the case must be reversed because the participation of the juvenile master exceeded that authorized by law. The majority states the issue to be whether the probate judge appropriately reviewed the master’s findings, or merely co-signed a final order entered by the master. What is important is whether the judge recognized that the master’s findings were merely advisory and that he alone gave finality to the case. The appellants have not even attempted to show that the orders were not the final product of the probate judge. He approved each order and there is nothing to suggest he did not fully concur in them.

The majority states that “all masters and referees appointed to hear juvenile cases shall only submit recommendations to the probate judge.” In fact, § 6 of Act 14 of 1987 also provides that a referee or master so designated (to hear juvenile cases) shall also have “all the authority and power of the judges of their respective divisions.” Surely such power encompasses more than submitting mere recommendations. However, § 6 of Act 14 quite definitely prohibits masters or referees from issuing final orders. The legislature’s intent as to what constitutes the “issuance” of a “final” order may be gleened from the paragraph discussing the master’s ability to issue temporary orders. A temporary order issued by a master becomes a “final” order after receiving the judge’s approval and signature. Therefore, the essence of the issuance of a final order does not then turn on who drafted the order, but rather on who reviews, approves, and signs the order. Although the master drew up the order in this case, by signing the order the judge reviewed and approved such and thus issued the final order.

I do not see any objection to a statutory scheme providing for permanent masters, so long as a judge is the final arbiter. Masters have been recognized as a useful arm of the courts from an early date at common law. The ongoing demands of following the progress of a family involving dependent-neglected children through rehabilitative regimens are far better suited to a master or referee than to a judge. I find no authority cited in the majority opinion for this abrogation of legislative authority.

Therefore, I would affirm the probate judge’s orders.

       Why Section 6 is singled out is not clear. The removal of Section 6 renders the act meaningless.

       Beginning with the reign of Edward III. Cyclopedic Law Dictionary, 2d Edition.