text:
    Brad J. GUTHRIE v. Samuel Joseph KEMP
    89-208
    793 S.W.2d 782
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990
    [Rehearing denied September 10, 1990.]

      Boswell, Tucker & Brewster, by: Ted Boswell, for appellant.

      Rose Law Firm, A Professional Association, by: Phillip Carroll, for appellee.

      Price, J., not participating.

   Jack Holt, Jr., Chief Justice.

This is a personal injury case and a companion case to Aluminum Company of America v. Guthrie, 303 Ark. 177, 793 S.W.2d 785 (1990) (Aluminum Company of America appealed a 1.1 million dollar jury verdict in favor of Guthrie). The appellant, Brad Guthrie, contends that the trial court erred in granting the motion for summary judgment of the appellee, Samuel Kemp, on the basis that there were genuine issues of material fact for the jury to decide.

We disagree and affirm.

Guthrie initially filed suit against Aluminum Company of America (Alcoa) for injuries that he alleged were sustained as the result of a fall from a bridge owned by Alcoa, and the jury awarded him $450,000. On appeal, however, that verdict was reversed and remanded to the trial court. ALCOA v. Guthrie, 296 Ark. 269, 753 S.W.2d 538 (1988).

On July 18, 1988, the same day this court delivered its opinion in ALCOA v. Guthrie, supra, Guthrie filed suit against Kemp, who was Alcoa’s Chief of Security on July 21, 1985, the date of Guthrie’s injuries. Subsequently, the trial court consolidated this case, upon Guthrie’s request, with ALCOA v. Guthrie, supra.

The trial court granted summary judgment in favor of Kemp on December 30,1988; the retrial on ALCOA v. Guthrie, supra, was held January 3 through January 6, 1989.

Guthrie’s sole point of error on appeal is that the trial court erred in granting Kemp’s motion for summary judgment.

Summary judgment, like a mistrial, is an extreme remedy. It will be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56(c). The burden of proving that there is no genuine issue of material fact is upon the party moving for summary judgment, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubts and inferences must be resolved against the moving party. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988).

Guthrie contends that he was severely injured when he fell from a bridge owned by Alcoa. The circumstances of his injuries were developed in ALCOA v. Guthrie, supra:

Guthrie and two friends went to Lost Lake after dark. One friend got in the water to swim, but the other friend summoned her back to the bank and told her Guthrie had left and they should look for him. The three had been drinking, but the amount, and whether Guthrie was drunk when the accident occurred is disputed. The two friends searched the area briefly and then left in their car. They found Guthrie on the pavement of a highway directly beneath the bridge owned by Alcoa. Others had noticed him lying there, and had summoned medical aid.
Guthrie sustained injuries to his spine requiring surgery and a long rehabilitation period. He had no memory of the incident. No one saw him immediately before it happened. Some witnesses who stopped at the scene testified they concluded he had fallen from the bridge. When he was found, he was directly below an opening where grates were missing from the bridge structure. Guthrie’s theory is that he was walking along the bridge in the darkness and fell some twenty feet to the pavement below because he was unable to see that the grates were missing. The bridge was formerly a railroad bridge. The tracks had been removed, and Alcoa used it to support a water line connecting its property on either side of the bridge. The grates, some of which were missing, formed a sort of walkway beside the place where the tracks had been.

In his complaint, Guthrie alleged that Kemp, as Chief of Security for Alcoa, was negligent in failing to post warning signs and “No Trespassing” signs on the roadway that went from Lost Lake to the railroad dump, in failing to erect barricades to prevent pedestrians from entering upon the railroad dump from Lost Lake and from entering upon the walkway of the bridge, in failing to replace the steel grates on the bridge after they had been removed or stolen, in failing to use ordinary care for the safety of pedestrians on the walkway crossing the railroad bridge, and in failing to supervise agents, servants, or employees of Alcoa directly under his control and chain of command.

Rule 56(c) provides in pertinent part as follows:

. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ....

In this case, Kemp’s motion for summary judgment was supported by the affidavit of his immediate supervisor and by his own sworn testimony from the first trial.

Kemp’s supervisor stated in her affidavit that Kemp’s principal duties were to maintain a plant protection program to discourage theft or damage to Alcoa’s property, to coordinate a. fire prevention program, to administer an effective custodial service, and to perform administrative functions concerning the worker’s compensation program for plant personnel. Although Kemp supervised twelve security officers and nine janitors at Alcoa’s Arkansas operation, which consists of approximately 8,000 acres of land, he did not have responsibility for the maintenance or repair of structures on Alcoa’s lands. In fact, the Production Manager had the overall responsibility for the repair and maintenance of the bridge involved in this case.

Additionally, Kemp stated that he was not aware that anyone other than Alcoa employees had been on, or near, the bridge prior to the date of Guthrie’s accident. He was also not on duty when the accident occurred.

Ark. R. Civ. P. 56(e) addresses the defense required for a motion for summary judgment and provides in pertinent part as follows:

. . .When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
(Emphasis added.)

Guthrie did not file opposing affidavits, although he did respond to Kemp’s motion for summary judgment by filing a memorandum brief that made reference to various portions of the records of the previous trial. Although affidavits for summary judgment are construed against the moving party, once the movant makes a prima facie showing of entitlement the respondent must meet proof with proof by showing a genuine issue as to a material fact. Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985).

In light of Kemp’s proof that he was not responsible for the maintenance or repair of the bridge in question and that he had no knowledge of any use of the bridge in question by anyone other than Alcoa employees, Kemp has made a prima facie showing of his entitlement to a summary judgment.

Guthrie does not dispute any of the facts in Kemp’s supervisor’s affidavit or Kemp’s own testimony and also fails to set forth any specific facts, as proscribed in rules 56(c) and 56(e), showing that there is a genuine issue for trial. Therefore, Guthrie has not met his burden of going forward with opposing proof showing a genuine issue as to a material fact.

As a result, the summary judgment entered against Guthrie is affirmed.

Price, J., not participating.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

license: Public Domain

text:
    Larry YATES v. STATE of Arkansas
    CR 90-63
    794 S.W.2d 133
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990
    [Rehearing denied September 10, 1990.]

      Sullivan, Emmons & Kissee, by: Larry Dean Kissee, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.

      Hays, Glaze, and Turner, JJ., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

On July 26, 1987, the appellant, Larry Yates, was convicted of two counts of rape and sentenced to eighteen years imprisonment in the Arkansas Department of Correction for each count, to be served consecutively.

Yates alleges two points of error on appeal: 1) that the trial court erred in denying his motion to require the disclosure of his polygraph test results and related materials, and 2) that the trial court erred in holding that his confession was voluntary. We agree that the trial court erred in denying Yate’s motion to require the disclosure of his polygraph test results and related materials; therefore, we reverse and remand.

On August 12, 1987, the Sharp County Sheriffs Department requested that Yates go the Department’s offices for questioning. Upon arriving, Yates was advised that his twelve-year-old daughter alleged that he had had sexual intercourse with her on two separate occasions. After denying the allegations, Yates submitted to a polygraph examination administered by Arkansas State Police Officer Charles Beall.

Officer Beall questioned Yates and subsequently informed him that he had failed the polygraph test. Shortly thereafter, Yates signed a statement, written by Beall, in which he admitted the sexual conduct.

Prior to trial, Yates filed a motion to suppress the statement on the basis that it was involuntarily given due to police coercion in the form of threats, deceit, and promises of a suspended sentence. Pursuant to his motion to suppress, Yates also filed a discovery motion requesting that the State provide any written or recorded statements and the substance of any oral statements made by him, as well as any reports or statements made by experts relating to the results of physical or mental examinations, scientific tests, experiments, or comparisons. Yates also requested any materials that would negate his guilt or tend to reduce his punishment.

The State disclosed Yates’s written statement and stated that any reports or statements of experts would be furnished prior to trial. Yates then filed a supplemental motion of discovery and requested disclosure of the polygraph tapes, in which Officer Beall questioned Yates, and the questions asked before and after Yates’s polygraph examination. The State refused to disclose this information and contended that the materials were its work product.

Before discussing the merits of the case, we will initially address the State’s contention that Yates’s argument as to the non-disclosure of the polygraph examination materials has not been preserved for appeal because the requested materials are not a part of the record due to his failure to utilize Ark. R. Crim. P. 19.6 for purposes of appellate review.

Rule 19.6 addresses in camera proceedings and provides as follows:

The court may permit any showing of cause in whole or in part for denial or regulation of disclosures to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.

The State’s reliance on Snell v. State, 290 Ark. 184, 717 S.W.2d 818 (1986), is misplaced. In Snell, a capital felony murder case, the State produced a statement of a potential witness for the trial court’s inspection and the trial judge pronounced the statement free of exculpatory information but refused the defendant’s request to have it appended to the record so that it could be reviewed on appeal. We ordered the supplementation of the record on appeal to include the statement, pursuant to Ark. R. App. P. 6(e). We also allowed the parties to petition the court for permission to file a supplemental brief. Our actions were authorized by Rule 6(e), and we were apparently enforcing the mandatory language of the rule that required the sealing and preservation of the showing of cause after the showing had been permitted by the court. Here, there was no showing to the court of the material relating to the polygraph examinations. Thus, our ruling in Snell is not of present value.

The State’s emphasis on Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977), is also misdirected. The relevance of that case to the issue at hand centers on the defendant’s contention that he should have been permitted to discover the personnel file of a police officer because it contained information that would tend to impeach the officer’s credibility as a witness. The trial court had examined the officer’s personnel file in camera and determined that nothing therein was material to the defendant’s case. Accordingly, the trial court refused the defendant’s request for discovery and also refused to seal the personnel file and make it a part of the record. We were not, however, precluded from addressing the defendant’s point of error.

The purpose of an in camera proceeding in Rodgers was discussed as follows:

There are valid policy reasons for maintaining confidentiality of such files. Still, the trial court has some discretion in the matter of discovery when impeaching matter is concerned. But, in the exercise of discretion the necessity for a defendant’s searching confidential matter must be weighed against the public policy of confidentiality of secrecy. This, the trial court may do by an in camera inspection of the material sought.
(Citations omitted.)

The State’s suggestion that Rule 19.6 is mandatory misinterprets the discretionary language of the rule permitting the trial court to hold an in camera proceeding. The beginning language of the rule, “the court may permit,” reflects its permissive nature. It also makes common sense. Of what value would it have been to have a showing in camera before the trial court of printed tapes from a polygraph machine that recorded Yates’s cardiovascular and respiratory patterns during interrogation and then to have sent these results on to us for review? See generally Ark. Code Ann. § 17-32-109 (1987). Simply put, the polygraphic examination of Yates qualifies as a “scientific test” for the purpose of discovery, and all materials relating thereto should, upon request, have been made available to Yates for his examination, or the examination of his experts, without need or necessity of an in camera proceeding.

We further point out that, in this case, there was no valid policy reason for the State’s failure to disclose the polygraph examination results to Yates; there was no confidentiality to be protected. Indeed, the State orchestrated the examination, Yates participated in the examination, and Yates allegedly confessed as a result of being told that he had failed the examination.

In discussing the merits of the case, we note that Ark. R. Crim. P. 17.1 addresses the prosecuting attorney’s obligations of disclosure to a criminal defendant and provides in pertinent part as follows:

(a) Subject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:
* * * *
(ii) any written or recorded statements and the substance of any oral statements made by the defendant or a codefendant;
* * * *
(iv) any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations, scientific tests, experiments or comparisons;
* * * *
(c) The prosecuting attorney shall, upon timely request, disclose and permit inspection, testing, copying, and photocopying of any relevant material regarding:
* * * *
(ii) the acquisition of specified statements from the defendant.
(d) . . . the prosecuting attorney shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.

In Arkansas, the admission of the results of a polygraph examination at trial is improper in the absence of the parties’ written stipulation. Brandon v. State, 300 Ark. 32, 775 S.W.2d 896 (1989). However, the issue before us relates to the disclosure of polygraph materials, regardless of their admissibility at trial, during pretrial discovery.

Although we have not previously addressed this point, other jurisdictions with similar rules of discovery have considered the issue. We find the discussion in People v. Mondon, 129 Misc.2d 13, 492 N.Y.S.2d 344 (1985), to be particularly well-reasoned and adopt its rationale in requiring, upon proper request, the pretrial disclosure of polygraph examination materials during discovery. The supreme court analyzed the issue in Mondon as follows:

Polygraph testing is based on the principle that the body’s nervous system responds involuntarily to stressful conditions, including those created when a person consciously tells a lie. During a polygraph examination, various questions are put to a subject, whose uncontrollable responses are permanently recorded. Initially, the subject is asked innocuous inquiries. Later, important and relevant questions are posed. A qualified technician, by comparing the subject’s reactions to these interrogatories, can determine when a lie has been told.
* * * *
. . . [W]hether its results are admissible or not, the polygraph appears to be a sufficiently reliable and valid investigatory tool, and has been praised as such.
Moreover, it is equally obvious and should not be overlooked that the polygraph can be as useful to the defense as to the prosecution. The subject’s answers to questions may provide investigatory leads that, together with the examiner’s conclusions, will help a defendant to determine whether, in the first instance, to go to trial at all and, if so, who to call as a witness. Furthermore, such data may afford to defense counsel specific source material for the impeachment of potential prosecution witnesses, as well as clues that may aid in the fact-finding process in general.
Therefore, despite widespread judicial reluctance to admit polygraph results in evidence in criminal cases, the polygraph examination qualifies as a “scientific test or experiment”, at least for purposes of pretrial discovery. When a demand to produce is made. . ., the prosecutor is obligated to make available “[a]ny written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity . . .”. Because the statute explicitly directs the disclosure of reports, or parts thereof, of scientific tests or experiments made in connection with a case, and not just those that will be introduced in evidence, the inadmissibility of polygraph findings at trial does not exclude them from the law’s pretrial ambit.
Furthermore, the use of the word “any” in the statute in connection with these written reports or documents, obviously encompasses any and all such items, including both the full body of the documents or reports, as well as the results and findings.
* . * * *
In addition, where polygraph results are favorable to a defendant’s cause, there appears a further legal basis for a turnover of such information to the defense; namely, that it falls within the spirit, if not the letter, of Brady v. Maryland. . . .
(Citations omitted.)

See also People v. Bass, 84 Ill. App. 3d 624, 405 N.E.2d 1182 (1980); State v. Christopher, 134 N.J. Super. 263, 339 A.2d 239 (1975). But see State v. Moore, 642 S.W.2d 917 (Mo. App. 1982); Anderson v. State, 241 So. 2d 390 (Fla. 1970).

In the commentary to Rule 17.1, it is noted that:

Broad pretrial disclosure would seem to be not only desirable but also necessary. By encouraging guilty pleas, reducing delays during trial, and in general lending more finality to the disposition of criminal cases, disclosure alleviates docket congestion and permits a more economical use of resources.

See also Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978).

Rule 17.1(d) incorporates the due process requirement that evidence favorable to a defendant on issues of guilt or punishment be disclosed by the prosecutor. Brady v. Maryland, 373 U.S. 83 (1963). In so far as the rule requires pretrial disclosure, it represents an extension of the Brady mandate. Additionally, the Brady rule has been interpreted to include impeachment, as well as exculpatory, evidence. See United States v. Bagley, 473 U.S. 667 (1985).

In order for Yates to prevail on this issue, he must demonstrate a reasonable probability that the result would have been different had he had the information. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. See United States v. Bagley, supra.

In this case, Yates specifically advised the trial court that his primary reason for requesting the disclosure of the polygraph materials was to impeach Officer Beall at the suppression hearing. Y ates was entitled to the opportunity, apart from his own investigations, to challenge conclusions drawn from tests undertaken by the State. See Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). The importance of the circumstances surrounding the examination, and the validity of its results, cannot be minimized in this situation.

Y ates was prejudiced in this case because, from the very beginning of trial, it was critical for him to evaluate the circumstances under which his polygraph examination was administered and upon which Beall’s conclusions were based. The State knew that its case depended primarily upon Yates’s confession, ostensibly obtained due to the outcome of the polygraph examination. Yates’s defense was based on destroying Beall’s credibility and establishing the involuntariness of his confession. Questions were raised about the circumstances under which Yates’s confession was obtained; consequently, the trial judge might have ruled differently in several instances if the truth were known. See also Strobbe v. State, 296 Ark. 74, 752 S.W.2d 29 (1988).

As the disclosure of the polygraph examination materials may affect the trial court’s determination of the voluntariness of Yates’s confession, we decline to address that issue at this time.

Reversed and remanded.

Hays, Glaze, and Turner, JJ., dissent.

Tom Glaze, Justice,

dissenting. The court reverses the appellant’s rape convictions because the state withheld the questions propounded to appellant and the tapes resulting from a polygraph examination given him. If appellant had been given these materials, everyone agrees such evidence would have been inadmissible at trial. Nevertheless, the appellant claims if he had received the polygraph materials, he might have shown that the confession he gave, following the examination, resulted from the coercive manner by which the officer administered the polygraph test.

As I understand appellant’s theory, the officer asked appellant questions pertaining to the rape allegations, the appellant denied he committed the crimes, but during the questioning, the officer repeatedly told the appellant that he did not believe appellant’s denials. In sum, appellant argues his confession that he raped his daughter twice may have hinged upon whether the officer used trickery or deceit in securing the confession, and, therefore, appellant was entitled to the polygraph results so he could impeach the officer’s credibility.

At the suppression hearing held a month before trial, appellant never attempted to proffer the polygraph materials he was seeking. In fact, when appellant’s counsel cross-examined the officer who administered the polygraph test, the officer declared that he had a list of the questions he had asked appellant during his test and told counsel he could see them. Appellant’s counsel ignored the officer’s offer, but instead he merely cross-examined the officer concerning several of the questions.

Nor did the appellant attempt to proffer the polygraph tapes that resulted from his polygraph test. The majority curiously suggests such a proffer would have been useless on appeal because this court would be unable to understand the tapes. Such a comment begs the question as to why the appellant failed to make his record. Obviously, upon the remand of this case, appellant will be required to cross-examine the officer regarding the tapes — which is exactly what appellant should have done at the suppression hearing held prior to his trial.

In reality, this court is left to indulge appellant’s mere speculation that now, upon remand, he might be able to show that the officer tricked him into confessing when the tapes indicated appellant was telling the truth when he denied having raped his daughter.

Serious question exists concerning whether polygraph test results are discoverable materials. The state cites authority that holds they are not. See State v. Gum, 309 S.E.2d 32 (W. Va. 1983); Anderson v. State, 241 So. 2d 390 (Fla. 1970); State v. McGee, 91 Ariz. 101, 370 P.2d 261, cert. denied, 371 U.S. 844 (1962). However, assuming such materials should be discoverable, surely the defendant must show how he was prejudiced by his having been denied the information. Here, appellant completely failed in this respect.

At the suppression hearing, the state showed that appellant signed a waiver and volunteered to take the polygraph test. No evidence was offered showing he was abused or prolongedly questioned prior to having given his confession. The evidence showed the appellant was forty-two years old, had a twelfth grade education and had been given his Miranda rights. The officer who gave the polygraph test related that the appellant was never promised anything and that he voluntarily gave his statement. These matters clearly were within the trial court’s province to believe or not. The trial court stated that from the totality of the circumstances, it believed appellant’s confession was voluntary, and it admitted the statement into evidence which reflected the appellant had sex with his twelve-year-old daughter on two separate occasions.

The trial court properly conducted a suppression hearing regarding the polygraph information and confession issue, and the appellant failed to offer evidence below showing the trial court was wrong in denying his motion to suppress his confession. The majority now improperly allows appellant another or belated opportunity to show that the trial court’s ruling prejudiced him, and in doing so, it apparently also allows him a new trial as well. Cf. Moore v. State, 303 Ark. 1,791 S.W.2d 698 (1990). I believe this court is wrong in allowing such relief and therefore respectfully dissent.

Hays and Turner, JJ., join this dissent.


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

text:
    Merle BATES v. Michael BATES
    89-320
    793 S.W.2d 788
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990
    [Supplemental Opinion on Denial of Rehearing September 24, 1990.]

      Ben Seay and David J. Manley, Legal Services of Ark., Inc., for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for the State of Arkansas.

      H. Joan Pennington and Laurie Woods, National Center for Women and Family Law, and Bill Rahn, Ark. Legal Services Support Center for amicus curiae National Center on Women and Family Law.

      Marilyn Brown, for amicus curiae Ark. Advocates for Children and Families.

      Caran Curry, Prosecutor Coordinator, by: Anne Orsi Smith, Staff Att’y, for amicus curiae Office of the Prosecutor Coordinator.

      Compton, Prewett, Thomas & Hickey, P.A., by: Robert C. Compton; Roberts, Harrell & Lindsey, by: Alan P. Roberts; Shackleford, Shackleford & Phillips, P.A., by: Dennis L. Shackleford, for appellee.

      Hays and Glaze, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

Appellee Michael Bates allegedly abused his wife, appellant Merle Bates. She filed a petition in chancery court pursuant to the Arkansas Domestic Abuse Act of 1989. Ark. Code Ann. §§ 9-15-101 to -211 (Supp. 1989). In the petition she sought an order to restrain appellee from committing future acts of domestic abuse and from entering their residence or her place of work, and to require him to pay child and housemate support. (Housemate support, not alimony or maintenance, because, pursuant to the act, she did not seek a divorce or separate maintenance. Further, it is not necessary that the parties be married to seek the protection of the act.) The petition was denied. The chancellor held that the act created a new cause of action and unconstitutionally placed jurisdiction of the new cause of action in chancery court. We affirm the holding.

The Arkansas Domestic Abuse Act provides that a petition may be filed in chancery court to prevent domestic abuse. “Domestic Abuse” is generally described as causing harm to, or committing a sex offense against, any persons who presently or in the past have resided together. Ark. Code Ann. §9-15-102 (Supp. 1989). An “order of protection” may include: restraining the abusing party from committing domestic abuse; excluding the offending party from the residence and the place of work of the victim; awarding custody and support of the children and support of the housemate; and awarding an attorney fee. A “temporary order of protection” may be granted upon ex parte application with a hearing to be held after notice. Ark. Code Ann. § 9-15-206(a) (Supp. 1989). The temporary order shall be effective for a period not to exceed fourteen (14) days. Ark. Code Ann. § 9-15-206(b) (Supp. 1989). Accordingly, the quintessence of the cause of action is preventing a person from committing acts of domestic abuse. The pivotal issue in this case is whether jurisdiction for such a cause of action lies in chancery court. That issue must be assessed within the narrow confines of equity jurisdiction under the Constitution of Arkansas.

Article 7, section 11 provides: “The circuit court shall have jurisdiction in all civil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided for by this Constitution.” This provision means that unless a cause of action is confided by the Constitution exclusively to another court, it belongs exclusively, or concurrently, to the circuit court. State v. Devers, 34 Ark. 188 (1879). In other words “[a] 11 unassigned jurisdiction under the Constitution is vested in the circuit court. . . .” Patterson v. Adcock, 157 Ark. 186, 248 S.W. 904 (1923). Article 7, section 15, provides: “Until the General Assembly shall deem it expedient to establish courts of chancery the circuit court shall have jurisdiction in matters of equity, subject to appeal to the Supreme Court, in such manner as may be prescribed by law.” By Act 166 of 1903, Ark. Code Ann. § 16-13-301 (1987), separate courts of chancery were established by the General Assembly. However, the General Assembly is without authority to give chancery courts any jurisdiction other than that which the equity courts could exercise at the time of the adoption of the Constitution of 1874. Patterson v. McKay, 199 Ark. 140, 134 S.W.2d 543 (1939).

Appellant argues that the Domestic Abuse Act did not impermissibly enlarge chancery court jurisdiction. She contends that “equity should take the necessary steps to protect victims of domestic abuse, since equity is intended to be adaptable and fluid to meet the changing needs of society.” Certainly, equity does accord new or extraordinary relief in novel situations, but that does not at all mean that its jurisdiction can be enlarged in violation of the Constitution of Arkansas.

The appellant argues that the chancery court has jurisdiction to protect personal and property rights. Her general statement is valid, but equity can only protect personal and property rights when certain conditions are present. Webber v. Gray, 228 Ark. 289, 307 S.W.2d 80 (1957). One of those conditions is that the remedy at law is inadequate. Thus, the real issue is whether there is an adequate remedy at law. There is.

At law, a wife is entitled to protection from both actual physical abuse, Ark. Code Ann. §§ 5-26-301 to -304 (1987), and the risk or threat of such abuse, Ark. Code Ann. §§ 5-26-305 to -307 (1987). All “housemates” are protected by statutes prohibiting battery, Ark. Code Ann. §§ 5-13-201 to-203 (1987 & Supp. 1989); assault, Ark. Code Ann. § 5-13-204 to -207 (1987); harassment, Ark. Code Ann. § 5-71-208 (1987); harassing communications, Ark. Code Ann. § 5-71-209 (1987); and terroristic threats, Ark. Code Ann. § 5-13-301 (1987). Property rights are also protected by the burglary statute, Ark. Code Ann. § 5-39-201 (1987); the criminal trespass statute, Ark. Code Ann. § 5-39-203 (1987); and the forcible possession of land statute, Ark. Code Ann. § 5-39-210 (1987).

Appellant argues the above criminal statutes are ineffective because battered housemates are afraid to file criminal charges and prosecutors do not act diligently. Even if the arguments were valid, we would not ignore the jurisdictional language of the Constitution and, in doing so, deprive an accused of his Constitutional right to a trial by jury. Further, we are not convinced either of the arguments are valid. First, if a housemate is afraid to file a complaint in circuit court we cannot see any reason why she would not also be afraid to file it in chancery court. Second, Ark. Code Ann. § 16-21-103 (1987) provides that the “prosecuting attorney shall commence and prosecute all criminal actions in which the state or any county in his district may be concerned.” (Emphasis added.) Further, a victim need not depend upon the prosecuting attorney to institute criminal prosecution, she may cause such proceedings to be commenced by filing an affidavit with a magistrate. Smith v. Hamm, 207 Ark. 507 at 515, 181 S.W.2d 475 at 477 (1944).

Finally, the criminal laws and procedures in some instances protect potential victims. A potential victim may obtain a peace bond. See Ark. Code Ann. § 12-11-105 (1987). Further, after a domestic abuser is arrested the judge may impose conditions upon pre-trial release, including “reasonable restrictions on the activities, movements, associations, and residences of the defendant.” A.R.Cr.P. Rule 9.1(b)(iii). Rule 9.3 authorizes orders which prohibit an individual from “approaching or communicating with particular persons or classes of persons, . . . going to certain described geographical areas or premises,. . . [or] engaging in certain described activities. . . .” If a policeman has “reasonable grounds” to believe that such an order has been violated he has the power to arrest the defendant. A.R.Cr.P. Rule 9.5(b). The court may then either impose additional conditions or revoke the release. A.R.Cr.P. Rule 9.5(c).

Additionally, except in narrow circumstances not present here, equity will not enjoin the commission of a crime because the remedy at law is adequate. The limited exception, articulated in Smith v. Hamm, 207 Ark. 507, 181 S.W.2d 475 (1944), arises when the criminal act is “incidental,” and there is a danger of “irreparable pecuniary injury to property or pecuniary rights of the complaining party.” If the rule were otherwise, the constitutional right of trial by jury would be infringed. Smith v. Hamm, 207 Ark. at 512, 181 S.W.2d at 478. See also Maxwell v. Sutton, 2 Ark. App. 359, 621 S.W.2d 239 (1981).

In sum, we cannot say the remedy provided at law is inadequate and, accordingly, one of the conditions necessary for equity to act to protect personal and property rights has not been met. Thus, the Chancellor correctly held that the Domestic Abuse Act impermissibly enlarged chancery court jurisdiction.

Appellant next argues that even if the Act is unconstitutional, and equity has no jurisdiction, we should not declare the whole Act invalid. Rather, we should allow domestic abuse proceedings to be held in circuit court. We cannot do so. The Act does not contain a severability clause. When an act does not contain a severability clause, and the various parts of the act are so interdependent that it cannot be presumed the General Assembly would have enacted one section without the other, the whole act must fail. Faubus v. Kenny, 239 Ark. 443, 389 S.W.2d 887 (1965). The various parts of this Act are interdependent. It is a unitary approach to the problem of domestic abuse. There is simply no principal basis for finding any one part of the Act independent from the other.

Finally, we are certainly aware that domestic abuse does occur and is a serious problem. We applaud the general assembly’s concern and hope that a way, consistent with the constitution, can be found to curb this recognized evil. Our duty in this case is not to determine whether domestic abuse occurs and to approve any legislation designed to stop it. Our duty is to determine whether our constitution permits the method selected by the general assembly in the legislation questioned in this case.

If we were to perceive the issue and take the steps the appellant and some of the amici briefs suggest, the jurisdiction of chancery court could be extended almost beyond imagination. For example, drunken driving is a serious problem. Even the Supreme Court of the United States has lamented the frightful carnage it spews upon our highways. South Dakota v. Neville, 459 U.S. 553, 558 (1983). The criminal laws have not stopped drunken driving, but we cannot use that fact as a reason to approve extending the jurisdiction of the chancery court to issue an “order of protection” against persons accused of, but not convicted of, drunk driving. Drug sales to children is a comparable problem, as is burglary. We cannot subvert the Constitution of Arkansas and allow the creation of a cause of action totally foreign to the equity jurisdiction of the chancery court just because we perceive and abhor a particular social ill. We are pledged to support the Constitution of Arkansas, and our duty is to follow it in this case as in any other.

Affirmed.

Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. My differences with the majority do not lie with the case law or statutes cited in its opinion. I also agree with the majority that the main issue bearing on the Arkansas Domestic Abuse Act’s constitutional validity depends upon whether the remedies provided by the Act are already adequately provided in courts of law, such as circuit court. If they are, the Act’s attempt to provide the same remedies in chancery (equity) court is unconstitutional.

My strong objection with the majority is its conclusion that battered housemates and children have an adequate remedy under the state’s criminal statutes which must be enforced in circuit court. The majority does a good job in listing criminal statutes that, indeed, cover a multitude of sins and aggressions. However, none of those laws provide for the removal of the abuser or perpetrator from the residence so as to prevent future violence.

At this point, I should mention that, in divorce cases filed in chancery court, parties routinely request and are given restraining orders or injunctions to prevent their spouses from (1) committing violence, (2) committing harassing acts, (3) going into or about the premises, (4) destroying property and (5) communicating by telephone or otherwise—just to name a few examples. Most importantly, this court, in James v. James, 237 Ark. 764, 375 S.W.2d 793 (1964), recognized that the fact an act enjoined also happens to be a criminal offense does not affect the power of a court of equity to enforce its order and the aspects of an act neither give nor oust equity of jurisdiction. The James court continued as follows:

If it should be held that the imposition of a criminal penalty for violation of a law would deprive a court of equity of jurisdiction to enforce its orders then a person desiring to proceed or continue in violation of the law might be able to pay a maximum fine and, thus, make himself immune from a valid chancery court injunction. This is not and should not be the law.

The majority ignores the well-settled principles set out in James. Instead, it divests chancery court of its jurisdiction over matters involving the same type violence and harassment as existed in James, and in doing so, states there are criminal statutes under which the victim can seek protection. This reasoning is not only contrary to longstanding equity principles just discussed, but also it has been my experience as an attorney and trial judge that obtaining relief in criminal court from family abuse or violence problems is wholly ineffective. The paramount relief family or household members seek in these matters is to remove the perpetrator from the residence and to restrain him or her from returning in an effort to avoid further contact. No criminal law is designed to achieve this type remedy.

Contrary to the majority court’s suggestion. Arkansas’s peace bond laws do not encompass such relief, but instead provide for the arrest of a person who threatens an offense against another and for a security (bond) by the person to insure his or her future good behavior. Ark. Code Ann. § 12-11-105 (1987). While a judge in the criminal division of circuit court may prove to be innovative and reach out for more authority, the peace bond provisions are solely implemented to require the posting of security and the forfeiting of the bond and punishing of the violator if he or she fails to keep the peace. No provision provides for the person’s removal from the premises of the victim’s residence or business.

After today’s discussion, only married people, who file for absolute or limited divorce or separate maintenance, will be able to obtain the type relief that the General Assembly attempted to provide for all family or household members by enacting the Domestic Abuse Act of 1989. Such disparate treatment of family or household members seems, to me, to be constitutionally suspect.

I acknowledge the legal issues presented in this matter are not easy ones, and the majority court has done a good job in setting out the other side, leading to the view that the Act is unconstitutional. But I strongly disagree. Perhaps, the value of this litigation is that it underscores the major problems than can arise by having separate courts of equity and law. In most states, a general jurisdiction trial court has both equity and law powers. As a consequence, the legal mind twisting antics we have gone through in this case would be unnecessary because the trial judge in those states would not only have jurisdiction over criminal offenses, but also he or she would possess the power to enjoin or restrain acts to prevent domestic violence.

In conclusion, I note that, after it sets out its rationale for holding the Domestic Abuse Act unconstitutional, the majority adds two paragraphs of what I would call hyperbole in justification of its position. In my view, the majority is more cavalier than thoughtful when it says, “If we were to perceive the issue, and take the steps the appellant and some of the amici briefs suggest, the jurisdiction of chancery court could be extended almost beyond imagination.” Soon after those remarks, it laments, “We cannot subvert the Constitution of Arkansas and allow the creation of a cause of action totally foreign to the equity jurisdiction of the chancery court just because we perceive and abhor a particular social ill. We are pledged to support the Constitution of Arkansas, and our duty is to follow it in this case as in any other.”

The appellant and amici are hardly asking this court not to uphold the Arkansas Constitution. While the majority finds no merit in the arguments made by those parties, it is “beyond my imagination” how the majority can conclude the cause of action and injunctive-type relief they ask enforced under the Domestic Abuse Act can be called, “totally foreign to the equity jurisdiction of chancery court.” Chancery court has exercised, and continues to exercise, such powers, as I have already discussed above. The court can only ignore its duty to support the constitution by failing to recognize the powers the constitution gives to chancery courts in this state. Instead, the appellant and other family members will be denied access to those powers and left only to possible criminal actions in circuit court, where no such preventive remedies are available. In my judgment, appellant’s and amici’s arguments are legitimate, meritorious and, at least in part, should be adopted by this court. While there may be some other problems with the Act’s implementation, the Act is not deficient because abused or harassed household members can get adequate relief in the criminal division of circuit court. They cannot.

In any event, I remain of the view that Arkansas courts of equity have the power to enforce the provisions of the state’s new Domestic Abuse Act. Therefore, I would reverse the trial court’s holding to the contrary.

Hays, J., joins this dissent.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

September 24, 1990

795 S.W.2d 359

Petition for Rehearing; denied.

Ben Seay and David J. Manley, for appellant.

Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for intervenor the State of Arkansas.

Shackleford, Shackleford & Phillips, P.A., by: Dennis L. Shackleford; Compton, Prewett, Thomas & Hickey, P.A., by: Robert C. Compton-, and Roberts, Harrell & Lindsey, by: Alan P. Roberts, for appellee.

Per curiam. The petition for rehearing is denied.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. While I share Justice Glaze’s strong disagreement with the result reached by the majority, I believe the solution is for this court to grant rehearing rather than for the General Assembly to attempt to place the remedies and procedures provided in the Domestic Abuse Act under circuit or municipal court jurisdiction, jurisdiction which does not readily lend itself to the objectives of the act.

The Domestic Abuse Act groups together equitable remedies to form a unitary approach for combating the overwhelming problem of domestic violence. The forms of relief granted by the act are distinctly equitable remedies traditionally exercised by courts of equity, thus the powers of chancery courts are not expanded. The act prescribes a simplified form enabling victims to promptly seek protective relief and provides for the deferment of filing costs and fees enabling the destitute victim to gain access to the courts. Historically, chancery has been the tribunal wherein the conduct cognizable under the act has been addressed and chancery is the appropriate forum to deal with such problems.

Until a domestic abuser inflicts serious physical injury or death on the victim, criminal justice procedures are, for all practical purposes, unavailing. The remedy sought by victims of domestic abuse is not after-the-fact punishment, but prevention. A perpetrator of domestic violence may indeed be arrested pursuant to our criminal laws, but after posting bond he can return home to resume the abuse. Often the abuser is the primary if not sole supporter of the family, therefore, jailing the spouse or demanding a high bond accomplishes very little. Typically, the victim may also be intimidated into dropping any criminal charges filed against the abusive mate. In addition to these problems with the criminal process, evidentiary problems arise from the unique arena of the home.

Yet without factual development at the trial level, or any challenge to its constitutionality by the defendant (now the appellee), the Domestic Abuse Act was declared unconstitutional in its entirety by the chancellor, essentially on the theory that an adequate remedy at law is already available to the victims of domestic violence. That holding on a record wholly devoid of factual development, and notwithstanding the “heavy burden” that rests on one who challenges the unconstitutionality of an enactment, [Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 863 (1983)] is palpably suspect.

This remedial legislation was designed to meet a compelling societal need and intended to correct an acute and pervasive problem involving violence and abuse within the family, the victims of which are invariably women and children. It was overwhelmingly enacted by the General Assembly, that branch of government most responsive to, and representative of, the general public. Before such enactments are struck down by the judicial branch of government, which is in no sense a representative body, nor intended to be, the constitutional infirmity must be clear and convincing beyond a doubt. Indeed, that is the rhetoric to which a legion of our cases subscribe. Love v. Hill, 297 Ark. 96, 759 S.W.2d 550 (1988); Streight v. Ragland, Commissioner, 280 Ark. 206, 655 S.W.2d 459 (1983); Buzbee v. Hutton, 186 Ark. 134, 52 S.W.2d 647 (1932) (“The conflict with the constitution must be unmistakable”); Board of Commissioners of Red River Bridge District v. Wood, 183 Ark. 1082, 405 S.W.2d 435 (1931) (“Statutes must be upheld unless clearly prohibited”); Beaty v. Humphrey, 195 Ark. 1008, 115 S.W.2d 559 (1938) (“The conflict with the constitution must be clear and palpable”); Dobbs v. Holland, 140 Ark. 398, 215 S.W. 709 (1919) (“Any doubt must be resolved in favor of a statute’s validity”); Poole v. State, 244 Ark. 1222, 498 S.W.2d 628 (1968) (“Unconstitutionality must be obvious.”). There has been no attempt in this case to show that any of the remedies provided in the act have not traditionally been exercised by courts of equity and I am unable to say that the Domestic Abuse Act is unconstitutional beyond doubt. I would grant rehearing.

Tom Glaze, Justice,

dissenting. While I strongly disagree with the result reached by the majority, I understand and respect my colleagues’ views in deciding this case as they did, and ordinarily I would not write because the court chooses to deny rehearing. However, because this court holds the Domestic Abuse Act unconstitutional, this subject matter appears destined for the General Assembly once again. For that reason, I believe it might be helpful to point out at least one problem that body must consider if it attempts remedial action which merely places the remedies and procedures provided in the Act under circuit or municipal court jurisdiction.

One primary and vital object of the Domestic Abuse Act, as I understand it, is to remove the abuser or perpetrator from the residence or premises so as to prevent future violence towards housemates and children. As I noted in my earlier dissent, none of the state’s criminal laws or procedures provide for the removal of the abuser — unless, of course, the person is convicted and incarcerated for his or her threatened or committed violent acts. It is primarily this reason why I disagree with the majority concerning its holding that the violated or abused person has an adequate remedy at law, i.e., in circuit court — which:leads me to the point I wish to make.

Our court has previously held that circuit courts lack jurisdiction to grant and enforce equitable relief. Cummings v. Fingers, 296 Ark. 276, 753 S.W.2d 865 (1988); see also id. at 281 (Newbern, J., concurring); Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920); contra Daley v. Digby, 272 Ark. 267, 613 S.W.2d 589 (1981); cf. Ark. Const. art. 7, §§ 15, 37; Ark. Code Ann. §§ 16-13-321 and 16-113-301 (1987). That being so, the General Assembly, I submit, cannot implement the equitable and necessary provisions of the Act merely by giving circuit courts (in place of chancery courts as the Act now provides) the authority to hear and enforce the Act. Stated in other terms, circuit courts, under the state’s present judicial structure and this court’s prior cases defining the powers of the state’s respective general jurisdiction courts, do not, in my view, have the authority to remove or enjoin an abuser from family residences so as to prevent or correct the violent acts that are covered under the Domestic Abuse Act.

Other troublesome issues surrounding the Act’s future implementation no doubt will surface. Nonetheless, I feel obligated to mention the one I have because the legal obstacle it poses is serious, and since it has not yet been discussed or briefed, I am hopeful my mentioning it might be helpful to the General Assembly when it reconsiders re-enactment of the Act my colleagues have declared unconstitutional.

The foregoing leads me to my final observation. In the forty-eight states where a trial court has both equity and law powers, the court has authority to remove abusers of housemates and children from the home. That being so, where does that court’s authority go when a state, like Arkansas, splits its trial court into separate equity (chancery) and law (circuit) courts? Does that authority disappear? Or does that authority still exist and reside in equity courts, as it has existed in divorce cases for nearly a century? I believe the latter is true and, in my view, therein lies the greatest flaw in the majority’s rationale and holding.

      Justice Glaze’s dissenting opinion can be found at 799 S.W.2d 518.

       The monetary concern also rules out divorce and personal injury suits.


author: Robert H. Dudley, Justice.

text:
    Donald MOBBS v. STATE of Arkansas
    CR 90-34
    792 S.W.2d 601
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990

      Joe O’Bryan, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor Gen., for appellee.
   Robert H. Dudley, Justice.

Amended A.R.Cr.P. Rule 36.4 became effective July 1, 1989. It provides that following the conviction and sentencing the trial judge must address the defendant personally and advise him: (1) that if he wishes to assert his attorney was ineffective, he must file a motion for a new trial within thirty (30) days, and (2) if such a motion is filed, and if it asserts facts sufficient to raise an issue concerning ineffective assistance of counsel, the motion must be heard, and the defendant will have thirty (30) days after the ruling on the motion in which to appeal. In re Abolishment of A.R.Cr.P. Rule 37 & the Revision of A.R.Cr.P. Rule 36, 299 Ark. 573, 770 S.W.2d 148 (1989) (per curiam). In this case the appellant was found guilty of incest and sentenced on July 18, 1989. He was correctly advised of the contents of amended Rule 36.4 and timely filed a letter motion alleging ineffectiveness of counsel. No action was taken on the motion. Appellant now seeks direct appeal on three assignments of error, as well as post-conviction relief on the motion. We do not reach the merits of the direct appeal or the post-conviction appeal because we must remand to the trial court for consideration of appellant’s post-conviction motion.

Appellant’s motion, being timely filed, should have been addressed by the trial court. Because this is the first case to reach us since the change in post-conviction procedure was announced in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), and was adopted in In re Abolishment of A.R.Cr.P. Rule 37 & the Revision of A.R.Cr.P. Rule 36, 299 Ark. 573, 770 S.W.2d 148 (1989) (per curiam), we take this opportunity to point out that our purpose in making the change in post-conviction procedure was to shorten, or compact, the period in which a convicted defendant may claim ineffective assistance of counsel. If a defendant does not make such an allegation within the thirty (30) day period of limitation, he is barred from asserting such a claim in state court.

If a defendant timely makes such a claim, the trial court should forthwith appoint a new attorney for the defendant, because it will be necessary for that new attorney to prosecute the post-conviction motion in the trial court. If there is an appeal, that same new attorney will then handle the direct appeal as well as the post-conviction appeal.

The object of providing a post-conviction remedy is to discover the relatively few cases in which a defendant genuinely has been deprived of his constitutional rights, as distinguished from the great mass of cases which are legally and factually meritless and, in truth, are nothing more than inmate games. Our hope is that by shortening the period for making such a claim, the events of the trial or guilty plea will be fresher in the minds of the participants, especially the defense attorneys, and the defendants will be a little less likely to play games.

Remanded for further proceedings consistent with this opinion.

Hays, J., dissents.


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

text:
    Charles PERRY v. STATE of Arkansas
    CR 90-142
    794 S.W.2d 141
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990
    [Rehearing denied September 10, 1990.]

      Paul Petty, for appellant.

      Steve Clark, Att’y Gen., by: DavidB. Eberhard, Asst. Att’y Gen., for appellee.

      Hays and Glaze, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

At 3:30 a.m. on February 25, 1988, officer Ken Edmunson was on duty ás a Searcy policeman. He was driving a city patrol car on his route to check buildings when he saw a dark-colored car circling around the parking lot of Searcy Skateland. He turned his car around to get a better look at the dark-colored car but, by the time he had turned around, it was gone. He did not attempt to pursue the car, but instead, resumed his regular route to check buildings. He drove a few blocks and came to the area where the Elks Lodge is located. The land on which the lodge is located is outside the city, but is bordered by the city on three sides. Officer Edmunson started to drive across the lodge parking lot in order to get to another part of his route inside the city, and, as he was driving across the lot, he saw a car parked with its lights on and the motor running. He turned his patrol car so that its headlights illuminated the parked car, and he saw a man slumped over the steering wheel. He did not know if it was the dark-colored car he had seen earlier. Officer Edmunson got out of his car to check on the man. He found it was appellant, and that appellant was drunk. Officer Edmunson knew he was outside the city, and in an unincorporated part of White County, so he “detained” appellant and radioed for a White County deputy sheriff to come “arrest” appellant. After a short interval the deputy sheriff arrived, arrested appellant, tried to give appellant a field sobriety test but he was too drunk to take it, took him to the police station, and gave him a breathalyzer test, which registered .17.

In the trial court the appellant argued that he was illegally arrested and, therefore, the evidence obtained by the officers should be excluded. The trial court held that appellant was not arrested by Officer Edmunson, but instead, was arrested by the deputy sheriff and, accordingly, denied the motion.

The trial court was in error in finding appellant was not arrested by Officer Edmunson. Within the meaning of the Fourth Amendment, a person is “seized” if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave. U.S. v. Mendenhall, 446 U.S. 544 (1980); Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). There is no real dispute that appellant was not free to leave. Thus, he was seized. The issue is whether the seizure was lawful.

The applicable rule is black letter law, well-established and reasoned precedent. A local peace officer acting without a warrant outside the territorial limits of the jurisdiction under which he holds office is without official power to apprehend an offender, unless he is authorized to do so by state statute. Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979); 5 Am. Jur. 2d Arrest § 50 (1962); 6A C.J.S. Arrest § 53 (1975); Annotation, Validity, In State Criminal Trial, Of Arrest Without Warrant By Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R.4th 328 (1984). An officer who seeks to make an arrest outside his territory, without a warrant or statutory authority to do so, must be treated as a private citizen. Blevins v. State, 31 Ark. 53 (1876); 5 Am. Jur. 2d Arrest § 50 (1962); 6A C.J.S. Arrest § 53 (1975); Annotation, Validity, In State Criminal Trial, Of Arrest Without Warrant By Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R.4th 328 (1984).

The authority of municipal corporations to exercise powers beyond their territorial limits must be derived from some state statute. City of Argenta v. Keath, 130 Ark. 334, 197 S.W. 686 (1917). The State of Arkansas has authorized local police officers to act outside their territorial jurisdiction in four instances: (1) the well known “fresh pursuit doctrine” which is codified as Ark. Code Ann. § 16-81-301 (1987); (2) when the peace officer has a warrant of arrest, Ark. Code Ann § 16-81 -105 (1987); (3) when a local law enforcement agency requests an outside officer to come within the local jurisdiction, and the outside officer is from an agency which has written policy regulating its officers when they act outside its jurisdiction, Ark. Code Ann. § 16-81-106 (1989); and (4) a county sheriff may request that a peace officer from a contiguous county come into the requesting sheriffs county. The visiting officer may then come into that county and investigate and make arrests for violations of drug laws. Ark. Code Ann. § 5-64-705 (1987). None of the foregoing statutes authorized Officer Edmunson to act outside his jurisdiction in this case.

The traditional concept of territorial jurisdiction for peace officers is a sound one since a local community is best served by the requirement that local officers familiar with local neighborhoods make arrests in the community. People v. Hamilton, 666 P.2d 152 (Colo. 1983). If such a concept were not followed, a Pocahontas policeman could make an arrest in Paragould, a Texas Ranger could make an arrest in Fordyce, and a K.G.B. agent could make an arrest in Fort Smith. Such a “practice would lead to more violence than it would suppress.” McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79 (1906).

Officer Edmunson, acting outside his jurisdiction, only had the authority of a private citizen. Blevins v. State; 31 Ark. 53 (1876); 5 Am. Jur. 2d Arrest § 50 (1962); 6A C.J.S. Arrest § 53 (1975); Annotation, Validity, In State Criminal Trial, Of Arrest Without Warrant By Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R.4th 328 (1984). Here, the offense, driving while intoxicated, second offense, is a misdemeanor. Ark. Code Ann. § 5-65-111(1) (1987). The applicable Arkansas statute and rule of criminal procedure give a private person the authority to make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony, but they make no such provision in case of a misdemeanor. A.R.Cr.P. Rule 4.1; Ark. Code Ann. § 16-81-106 (1989). We have expressly held that a private person cannot make an arrest for second offense driving while intoxicated. Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985). In sum, the arrest outside the officer’s territorial jurisdiction was illegal.

That leaves the question of whether the evidence, which was obtained as an incident to the illegal arrest, should have been suppressed. That question was squarely answered by the Supreme Court of the United States in the case of Davis v. Mississippi, 394 U.S.721(1969). In that case the Court held that the Fourth Amendment applies to an unlawful detention, and evidence obtained as the direct result of an unlawful detention is subject to the exclusionary rule. In Mapp v. Ohio, 367 U.S. 643 (1961), the Court held the exclusionary rule applies to state prosecution. We follow that mandate. Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). Thus, it is applicable in this case, and the evidence which was unlawfully obtained should have been suppressed. Accordingly, we reverse and remand.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. The fact that a Pocahontas policeman cannot make an arrest in Paragould or a Texas Ranger in Fordyce, unless in fresh pursuit, does not (or should not) lead to the conclusion that police officers on the borders of their own area of authority (here the city limits of Searcy) may not lawfully act in response to an offense occurring in their presence and immediately adjacent to such borders, if only to detain the offender until an officer from the appropriate jurisdiction can arrive to effectuate an arrest. The rule of law now adopted by the majority means that an officer confronted, as was Officer Edmunson, with a highly inebriated motorist, is powerless to prevent an offense potentially dangerous to the public and must stand helplessly by while the drunken motorist drives away. Nothing I can find nor cited by the majority suggests that the law if so compartmentalized that police officers are legally impotent under these facts. Neither Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1975) nor Blevins v. State, 31 Ark. 53 (1876), have any factual resemblance to this case: in Logan, a Crittenden County sheriff participated in an arrest in St. Francis County (hours after the offense) no part of which the deputy witnessed; in Blevins, a Pope County sheriff executed an arrest warrant in Conway County, in excess of his powers as then defined by statute.

Moreover, I submit a sound argument exists that even a private citizen could act under the circumstances of this case. It was certainly true at common law that private citizens could arrest for misdemeanors committed in their presence where a breach of the peace was involved. 5 Am. Jur. 2d Arrest, § 35 (1962). This is the rule adopted by the Restatement (Second) of Torts, § 119:

Arrest Without Warrant by Private Person for Criminal Offense.
Subject to the rules stated in §§ 127-136, a private person is privileged to arrest another without a warrant for a criminal offense.
* * *
(c) if the other, in the presence of the actor, is committing a breach of the peace or, having so committed a breach of the peace, he is reasonably believed by the actor to be about to renew it. . . .

That rule of common law has never been expressly overruled in Arkansas (dictum in Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985) notwithstanding), Missouri Pac. Ry. Co. v. McKinney, 189 Ark. 69, 71 S.W.2d 180 (1934). So far as I can determine, the common law rule has simply been ignored.

There is nothing so hallowed about geographical boundaries of police officers that the law restrains them from acting beyond those boundaries in certain instances, that is, when in fresh pursuit of: a suspected felon, any offender whose offense was committed in their presence, or anyone for whom they have a warrant. [See Ark. Code Ann. § 16-81-301 (1987)]. Thus if their authority has some flexibility where exigent circumstances exist (as in fresh pursuit), it is equally plausible that they have the authority to detain any offender acting in their presence whose conduct endangers the public, even though the offense may be occurring just beyond their jurisdictional boundaries. I would affirm.

Tom Glaze, Justice,

dissenting. The majority correctly states that an officer who seeks to make an arrest outside his territory, without a warrant or statutory authority to do so, must be treated as a private citizen. Nevertheless, the common law accorded a private person extensive powers to arrest without warrant for felonies and breaches of peace committed in his presence. 5 Am. Jur. 2d Arrest § 50 (1962). Arkansas, of course, recognizes the common law. Ark. Code Ann. §§ 1-2-119 and 16-13-201 (1987). Although the majority cites A.R.Cr.P. Rule 4.1 and Ark. Code Ann. § 16-81-106 (1989), those provisions merely codify by rule and statute a private citizen’s authority to make an arrest when he has reasonable grounds for believing a person has committed a felony—they do nothing to repeal or alter a private person’s right to arrest a person who has committed a breach of peace in the arresting citizen’s presence.

In my judgment, the only issue in this case is whether finding appellant intoxicated behind the steering wheel of his parked, but running car with its lights on can be defined as a breach of peace or disorderly conduct. If his conduct can be labeled a breach of peace, then his arrest was valid and the evidence seized was admissible. Under a statute authorizing peace officers to arrest without warrant for disorderly conduct, drunkenness in a public place has been held to be disorderly conduct, through the individual is not otherwise creating a disturbance. 5 Am. Jur. 2d Arrest § 41 (1962). Arkansas has such a statute. See Ark. Code Ann. § 12-11-110 (1987); but see also Ark. Code Ann. § 5-71 -207 (1987). That being so, appellant’s conviction should be affirmed.

Hays, J., joins this dissent.


text:
    Stanley PRESTON v. STATE of Arkansas
    CR 90-92
    792 S.W.2d 599
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990

      Joel O. Huggins, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was convicted of burglary. He does not seek to appeal directly from that judgment of conviction, but instead seeks to appeal from an alleged denial of post-conviction relief. We remand for further proceedings.

In Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), we announced a change in post-conviction procedure, and, in In re Abolishment of A.R.Cr.P. Rule 37 & the Revision of A.R.Cr.P. Rule 36, 299 Ark. 573, 770 S.W.2d 148 (1989) (per curiam), adopted the announced change and made the amended rule effective July 1,1989. The amended rule is A.R.Cr.P. Rule 36.4. The conviction and sentence in this case occurred after the effective date of the amended rule.

Appellant contends that the trial court erred, first, in failing to comply with A.R.Cr.P Rule 36.4 by not addressing him personally to advise him that he had thirty (30) days following his conviction and sentence to assert ineffective assistance of counsel, and second, in denying him a hearing on his allegation of ineffective assistance.

The State conceded the first point which is that the trial court failed to advise the appellant personally of the necessity of asserting ineffective assistance of counsel within thirty (30) days. However, within thirty (30) days appellant filed a pleading asserting that trial counsel was ineffective. Thus, no prejudice resulted from the trial court’s noncompliance with A.R.Cr.P. Rule 36.4.

We remand on the second point which is that it was error to deny a hearing upon the allegation of ineffective assistance. As previously set out, the appellant filed a motion for new trial asserting ineffective assistance of counsel. When he did that, the original attorney, Bill J. Davis, petitioned the trial court to be allowed to withdraw. The trial court did not appoint a new attorney for the appellant, see Mobbs v. State, 303 Ark. 98,792 S.W.2d 601 (1990), but instead, simply allowed Mr. Davis to withdraw. In the order allowing withdrawal, the trial court wrote: “The Court is of the opinion that Mr. Davis was not ineffective at the trial of this cause. The allegations of the defendant at this time [about ineffective assistance] mandate the granting of the motion. It is therefore ordered that the motion of Bill J. Davis to withdraw as counsel be and same is granted.” The trial judge was not granting the motion for a new trial based on ineffective assistance of counsel, but instead, was only granting the motion to withdraw. The order does not contain a ruling on the motion for a new trial and the language about Mr. Davis’s effectiveness can only be regarded as surplusage to the order allowing withdrawal. Thus, the trial court has not yet ruled on the motion for a new trial based on ineffective assistance, and so there is no appealable order. Accordingly, we remand for a ruling concerning the effective assistance of counsel. Even if we should construe the order to be an order denying a motion for new trial, as the appellant argues, we would still remand for a full finding of fact and written ruling.

Upon jurisdiction being reinvested in the trial court, a new lawyer should be appointed to represent the appellant. If the trial court finds the petition does not assert sufficient facts to raise an effectiveness issue, it may so rule. If the trial court finds the petition does state sufficient facts to raise such an issue, a hearing should be held. The hearing at that stage need not necessarily be a formal one, because if the pleadings, files, and records of the case conclusively show that the petitioner is not entitled to relief, the court may so rule. If, however, the pleadings and records do not so show, a formal hearing must be held. Of course, a final order must be entered.

Remanded for further proceedings consistent with this opinion.

Hays, J., dissents.


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

text:
    Paul SMITH v. PARAGOULD LIGHT & WATER COMMISSION
    90-91
    793 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990
    [Rehearing denied September 17, 1990.]

      Huckaby, Munson, Rowlett & Tilley, P.A., by: Bruce Munson and Elizabeth Ann Fletcher, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.

      Hays, J., would grant rehearing.

   Robert H. Dudley, Justice.

Judith M. Bradley owned a home in Paragould. The City of Paragould, by ordinance, required all residents within 300 feet of a sewer line to connect their residences to the City’s sewer system. To meet this requirement, Bradley asked her realtor, B.C. Lloyd, to arrange for the connection to be made. B.C. Lloyd contracted with Doyle Lawrence, a plumber, to connect Bradley’s residence to the city sewer system. Doyle Lawrence hired appellant, Paul Smith, a backhoe operator, as an independent contractor on an hourly basis to dig a trench for the connecting pipes. After the trench was dug and the pipes laid, two employees of appellee, Paragould Light & Water Commission, entered the trench to tap the residential line into the City’s main sewer line. The trench collapsed, killing one employee, Thomas Edward Faulkner. Appellee water commission paid Workers’ Compensation benefits due to the death of Faulkner. Faulkner’s widow filed a negligence action against appellant backhoe operator, the plumber, the realtor, and the property owner. Appellant filed a third party complaint against appellee water commission seeking indemnity from appellee for all damages that might be adjudged against appellant. Appellee filed a motion to dismiss appellant’s third party complaint for failure to state facts upon which relief could be granted, because, under Arkansas Workers’ Compensation Law, the exclusive remedy against an employer is the payment of worker’s compensation. The trial court granted appellee’s motion, and entered an appropriate order under ARCP Rule 54(b), allowing appellant to appeal on the separate issue of appellee’s liability for indemnity. We reverse the ruling of the trial court.

Under the exclusivity of remedies provisions of statutes such as the Arkansas Workers’ Compensation Act, Ark. Code Ann. § 11-9-105, the majority of jurisdictions have held that the employer cannot be sued or joined by the third party as a joint tortfeasor, even under more recently enacted contribution statutes. This is true when the recovery sought by a third party against a contributorily negligent employer sounds in tort and the only relationship between the third party and the negligent employer is that of joint tortfeasors. 2A Larson, The Law of Workman’s Compensation, § 76.20 (1987). We recently embraced this general rule as to joint tortfeasors in W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), a case involving the question of whether an employer might be liable to a manufacturer or supplier upon a joint tortfeasor theory. Id. at 422, 643 S.W.2d at 533.

However, we have also recognized several exceptions to the exclusivity of remedies provision of the Arkansas Workers’ Compensation Act. In C. & L. Rural Electric Coop. Corp. v. Kincaid, 221 Ark. 450, 256 S.W.2d 337 (1953), we held that the third party complaint stated a cause of action because the suit was based on an express indemnity contract and was not an action in tort. For reversal in the present case, the appellant relies upon our decision in Oaklawn Jockey Club v. Pickens-Bond Construction Co., 251 Ark. 1100, 477 S.W.2d All (1972). There we held that the third party complaint stated a cause of action despite the exclusivity provisions of the Workers’ Compensation Act because it was based upon implied provisions in the construction contract between the employer contractor and the third party property owner. We held that the third party was not suing for damages “on account of’ the injury of the employee but on the basis of an independent duty or obligation owed by the employer to the third party.

In Morgan Construction Co. v. Larkan, 254 Ark. 838, 496 S.W.2d 431 (1973), we held that, where the third party complaint asserted only that the employer’s active negligence exposed the third party to liability not based on its own active fault, the complaint did not state an independent duty owed by the employer to the third party from which an obligation to indemnify might arise. In reaching this conclusion, we noted the general rule that:

[W]hen the relation between the parties involves no contract or special relation capable of carrying with it an implied obligation to indemnity, the basic exclusiveness rule generally cannot be defeated by dressing the remedy itself in contractual clothes, such as indemnity, since what governs is not the delictual or contractual form of the remedy but the question: is the claim “on account of’ the injury, or on account of a separate obligation running from the employer to the third party?

2A Larson, supra at § 76.84.

In the present case, the third party complaint alleges that:

6. It is the policy of Third Party Defendant, Paragould Light & Water Commission, that only Paragould Light & Water Commission employees shall make the actual tap of a residential sanitary sewer line into the municipality’s main. . . .
7. It is the policy of Paragould Light & Water Commission that none of its employees shall enter into a trench the depth of the trench which is the subject of this Complaint without first installing side wall supports.
9. Third Party Defendant, Paragould Light & Water Commission, has a duty to provide its employees with a safe place to work.
10. Third Party Defendant had braces and supports available for installation into trenches to protect its employees; however, it did not utilize this equipment on April 21,1987 when connect [ing] the residence at 3208 Case Street, Paragould, Arkansas to the City’s sewer system.
11. The Third Party Defendant’s failure to provide said supports was a violation of its own policy, as well as Occupational Safety and Health Administration regulations on specific trenching requirements, ....
12. Third Party Defendant’s failure to provide said supports, as well as its failure to provide its employees with a safe place to work, was the proximate cause of the death of Plaintiffs decedent, Thomas Edward Faulkner.

These allegations in appellant’s third party complaint are sufficient to state a cause of action under our law for implied indemnity as the facts pled are sufficient to bring the parties within the provisions of Ark. Code Ann. § 14-235-305, the “Tapping of Sewers” Statute, which creates a special relationship between the appellee and the appellant by operation of law. This statute provides that a municipality ‘'‘‘shall regulate, by ordinance, the terms, time, and manner, . . . with which the parties may tap the sewers of the municipality.” (Emphasis added.) By virtue of this statute and the employer’s policies, the construction necessary to connect Bradley’s sewer to the City’s main was under the appellee’s supervision and control, just as was the construction work under the supervision and control of the contractor in Oaklawn, supra. In the present case, implicit in the terms of the special relationship arising by operation of law is a duty by the appellee to supervise and conduct the construction in such a way as to insure the safety of its employees and others working on the construction. That duty carries with it the implied promise that the appellee will indemnify third parties such as appellant for any damages he is made to pay as a result of the appellee’s negligence.

As we stated in Oaklawn, supra:

The justification for applying the theory of implied indemnity is amply demonstrated by the alleged facts. Should [the employee] recover damages against [the third party], under our Workman’s Compensation law, [the employer] would be reimbursed its Workman’s Compensation expenditures for an injury that allegedly was caused by and occurred under the control of the [employer]....

Id. at 1102, 477 S.W.2d at 478.

Thus, the appellant does not seek indemnity “on account of’ the death of the appellee’s employee, but on account of a separate obligation running from the employer to the third party. It follows that the trial court erred in dismissing appellant’s third party complaint in so far as it states a cause of action for implied indemnity on the basis of a special relationship arising by operation of law.

Reversed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. The appellant relies exclusively upon Oaklawn Jockey Club v. Pickens-Bond Construction Co., 251 Ark. 1100, 477 S.W.2d 477 (1972), for reversal. I believe Oaklawn is clearly distinguishable on its facts and on that basis I respectfully dissent.

The relevant facts of Oaklawn are: Theo Tyler, an employee of Pickens-Bond Construction Company, was injured on the premises of Oaklawn Jockey Club during the construction of a new building. Tyler was injured when the handle of a bull float contacted AP &L’s electrical power lines. He brought suit against AP&L and Oaklawn Jockey Club alleging that Oaklawn Jockey Club failed to provide a safe place to work. Oaklawn then filed a cross-complaint against Pickens-Bond. The cross-complaint was based upon Oaklawn’s contract with Pickens-Bond, the contractor on the job. Oaklawn’s pleadings stated:

1. Oaklawn, as the owner, contracted with Pickens-Bond as the contractor, to build a new building. . .The construction was entirely under the supervision and control of Pickens-Bond.
2. There was implied in the contract between the owner and the contractor an obligation on the part of the contractor to perform the work in a safe manner, to provide safe working conditions for its employees. . . .

The trial court dismissed Oaklawn’s cross-complaint against Pickens-Bond for implied indemnity in that Pickens-Bonds’ liability was limited by the workers compensation law. On appeal, we reversed the trial court, finding that Oaklawn could maintain its cross-complaint based upon implied indemnity.

Although there was no express contract of indemnity in Oaklawn, we recognized an exception to the exclusivity of the workers’ compensation remedy — implied indemnity — arising from the construction contract. Oaklawn Jockey Club had contracted with Pickens-Bond to construct a new building. The contract provided that the construction was entirely under the control and supervision of Pickens-Bond, the contractor.

Here, there was no contract between the appellant and Paragould Light & Water Commission. Yet in Morgan Construction Co. v. Larkin, 254 Ark. 838, 496 S.W.2d 431 (1973), we quoted Larson indicating that a distinct duty as to indemnity may arise from a contract or from a special relationship capable of carrying with it an implied obligation to indemnify. The appellant alleges that a special relationship existed by virtue of Ark. Code Ann. § 14-235-305 (1987), “Tapping of Sewers” statute. This statute provides:

(a) The city council shall regulate, by ordinance, the terms, time and manner, and the compensation which shall be paid by the private parties. . .with which the parties may tap the sewers of the municipality. [My emphasis.]

In addition to this statute, Paragould Light & Water Commission maintained a policy of allowing only their employees to make the actual tap into the city sewer line. Therefore, the appellant argues that this statute and policy provision provide the basis for implied indemnity. But here the applicable statute affords no basis for an independent duty. The statute indicates that the city council shall regulate the tapping into city sewers by ordinance, the terms, and the time and manner of the tapping. The statute does not state that the city councils regulate, control or supervise the actual tapping of the sewers. Rather, the city council exercises its role in supervision by passing appropriate ordinances. The role of the city council is not comparable to the contractor, PickensBond, in Oaklawn, which expressly contracted to supervise the on-site construction of the new building. The degree of supervision differs substantially. Therefore, I submit the “special relationship” element is lacking.

. Even if a “special relationship” existed between the appellant and the appellee sufficient to sustain an implied duty of indemnity, one must then examine the action of the appellee, the employer from whom indemnity is sought. In Oaklawn, the Jockey Club, owner of the premises on which the accident occurred, sought indemnity from the contractor, Pickens-Bond. Oaklawn Jockey Club had no involvement in the occurrence by which Theo Tyler was injured. Whereas in this case the party seeking indemnity, appellant Paul Smith, dug the trench which subsequently collapsed and killed Thomas Faulkner. Thus, unlike the facts of Oaklawn where Oaklawn Jockey Club was merely the passive party owner, the appellant actively participated, and negligently constructed the trench which caused the loss.

I believe the absence of a contract and, arguably, the absence of a special relationship, coupled with the appellant’s active involvement in the accident distinguish the facts of this case from Oaklawn.


author: Steele Hays, Justice.

text:
    ARKANSAS BLUE CROSS & BLUE SHIELD v. Loretta LONG
    90-41
    792 S.W.2d 602
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990

      Wilson & Castleman, by: Bob Castleman, for appellant.

      Henry, Walden & Davis, by: Troy Henry, for appellee.
   Steele Hays, Justice.

This case concerns insurance coverage: the question on appeal is whether an exclusion of the policy is against public policy.

The appellee, Loretta Long, was hospitalized after experiencing gastrointestinal complaints. She was covered under a group health insurance plan carried by her employer with appellant, Arkansas Blue Cross and Blue Shield.

Appellee was admitted on Monday, June 8, 1987, to the Methodist Hospital in Jonesboro, Arkansas, where x-rays and tests were administered in order to diagnose the appellee’s condition. On June 15, a cholecystectomy was performed and appellee experienced minor complications in her recovery, including a fluctuating temperature. Appellee’s treating physician, Dr. Bradley, was monitoring her condition and temperature and on Friday, June 19, he told appellee he would be away for the weekend, but that Dr. Sanders would take over for him. Dr. Bradley told appellee if her temperature was normal she could leave the hospital the next day.

Next morning appellee’s temperature was normal in the early morning but later it was 100 ° F and Dr. Sanders declined to release her. Appellee insisted on leaving because of the expense and because she had a child at home that needed tending. She was finally discharged but only after signing an “Against Medical Advice Release” form for the hospital.

Thereafter Blue Cross paid some of the medical bills until the file was reviewed and it was discovered that appellee had left the hospital, against medical advice (AMA). Because of the AMA discharge, Blue Cross denied payment for any costs of treatment prior to discharge, relying on an exclusion in thé policy. Blue Cross asked for and received refunds of monies paid to some but not all of the medical providers. Appellee then filed this lawsuit claiming Blue Cross wrongfully denied coverage.

The case was tried before a jury but at the conclusion the trial court granted plaintiffs motion for a directed verdict, holding that the policy exclusion was against public policy. Judgment was entered for the appellee and appellant brings this appeal.

The policy exclusion in question provides:

No benefits or services of any kind are provided under this certificate for:
******
g ******
Q. No benefits are provided for inpatient services where you terminate such inpatient admission against medical advice.

Blue Cross reads the provision to permit denial of payment for any services received before as well as after an AMA discharge. Relying on the exclusion, Blue Cross contends it is not required to pay any of appellee’s expenses prior to her leaving the hospital due to the AMA discharge. (Appellee did not return to the hospital and claimed no additional expenses following her discharge.)

Blue Cross argues that the provision does not violate public policy but rather, promotes an important purpose in encouraging patients to follow the advice of their physicians and in reducing a further burden on the health care system by encouraging patients to remain hospitalized until fully recovered. Blue Cross also urges that “the obvious purpose and rationale for the exclusion is to protect the insurer from uncertain liability which would result from a patient’s refusal or failure to follow the doctor’s advice.”

While those may be worthy purposes, we believe the trial court was not disagreeing with them as such, but, rather, found the means by which Blue Cross was attempting to achieve those aims objectionable. The same goals are as efficiently promoted by a refusal to pay costs incurred after an AMA discharge, and because Blue Cross would still have to pay costs prior to a discharge, if it were other than an AMA, the only advantage of such a provision is the deterrent effect on the insured, which we consider tenuous. We agree with the trial court that the provision, when weighed against the consequences for the insured, does not square with public policy.

Moreover, the provision, as Blue Cross would have it operate in this case, works a forfeiture on the insured, and such provisions have not been favored by the courts in any case. 2 G. Couch, Couch on Insurance 2d, (Rev’d ed.) § 15:49 (1984); Missouri State Life Insurance Co. v. Foster, 188 Ark. 1116, 69 S.W.2d 869 (1934). As we stated in Foster,

Forfeitures cannot and should not be declared when the rights of parties have become vested. . . . We are irrevocably committed to the doctrine that, when liability attaches, no subsequent act of the parties will effect a forfeiture of the policy, unless the contract of insurance by the definite and explicit terms so provides.

This policy exclusion would divest the insured of benefits already accrued, for which no reasonable basis exists. We conclude that the exclusion of benefits prior to an AMA discharge is against public policy. As stated in 10 G. Couch, Couch on Insurance 2d, (Rev. ed) § 41:378 (1982):

The courts must enforce policy conditions in the nature of exceptions or limitations if they do not run counter to statute, are not inconsistent with public policy and are explicit in terms and plain of meaning.
At the same time, since the insurance business is affected with the public interest, the right of the insurer to incorporate in its contracts such provisions as it may desire, is subject to the limitation that conditions avoiding the policy should not be unreasonable. . . .

For the reasons stated, the judgment is affirmed.