text:
    IN RE: ADMINISTRATIVE ORDER NUMBER 10: ARKANSAS CHILD SUPPORT GUIDELINES
    Supreme Court of Arkansas
    Opinion delivered January 31, 2002
   P ER CURIAM.

On February 5, 1990, this Court first adopted guidelines for child support in response to P.L. 100-485 and Ark. Code Ann. § 9-12-312(a). Effective October, 1989, P.L. 100-485 required the following: that all states adopt guidelines for setting child support; that it be a rebuttable presumption that the amount of support calculated from the child-support chart is correct; and that each state’s guidelines be reviewed and revised, as necessary, at least every four years. In response to the federal law, the Arkansas General Assembly enacted Ark. Code Ann. § 9-12-312, which included the federal provisions and authorized the Arkansas Supreme Court to develop guidelines based on recommendations submitted to the Court by a committee appointed by the Chief Justice.

The Committee on Child Support initially made recommendations to the Court which formed the substance of the 1990 Per Curiam Order. On May 13, 1991, pursuant to the Committee’s recommendations, the Court issued a new Per Curiam Order which supplemented the original. Then, in compliance with the four-year requirement of P.L. 100-485, the Committee submitted recommendations to the Court in October, 1993, and the Court issued a Per Curiam Order on October 23, 1993, adopting the guidelines which subsequently were published in the Court Rules volume of the Arkansas Code Annotated.

On September 25, 1997, again pursuant to the four-year requirement of P.L. 100-485, the Court issued a Per Curiam Order, adopting recommendations of the Child Support Committee. In addition, the Court adopted and published Administrative Order Number 10 Arkansas Child Support Guidelines, effective October 1, 1997. The Administrative Order incorporated by reference the weekly and monthly family-support charts and the Affidavit of Financial Means. The Court republished Administrative Order Number 10 with a Per Curiam Order of January 22, 1998, making minor corrections to the child-support charts and to the Affidavit of Financial Means.

In the ensuing four years, the Committee has continued to study the existing guidelines, pursuant to federal and state law, and once again has submitted its recommendations to the Court. Having carefully considered these most recent recommendations, the Court adopts and publishes Administrative Order Number 10 Arkansas Child Support Guidelines, effective February 11, 2002. This Administrative Order includes and incorporates by reference the revised weekly and monthly family-support charts and the revised Affidavit of Financial Means which are attached to Administrative Order No. 10.

The Court thanks the Committee for its service, and as it has done in the past, directs the Committee and the Chief Justice, as its liaison, to continue its charge pursuant to law and the rules of this Court.

Glaze and Corbin, JJ., dissent.

* * *
ADMINISTRATIVE ORDER NUMBER 10 — CHILD SUPPORT GUIDELINES

SECTION I. AUTHORITY AND SCOPE.

Pursuant to Act 948 of 1989, as amended, codified at Ark. Code Ann. § 9-12-312(a) and the Family Support Act of 1988, Pub. L. No. 100-485 (1988), the Court adopts and publishes Administrative Order Number 10 — Child Support Guidelines. This Administrative Order includes and incorporates by reference the attached weekly and monthly family-support charts and the attached Affidavit of Financial Means.

It is a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for divorce, separation, paternity, or child support. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.

All orders granting or modifying child support (including agreed orders) shall contain the court’s determination of the payor’s income, recite the amount of support required under the guidelines, and recite whether the court deviated from the Family Support Chart. If the order varies from the guidelines, it shall include a justification of why the order varies as may be permitted under Section V hereinafter. It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate.

SECTION II. DEFINITION OF INCOME.

Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:

1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependent children; and
4. Presently paid support for other dependents by court order.

SECTION III. CALCULATION OF SUPPORT.

a. Basic Considerations.

The most recent revision of the family support charts is based on the weekly and monthly income of the payor parent as defined in Section II.

For purposes of computing child support payments, a month consists of 4.334 weeks. Biweekly means a payor is paid once every two weeks or 26 times during a calendar year. Bimonthly means a payor is paid twice a month or 24 times during a calendar year.

Use the lower figure on the chart for income to determine support. Do not interpolate (i.e., use the $200.00 amount for all income pay between $200.00 and $210.00 per week.)

The amount paid to the Clerk of the Court or to the Arkansas Clearinghouse for administrative costs pursuant to Ark. Code Ann. § 9-12-312(e)(l)(A), § 9-10-109(b)(l)(A), and § 9-14-804(b) is not to be included as support.

b. Income Which Exceeds Chart.

When the payor’s income exceeds that shown on the chart, use the following percentages of the payor’s weekly or monthly income as defined in SECTION II to set and establish a sum certain dollar amount of support:

One dependent: 15%
Two dependents: 21%
Three dependents: 25%
Four dependents: 28%
Five dependents: 30%
Six dependents: 32%
c. Nonsalaried Payors.

For Social Security Disability recipients, the court should consider the amount of any separate awards made to the disability recipient’s spouse and children on account of the payor’s disability. SSI benefits shall not be considered as income.

For Veteran’s Administration disability recipients, Workers’ Compensation disability recipients, and Unemployment Compensation recipients, the court shall consider those benefits as income.

For military personnel, see the latest military pay allocation chart and benefits. BAQ (quarters allowance) should be added to other income to reach total income. Military personnel are entitled to draw BAQ at a “with dependents” rate if they are providing support pursuant to a court order. However, there may be circumstances in which the payor is unable to draw BAQ or may draw BAQ only at the “without dependents” rate. Use the BAQ for which the payor is actually eligible. In some areas, military personnel receive a variable allowance. It may not be appropriate to include this allowance in calculation of income since it is awarded to offset living expenses which exceed those normally incurred.

For commission workers, support shall be calculated based on minimum draw plus additional commissions.

For self-employed payors, support shall be calculated based on the last two years’ federal and state income tax returns and the quarterly estimates for the current year. A self-employed payor’s income should include contributions made to retirement plans, alimony paid, and self-employed health insurance paid; this figure appears on line 22 of the current federal income tax form. Depreciation should be allowed as a deduction only to the extent that it reflects actual decrease in value of an asset. Also, the court shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc.

d. Imputed Income.

If a payor is unemployed or working below full earning capacity, the court may consider the reasons therefor. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor’s life-style. Income of at least minimum wage shall be attributed to a payor ordered to pay child support.

e. Spousal Support.

The chart assumes that the custodian of dependent children is employed and is not a dependent. For the purposes of calculating temporary support only, a dependent custodian may be awarded 20% of the net take-home pay for his or her support in addition to any child support awarded. For final hearings, the court should consider all relevant factors, including the chart, in determining the amount of any spousal support to be paid.

f. Allocation of Dependents for Tax Purposes.

Allocation of dependents for tax purposes belongs to the custodial parent pursuant to the Internal Revenue Code. However, the Court shall have the discretion to grant dependency allocation, or any part of it, to the noncustodial parent if the benefit of the allocation to the noncustodial parent substantially outweighs the benefit to the custodial parent.

g. Health Insurance.

In addition to the award of child support, the court order shall provide for the child’s health care needs, which normally would include health insurance if available to either parent at a reasonable cost.

SECTION IV. AFFIDAVIT OF FINANCIAL MEANS.

The Affidavit of Financial Means shall be used in all family support matters. The trial court shall require each party to complete and exchange the Affidavit of Financial Means prior to a hearing to establish or modify a support order.

SECTION V. DEVIATION CONSIDERATIONS.

a. Relevant Factors.

Relevant factors to be considered by the court in determining appropriate amounts of child support shall include:

1. Food;
2. Shelter and utilities;
3. Clothing;
4. Medical expenses;
5. Educational expenses;
6. Dental expenses;
7. Child care (includes nursery, baby sitting, daycare or other expenses for supervision of children necessary for the custodial parent to work);
8. Accustomed standard of living;
9. Recreation;
10. Insurance;
11. Transportation expenses; and
12. Other income or assets available to support the child from whatever source.

b. Additional Factors.

Additional factors may warrant adjustments to the child support obligations and shall include:

1. The procurement and maintenance of life- insurance, health insurance, dental insurance for the children’s benefit;
2. The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children (e.g., orthopedic shoes, glasses, braces, etc.);
3. The creation or maintenance of a trust fund for the children;
4. The provision or payment of special education needs or expenses of the child;
5. The provision or payment of day care for a child;
6. The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements;
7. The support required and given by a payor for dependent children, even in the absence of a court order; and
8. Where the amount of child support indicated by the chart is less than the normal costs of child care, the court shall consider whether a deviation is appropriate.

SECTION VI. ABATEMENT OF SUPPORT DURING EXTENDED VISITATION.

The guidelines assume that the noncustodial parent will have visitation every other weekend and for several weeks during the summer. Excluding weekend visitation with the custodial parent, in those situations in which a child spends in excess of 14 consecutive days with the noncustodial parent, the court should consider whether an adjustment in child support is appropriate, giving consideration to the fixed obligations of the custodial parent which are attributable to the child, to the increased costs of the noncustodial parent associated with the child’s visit, and to the relative incomes of both parents. Any partial abatement or reduction of child support should not exceed 50% of the child-support obligation during the extended visitation period of more than 14 consecutive days.

In situations in which the noncustodial parent has been granted annual visitation in excess of 14 consecutive days, the court may prorate annually the reduction in order to maintain the same amount of monthly child-support payments. However, if the noncustodial parent does not exercise said extended visitations during a particular year, the noncustodial parent shall be required to pay the abated amount of child support to the custodial parent.

SECTION VII. PROVISIONS FOR PAYMENT

All orders of child support shall fix the dates on which payments shall be made. All support orders issued shall include a provision for immediate implementation of income withholding, absent a finding of good cause not to require immediate income withholding or a written agreement of the parties incorporated in the order setting forth an alternative agreement as required by Ark. Code Ann. § 9-14-218(a). Payment shall be made through the Arkansas Clearinghouse pursuant to Ark. Code Ann. § 9-14-805. Times for payment should ordinarily coincide with the payor’s receipt of salary, wages, or other income.

* * *

IN THE CIRCUIT COURT OF_COUNTY, ARKANSAS _DIVISION

STATE OF ARKANSAS

AFFIDAVIT OF FINANCIAL MEANS COUNTY OF_ Revised 02-02

_ PLAINTIFF

Vs. Case No._

_ DEFENDANT

BOTH PARTIES MUST COMPLETE AND EXCHANGE THIS AFFIDAVIT PRIOR TO ANY HEARING. BOTH PARTIES MUST SUPPLY THE ORIGINAL NOTARIZED AFFIDAVIT TO THE COURT. THE COURT WILL PUNISH PERJURY BY APPROPRIATE ACTION.

The affiant, being duly sworn, says under penalty of peq'ury that affiant is the [Plaintiff/Defendant/Party] (circle one) to this support action herein, has prepared this financial statement, knows the contents thereof, and that it is true and correct.

Attach additional pages as needed.

INCOME

Complete Item 29.

1. My weekly take-home pay [from Item 29(i)] is $_.

2. I claim_dependents for the purpose of determining my State of Arkansas withholding. I claim _ dependents for the purpose of determining my federal withholding. I [did/did not] (circle one) claim myself as a dependent. I [do/do not] (circle one) have an additional amount withheld from my payroll checks for tax purposes and, if so, that amount is $_ per [week/pay period] (circle one) and itemized below. All other deductions taken from my payroll check before I receive it total $_[from Item 29 (j) (8)].

3. I receive total payments, periodic, or otherwise, from the following sources:_in the following amount(s) of $_.

4. I have cash on hand in the amount of $_from the following sources:____.

5. I have on deposit in banks and savings institutions the amount of $_ from the following source (s):

6. I have stocks and bonds in the amount of $_and their source was_.

CREDITORS

Complete Items 30, 31 and 32.

7. Debts in the name of plaintiff only: ALL CREDITORS LISTED UNDER ITEM 30:

(a) TOTAL UNPAID BALANCES: $_

(b) TOTAL MONTHLY PAYMENTS:_

8. Debts in the name of defendant only: ALL CREDITORS LISTED UNDER ITEM 31:

(a) TOTAL UNPAID BALANCES: $_

(b) TOTAL MONTHLY PAYMENTS:_

9. Debts in our JOINT NAMES are: ALL CREDITORS LISTED UNDER ITEM 32:

(a) TOTAL UNPAID BALANCES: $_

(b) TOTAL MONTHLY PAYMENTS:_

AVERAGE MONTHLY EXPENSES

10. My present average monthly expenses to support myself and children are:

Place a check mark next to those not being paid currently.

GENERAL INFORMATION

11. My full name is_.

12. My social security number is_.

My military I.D. number is_.

13. My Arkansas driver’s license number is_:_.

14. My date of birth is_.

My place of birth is_.

15. My father’s full name is_.

My mother’s full name is_.

[They/He/She] reside(s) at_.

My [father and/or mother] [is/are] deceased.

16. My present resident address is_.

17a The full names, birth dates and social security numbers of children born (or legally adopted) of this marriage are:

17b The full names, birth dates and social security numbers of Children born out of wedlock to the parties are:

Name Birth Date Soc. Sec. Number

(a) ___

(b) ___:_

(c) ___:_

Paternity has_has not_been established for these children.

17c I also have the obligation to support the following additional children born to me and_:

Name Birth Date Soc. Sec. Number

(a) ___

(b) ___

(c) ___

Please attach any court orders estabhshing paternity and establishing a child support obligation.

18. My employer is_.

19. My employer’s full address is_.

20. My home telephone number is_.

My work telephone number is_.

INFORMATION ABOUT OPPOSING PARTY, IF KNOWN (DO NOT GUESS)

21. The opposing party’s full name is_.

22. The opposing party’s social security number is_.

The opposing party’s military I.D. number is_.

23. The opposing party’s Arkansas driver’s license number is

24. (a) The opposing party’s father’s full name is_.

(b) The opposing party’s mother’s full name is_.

(c) [They/He/She] reside(s) at_.

(d) Opposing party’s [father and/or mother] [is/are] deceased.

25. The opposing party’s present residence address is_.

26. The opposing party’s employer is_.

27. The opposing party’s employer’s address is_.

28. The opposing party’s home telephone number is

The opposing party’s work telephone number is

INCOME

29. How often are you paid and what are your gross wages, salary or commission due each time? (Check one)

Weekly (52 times a year)

Bi-Weekly (26 times a year)

Semi-Monthly (24 times a year)

Monthly (12 times a year)

Other (Explain)

PAYROLL DEDUCTIONS

(a) GROSS WAGES $.

(b) Federal income tax withheld $_

(c) Arkansas income tax withheld $_

(d) FICA (social security) or railroad retirement $_

(e) Health insurance $_ (children only)

(f) Court-ordered child support for dependents $_ of previous marriage or previously legally determined adopted or illegitimate children

(g) TOTAL WITHHELD ((b) through (f) above) $

(h) NET TAKE-HOME PAY PER PAY $. PERIOD (Subtract (g) from (a) above)

(i) CONVERT TO WEEKLY TAKE-HOME $ PAY AND CARRY TO ITEM 1 ABOVE

Example: If (h) above is $300.00 and is received

bi-weekly, multiply $300.00 by 26

(26x300=$7,800), divide $7,800 by 52

($150.00); carry $150.00 to Item 1

(j) OTHER ITEMS WITHHELD FROM MY CHECK ARE:

(1) Union dues $_

(2) Credit union, thrift plans $_

(3) Pension benefits, stock purchase plans $.

(4) Charitable contributions $.

(5) Debt payments, garnishments $.

(6) Life insurance payments $.

(7) other (identify) $.

Items (1) through (7) above are not allowed in computing take-home pay.

(8) TOTAL WITHHELD (sum of items (1) $. through (7) above)

If self-employed, attach copies of your past two years’ state and federal income tax returns and a list of all disbursements made to you during the current calendar year.

CREDITORS AND DEBTS

30. Debts in the name of PLAINTIFF only are:

Creditors Total Unpaid Balance Monthly Payment

(a) _

(b) _

(c) -

(d) __

(e) _

(f) TOTAL: *$_

* Carry forward to Item 7(a) ** Carry forward to Item 7(b)

31. Debts in the name of DEFENDANT only are:

Creditors Total Unpaid Balance Monthly Payment

(a) _

(b) _

(c) -

(d) _

(e) _

(f) TOTAL: *$_

* Carry forward to Item 8(a) ** Carry forward to Item 8(b)

32. Debts in JOINT names:

Creditors Total Unpaid Balance Monthly Payment

(a) _

(b) _

(c) _

(d) _

(e) _

(f) TOTAL: *$_ **$_

* Carry forward ** Carry forward to Item 9(a) to Item 9(b)

33. The weekly take-home pay of opposing party is

34. All other income of the opposing party is

Affiant

STATE OF_

COUNTY OF_

Subscribed and sworn to before me, a Notary Public, on this _day of_,_. (month) (year)

Notary Public

My Commission Expires:

(SEAL)


source: Caselaw Access Project

author: P ER CURIAM.

license: Public Domain

text:
    IN RE: SECTION 28 to the SUPREME COURT PROCEDURES REGULATING PROFESSIONAL CONDUCT of ATTORNEYS at LAW and MODEL RULE of PROFESSIONAL CONDUCT 1.15(d)(1)
    Supreme Court of Arkansas
    Delivered February 21, 2002
   P ER CURIAM.

In a Per Curiam released December 20, 2001, the Court solicited comments on a proposed new Section 28 to the Supreme Court Procedures Regulating Professional Conduct of Attorneys at Law, regarding automatic overdraft reporting for attorney IOLTA trust accounts. The proposed new Section 28, and Model Rule 1.15(d)(1) mentioned below, can be found on the Court’s website at http://courts.state.ar.us/courts/cpc.html. One public comment was received and reviewed.

The Court now makes the proposed new Section 28 final. To allow adequate time for implementation of the new Procedure, which involves attorneys,, financial institutions and the Office of Professional Conduct, Section 28 shall be effective July 1, 2002.

Model Rule of Professional Conduct 1.15(d)(1), as revised to have been effective January 1, 2002, but temporarily suspended December 20, 2001, pending public comment on Section 28, is hereby made effective with Section 28 of the Procedures on July 1, 2002.

It is so ordered.


author: P iER Curiam.

text:
    IN RE: ARKANSAS STATE BOARD of LAW EXAMINERS
    Supreme Court of Arkansas
    Delivered December 6, 2001
   P iER Curiam.

The Court is informed that Audrey Evans, Second Congressional District representative on the Arkansas State Board of Law Examiners (Board), has tendered her resignation from the Board effective December 31, 2001. We regret the early departure of Ms. Evans from the Board but recognize her appointment as a United States Bankruptcy Judge precludes further participation on the Board.

We hereby appoint the Honorable Wiley A. Branton, Jr., of the Second Congressional District, to replace Ms. Evans effective January 1, 2002. Judge Branton will serve the remainder of Ms. Evans’ term which concludes September 30, 2002.

By previous order of the Court dated October 25, 2001, we appointed an individual for the sole purpose of grading the February 2002 examination on behalf of Ms. Evans. That per curiam order remains intact. Judge Branton will be serving as the appointed Board member for the noted period of time, and will be grading the results of the July 2002 Arkansas bar examination.

The Court thanks Judge Branton for his willingness to accept appointment to the Board. The Court conveys its deep gratitude to Ms. Evans for her years of service as a member and Chair of the Board.


text:
    IN RE: SUPREME COURT COMMITTEE on PROFESSIONAL CONDUCT
    Supreme Court of Arkansas
    Delivered January 14, 2002
   P ER CURIAM.

The amended Procedures Regulating Professional Conduct of Attorneys at Law (“Procedures”) became effective January 1, 2002. See In Re Amendments to the Procedures Regulating Professional Conduct of Attorneys at Law (July 9, 2001). At that time the Committee on Professional Conduct was expanded from seven to fourteen voting members, in two hearing panels (Panel A and Panel B), and a new group of seven “reserve” members (Panel C) was added. Member terms are reduced from seven to six years under the amended Procedures, and necessary adjustments have been made here. The following appointments are made, commencing January 1, 2002, to the expanded Committee, with the terms indicated for each.

Committee Panel A:

Member. Position: Term expires:
Dr. Patricia Youngdahl Non-Attorney At Large 12-31-2002 Little Rock
Richard A. Reid Attorney — 1st CD 12-31-2003 Blytheville
Ken R. Reeves Attorney — 3rd CD 12-31-2004 Harrison
Bart F. Virden Attorney — 2nd CD 12-31-2005 Morrilton
Win A. Trafford Attorney — 4th CD 12-31-2006 Pine Bluff
Gwendolyn D. Hodge Attorney — At Large 12-31-2007 Little Rock
Helen Herr Little Rock Non-Attorney At Large 12-31-2007

Committee Panel B:

John L. Rush Pine Bluff Attorney — 4th CD 12-31-2002
J. Michael Cogbill Fort Smith Attorney — 3rd CD 12-31-2003
Pita M. Harvey Little Rock Non-Attorney At Large 12-31-2004
Richard F. Hatfield Little Rock Attorney — 2nd CD 12-31-2005
Vacancy (to be filled) Attorney At Large 12-31-2006
Harry Truman Moore Paragould Attorney — 1st CD 12-31-2007
Dr. Rose Marie Word Pine Bluff Non-Attorney At Large 12-31-2007
Committee Reserve - • Panel G
Searcy W Harrell, Jr. Camden Attorney — 4th CD 12-31-2002
Sylvia Orton Little Rock Non-Attorney At Large 12-31-2003
Robert D. Trammell Little Rock Attorney — 2nd CD 12-31-2004
David Newbern Little Rock Attorney At Large 12-31-2005
Kenneth R. Mourton Fayetteville Attorney — 3rd CD 12-31-2006
Beverly Morrow Pine Bluff Non-Attorney At Large 12-31-2007
Phillip D. Hout Newport Attorney — 1st CD 12-31-2007

For their willingness to serve in this most important Court activity, the Court expresses its appreciation to the present members of the Committee on Professional Conduct and the Alternate Committee on Professional Conduct, and to the new members of the Reserve Panel of the Committee.

The Court expresses its appreciation tó Jacqueline Johnston-Cravens for her service on the former Alternate Committee until her resignation in November 2001.


author: P IER CURIAM.

text:
    IN RE: CHILD SUPPORT COMMITTEE
    Supreme Court of Arkansas
    Opinion delivered January 17, 2002
   P IER CURIAM.

By per curiam order of December 20, 1993, In re Child Support Committee, 315 Ark. 760 (1993), we recon-

stituted the Child Support Committee to consist of one Arkansas Court of Appeals Judge, three chancellors, one juvenile division circuit/chancery judge, one legal services attorney, one Office of Child Support Enforcement attorney, two attorneys of the private bar, and one attorney member of the Arkansas General Assembly. As a result of Amendment 80 to the Arkansas Constitution, we hereby modify these designations to change the “chancellors” and “circuit/chancery” designations to four “circuit judges.”

The terms of two longtime members of the Committee have expired. The Court expresses its gratitude to the Honorable Judith Rogers of Little Rock and the Honorable Ellen Brantley of Little Rock for their tireless and dedicated service to the Committee.

We hereby appoint Judge John Robbins of the Arkansas Court of Appeals and Judge Mary McGowan, Pulaski County Circuit Judge, to the Child Support Committee for four-year terms to expire on November 30, 2005. The Court thanks the appointees for agreeing to serve on this most important Committee.


author: P ER Curiam.

text:
    IN RE: APPOINTMENTS to ARKANSAS CONTINUING LEGAL EDUCATION BOARD
    Supreme Court of Arkansas
    Delivered January 24, 2002
   P ER Curiam.

Cindy Grace Thyer of the First Court of Appeals District is reappointed to a three-year term to conclude on December 5, 2004. Tony L. Yocom of the Fourth Court of Appeals District is reappointed to a three-year term concluding on December 5, 2004. The Court conveys its appreciation to Ms. Thyer and Mr. Yocom for their willingness to continue their service on this Board.

Julie M. Cabe of Little Rock is appointed as an at-large member to replace the Honorable Carol Anthony, who has concluded her service. The Court thanks Judge Anthony for her years of service as a member and Chair of this Board, and appreciates Ms. Cabe’s acceptance of this appointment. Ms. Cabe’s appointment is for a three-year initial term concluding on December 5, 2004.


text:
    IN RE: APPOINTMENT of SPECIAL CONSULTANT to ASSIST the COURT in REVIEWEING PROCEDURES to CERTIFY LAWYERS as SPECIALISTS
    Supreme Court of Arkansas
    Delivered February 14, 2002
   P IER CURIAM.

The Supreme Court has undertaken an assessment of its procedures to certify lawyers as specialists. To assist the Court in this task, we are pleased to appoint Judith Kilpatrick, an Associate Professor of Law at the University of Arkansas Law School in Fayetteville, as a special consultant to the Court. Professor Kilpatrick is a member of the American Bar Association Standing Committee on Specialization and is familiar with the American Bar Association sponsored certification process, as well as programs of other states.

We ask Professor Kilpatrick to examine the structure, operations, and procedures of our specialist certification system and to report her findings and recommendations to us. We thank Professor Kilpatrick for her willingness to assist the Court in this endeavor and look forward to working with her.


text:
    IN RE: SUPREME COURT AMENDMENT 80 COMMITTEE
    Supreme Court of Arkansas
    Delivered February 28, 2002
   P ER Curiam.

On November 30, 2000, we established the Amendment 80 Committee to oversee the implementation of Amendment 80 to the State Constitution. See In re: Appointment of Special Supreme Court Committee to be known as “Amendment 80 Committee,” 343 Ark. 877 (2000). Much has been accomplished to that end, but more remains to be done. At this time, it is necessary to make additional appointments to the Committee. We hereby appoint Justice Jim Hannah, the Honorable Jim Gunter, Circuit Judge of Hope, the Honorable Stephen Routon, District Judge of Forrest City, and the Honorable David Stewart, District Judge of Little Rock, to the Amendment 80 Committee.

Judge Gunter is the current president of the Arkansas Judicial Council, and he replaces his predecessor in that position, the Honorable David Bogard of Little Rock. We thank Judge Bogard for his service and extend our appreciation to the new appointees for their willingness to serve on this important Committee. The current composition of the Committee is as follows:

Chief Justice W H. “Dub” Arnold, Chair
Justice Robert L. Brown
Judge Robert J. Gladwin
Judge Jim Gunter
Justice Jim Hannah
Ronald D. Harrison
Justice Annabelle Clinton Imber
Jim L. Julian
Judge Andree L. Roaf
Judge Stephen Routon
Judge David Stewart
Chief Judge John F. Stroud, Jr.


text:
    IN RE: SUPREME COURT ALTERNATE COMMITTEE on PROFESSIONAL CONDUCT
    Supreme Court of Arkansas
    Delivered March 14, 2002
   P ER Curiam.

Valerie L. Kelly of Jacksonville, Arkansas, is appointed to fill the unexpired term of Jacqueline J. Cravens on Panel B of the Supreme Court Committee on Professional Conduct. The term expires on December 31, 2006. It is an at-large attorney position.

The court thanks Ms. Kelly for accepting appointment to this most important committee, and expresses its appreciation to Jacqueline J. Cravens for her dedicated service to the Committee.


text:
    IN RE: SUPREME COURT COMMITTEE on CRIMINAL PRACTICE
    Supreme Court of Arkansas
    Delivered March 14, 2002
   P ER CURIAM.

Hon. Charles Yeargan, Circuit Judge of the Ninth Circuit West Judicial Circuit, Hon. Thomas Deen, Prosecuting Attorney of the Tenth Judicial Circuit; and Colette Honorable, Esq., Assistant Attorney General, are hereby appointed to our Committee on Criminal Practice for three-year terms to expire on January 31, 2005. Judge David Burnett is designated the Chair of the Committee. Additionally, we are designating Frank Newell, Esq., as an ex-officio, non-voting, Advisor to the Committee, and Professor Scott Stafford of the University of Arkansas Law School at Little Rock as the Reporter for the Committee.

The Court thanks Judge Yeargan, Mr. Deen, and Ms. Honorable for accepting appointment to this important Committee.

The Court expresses its gratitude to Judge Tom Keith, Raymond Abramson, and Gordon Webb, whose terms have expired, for their years of service on the Committee.


author: P DR CURIAM.

text:
    IN RE: Lesa Gail Bridges JACKSON, Arkansas Bar ID # 87007
    68 S.W.3d 294
    Supreme Court of Arkansas
    Delivered March 7, 2002
   P DR CURIAM.

On recommendation of the Supreme Court Committee on Professional Conduct, we hereby accept the surrender of the law license of Lesa Gail Bridges Jackson, Arkansas Bar No. 87007, of Pulaski County, Arkansas, to practice law in the State of Arkansas. Her name shall be removed from the registry of licensed attorneys and she is barred and enjoined from engaging in the practice of law in this state.

It is so ordered.


author: Tom Glaze, Justice.

text:
    Melvin Eugene REINERT v. STATE of Arkansas
    CR 01-940
    71 S.W.3d 52
    Supreme Court of Arkansas
    Opinion delivered March 21, 2002

      Charles L. Stutte, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Melvin Reinert was charged with three counts of first-degree violation of a minor after C.J., Reinert’s girlfriend’s sixteen-year-old daughter, informed her school guidance counselor that Reinert had engaged in sexual intercourse with her three times. Prior to trial, Reinert moved to dismiss the charges against him, alleging that the statute under which he was charged, Ark. Code Ann. § 5-14-120 (Repl. 1997), was void for vagueness. The trial court denied his motion, and the case proceeded to trial. The jury found Reinert guilty on all three counts. On appeal, Reinert again raises his constitutional arguments, and also argues that, if § 5-14-120 is constitutional, the proof was insufficient to convict him.

In his first argument, Reinert contends that § 5-14-120(a) is unconstitutionally void for vagueness. That statute reads as follows:

(a) A person commits the offense of violation of a minor in the first degree if he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is more than thirteen (13) years of age and less than eighteen (18) years of age, and the actor is the minor’s guardian, an employee in the minor’s school or school district, a temporary caretaker, or a person in a position of trust or authority of the minor.

Particularly, Reinert claims that this statute is vague because 1) it does not define who is a “temporary caretaker” or a “person in a position of trust or authority”; 2) the statute refers to legal relationships that may be subject to a broad range of interpretation; 3) the section lacks any ascertainable standard of guilt and fails to provide a person of average intelligence reasonable notice of the proscribed conduct; and 4) the terms are subject to such a broad range of interpretation as to invite discriminatory interpretation.

Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001); Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). If it is possible to construe a statute as constitutional, we must do so. Jones v. State, 333 Ark. 208, 969 S.W.2d 618 (1998). Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Kellar v. Fayetteville Police Department, 339 Ark. 274, 5 S.W.3d 402 (1999) (citing Board of Trustees of Mun. Judges & Clerks Fund v. Beard, 273 Ark. 423, 426, 620 S.W.2d 295, 296 (1981)).

A law is unconstitutionally vague under due process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited. Night Clubs, Inc. v. Fort Smith Planning Comm’n, 336 Ark. 130, 984 S.W.2d 418 (1999); Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998). A statute will pass constitutional scrutiny if the language conveys sufficient warning when measured by common understanding and practice. Dougan v. State, 322 Ark. 384, 912 S.W.2d 400 (1995); see also Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998) (the standard by which we determine when a statute is void for vagueness is whether it lacks ascertainable standards of guilt such that persons of average intelligence must necessarily guess at its meaning and differ as to its application).

As a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the facts at issue. See United States v. Powell, 423 U.S. 87 (1975). When challenging the constitutionality of a statute on grounds of vagueness, the individual challenging the statute must be one of the “entrapped innocent,” who has not received fair warning; if, by his action, that individual clearly falls within the conduct proscribed by the statute, he cannot be heard to complain. Ross v. State, 347 Ark. 334, 64 S.W.3d 272 (2002); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993)). That a statutory provision may be of questionable applicability in speculative situations is usually immaterial if the challenged provision applies to the conduct of the defendant in the case at issue. United States v. Petrillo, 332 U.S. 1 (1947); Holt v. City of Maumelle, 307 Ark. 115, 817 S.W.2d 208 (1991).

We conclude that Reinert’s conduct clearly falls within that proscribed by the statute. Although Reinert asserts that § 5-14-120 is an unconstitutionally vague offense because its terms “temporary caretaker” and “person in a position of trust or authority” are undefined, he overlooks the term “guardian” in the statute; that term is defined in Ark. Code Ann. § 5-14-101 (Repl. 1997). Specifically, § 5-14-101(10) provides as follows:

“Guardian” means a parent, stepparent, legal guardian, legal custodian, foster parent, or anyone who, by virtue of a living arrangement, is placed in an apparent position of power or authority over a minor.

(Emphasis added.)

It is clear that Reinert’s actions fall within this definition. It is undisputed that he had been living with his girlfriend and her children, including C.J., for over two years. Further, Reinert also admitted that, as between him and the girl’s mother, he would be considered the disciplinarian and the authority figure in the household. In the statement he gave to police investigators, Reinert recounted several incidents supporting a conclusion that he was a person in a position of power or authority. First, he related that he assumed the responsibility of covering “hot checks” that C.J. had written, so that the girl would not get into trouble. Second, he pointed out that he had previously stepped in to settle an argument between C.J. and her mother. The girl herself testified that Reinert asked her to do chores around the house, and she stated that she would do what Reinert told her to do. Clearly, Reinert was a “guardian” with respect to C.J.

In sum, a statute will meet constitutional muster if the language conveys sufficient warning when measured by common understanding and practice. State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992). We conclude that §§ 5-14-120(a) and 5-14-101(10) conveyed sufficient warning and fair notice to Reinert that his sexual relationship with a sixteen-year-old, given their living arrangements and other circumstances, was prohibited by law. Thus, we hold that the trial court did not err in denying Reinert’s motion to dismiss the charges on the grounds that the statute was void for vagueness.

For his second point on appeal, Reinert contends that there was insufficient evidence to convict him of the offenses charged. The test for determining sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001); Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id.

From the evidence set out above, it is clear that there was sufficient evidence to support Reinert’s convictions. It was undisputed that Reinert and C.J. engaged in sexual intercourse three times. Reinert acknowledged that he was the disciplinarian and the authority figure in the family, and C.J. herself testified that she would do what he asked her to do. Although Reinert argues on appeal that he introduced testimony from the girl’s uncle to dispute the fact that he was the authority figure in the home, we consider only that evidence that supports the verdict. From the foregoing, it is clear that there was substantial evidence to support Reinert’s convictions.

Affirmed.

       Because we conclude that § 5-14-120(a) clearly covers or includes Reinert as a guardian, we need not discuss whether he also comes within the term “temporary caretaker” or the broader phrase “person in a position of trust or authority of the minor.”


text:
    Darwin SHIELDS v. STATE of Arkansas
    CR 01-288
    70 S.W.3d 392
    Supreme Court of Arkansas
    Opinion delivered March 21, 2002

      Gregory E. Bryant, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Justice. Darwin Shields was convicted of the capital murder of Sarah Stafford and sentenced life in prison. On appeal, he argues that the trial court erred in refusing to suppress his custodial statement, and he also asserts that the trial court erred when it increased his bail bond after the State amended the charges against him from first-degree murder to capital murder.

Shields does not challenge the sufficiency of the evidence, so we recite the facts only briefly. Sarah Stafford was reported missing by her mother on March 15, 2000. As police detectives began investigating the case, they spoke to some of Sarah’s friends and relatives, who informed the officers that Sarah was pregnant and believed Darwin Shields to be the father. On March 16, 2000, Detectives Laura Pritchett and Jennifer Elmore, accompanied by uniformed officer Jerry Best, went to speak to Shields at University Mall in Little Rock, where he worked at a store called Champs. Shields accompanied the officers to his car in the parking lot, and Detective Elmore found a pair of grey sweatpants in the car’s trunk. Because the sweatpants matched a description of what Sarah had been wearing before she disappeared, the officers decided to take Shields to the downtown police station for further questioning. Detective Elmore called for a patrol car to transport Shields downtown; when the patrol car arrived, Shields was temporarily placed in handcuffs and taken to the police station.

Upon arriving at the station, Detective Eric Knowles removed Shields’s handcuffs and advised Shields that he was under no obligation to be there; Shields indicated that he was concerned about Sarah, and he wanted to cooperate. Shields was advised by Knowles that he was a suspect and Knowles then read Shields his Miranda rights. After about two and a half hours, Shields gave a statement to Detective Eric Knowles in which he confessed to strangling Sarah. Shields was then placed under arrest, and at that time, he took the police to where Sarah’s body was located.

Prior to trial, Shields filed a motion to suppress his statement, arguing that, contrary to Ark. R. Crim. P. 2.3, he had never been informed of the fact that he was under no legal obligation to accompany the officers to the police station. The trial court denied the motion after a hearing on September 29, 2000. The case proceeded to trial on November 13, 2000, and a jury convicted Shields of capital murder. Because the State waived the death penalty, Shields was sentenced to life in prison.

On appeal, Shields again argues that the trial court erred in denying his motion to suppress his statement. We have repeatedly held that we review a trial court’s ruling on a motion to suppress by making an “independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State.” Barcenas v. State, 343 Ark. 181, 33 S.W.3d 136 (2000); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). The ruling will only be reversed if it is clearly against the preponderance of the evidence. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

As pointed out above, Shields’s contention is that the officers who initially contacted him violated Ark. R. Crim. P. 2.3. That rule provides as follows:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a-police station, prosecuting attorney’s office, or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request,

(Emphasis added.)

Shields specifically alleges that he was not advised that he was under no obligation to appear at police headquarters for questioning, and that Detectives Elmore and Pritchett should have given him this information in clear and unambiguous terms. In support of this argument, he cites the case of State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997). However, Bell does not help Shields. In fact, in Bell, this court announced its intention to no longer interpret Ark. R. Crim. P. 2.3 to require a verbal warning of freedom to leave as a “bright-line rule for determining whether a seizure of the person has occurred under the Fourth Amendment and whether a statement to police officers must be suppressed.” Bell, 329 Ark. at 431. Rather, the court stated, “we will view a verbal admonition of freedom to leave as one factor to be considered in our analysis of the total circumstances surrounding compliance with Rule 2.3. In short, when interpreting Rule 2.3 in the future in deciding whether a seizure of a person has transpired, we will follow United States v. Mendenhall, 446 U.S. 544 (1980).” Id. (Emphasis added.)

In the Mendenhall case, the Supreme Court held that the question of whether or not one’s consent to accompany police officers is voluntary or is the product of duress or coercion, express or implied, is to be determined by the totality of all the circumstances, and is a matter which the government has the burden of proving. Mendenhall, 446 U.S. at 557. The court wrote as follows:

We adhere to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543 (1976). As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
* * * *
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance ivith the officer’s request might be compelled. [Citations omitted.] In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Id. at 554-55 (emphasis added).

At the suppression hearing in this case, Detectives Elmore and Pritchett and Officer Best all testified that they repeatedly informed Shields that he was not under arrest. Detective Elmore testified that she told Shields that he was not under arrest and that he did not have to go with the officers. Elmore also noted that she felt that, by saying, “you’re not under arrest,” Shields would understand that he was not obligated to come with her. Detective Pritchett testified that she heard Elmore tell Shields, “You understand that you don’t have to come with us, or you’re not under arrest,” and that Shields said he understood. Pritchett also stated that, had Shields at any time indicated that he wanted to leave, he would have been free to do so. Officer Best confirmed that Elmore repeatedly told Shields that he was not under arrest, that he was just a witness, and that they only needed to talk to him. Best further said that Shields was free to leave at any time.

In addition, Best noted that, although Shields was placed in handcuffs to be transported to the police department, that action was only taken pursuant to police department policy, which he explained to Shields. Before Shields was placed in the patrol car, Best told him again that he was not under arrest, and that the handcuffs were only for the safety of the officer driving the patrol car and for Shields’s own safety. The handcuffs were removed as soon as Shields arrived at the police station.

As already stated above, Detective Knowles, who interviewed Shields once he arrived at police headquarters, testified that he told Shields that it was his understanding that Shields had agreed to come down to the station. Knowles further let Shields know that he was under no legal obligation to be there at that time, and Shields said he understood that; Shields also indicated that he was willing to cooperate, and he verbally indicated that he had agreed to come down and talk to the police about the case. Also set out above, Knowles read Shields his Miranda rights and had him sign the rights form at 1:09 p.m. Knowles let Shields know that the police were possibly investigating — and that Shields was possibly a suspect in — a capital murder, although, at the time, Knowles said he was only aware that it was missing- persons case that potentially had come to involve some type of foul play.

Knowles also testified that, when Shields received his Miranda warnings, he was a suspect, not under arrest, and was not arrested until he confessed to killing Sarah. Until that time, according to Knowles, Shields was free to get up and walk out of the interview room. Knowles admitted that he had not told Shields that he did not have an obligation to come to the police station, but asserted that, because Shields was an adult, Knowles assumed that it would be good enough to ask if Shields had agreed to come to the detective’s office. When asked that question, Shields said yes. Although Shields himself offered testimony to contradict the police officers’ assertions, he conceded on cross-examination that he had agreed to go to the police station willingly.

As noted above, Rule 2.3 does not require an explicit statement that one is not required to accompany the police; rather, the police only need to take such steps as are “reasonable to make clear that there is no legal obligation to comply” with the request to come to the police station. Here, the testimony offered at the suppression hearing supports the conclusion that the officers made it reasonably clear to Shields that he was only wanted for questioning, and that he did not have to go to the police station. Accordingly, the trial court’s ruling was not clearly against the evidence, and the court, therefore, did not err in denying Shields’s motion to suppress.

Shields raises an alternative argument that the court erred, contending that he was arrested without probable cause. In support of this assertion, he points to the fact that he was handcuffed while he was being transported to the police station, and argues that Officer Best informed Officer Zebbie Burnett, who transported Shields to the police station, that Best considered Shields to be a possible suspect in a homicide or abduction. With respect to this latter issue, however, we have held that the subjective beliefs and opinions of other persons, including law enforcement officers, regarding whether a person is free to leave are irrelevant. See Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000); see also Ohio v. Robinette, 519 U.S. 33 (1996) (holding that subjective intentions play no role in ordinary, probably cause Fourth Amendment analysis).

As to the matter of Shields’s being placed in handcuffs for transport to the police station, we observe first that Best informed Shields that such action was police department policy. Best testified at the suppression hearing that he told Shields, “You understand that you’re not under arrest. This is just for the safety of yourself and for the officers. We have a policy that kind of covers this, and this is the officer’s choice basically, but you understand that you are not under arrest for anything?” ' Shields responded that he understood, and in so doing, his acknowledgment of the fact belies any argument that the officers had placed him under arrest.

Flowever, our decision need not turn on the question of the police department’s internal policy regarding handcuffing suspects for transport to the police station. Even assuming that Shields was illegally arrested, the Supreme Court in Brown v. Illinois, 422 U.S. 590 (1975), stated that it is entirely possible that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. However, the question of whether a confession was the product of a free will is to be answered under the facts of each case, although no single fact is dispositive. While there is no per se rule that the giving of Miranda warnings alone can break the causal connection between an illegal arrest and a subsequent confession, the Brown Court held that a number of factors must be considered in determining whether a confession is obtained by exploitation of an illegal arrest. In addition to the giving of Miranda warnings, a court should also consider “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct[.] The voluntariness of the statement is a threshold requirement.” Brown, 422 U.S. at 603-04 (emphasis added).

In the present case, Shields himself acknowledged that he went to the police station freely. As noted above, Shields was handcuffed by Officer Zebbie Burnett and placed into the patrol car sometime between 12:30 and 1:00 p.m. Shields asked Burnett if he was under arrest, and Burnett said, “Well, yeah, I guess. I don’t know.” Shields further testified that, when he asked Burnett what he was “under arrest” for, Burnett replied, “I don’t know what’s going on. I’m just taking you downtown.” Shields was then taken to the police station, where Burnett removed his handcuffs, and Detective Knowles informed Shields that he was under no legal obligation to be at the station. Shields told Knowles that he was concerned about Sarah and wanted to cooperate. He was read his Miranda rights at 1:09 p.m., according to Detective Knowles. Knowles began to interview Shields at that time, and began taping his statement at 3:28 p.m., after Shields stated that he had, in fact, killed Sarah. At the beginning of the taped statement, Knowles called Shields’s attention to the Miranda form, and had Shields again acknowledge that he had read and understood each of the rights on the form. The interview concluded at approximately 4:05 p.m.

Viewing the evidence in the light most favorable to the State, the record reveals that Shields did not appear to have been coerced into giving his statement. Knowles, as well as the other officers involved in questioning Shields, testified that Shields was polite and cooperative at all times, and he agreed that he was at the police station of his own free will. Given the totality of the circumstances, we cannot agree that — even if Shields had been illegally arrested — his confession was anything other than voluntary.

Shields raises one further argument on appeal, namely, that the trial court erred when it increased his bond from $50,000 to $500,000 after the State increased the charges against him from first-degree murder to capital murder. However, because we affirm his conviction, the question of his pretrial bond is moot. This court does not decide moot issues. See K.S. v. State, 343 Ark. 59, 31 S.W.3d 849 (2000) (a case is moot when any decision rendered by this court will have no practical legal effect on an existing legal controversy).

Affirmed.

Corbin, J. not participating.

       Prior to deciding Bell, the court had followed the “bright line” approach and had held that “a statement must be suppressed under Rule 2.3 if the police officers simply fail to notify the person that they do not have to come to the station for questioning.” Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997) (noting that the court has imposed a positive duty upon die police to inform the citizen of his or her right to refuse the request although the plain words of Rule 2-3 do not specifically require such a verbal notice). Bell specifically retreated from this interpretation. We further note that, even under the prior interpretation requiring a verbal warning of a person’s freedom to leave, Shields’s argument would fail because the officers here did inform him he was free to leave.

       The reason for advising Shields that he was a potential suspect in a capital murder, according to Knowles, was because it was standard practice to advise an individual that he or she was charged under a “higher degree crime,” so that, if the charge actually were to be revised upward, the suspect would have been informed of his rights knowing the highest possible charge he might be facing.

       The Court said that if Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. Brown, 422 U.S. at 602.


author: Robert L. Brown, Justice.

text:
    David DAVIS and Mario Davis v. ST. JOHNS HEALTH SYSTEM, INC.
    01-653
    71 S.W.3d 55
    Supreme Court of Arkansas
    Opinion delivered March 21, 2002

      H. David Blair and Ray Baxter, for appellants.

      Bassett Law Firm, by: Shannon L. Fant, for appellee.
   Robert L. Brown, Justice.

Justice. This is a medical maiprac- tice case that presents the issue of whether courts have personal jurisdiction over a Missouri corporation. Appellants David Craig Davis and Mario Davis are a married couple living in the state of Missouri. The appellee is St. John’s Health System, Inc. (St. John’s), a Missouri corporation, which is qualified to do business in Arkansas. The Davises filed suit against St. John’s in Carroll County Circuit Court, and the suit was dismissed for lack of personal jurisdiction over St. John’s. The Davises appeal this dismissal.

On October 26, 1998, David Craig Davis experienced chest pains and sought medical treatment at St. John’s in Shell Knob, Missouri. He was attended to by Dr. Randall K. Miller, a physician employed by St. John’s. Dr. Miller concluded that Davis was suffering from costochondritis and administered a steroid injection to Davis. Dr. Miller did not order a chest x-ray or do a complete blood count on Davis. Davis was actually suffering from pneumonia, for which steroids are the wrong treatment.

Davis subsequently experienced a worsening of his symptoms and sought further medical treatment at another facility. The treating physicians at the new facility administered antibiotics to treat the pneumonia, but Davis’s condition continued to worsen. On October 28, 1998, he was admitted to the intensive care unit at the North Arkansas Medical Center in Harrison and placed on a ventilator. On October 30, 1998, he was transferred to Baptist Medical Center in Little Rock, where he remained until November 30, 1998.

On September 29, 2000, the Davises filed a complaint against St. John’s in Carroll County Circuit Court. They alleged negligence against St. John’s on the basis that Dr. Miller, its employee, erred in his diagnosis of costochondritis when Davis was actually suffering from pneumonia. The Davises specifically alleged that Davis’s treatment for pneumonia was compromised by the steroids administered by Dr. Miller.

On December 29, 2000, the Davises amended their complaint to allege additional jurisdictional facts. In their amended complaint, they asserted that St. John’s is a foreign corporation qualified to do business in Arkansas and subject to service of process in this state. The complaint further maintained that St. John’s owns substantial property in Arkansas and operates medical facilities in this state. Through its operation of the medical facilities, St. John’s has employees working in Arkansas. The complaint separately alleged that St. John’s has wholly owned subsidiaries located in Arkansas that operate medical care facilities in the state. These subsidiaries also, according to the complaint, own substantial property in the state and have employees in the state.

St. John’s filed a motion to dismiss for lack of personal jurisdiction of Arkansas courts pursuant to Ark. R. Civ. P. 12(b)(2). In its brief in support of that motion, St. John’s noted that Ozark Regions Health System, Inc., d/b/a Carroll County Regional Medical Center, is a corporate member of St. John’s and an Arkansas corporation. St. John’s argued to the trial court that despite this ownership of an Arkansas corporation, it did not have sufficient contacts with Arkansas to support the personal jurisdiction of Arkansas courts. The Davises responded to this motion and brief and observed that St. John’s had designated an agent in Arkansas for service of process. The Davises did, in fact, effect service of process on St. John’s by serving this Arkansas agent with their complaint.

The trial court held a hearing on the motion to dismiss and subsequently dismissed the complaint for lack of personal jurisdiction over St. John’s. The sole point before this court on appeal is whether the trial court erred in dismissing the Davises’ complaint for lack of personal jurisdiction. The Davises make several alternative arguments in support of their position. First, they assert that by serving the agent for service of process for St. John’s in Arkansas, they gained personal jurisdiction over the Missouri corporation. Secondly, they claim that St. John’s consented to the jurisdiction of Arkansas courts by doing business in Arkansas. Thirdly, they urge that even if neither of these arguments is persuasive, St.John’s has sufficient contacts with the State of Arkansas to sustain general jurisdiction by the Arkansas courts over it.

Rule 12(b)(2) of the Arkansas Rules of Civil Procedure provides that lack of jurisdiction over the person is a defense to a complaint that can be raised by motion. In considering the parties’ arguments surrounding a Rule 12(b)(2) motion, this court looks to the complaint for the relevant facts alleging jurisdiction, which are taken as true. Malone & Hyde v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992); Howard v. County Court of Craighead County, 278 Ark. 117, 644 S.W.2d 256 (1983). If the complaint does not allege sufficient facts on which personal jurisdiction can rest, then the complaint is factually deficient. Howard v. County Court of Craighead County, supra. Mere conclusory statements devoid of a factual foundation do not suffice in this inquiry. See id.

Prior to the 1995 legislative session, the long-arm statute allowed personal jurisdiction to be exercised over a non-resident defendant when there was a cause of action arising from the person’s transacting any business in this state, contracting for services or things in this state, causing tortious injury in this state, owning real property in the state, as well as other grounds. Ark. Code Ann. § 16-4-101C. (effectively repealed by amendment 1995). In 1995, the Arkansas General Assembly amended the long-arm statute and limited it to the constraints imposed by the due process clause of the Fourteenth Amendment. See 1995 Ark. Acts 486. Arkansas’ long-arm statute now reads:

B. Personal Jurisdiction. The courts of this state shall have personal jurisdiction of all persons, and all causes of action or claims for relief, to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution.

Ark. Code Ann. § 16-4-101(b) (Repl. 1999). See also John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 962 S.W.2d 801 (1998). Thus, this court now looks only to Fourteenth Amendment due process jurisprudence when deciding an issue of personal jurisdiction.

The seminal case on personal jurisdiction and the due process clause is International Shoe Co. v. Washington, 326 U.S. 310 (1945). In International Shoe, the United States Supreme Court expanded the limits of state jurisdiction over nonresident defendants, while leaving in place basic notions of due process limitations on that power. The Court in International Shoe looked not merely to the presence of the defendant in the state, as it had fifty years earlier in Pennoyer v. Neff, 95 U.S. 714 (1877), but rather looked to the nature of the contacts that the nonresident defendant had with the forum state. The Court said that attention must be paid to the “quality and nature” of those contacts, see International Shoe at 319, and also to whether or not that defendant through those contacts enjoyed the “benefits and protections” of the laws of the foreign state. Id. The Court further noted that there are situations in which a nonresident defendant’s contacts with a forum state may be so substantial and continuous as to justify jurisdiction over that defendant, even though the cause of action is “entirely distinct from those activities.” Id. at 318. The touchstone principle announced by the Court in International Shoe was whether assumption of personal jurisdiction over the nonresident defendant was based on “minimum contacts” by the nonresident defendant in the forum state which does not offend “traditional notions of fair play and substantial justice.” Id. at 316.

Since International Shoe, the Court has had occasion to revisit the personal jurisdiction question. A few of those cases are relevant to our inquiry and have set out further principles governing state court jurisdiction. A nonresident defendant’s contacts with a forum state, for example, must be sufficient to cause the defendant to “reasonably anticipate being haled into court there.” Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The Court has also identified two types of personal jurisdiction: general and specific. When a cause of action arises out of or is related to a defendant’s contacts with the forum state, the exercise of personal jurisdiction is one of specific jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). However, if the exercise of jurisdiction arises in a case not stemming from the defendant’s contacts with the forum state, the exercise of personal jurisdiction is one of general jurisdiction. Burger King Corp. v. Rudzewicz, supra; Perkins v. Benguet Mining Co., 342 U.S. 437 (1952); International Shoe Co v. Washington, supra. When general jurisdiction is in question, a defendant may be subject to the forum state’s exercise of personal jurisdiction if contacts with the state are continuous, systematic, and substantial. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984).

This court has stated that it viewed the five-factor test for determining minimum contacts which was adopted by the Eighth Circuit Court of Appeals in Burlington Industries, Inc. v. Maples Industries, Inc., 97 F.3d 1100 (8th Cir. 1996) as helpful. See John Norrell Arms, Inc. v. Higgins, supra. Those five factors are: (1) the nature and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) convenience of the parties.

The Davises’ first argument is that the Carroll County Circuit Court has jurisdiction over St. John’s simply by virtue of its service of process on the registered agent for St. John’s in this state. Two events in the past decade influence our decision on this point. The first is our case of Malone & Hyde, Inc. v. Chisley, supra. In Malone, we held that service of process on an Arkansas agent did not automatically give the Arkansas courts personal jurisdiction over a nonresident defendant. In that case, we granted a writ of prohibition, holding that there was no showing that the nonresident defendant’s actions in this state gave rise to the cause of action, as was then required under our former long-arm statute. That statute contemplated causes of action arising out of the nonresident defendant’s contacts with the state and essentially required specific jurisdiction. The second event that influences us was the 1995 amendment to the long-arm statute (Act 486), which eliminated the requirement that the cause of action arise out of the nonresident defendant’s specific contacts with the state. Act 486 allowed this state to exercise general jurisdiction up to the limits of the due process clause.

In our view, after the passage of Act 486 in 1995, the entire framework of personal-jurisdiction analysis changed. By Act 486, the General Assembly authorized Arkansas courts to exercise jurisdiction to the fullest extent due process will allow. The effect of this change was to convert Arkansas into a general-jurisdiction state for purposes of personal jurisdiction. Since the enactment of Act 486, this court has not had occasion to pass on the question of the limits of due process until this case. The United States Supreme Court, however, has provided precious little authority to govern us on the due process limits on general jurisdiction. One federal district court has summarized this marked lack of guidance:

The U.S. Supreme Court has provided little specific guidance as to the precise limits on the exercise of general personal jurisdiction. In the more than 40 years since its decision in International Shoe Co. v. Washington, the Court has decided only two cases specifically addressing general personal jurisdiction.
Perkins v. Benguet Consolidated Mining Co., supra, 342 U.S. at 437, 72 S. Ct. at 413 is the only case since International Shoe where the Supreme Court found that general personal jurisdiction was permissibly exercised by a state court. The defendant’s mining operations in the Philippine Islands were completely stopped during the Japanese occupation. The president-general manager-principal stockholder of the defendant corporation returned to his home in Ohio. While in Ohio he carried on “continuous and systematic supervision of the necessarily limited war time activities of the company.” Perkins, 342 U.S. at 446, 72 S. Ct. at 419. The corporation’s records were kept in Ohio. The directors’ meetings were held in Ohio. Corporate bank accounts were located in Ohio and all key business decisions were made there. In short, Ohio was the “principal, if temporary, place of business” for the corporation. (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779, 104 S. Ct. 1473, 1481, 79 L. Ed. 2d 790 (1984)). Noting that the “essence of the issue” was of “general fairness to the corporation” the Court focused its inquiry on whether the nature and amount of the defendant’s activities in Ohio made it “reasonable and just to subject the corporation to the jurisdiction” of the Ohio courts. Perkins, 342 U.S. at 444, 72 S. Ct. at 418. After defining the issue in these terms the Court simply concluded that, under these circumstances, an exercise of general personal jurisdiction was not prohibited by the due process clause.

Follette v. Clairol, Inc., 829 F. Supp. 840, 844 (E.D. La. 1993).

Other jurisdictions are not of one mind over the question of whether an agent, standing alone, allows a forum state to assume general jurisdiction over a nonresident defendant. The Fifth Circuit Court of Appeals is the court that has most squarely addressed this question. See Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179 (5th Cir. 1992). In Wenche Seimer, the Fifth Circuit concluded that an agent for service, by itself, was not enough:

To assert, as plaintiffs do, that mere service on a corporate defendant automatically confers general jurisdiction displays a fundamental misconception of corporate jurisdictional principles. This concept is direcdy contrary to the historical rationale of International Shoe v. State of Wash., 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)] and subsequent Supreme Court decisions. A registered agent, from any conceivable perspective, hardly amounts to “the general business presence” of a corporation so as to sustain an assertion of general jurisdiction.

Wenche Siemer, 966 F.2d at 183. But see Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196 (8th Cir. 1990) (nonresident corporation’s designation of agent for service of process in forum state amounted to consent to personal jurisdiction). The instant case differs from Wenche Siemer in that, here, the Davises assert contacts in addition to the presence of an agent for service of process in Arkansas. Thus, we need not decide this issue based solely on the presence of an agent for service in this state.

The Davises make the following allegation concerning the contacts that St. John’s has with Arkansas:

3. At all times relevant herein Defendant has, in addition to qualifying to do business in Arkansas, systematically and continually done business within the State of Arkansas through the operation of medical care facilities within the State of Arkansas. At all times relevant herein Defendant has owned substantial property within the State of Arkansas and has employees both residing and working within the State of Arkansas on a daily basis. Furthermore Defendant, through wholly owned subsidiaries, who are in fact alter egos of Defendant, has, at all times relevant herein, continuously and systematically done business within the State of Arkansas, owns and has owned property within the State of Arkansas, and has employees both residing in and working on a regular and daily basis within the State of Arkansas. By reason of its continuous business done within the State of Arkansas, Defendant has a presence within the State of Arkansas and upon that basis alone is subject to the personal jurisdiction of this court.

Because the parties are only at the pleading stage of this litigation, we do not know the extent of St. John’s contacts in Arkansas. What we do know at this point are the allegations made in the Davises’ complaint, and we are required for purposes of a Rule 12(b)(2) motion to take these allegations as true. Malone & Hyde v. Chisley, supra. As a result, we accept the fact that St. John’s is doing business in Arkansas, that it has substantial property in this state as well as employees, and that it is operating medical care facilities through wholly owned subsidiaries.

The question then becomes whether designating an agent for service of process and doing business in the state through a wholly owned subsidiary which entails ownership of substantial property and employment of employees in Arkansas subjects St. John’s to the personal jurisdiction of our courts. St. John’s argues vigorously that this is not enough to establish personal jurisdiction. We disagree. It is true that the parties reside in Missouri and the alleged negligence occurred there. It is also true that under our long-arm statute as it existed prior to Act 486 of 1995, personal jurisdiction would have been lacking. See Malone & Hyde v. Chisley, supra. Regardless of those facts, the General Assembly expanded the jurisdiction of Arkansas courts over nonresident defendants significantly by Act 486. That expansion, plus the fact that St. John’s has designated an agent for service of process in this state and is doing substantial business in this state, through a wholly owned subsidiary, convinces this court that St. John’s has sufficient contacts with this state to satisfy the constraints of the due process clause.

Accordingly, we reverse the order of dismissal and remand this case for further proceedings.

Reversed and remanded.

Corbin, J., not participating.