author: TOM GLAZE, Justice.

text:
    ARKANSAS STATE GAME and FISH COMMISSION; Jim Hinkle, Dr. Lester Sitzes, Forrest Wood, Mike Freeze, and Sheffield Nelson, Individually and As Members of the Arkansas Game and Fish Commission, and Hugh C. Durham, Director, Arkansas Game and Fish Commission, In Their Representative Capacities v. Marsha SLEDGE, Kirk McCullough, Belinda Morgan, Joey Wilders, Buddy B. Spivey, Dennis Campbell, Monroe Williams, Bobby Jo Willie, James “Jim” Dodd, and Arkansas Guides Association
    00-1425
    42 S.W.3d 427
    Supreme Court of Arkansas
    Opinion delivered April 26, 2001

      James F. Goodhart and James B. Watson; and Hill, Gilstrap, Perkins & Trotter, PC, by: G. Alan Perkins, for appellants.

      Hurst Law Offices, by: Q. Byrum Hurst, Jr. and Tylar C. M. Tapp, III, for appellees.
   TOM GLAZE, Justice.

This is an appeal from an order of the Pulaski County Circuit Court that purported to stay the enforcement of Arkansas Game and Fish Commission (“Commission”) Code 25.09. This rule, which the Commission adopted on October 19, 2000, prohibits commercial duck hunting guides from operating on three of the Commission’s wildlife management areas in Arkansas on Saturdays and Sundays during the duck hunting season. The regulation also prohibits waterfowl hunters from hunting while being guided by a commercial duck guide on those same areas on weekends.

On November 7, 2000, a group of duck hunters and duck hunting guides filed suit against the Commission in Arkansas County Circuit Court, seeking a declaratory judgment determining that the regulation was outside the scope and authority of Amendment 35. In addition, the plaintiffs requested a preliminary and permanent injunction requiring the Commission to allow hunting guides in the wildlife management areas until the matter could be fully heard by the court. On the same day, the plaintiffs also filed a petition for stay of enforcement of the regulation, stating that the duck hunting season began on November 18, 2000, and that they would be irreparably harmed in the absence of injunctive relief. On November 16, 2000, the Commission moved to dismiss the plaintiffs’ complaint and motion for stay of enforcement, alleging that the circuit court did not have subject-matter jurisdiction to issue injunctive relief and asserting that venue was in Pulaski County, not Arkansas County.

On November 27, 2000, the Arkansas County Circuit Court agreed with the Commission on the venue issue and transferred the case to the Pulaski County Circuit Court. Once in Pulaski County, the plaintiffs filed an amended complaint on December 6, 2000, in which they requested a “stay of enforcement” under Ark. Code Ann. § 16-113-305 (1987). The complaint again alleged the plaintiffs would suffer irreparable harm if the rule were to be enforced, and the plaintiffs asked the court to issue a stay requiring the Commission to allow them to utilize duck hunting guides.

After oral arguments on the issue, the Pulaski County Circuit Court entered an order on December 8, 2000, granting the plaintiffs’ petition for stay and preventing the Commission from enforcing the regulation at issue, pending the trial of the matter. The Commission brings this appeal from that December 8 order, and contends first that the so-called stay order was in effect an injunction from which it could appeal under Ark. R. App. P. — Civ. 2(a)(1); secondly, the Commission asserts that the circuit court did not have the authority or jurisdiction to issue injunctive relief and, for that reason, the December 8 order should be dismissed. The plaintiffs respond, arguing that the order was not an injunction, but instead was merely a stay order which was within the circuit court’s power to issue and is not final or appealable.

At the outset, we note that the duck hunting season ended in January. As it is now April, this case would appear to be moot. However, this court has recognized an exception to the mootness doctrine “for cases that are capable of repetition yet evading review, being cases in which the justiciable controversy will necessarily expire or terminate prior to adjudication” Cook v. State, 333 Ark. 22, 968 S.W.2d 589 (1998) (citing Wright v. Refer, 319 Ark. 201, 890 S.W.2d 271 (1995)). Because it is likely that this situation will arise again this fall when duck season opens, we address the issues presented to us by this case.

Under Rule 2(a), an appeal may be taken from a circuit, chancery, or probate court to this court from a final judgment or decree entered by the trial court. Rule 2(a)(6) also permits an appeal from an interlocutory order by which an injunction is granted, continued, modified, refused, or dissolved, or by which an application to dissolve or modify an injunction is refused. Therefore, the first question we must address is the nature of the order issued by the Pulaski County Circuit Court.

A stay is generally defined as “a suspension of the case or some designated proceedings within it. It is a kind of injunction with which a court freezes its proceedings at a particular point. It can be used to stop the prosecution of the action altogether, or to hold up only some phase of it, such as an execution about to be levied on a judgment.” Black’s Law Dictionary 1413 (6th ed 1990). An injunction, on the other hand, is a “court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury.” Black’s at 784.

Arkansas cases have defined an injunction as “a command by a court to a person to do or refrain from doing a particular act.” Arkansas Dep’t of Human Servs. v. Hudson, 338 Ark. 442, 994 S.W.2d 488 (1999); Tate v. Sharpe, 300 Ark. 126, 777 S.W.2d 215 (1989). It is mandatory when it commands a person to do a specific act, and prohibitory when it commands him or her to refrain from doing a specific act. Butler v. State, 311 Ark. 334, 842 S.W.2d 434 (1992). All court orders are mandatory in the sense that they are to be obeyed, but not all orders are mandatory injunctions. Tate, 300 Ark. at 129. To be a mandatory injunction, the order must be based upon equitable grounds to justify the use of the extraordinary powers of equity, such as irreparable harm and no adequate remedy at law. Id. In addition, the order must determine issues in the complaint, not merely aid in the determination of such issues. Id.; see also Warren v. Kelso, 339 Ark. 70, 3 S.W.2d 302 (1999) (stay of proceedings does not translate into an injunction).

In Hudson, this court dismissed an appeal from an order that the Arkansas Department of Human Services (“DHS”) claimed was an injunction. In rejecting DHS’s contention, the court noted that it had “previously declined to hold that a preliminary order which [did] not finally resolve or determine any part of the action is equivalent to an injunction for purposes of appeal.” DHS, in Hudson, had attempted to appeal from a circuit court’s order staying the department’s decision to revoke the appellee Hudson’s child-care license. This court wrote that the stay order did not determine any of the issues presented in Hudson’s appeal to the circuit court, “a clear prerequisite for establishing the presence of an injunction under our case law.” Hudson, 338 Ark. at 444.

In the present case, although the plaintiffs contended they were entitled to a “stay” under Ark. Code Ann. §§ 25-15-207 (Repl. 1996) and 25-15-212 (Supp. 1999), they pled in their complaint that they were entitled to a stay pursuant to Ark. Code Ann. § 16-113-305. That statute reads as follows:

In all cases where applications are made in any court in this state having jurisdiction thereof to enforce any statute or order of an administrative board or commission of this state, a stay against the enforcement of the statute or order may be issued by the court pending the determination of the suit by the state court.

(Emphasis added.)

The plaintiffs’ reliance on § 16-113-305 is misplaced, however, because they did not make an application to enforce any statute or order; rather, the plaintiffs sought to keep the Commission from enforcing its Code 25.09. In addition, no “order of an administrative board of commission” was issued in this case. Under Ark. Code Ann. § 25-15-202(6) (Supp. 1999), an “order” is “the final disposition of an agency in any matter other than rule making, including licensing and rate making, in which the agency is required by law to make its determination after notice - and hearing.” Fiere, the document issued by the Commission with which the plaintiffs took issue was a rule, not an order. A “rule” is “any agency statement of general applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice of any agency.” Ark. Code Ann. § 25-15-202(4) (Supp. 1999). Thus, because only the enforcement of an “order” may be stayed under§ 16-113-305, and because no “order” was issued here, that statute and its provision regarding a stay are not applicable.

In addition, even if the plaintiffs had sought a stay under § 25-15-212, their argument would still be unavailing. That section, as noted above, provides for judicial review of an administrative adjudication, but here, no such adjudication of the rights or privileges of any duck hunting guide has taken place. In other words, the Commission never sought to enforce Code 25.09 against any of the plaintiffs; thus, there has been no “final agency action” to be reviewed as provided for under § 25-15-212(a).

In sum, the plaintiffs were not entided to a stay under any of the statutes they cite, and the order that was issued by-the circuit court constituted an injunction. That order specifically directed the Commission to refrain from enforcing its rule. It was not merely a direction to do something “in the progress of a case,” Hudson, 338 Ark. at 444; rather, the order granted the relief sought by the plaintiffs. The circuit court’s order was not like the “stay” order entered in Hudson, because that stay was properly issued under § 25-15-212 to hold off enforcement of DHS’s administrative adjudication pending judicial review.

Here, on the other hand, the plaintiffs specifically asked the trial court to keep the Commission from enforcing its newly adopted regulation; the court entered an order commanding the Commission to refrain from doing so. The Commission’s ability to apply its regulation was the issue in this case, and the circuit court’s order effectively decided that the Commission must refrain from applying it. We conclude the order was an injunction, and therefore appealable under Ark. R. App. P. — Civ. 2(a)(6).

Because we hold the December 8 order is one granting injunctive relief and may be properly appealed from by the Commission under Rule 2(a)(6), the next question becomes whether the circuit court had the ability to enter such an order. Generally speaking, a circuit court is “wholly without jurisdiction to issue an injunction.” Villines v. Harris, 340 Ark. 319, 11 S.W.3d 516 (2000). As long ago as 1920, this court wrote as follows:

Injunctive relief is purely a matter of equitable jurisdiction, which, under the Constitution of this State, falls within the jurisdiction of separate chancery courts as now established. . . . We are of the opinion that the power of the Legislature in establishing separate chancery courts therefore swept away the jurisdiction of the circuit court in matters exclusively cognizable in courts of equity.

Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920); see also Manitowoc Remgf., Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991) (an injunction is an equitable remedy of which a chancery court has jurisdiction); Timmons v. McCauley, 71 Ark. App. 97, 27 S.W.3d 437 (2000) (citing Villines for its “unequivocal” statement that the circuit courts of this state do not possess the power to grant injunctive relief).

We note that there are three cases that appear to suggest that a circuit court may grant injunctive relief. See Arkansas State Medical Bd. v. Leipzig, 299 Ark. 71, 770 S.W.2d 661 (1989); Daley v. Digby, 272 Ark. 267, 613 S.W.2d 589 (1981); and Pinckney v. Mass Merchandisers, Inc., 16 Ark. App. 151, 698 S.W.2d 310 (1985). However, none of these cases cited Monette, and each has subsequently been disapproved. In Cummings v. Fingers, 296 Ark. 276, 753 S.W.2d 865 (1988), Justice Newbern wrote a concurrence in which he opined that Daley “erroneously reified] on a case which noted the granting of an injunction by a circuit court but in which its power to do so was not the issue on appeal.” With respect to Pinckney, he noted that the court of appeals held that a circuit court had jurisdiction to issue an injunction under Ark. Code Ann. § 16-13-304, which dealt with chancery courts’ jurisdiction over matters of equity. Neither of those two cases, Justice Newbern commented, “cited Monette ...[,] nor did either offer a constitutional rationale to replace the one stated there. If [Daley and Pinckney] are cited to us in the future as being inconsistent with this case, we should overrule them.” Cummings, 296 Ark. at 281-82 (Newbern, J., concurring). We take the opportunity to explicitly overrule Leipzig, Daley, and Pinckney with this opinion.

In conclusion, we hold the Pulaski County Circuit Court was wholly without jurisdiction to enjoin the Commission from enforcing its regulation 25.09, and therefore reverse and dismiss the trial court’s December 8 order preventing the Commission from enforcing its regulation.

       Code 25.09 reads as follows: “GUIDING RESTRICTIONS ON CERTAIN WILDLIFE MANAGEMENT AREAS. It shall be unlawful for those holders of the Special Guide License to guide waterfowl hunters on Bayou Meto, Dave Donaldson/Black River and Shirey Bay/Rainey Brake Wildlife Management Areas on Saturdays or Sundays. It shall also be unlawful for waterfowl hunters to hunt while being guided by a Special Guide License holder on these areas at these times.”

       DHS revoked Hudson’s license, and she appealed that decision to the circuit court, which stayed the DHS decision pursuant to Ark. Code Ann. § 25-15-212(c) of the Administrative Procedures Act.

       We also note that Arkansas voters approved Ark. Const, amend. 80 at the November 2000 general election. This amendment, which shall become effective on July 1, 2001, provides that the circuit courts will be “the trial courts of original jurisdiction of all justiciable matters not otherwise assigned” by the Constitution. See Ark. Const, amend. 80, Section 6(A). Under Section 6(B) of the amendment, “[s]ubject to the superintending control of the Supreme Court, the judges of a circuit court may divide that circuit court into subject matter divisions, and any circuit judge within the circuit may sit in any division.” This court issued Administrative Order No. 14 on April 6, 2001; in that order, we directed that the circuit judges of the judicial circuits “shall establish the following subject-matter divisions in each county of the judicial circuit: criminal, civil, juvenile, probate, and domestic relations. The designation of divisions is for the purpose of judicial administration and caseload management and is not for the purpose of subject-matter jurisdiction.” Admin. Order No. 14, § 1(a), 344 Ark. 747 (2001) (per curiam). The circuit judges are to submit their administrative plans to this court by June 1, 2001, and this court is to approve or disapprove those plans by July 1, 2001, in order that the plans may be implemented by January 1, 2002. See Admin. Order No. 14, § 4(a).


source: Caselaw Access Project

author: DONALD L. Corbin, Justice. JIM HANNAH, Justice, TOM GLAZE, Justice, TOM GLAZE, Justice,

license: Public Domain

text:
    Damien Wayne ECHOLS v. STATE of Arkansas
    CR 99-1060
    42 S.W.3d 467
    Supreme Court of Arkansas
    Opinion delivered April 26, 2001
    [Supplemental opinion on denial of rehearing delivered June 7, 2001.]

      Mandell & Wright, L.L.P., by: Edward A. Mallett, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., and James R. Gowen, Jr. Ass’t Att’y Gen., for appellee.

       Glaze J., would grant. See dissenting opinion at 344 Ark. 522-C.

   DONALD L. Corbin, Justice.

Appellant Damien Wayne Echols was charged, along with Jason Baldwin and Jessie Misskelley, with the murders of three eight-year-old boys, Michael Moore, Steve Branch, and Christopher Byers, that occurred on May 5, 1993, in West Memphis. Misskelley was convicted of one count of first-degree murder and two counts of second-degree murder and was sentenced to life imprisonment and a total of forty years’ imprisonment, respectively. This court affirmed his convictions and sentences in Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 519 U.S. 898 (1996). Echols and Baldwin were subsequently tried together in the Craighead County Circuit Court and were each convicted of three counts of capital murder. Baldwin received fife imprisonment without parole, while Echols was sentenced to death. This court affirmed their convictions and sentences in Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). Thereafter, the United States Supreme Court denied Echols’s petition for writ of certiorari. See Echols v. Arkansas, 520 U.S. 1244 (1997). Echols subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition, and this appeal followed. On appeal, Echols raises ten allegations of error. Our jurisdiction is pursuant to Rule 37 and Ark. Sup. Ct. R. 1-2(a)(8). We affirm the trial court’s judgment in part, and we reverse and remand in part.

Echols initially challenges the sufficiency of the trial court’s findings under Rule 37. The record reflects that Echols filed a total of four petitions for relief under Rule 37. The most recent one, the second amended petition, raised five general grounds for relief and contained forty-six specific claims. Eight days of hearings took place over the period from May 1998 to March 1999. In an order entered on June 17, 1999, the trial court generally denied nineteen of Echols’s claims, specifically denied twelve claims, and completely omitted rulings on fifteen claims. As a result, Echols argues that the trial court’s written findings in this case are insufficient, and that this matter should be remanded. We agree.

Rule 37.5 provides the postconviction procedure to be applied in death-penalty cases in which the defendant became eligible to file a Rule 37 petition on or after March 31, 1997. See Rule 37.5(k). Echols initially became eligible to file a petition on January 13, 1997, the date that this court entered the mandate following his direct appeal. This court subsequently granted Echols’s motion to stay the mandate so that he could petition the Supreme Court for a writ of certiorari. The Court denied certiorari on May 27, 1997. Thereafter, on June 2, 1997, this court reissued the mandate. Accordingly, Echols’s postconviction claims are governed by Rule 37.5.

Rule 37.5(i) provides in part that when a hearing is held on the petition, “the circuit court shall, within sixty (60) days of the conclusion of the hearing, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition.” This provision was adopted from the “Arkansas Effective Death Penalty Act of 1997.” See Ark. Code Ann. § 16-91-202(h)(1) (Supp. 1999) (requiring that “the judge shall make specific written findings of fact and shall expressly state the judge’s conclusions of law relating to each issue raised in the petition for post-conviction relief’). Although this court has not been squarely presented with the opportunity to apply Rule 37.5(i), it has addressed the spirit and intention of that provision.

In Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999), the appellant had been sentenced to death prior to the effective date of Rule 37.5. Thus, his postconviction proceedings were governed by Rule 37.3. On appeal, he argued that the trial court erred in denying his petition without a hearing. This court did not reach the merits of that issue, as it concluded that the trial court’s order was insufficient under Rule 37.3(a). In reaching its decision, this court reviewed the policy considerations behind Rule 37.5:

Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Thus, “in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing.” Id. at 188-89, 964 S.W.2d at 185. Though Wooten received the death penalty, Rule 37.5 does not govern his postconviction review, as it came into effect after he became eligible to file a petition under Rule 37.2(c). See Rule 37.5(k). Nonetheless, we believe that the intent and purpose of that rule reinforces the responsibility of the trial court to make specific written findings and conclusions of law on each issue raised in the petition.

Id. at 695-96, 1 S.W.3d at 10-11 (emphasis added).

The State contends that Wooten is distinguishable, because the order there was conclusory and contained no factual findings. Here, in contrast, the trial court made written findings and conclusions on some of the issues raised in Echols’s petition. The State contends, therefore, that Wooten does not require a remand in this instance. Rather, the State asserts that it was Echols’s obligation to obtain rulings on the remainder of the issues raised in his petition. The State relies on the cases of Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000), and Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998) (per curiam), in which this court held that where the trial court makes specific findings on some, but not all, of the issues raised in the petition, it is up to the defendant to obtain rulings on any omitted issues. The failure to do so renders those issues procedurally barred from consideration on appeal.

We disagree with the State’s assertion that the holdings in Beshears and Matthews are controlling in this case. In the first place, neither of those cases involved appellants who had been sentenced to death. This court, like the Supreme Court, has recognized that death-penalty cases are different from other criminal cases, due to the obvious finality of the punishment. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); American Civil Liberties Union v. State, 339 Ark. 314, 5 S.W.3d 418 (1999); Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), modified on other grounds, State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). Consequently, this court’s appellate review of death-penalty cases has always been more comprehensive than in other cases. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. denied, 434 U.S. 878 (1977). Indeed, this court will allow an appellant under a sentence of death to raise issues for the first time on appeal from the denial of postconviction relief, where prejudice is conclusively shown by the record. See Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000); Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

In the second place, Beshears and Matthews were decided under Rule 37.3(c), which differs considerably from the language in Rule 37.5(i). Rule 37.3(c) provides in pertinent part that the trial court “shall determine the issues and make written findings of fact and conclusions of law with respect thereto.” (Emphasis added.) Under that rule, the trial court has the ultimate authority to determine what issues must be addressed in a written order. Rule 37.5(i), on the other hand, provides a more exacting duty, mandating that the trial court “make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition.” (Emphasis added.) Thus, under Rule 37.5(i), the petitioner determines the issues that must be addressed by the trial court in a written order.

Furthermore, as pointed out in Wooten, 338 Ark. 691, 1 S.W.3d 8, the purpose of the exacting requirements of Rule 37.5 is to provide a comprehensive state-court review of a defendant’s claims and, therefore, eliminate the need for multiple postconviction actions in federal court. See also Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001) (holding that Rule 37.5 requires a heightened standard of review of death cases). Thus, to deny review of issues raised in death cases on a purely procedural basis, without first exercising great care to assure that the denial rests on solid footing, would clearly thwart that purpose.

In sum, because Echols has been sentenced to death, we remand this case to the trial court for entry of a written order in compliance with Rule 37.5(i) and this court’s holding in Wooten. We limit, however, the trial court’s duties on remand to making factual findings and legal conclusions only as to the issues raised by Echols on appeal, as all other claims raised below but not argued on appeal are considered abandoned. See, e.g., Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). Thus, this remand should not be construed by Echols as an opportunity to reopen the evidence or to raise new issues. Additionally, to avoid any lengthy delay in this matter, the order is to be completed within sixty days from the date the mandate is issued. We will then consider the issues raised on appeal.

Notwithstanding our decision to remand this matter, we may address the merits of Echols’s contention that the trial judge should have recused from the Rule 37 proceedings. See Beshears v. State, 329 Ark. 469, 947 S.W.2d 789 (1997) (per curiam). This court has consistently held that the judge who presides over a defendant’s trial may also preside over that defendant’s postconviction proceeding. See Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996) (per curiam); Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). Furthermore, despite Echols’s argument to the contrary, “recusal is not required when some of the judge’s rulings are considered in the Rule 37 proceedings.” Bryant, 323 Ark. at 133, 913 S.W.2d at 259 (citing Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972)). A trial judge’s decision not to recuse from a case is a discretionary one and will not be reversed on appeal absent an abuse of that discretion. Beshears, 329 Ark. 469, 947 S.W.2d 789 (citing Bryant, 323 Ark. 130, 913 S.W.2d 257). To decide whether there has been an abuse of discretion, this court reviews the record to determine if prejudice or bias was exhibited. Id. (citing Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994)). It is the appellant’s burden to demonstrate such bias or prejudice. Id.

Here, the trial court found that Echols failed to show either bias or prejudice and therefore failed to carry his burden. On appeal, Echols does not argue that the trial judge was biased or prejudiced against him. Instead, he contends that the trial judge should have recused because of the alleged conflict between the judge’s role as trial judge and his role as a potential witness at the Rule 37 proceedings. This allegation is insufficient to overcome the presumption that the trial judge is impartial. See, e.g., Walls v. State, 341 Ark. 787, 20 S.W.3d 322 (2000); Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). We thus affirm the trial court’s ruling on this issue.

Affirmed in part; reversed and remanded in part.

Glaze, J., dissents.

HANNAH, J., concurs in part; dissents in part.

JIM HANNAH, Justice,

concurring in part; dissenting in part. The court remands this case to the trial court to make written factual findings and legal conclusions as to issues raised by Echols in his Rule 37 petition. While I agree that the trial court must make specific written findings of fact, and must also expressly state the conclusions of law relating to each issue raised in the petition, I do not agree that the trial court in this case failed to meet this burden on each and every issue raised by Echols. Specifically, the trial court made specific findings and conclusions of law on the assertion the trial judge should have recused because he presided over the criminal trial, on the issue of the bite marks as new evidence, and on the issue of a biased jury. The trial court should not have to revisit these issues.

TOM GLAZE, Justice,

dissenting. The majority opinion reaches an absurd result in construing this court’s own rule, Ark. R. Cr. P. 37.5, in the manner it does. All criminal defendants must be afforded due process of law at trial or Rule 37 proceedings, but even in death-penalty cases, defendants must raise their arguments and obtain a ruling at trial or postconviction hearing. Even on direct appeals, we have held that defendants must raise constitutional issues at trial, rather than waiting to raise them later in Rule 37.5 proceedings. See Nooner v. State, 339 Ark. 253, 4 S.W.3d 997 (1999); see also Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000).

While the majority opinion mentions Act 925 of 1997, codified as Ark. Code Ann. §§ 16-91-201 et seq., the Arkansas Effective Death Penalty Act, as supporting its interpretation of Rule 37.5, the court is clearly wrong. In fact, the court’s interpretation runs directly counter to the ends of justice intended and sought by the General Assembly, as described in Act 925’s emergency clause:

It is found and determined by the General Assembly of the State of Arkansas that the current system for carrying out a sentence of death is hopelessly fraught with endless litigation in state and federal court which undermines the deterrent value of the death penalty and imposes a needless financial burden on the state’s resources, while depriving death row inmates of the right to obtain speedy relief on any meritorious constitutional claims. (Emphasis added.)

Here, where Echols believed the circuit court’s postconviction order was insufficient or conclusory in parts, he had the duty, if dissatisfied with the trial court’s order, to request the trial court to modify its order to provide further evidentiary findings and conclusions of law. See Beshears v. State, 340 Ark. 70, 8 S.W.3d 32; Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998). To hold that a defendant-petitioner no longer is required to make such a request only encourages a defendant-petitioner to stand mute at Rule 37 proceedings and to delay raising any objections he or she may have until after filing an appeal. Echols’s counsel was well aware of what objections he-had with the trial court’s findings, but he never mentioned them so the trial judge could address and rule on them. When the defendant-petitioner and the State fully develop a record at a Rule 37 hearing, there is absolutely no reason — except a quest for delay — to allow a party to complain of the trial court’s order being insufficient. Echols’s counsel knew the evidence introduced at the hearing, and, as the petitioner, he knew (or should have known) the trial court could have provided any additional or needed evidence and findings if the petitioner had only objected and asked the trial judge to do so.

This appeal and the record consists of more than 1800 pages. Both the State and Echols presented volumes of evidence that bore in detail on the merits (or lack of merits) of the 46 issues raised by Echols’s Rule 37 petition. Our court on review has ample evidence before it to decide all issues which were properly preserved below. It is an absolute waste of time for this court to send this case back to the trial court to cover the very same evidence bearing on the same issues a second time. The majority opinion recognizes this fact by admonishing Echols’s counsel that this court’s remand is not to be construed as an opportunity to reopen the evidence or to raise new issues. Such an admonition underscores that this court has sufficient evidence now before it to address and rule on Echols’s appeal.

It is important to reemphasize that, when this case is again before the trial court, the trial judge will be left to review the same record we now have before us; he will merely transpose the evidence already in the record and add it to the findings listed in the judge’s final order denying Echols’s petition. After doing so, nothing will have been changed, including the judge’s initial decision. Predictably, on remand, Echols will want to open the record to produce additional evidence, even though his case has been fully tried; the record is complete and further evidence is unnecessairy.

Because of today’s majority opinion, Echols, at the conclusion of the hearing on remand, will have no obligation to inform the trial court whether he is satisfied with the judge’s new findings. Thus, this court can expect, yet again, a future request for another appeal and remand based on allegations that the trial court’s “new” findings are insufficient. More delays can be expected, which fails to comport with Arkansas’s Effective Death Penalty Act. Echols has been afforded counsel, a fair hearing and an opportunity to raise any issue he chose, including constitutional ones. In short, he has been afforded constitutional due process. To allow a defendant-petitioner to stand mute at a Rule 37 hearing and to hold the presiding judge erred on issues that he was never asked to address, only fosters needless delays and gamesmanship by counsel. Even death-penalty cases should not permit such an abuse of the judicial system.

Because I think the record is fully and sufficiendy developed to reach the merits of this case, I would decide this case without further delay.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

June 7, 2001

42 S.W.3d 467

Mandell & Wright, L.L.P., by: Edward A, Mallett, and Alvin Schay, for appellant.

Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., and James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.

PER CURIAM. The State has filed a petition for rehearing in this case, claiming that this court committed an error of law when it remanded this case for the trial court to make specific findings under Ark. R. Crim. P. 37.5(i), but only as to the issues raised on appeal. The State asserts that it is inconsistent for this court to hold that the issues not raised by Echols on appeal are abandoned on remand, while refusing to hold that the issues raised on appeal, but not specifically ruled on below, are not procedurally barred. In other words, the State claims that Echols’s refusal to obtain rulings on particular issues after the hearing equates to his having abandoned those issues below. We disagree.

The State’s argument fails to recognize whose burden it is to make factual findings in a Rule 37 death case. Clearly, under Rule 37.5(i), the burden is placed squarely on the shoulders of the trial court to make specific written findings of fact and conclusions of law on each issue raised in the petition. As clearly pointed out in our decision, the reason behind the adoption of such an exacting requirement is to enable a meaningful and comprehensive state-court review of postconviction issues in death cases. Under Rule 37.5, the defendant is allowed to raise as many issues as he chooses that may demonstrate that his conviction and death sentence were illegally and unconstitutionally obtained. Once the issues are raised, the trial court then must make a determination whether a hearing is necessary. See Rule 37.5(h). Regardless of whether a hearing is held, however, the trial court’s duty is the same — to make specific written findings of fact and conclusions of law on each issue raised in the petition. The trial court’s duty is not lessened by the defendant’s failure to expand upon or fully develop his claims during the hearing. This would effectively result in placing additional burdens on those defendants who are given a hearing under the rule.

In contrast, the trial court plays no role in deciding which issues the defendant may or will raise on appeal. Instead, the defendant makes a conscious choice as to which issues of alleged error he wants to pursue on appeal. The defendant may raise all issues decided against him below, or he may choose to pursue only some of those issues. When he makes that choice, however, he has effectively waived consideration of the other issues not pursued. But this waiver is not one that is done inadvertently or accidentally; rather, it is a choice that is made deliberately. Thus, it is not so much a procedural bar, as the State asserts.

That being said, there may come a time when this court is presented with a claim that the trial court’s failure to make specific written findings and conclusions on each issue, as required under Rule 37.5(i), interfered with the defendant’s ability to choose which issues he would pursue on appeal. Stated another way, the defendant may argue that without ruHngs on each issue, it is impossible to assess which rulings may be assigned as error on appeal. In such a case, this court would likely have to remand for the trial court to make findings and conclusions on all the issues raised in the petition. That is not necessary here, however, as Echols made no such argument to this court.

Accordingly, we deny the State’s petition. There is nothing inconsistent in this court’s opinion that would require rehearing. In any event, if this court were to grant rehearing, the State would be no better off than it is now. We see no benefit to anyone involved to order the trial court to make specific written findings and conclusions on each of the forty-six individual claims raised by Echols in his petition, as he has already chosen which issues to pursue on appeal. In short, there is no reason to grant the petition and belabor this case any further.

GLAZE, J., dissents.

TOM GLAZE, Justice,

dissenting. My main concern regarding this court’s interpretation of its own rule, Ark. R. Crim. P. 37.5(i), is that it portends substantial delays in death-penalty cases. Such delays should not be countenanced, since they run counter to the defendant’s right to a speedy trial. While the majority opinion appears to rely on the Arkansas Effective Death Penalty Act of 1997 to support the court’s decision, the General Assembly emphasized it passed the Act because Arkansas’s system for carrying out a death sentence had been hopelessly fraught with endless litigation in state and federal court. The system undermined the deterrent value of the death penalty and imposed a needless financial burden on the state’s resources, while depriving death-row inmates of the right to obtain speedy relief on any meritorious constitutional claims. This court’s interpretation of its rule and the Arkansas Effective Death Penalty Act only insures that extended trials and delays will continue in the future. Such a result is adverse to everyone’s meritorious interests.

        Wooten was decided in October 1999, after the order was entered in this case. Thus, the trial court did not have the benefit of that holding.

       Compare today’s case of Beulah v. State, CR00-144, opinion delivered April 26, 2001, where this court seems to take a somewhat conflicting approach in another capital murder case. There, Beulah argued that, under the terms of Ark. Code Ann. § 9-27-318(g) (Supp. 1999), the trial judge should have provided written findings upon denying the transfer of his case to juvenile court. Our court rejected Beulah’s argument and held it was unnecessary to remand for additional findings. In analogizing § 9-27-318(g) to ARCP Rule 37.5, this court opined that the statute does not contain language Eke that in the Rule, which provides the circuit court shall make specific written findings of fact with respect to each factual issue raised by the petition. While the identical language in Rule 37.5 is not employed in § 9-27-318(g), the statute’s terms require the same duties of the circuit judge, namely, “the court shall make written findings and consider all of the [ten] factors [specifically] listed in the statute.”

       The trial judge, in my view, should request counsel for both parties to present him with specific written findings of fact and conclusions of law so the trial judge can comply with the time constraints set out in Rule 37.5(i).


author: DONALD L. Corbin, Justice.

text:
    STATE of Arkansas; University of Arkansas; University of Arkansas Cooperative Extension Service; and University of Arkansas Board of Trustees v. Gary GOSS
    00-841
    42 S.W.3d 440
    Supreme Court of Arkansas
    Opinion delivered April 26, 2001

      Jeffrey A. Bell and Rhonda M. Thornton; and Lori L. Freno, for appellants.

      John Patterson, PA. and Sowers & Wolf, LLC, by: D. Eric Sowers, for appellee.
   DONALD L. Corbin, Justice.

This is an interlocutory appeal from adenial of a motion to dismiss based on a claim of sovereign immunity. Appellants are the State of Arkansas, the University of Arkansas (“University”), the University of Arkansas Cooperative Extension Service (“Cooperative Extension”), and the University of Arkansas Board of Trustees (“Board”). Appellee Gary Goss filed a complaint alleging that Appellants had refused to hire him because of his age. The issue before this court is whether Appellee has a viable claim against Appellants in State court. As this appeal involves an issue of interpretation of the sovereign-immunity provisions of the Arkansas Constitution, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1).

The record reflects that Appellee applied for a position with the University’s Cooperative Extension on August 1, 1995, at which time he was forty-four years old. A three-person selection committee was responsible for filling this position. The job was given to another candidate, who was under the age of forty. Appellee filed a claim on October 15, 1996, in the White County Circuit Court alleging that he was not given the job because of his age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”). Appellants responded to the complaint on October 24, 1996, with a notice of removal to the United States District Court. That same day, Appellants filed their answer in the district court denying Appellee’s allegations. Therein, they claimed that Appellee was barred from suing them by the Eleventh Amendment to the United States Constitution, pursuant to the United States Supreme Court’s decision in Seminole Indian Tribe of Florida v. Florida, 517 U.S. 44 (1996).

On June 18, 1997, Appellants filed a motion for summary judgment in the district court alleging that Appellee had failed to state facts upon which relief could be granted and averring that they were entitled to immunity under the Eleventh Amendment. On August 29, 1997, the district court entered an order denying Appellants’ motion to dismiss on grounds of Eleventh Amendment immunity, but granting it with regard to Appellee’s failure to state a claim. Appellee appealed the order dismissing his claim to the Eighth Circuit Court of Appeals. Without ruling on the merits, the Eighth Circuit ruled that the district court lacked jurisdiction to hear Appellee’s claim because the Eleventh Amendment prohibits ADEA suits against a State and its agencies in federal court.

Appellee then moved the district court to remand the case back to the White County Circuit Court. Upon remand, Appellants filed a motion to amend their answer in fight of the fact that the case had been remanded to State court. In that motion, Appellants stated that an amended answer was necessary to address the issues of sovereign immunity and venue.

Following the grant of their motion, Appellants filed an amended answer asserting that Appellee’s claim was barred on the basis of sovereign immunity, pursuant to Article 5, Section 20 of the Arkansas Constitution. Appellants also answered that Pulaski County was the proper venue for this case, as it was a suit against the State and its agencies. Appellee filed an amended complaint alleging that Appellants’ actions violated both the ADEA and the Arkansas Age Discrimination Prohibition Act (“ADPA”), codified at Ark. Code. Ann. §§ 21-3-201-205 (Repl. 1996). Appellants filed an answer to the amended complaint again asserting the affirmative defense of sovereign immunity and challenging venue.

Appellants subsequently filed a motion to dismiss, pursuant to Ark. R. Civ. P. 12(b)(1), (2), (3), and (6), wherein they alleged that they were immune from suit and that improper venue required dismissal of the action. The trial court denied Appellants’ motion to dismiss. The trial court’s order stated that all parties were in agreement that Appellee could not maintain a claim under the ADEA in State court. The trial court then found that the State may not be sued under section 21-3-203 in the absence of any specific waiver to the contrary. The trial court went on to find, however, that while the State may not be sued under the ADPA, the individual functionaries who may or may not have violated the law may be subject to liability. In sum, the trial court found that the only cause of action Appellee could maintain was against the members of the Board for any acts that may have been ultra vires. Finally, the trial court agreed that while venue was proper in Pulaski County, Appellants had waived this argument because they failed to raise the issue of venue within twenty days of service of process. From that order, comes the instant appeal.

Ordinarily, an appeal may not be taken from an order denying a motion to dismiss. This court has held, however, that an appeal may be taken from an order denying a motion to dismiss, under Ark. R. App. P. — Civ. 2(a)(2) based on the movant’s assertion that he is immune from suit. See Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998); Virden v. Roper, 302 Ark. 125, 788 S.W.2d 470 (1990). The rationale justifying an interlocutory appeal is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. Id.

On appeal, Appellants argue that Appellee’s suit against them is barred by the doctrine of sovereign immunity. Sovereign immunity is jurisdictional immunity from suit. Milberg, Weiss, Bershad, Hynes, & Lerach, LLP v. State, 342 Ark. 303, 28 S.W.3d 842 (2000); State Office of Child Support Enforcem’t v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997). This defense arises from Article 5, Section 20 of the Arkansas Constitution, which provides: “The State of Arkansas shall never be made a defendant in any of her courts.” This court has consistently interpreted this constitutional provision as a general prohibition against awards of money damages in lawsuits against the state and its institutions. See, e.g., Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771, cert. denied, 498 U.S. 824 (1990). The doctrine of sovereign immunity is rigid and may only be waived in limited circumstances. Mitchell, 330 Ark. 338, 954 S.W.2d 907. This court has recognized only two ways in which a claim of sovereign immunity may be surmounted: (1) where the state is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity. Id. Appellee contends that this matter falls within the latter exception because the legislature’s passage of the ADPA constituted a waiver of the State’s sovereign immunity. We disagree.

The ADPA prohibits public employers from discriminating on the basis of age. It also sets forth the definition of a “public employer” and limits the Act’s provisions to those person who are at least forty years of age. There is, however, no declaration of legislative intent to waive the State’s sovereign immunity. Nothing in the ADPA subjects the State to liability for monetary damages for violations of the Act’s provisions. Here, the only relief Appellee seeks under his state claim is an award of monetary damages. Because the ADPA does not provide for such an award, Appellee’s claim under this Act fails. This court will not read into a statute a provision that simply was not included by the General Assembly. Accordingly, we reverse and dismiss this matter.


author: ROBERT L. BROWN, Justice.

text:
    Lonnie BEULAH v. STATE of Arkansas
    CR 00-1441
    42 S.W.3d 461
    Supreme Court of Arkansas
    Opinion delivered April 26, 2001

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen Jr., Ass’t Att’y Gen., for appellee.
   ROBERT L. BROWN, Justice.

Appellant Lonnie Beulah appeals the order of the circuit court denying his motion to transfer his case to juvenile court pursuant to Ark. Code Ann. § 9-27-318(1) (Supp. 1999). He argues specifically that the circuit court failed to make the requisite written findings as required by Act 1192 of 1999, Section 16, now codified at Ark. Code Ann. § 9-27-318(g) (Supp. 1999), and further failed to consider all of the factors as required by the same Act. We disagree with Beulah’s reading of § 9-27-318(g), and we affirm the order of the circuit court.

On October 13, 1999, the Pulaski County Prosecuting Attorney filed a two-count felony information in Pulaski County Circuit Court against appellant Lonnie Beulah, his two brothers (Eric Deshawn Beulah and Derrick Lamont Witherspoon), and Erik James Bullock. The information alleged that the four defendants committed capital murder by causing the death of Heaven Pace, an unborn fetus, by beating the fetus’s mother, Shiwona Pace, and further committed first-degree battery against Shiwona Pace by beating her so severely as to cause the miscarriage or stillbirth of the fetus. The felony information resulted from events that occurred on August 26, 1999, when the appellant was fifteen years old.

The appellant moved to have the matter transferred to juvenile court and on April 3, 2000, a hearing commenced on that motion before the circuit court. At the hearing, Little Rock Police Detective Charles Weaver summarized the allegations against the appellant. He testified that on August 26, 1999, he investigated a homicide which stemmed from a residential robbery. The unborn fetus of the beaten victim was the homicide victim. The investigation, which included a statement given by the appellant, revealed that on that evening, Shiwona Pace, her five-year-old son, and her former boyfriend, Erik Bullock, were returning to Bullock’s home. Upon entering the home, three men grabbed them and pulled them into the house. Bullock was taken to a back room, as was Ms. Pace’s son. Ms. Pace, who was nine months pregnant, was then thrown to the floor in the living room where she was kicked and beaten by the three men. After the men left the home, Ms. Pace received medical, treatment at Doctor’s Hospital in Little Rock. The child she was carrying, however, was lost. Detective Weaver also testified that his investigation revealed that Bullock was to pay, or had paid, the appellant and the other defendants for their part in the incident. The State concluded its case by offering a copy of the appellant’s juvenile record which showed that he was adjudicated delinquent on the misdemeanor charge of obstructing government operations on April 13, 1999.

As part of his case, the appellant submitted his school records as evidence and also called witnesses at the hearing. Greg Morris, director of the James H. Penick Boys and Girls Club in Little Rock, and Chris Robinson, an investment banker with a Little Rock firm, Crews and Associates, testified for the appellant. Mr. Morris described the appellant as “a very good kid” who was a regular attendee at the Boys Club. Mr. Morris testified that he knew the appellant well and that the appellant had been helpful in doing chores around his home and in “throwing” a paper route. The appellant was the product of a single-parent home, according to Mr. Morris, and his mother had struggled to raise her sons. Mr. Morris also testified that he thought the appellant was a “follower” of his older brothers in the alleged crime. Mr. Robinson described the appellant as an “outstanding young man” who also helped out in Mr. Robinson’s home, played with Mr. Robinson’s kids, and looked up to his older brothers. Both Mr. Morris and Mr. Robinson testified that the appellant had the potential to be a productive citizen in society.

When the hearing resumed on April 6, 2000, the appellant called William Ray Clark, the owner of a sports marketing firm in Dallas, Texas, as a witness. Mr. Clark testified about the appellant’s impoverished background, and the fact that he was raised in a dilapidated home by a mother who did not work. He described the appellant as a “sweet kid” and “caring,” but also a person who was “impressionable.”

At the conclusion of the hearing, the circuit court said:

AH right. WeU, I’m going to deny your motion to transfer and the very first reason for it is because of the very seriousness of the offense and whether violence was employed by the juvenHe in the commission of the offense, and as you know, that’s the very first prerequisite that we look at. But your motion wiH be denied and I wiH prepare an order reflecting the Court’s decision.

After appellant’s counsel reminded the circuit court that the 1999 legislation had amended the statute at issue by including ten factors for the court to consider regarding a transfer to juvenile court, the court responded, saying:

As I recall, I said the very first reason is because of that, then I think I said — you and I have trouble knowing what each other says — that there will be other reasons stated in my written opinion.

The circuit court later filed its order, which included the following findings and conclusions of law:

Due to the violent nature of this offense and the seriousness of the charge the Court concludes that Lonnie Beulah should be tried as an adult. In accordance with Arkansas Code Annotated § 9-27-318, the Court finds that the following factors apply to the defendant and require this Court to retain jurisdiction of this matter:
1. The seriousness of the offense of capital murder and the protection of society require this defendant to be prosecuted in circuit court.
2. From the testimony elicited at the hearing, it is this Court’s determination that the alleged offense was committed in an aggressive, violent, premeditated and willful manner.
3. This alleged offense was committed against a person, and a death resulted.
4. The culpability of the juvenile is great in this case, in that there was planning on the part of the defendant to participate in the crime and a high level of participation in the crime.
5. The defendant has been previously convicted in juvenile court of a misdemeanor offense.
6. The defendant was part of a group in the commission of the alleged offense. In addition, the defendant gave a statement to the police that he was to be paid for his participation in the alleged offense.
For all of the above-stated reasons, it is this Court’s determination that the defendant’s Motion to Transfer to Juvenile Court is hereby denied.

The appellant appealed the circuit court’s order to the Arkansas Court of Appeals, and that court affirmed the circuit court’s decision in an unpublished opinion. We granted appellant’s petition for review.

The appellant contends, as his sole point on appeal, that this case presents the question of whether Act 1192 of 1999, codified in part at § 9-27-318(g), requires the circuit court to deal in writing with all of the enumerated statutory factors in that section or only those which the circuit court desires to consider.

On review, we consider the case as though it were originally filed in this court. See Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999) (citing Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998)). We will not reverse a trial court’s determination of whether to transfer a case to juvenile court unless that decision is clearly erroneous. See Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998) (citing Jones v. State, 332 Ark. 617, 967 S.W.2d 559 (1998)).

At issue here is § 9-27-318(g), which provides the factors a circuit court must consider in deciding whether to transfer a case to juvenile court:

(g) In making the decision to retain jurisdiction or to transfer the case, the court shall make written findings and consider all of the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender or in circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the court which are likely to rehabilitate the juvenile prior to the expiration of the court’s jurisdiction;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the court.

Ark. Code Ann. § 9-27-318(g) (Supp. 1999). Prior to Act 1192 of 1999, this subsection set out three factors to be considered, but made no mention of written findings:

(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e) (Repl. 1998).

The appellant takes issue with the circuit court’s failure to make written findings regarding each and every factor set out in § 9-27-318(g). In construing the law before the enactment of Act 1192 of 1999, we held that the circuit court did not have to give equal weight to each of the three statutory factors; nor did evidence have to be presented regarding each factor. See, e.g., Heagerty v. State, supra, (citing Wright v. State, 331 Ark. 173, 959 S.W.2d 50 (1998)); McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997) (citing Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996)).

Section 9-27-318(g), which codifies, in part, section 16 of Act 1192 of 1999, begins with the statement: “In making the decision to retain jurisdiction or to transfer the case, the court shall make written findings and consider all of the following factors[.]” Ark. Code Ann. § 9-27-318(g) (Supp. 1999) (emphasis added). This court strictly construes criminal statutes and resolves any doubts in favor of the defendant. See Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000) (citing Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993)). However, this court also adheres to the basic rule of statutory construction, which is to give effect to the intent of the General Assembly. See Garling v. State, 334 Ark. 368, 975 S.W.2d 435 (1998) (citations omitted). Moreover, this court strives to give statutory words their ordinary and usual meaning. See id. (citing Reed v. State, 330 Ark. 645, 957 S.W.2d 174 (1997)).

In examining the language of the statute at issue, there is no indication that the General Assembly intended that the court make a specific finding as to each of the ten enumerated factors. It is only necessary that the court make written findings. The extent of the written findings is not specified. The court, however, must consider all of the factors. In this regard, we agree with the conclusion of the court of appeals that Act 1192 of 1999 does not require the circuit court “to enumerate all ten factors in the findings.” See Jongewaard v. State, 71 Ark. App. 269, 279, 29 S.W.3d 758, 763 (2000).

The appellant further contends that due to the absence of any findings relating to § 9-27-318 (g)(6), (7), and (9), it is clear that the circuit court did not consider those factors. We decline to leap to that conclusion. The circuit court was aware of its duty in this regard, both because of the language in § 9-27-318(g) and because defense counsel pointed out the fact that the court had to look to the ten factors. The circuit court’s failure to specifically mention certain evidence presented by the appellant in its order does not mean that the court ignored the evidence or faded to consider it. See, e.g., Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996). Furthermore, the appellant’s contention that § 9-27-318(g) should be analogized to Ride 37.5 of the Arkansas Rules of Criminal Procedure actually works against him. That rule provides, in part, that “the circuit court shad . . . make specific written findings of fact with respect to each factual issue raised by the petition[.]” Ark. R. Crim. P. 37.5(i) (2000) (emphasis added). Section 9-27-318(g) does not contain language with comparable specificity but only requires generally that written findings be made.

The circuit court had the benefit of testimony from three witnesses whom the appellant presented — Greg Morris, Chris Robinson, and William Ray Clark. The court also had access to the appellant’s school records which were admitted as an exhibit. We have no doubt that these witnesses and this evidence enabled the circuit court to consider the appellant’s maturity and environment (factor 6), which Mr. Morris specifically testified to, his rehabilitation prospects (factor 7), and his educational history (factor 9).

We conclude that the circuit court’s refusal to transfer the matter to juvenile court was not clearly erroneous. Heagerty v. State, supra.

Affirmed. Court of Appeals affirmed on review.

Glaze, J., concurs.

       The hearing continued on April 6, 2000.


author: ROBERT L. Brown, Justice.

text:
    CUSTOM MICROSYSTEMS, INC. v. Del BLAKE
    01-24
    42 S.W.3d 453
    Supreme Court of Arkansas
    Opinion delivered April 26, 2001
    [Petition for rehearing denied May 31, 2001.]

      Cross, Gunter, Witherspoon & Galchus, PC., by: Allen C. Dobson and Melissa Mcjunkins Duke, for appellant.

      Watkins & Scott, PLLC, by: John R. Scott, for appellee.
   ROBERT L. Brown, Justice.

This case presents one issue on appeal: Did the chancery judge err in denying the motion of appellant Custom Microsystems, Inc. (CMI), for a preliminary injunction against appellee Del Blake on the basis that CMI had not shown a likelihood of success on the merits? We conclude that the chancery judge did not abuse his discretion in refusing to order a preliminary injunction, and we affirm that order.

On November 16, 1998, Del Blake began working for CMI. CMI is in the business of providing computer services to customers and has its principal place of business in Little Rock. On March 9, 1999, Blake signed an “Employee Agreement on Intellectual Property and Confidentiality” (Employment Agreement) with CMI. This Employment Agreement provided the following with regard to Blake’s ability to be hired by a client of CMI after his employment with CMI ended:

7. When my employment ends, ... I agree that I will not do any of the following within one year from the end of my employment, without Custom Microsystems’ prior written consent; ... (3) be employed, either directly or indirectly, by any person or entity which has been a client of Custom Microsystems within the one year period immediately preceding the end of my employment with Custom Microsystems.
....
11. If I do not abide by this Agreement, I agree that Custom Microsystems may enforce this Agreement by, among other things, obtaining an injunction in a court in Pulaski County, Arkansas.

As early as 1998, the National Guard, which was a client of CMI, approached CMI to teach CISCO classes to its employees. CISCO makes available a hardware product for routing data to various locations and requires considerable software programming. Blake was interested in becoming a CISCO certified instructor, and CMI was interested in providing CISCO instruction to its customers like the National Guard. Only six companies in the United States were authorized to teach CISCO classes and to certify CISCO instructors. Global Knowledge Network, Inc. (Global Knowledge), formerly known as GeoTrain Corporation, which has its principal place of business in Dallas, Texas, was one of the six companies. In August 1999, Blake received his certification as a CISCO instructor from Global Knowledge. CMI allegedly paid $20,833 to train Blake. Also, in August 1999, CMI and Global Knowledge executed a Consulting Instructor Agreement (Instructor Agreement), whereby Global Knowledge would use Blake to teach CISCO classes to customers for a period of one year and pay CMI $800 or $900 per day for using Blake. CMI agreed that it would do what was necessary to maintain Blake’s CISCO certification.

Blake then began instructing customers in CISCO technology for five out of every eight weeks through Global Knowledge, and Global Knowledge paid CMI a monthly fee for Blake’s services. Global Knowledge held Blake’s CISCO certification, and all CISCO courses taught by Blake had to be approved by Global Knowledge. On May 5, 2000, Blake resigned his position at CMI. On or about May 16, 2000, he began working for Global Knowledge as an employee. He performed the same duties at Global Knowledge as he had as an employee of CMI, when teaching CISCO classes and working through Global Knowledge.

On June 28, 2000, CMI filed a complaint against Blake and alleged breach of contract. CMI prayed for a preliminary and a permanent injunction as well as for $20,833 in damages. On that same date, CMI moved for a preliminary injunction and prayed that Blake, pursuant to the Employment Agreement, be enjoined from employment with Global Knowledge or any other former client of CMI for a period of one year from the date he ended his employment with CMI. Blake filed a motion to dismiss for lack of venue. On September 19, 2000, a hearing was held on the motion for preliminary injunction and the motion to dismiss, and testimony was taken from CMI witnesses and Blake. On October 3, 2000, the chancery judge denied CMI’s motion for preliminary injunction and said in its order that CMI did not show a “likelihood of succeeding on the merits at a full hearing on the issuance of an injunction.” Specifically, the chancery judge found that CMI did not prove that Blake breached his Employment Agreement because it did not show that Global Knowledge was a “client.” The judge added in his findings that “the mere existence of a contract between the two companies [CMI and Global Knowledge] does not require a finding that Global was a ‘client’ within the customary meaning of the word. Rather, Global’s relationship was more akin to that of an independent contractor.”

We turn then to the sole issue before us, which is whether the chancery judge abused his discretion in refusing to issue the preliminary injunction against Blake.

This court reviews chancery matters, including injunctions, de novo on appeal. See Brown v. Seeco, Inc., 316 Ark. 336, 871 S.W.2d 580 (1994). The decision to grant or deny an injunction is within the discretion of the chancery judge. Id; see also Smith v. American Trucking Ass’n, Inc., 300 Ark. 594, 781 S.W.2d 3 (1989). We will not reverse the chancery judge’s ruling unless there has been an abuse of discretion. Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997); McCuen v. Harris, 321 Ark. 458, 902 S.W.2d 793 (1995). Furthermore, when considering an order that grants or denies an injunction, this court will not delve into the merits of the case further than is necessary to determine whether the chancery court exceeded its discretion. Villines v. Harris, 340 Ark. 319, 11 S.W.3d 516 (2000). In Villines, this court recognized that the sole question before it was whether the court departed from the rules and principles of equity in making its order and not whether this court would have made the order. Id. at 323, 11 S.W.3d at 519.

In determining whether to issue a preliminary injunction pursuant to Rule 65 of the Arkansas Rules of Civil Procedure, this court considers whether irreparable harm will result in the absence of a preliminary injunction and whether the moving party has demonstrated a likelihood of success on the merits. See W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345, 820 S.W.2d 440 (1991); Brown v. Seeco, Inc., supra; Smith v. American Trucking Ass’n, Inc., supra. In the case at hand, the pivotal focus of the chancery judge was on whether CMI had sufficiendy proved such a likelihood of success. As a result, our initial inquiry must be what definition or standard do we employ in our analysis of whether the moving party has shown a likelihood of success on the merits.

CMI directs our attention to a case handed down by the Eighth Circuit Court of Appeals in which that court concluded that the probability of success on the merits does not require the party seeking the injunction to prove a greater than fifty percent likelihood that the movant will prevail. See Dataphase Systems. Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8th Cir. 1981). In Dataphase, the Eighth Circuit looked to four factors in determining whether a preliminary injunction should issue: (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other litigating parties; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Id. at 113. The Dataphase court reasoned that the very nature of the inquiry for preliminary injunctive relief militates against a “wooden application” of a probability of success on the merits. Id. Instead, the Dataphase court chose to determine whether the “balance of equities,” looking at all four factors, so favors the moving party that justice requires the court to intervene and grant preliminary relief to “preserve the status quo until the merits are determined.” Id. By taking this approach, the Eighth Circuit sent the message that a district court should be flexible enough to look to all four factors and to the particular circumstances of each case in deciding whether a preliminary injunction should issue rather than solely making the decision based on the probability that the moving party will succeed on the merits.

The Eighth Circuit Court of Appeals, of course, is not binding authority for this court. Moreover, it appears that in our more recent decisions, this court has not wavered in our requirement that the movant for a preliminary injunction prove that there is a likelihood that the movant will succeed on the merits. In W.E. Long Co. v. Holsum Baking Co., supra, we said that in order to grant a preliminary injunction, the movant “must establish that it will likely prevail on the merits at trial.” Id. at 351, 820 S.W.2d at 443 (citing Smith v. American Trucking Ass’n, Inc., supra. In Smith v. American Trucking Ass’n, Inc., supra, this court said that “a party seeking a preliminary injunction must demonstrate a likelihood of success on the merits of the claim for a permanent injunction as well as the likelihood that, absent granting of preliminary relief, irreparable harm will occur.” Id. at 596, 781 S.W.2d at 4 (emphasis added). We have never adopted a flexible test where we “balance the equities,” such as the Eighth Circuit adopted in Dataphase. And we decline to do so today.

The definition of “likelihood of success on the merits” can be found in Black’s Law Dictionary. In Black’s, the likelihood-of-success-on-the-merits test is: “The rule that a litigant who seeks a preliminary injunction, or seeks to forestall the effects of a judgment during appeal, must show a reasonable probability of success in the litigation on appeal.” Black’s Law Dictionary 938 (7th ed. 1999). We agree that a reasonable probability of success is a benchmark for issuing a preliminary injunction.

Bearing that standard in mind, we turn to the question of whether the chancery judge correctly concluded that Global Knowledge was not a “client” of CMI for purposes of the Employment Agreement between CMI and Blake. The chancery judge specifically found:

While Defendant has become employed with a company formerly known as GeoTrain, now known as Global Knowledge, [CMI] did not establish that Global was a “client” of Custom Microsystems, and therefore [CMI] failed to establish that [Blake] breached his employment contract. The Court finds that the mere existence of a contract between the two companies does not require a finding that Global was a “client” within the customary meaning of the word. Rather, Global’s relationship with [CMI] was more akin to that of an independent contractor.

We turn again to Black’s Law Dictionary for a definition of “client.” That definition reads: “A person or entity that employs a professional for advice or help in that professional’s line of work.” Black’s Law Dictionary 247 (7th ed. 1999). CMI emphasizes to this court that its former partner and manager, Terry Johnson, testified that he negotiated a contract with Global Knowledge on behalf of CMI to provide the services of CMI’s employee, who was Blake. He pointed out that Blake provided those services and Global Knowledge paid for them. CMI also alludes to the testimony of its president and CEO, Jeff Johnson, that Global Knowledge was a client of CMI’s and that CMI sent bills to Global Knowledge and Global Knowledge paid those bills. According to CMI, after Blake terminated his employment with CMI, CMI no longer received any business from Global Knowledge. Finally, CMI urges that even if the chancery judge was correct that Global Knowledge was more of an independent contractor, this does not necessarily decide the issue of whether Global Knowledge was also CMI’s client.

In the instant case, in order to reverse the chancery judge, we would first have to conclude that the chancery judge clearly erred in his finding of fact that Global Knowledge was not a client of CMI. See Ark. R. Civ. P. 52(a). In order to find that the chancery judge clearly erred, this court, after reviewing the entire evidence, would have to be left with a definite and firm conviction that a mistake had been committed. See Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000); O’Fallon v. O’Fallon ex rel. Ngar, 341 Ark. 138, 14 S.W.3d 506 (2000). We are not firmly convinced that the chancery judge made such a mistake in finding that Global Knowledge was not CMI’s client.

For one thing, the relationship between the two companies does not appear to have been your typical professional-client relationship. Blake was trained as a CISCO instructor under the guidance of Global Knowledge. CMI then “loaned” Blake to Global Knowledge so that Blake could teach CISCO classes through Global Knowledge. Global Knowledge held Blake’s CISCO certification and controlled what CISCO classes Blake could teach. Blake, during this period, remained a CMI employee. CMI benefitted from this arrangement because it could not provide CISCO instruction on its own, and it was using Global Knowledge to provide this service and reap some income. Global Knowledge benefitted in that it had an additional CISCO instructor for its classes and, no doubt, also profited. Thus, the arrangement was not one in which CMI was solely providing a professional service to Global Knowledge. Rather, CMI was using Global Knowledge so that Blake could teach CISCO classes through that company, presumably to customers of both CMI and Global Knowledge. We cannot say that the chancery judge clearly erred in finding that Global Knowledge was not a client of CMI with respect to Blake.

The finding that Global Knowledge was not a CMI client was the factual linchpin of the chancery judge’s conclusion that the Employment Agreement had not been violated and that an injunction should not issue. We hold that the chancery judge did not abuse his discretion in refusing to issue the preliminary injunction.

Affirmed.

       For ease of reference, this opinion will refer only to Global Knowledge rather than to its predecessor company, GeoTrain Corporation.