author: Per Curiam. Tom Glaze, Justice,

text:
    Charles Laverne SINGLETON v. Larry NORRIS, Director, Arkansas Department of Correction
    CR 98-218
    964 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered March 9, 1998
    [Petition for rehearing denied April 23, 1998.]

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., Todd L. Newton, Asst. Att’y Gen., and Jonathan D. Perez, Asst. Att’y Gen., for appellee.

       Arnold, C.J., and Glaze and Corbin, JJ., dissent. See 332 Ark. 668, 964 S.W.2d 366 (1998).

   Per Curiam.

Petitioner Charles Laverne Singleton has petitioned this court for a stay of his execution, which is scheduled for March 11, 1998. The basis for his petition is the fact that he currently has pending before the Jefferson County Circuit Court a petition for declaratory judgment and for the issuance of all writs and orders necessary to enforce that declaratory judgment. According to Singleton’s petition for stay before this court, the essential question presented in the circuit court petition is “whether the State may forcibly medicate a death-sentenced inmate in order to make him competent to be executed.” His reason for requesting a stay of execution from this court is his acknowledgment that there is some question as to whether the circuit court has the power to grant such a stay.

The circuit court petition was filed by Singleton on February 17, 1998, and the State has not responded. At the time this petition in circuit court was filed, his execution date had been set by the Governor. According to the State, Singleton is attempting to halt his execution on a variety of fronts. He currently has pending, in addition to the petition in this court and Jefferson County Circuit Court, an application for stay of execution in the United States Court of Appeals for the Eighth Circuit, a request to the same Eighth Circuit Court of Appeals to file his third federal habeas corpus action in federal district court, and a request to the Governor for executive clemency.

The standard under our law for determining competency for purposes of execution is whether a condemned person understands “the nature of and reason for the punishment.” Ark. Code Ann. § 16-90-506(d)(1)(A) (Supp. 1997). Though the issue of Singleton’s general competency due to voluntary medication was delved into by the district court in Singleton v. Norris, PB-C-93-425 (E.D. Ark. July 25, 1995) (Norris), that court also observed that competency in connection with forced medication and his execution was not ripe for review and added:

Likewise, if petitioner later seeks to challenge any forced administration of his competency-inducing medication in connection with his execution, he will also have to first raise any such challenge in an Arkansas forum.

Id., slip op. at 5 (citations omitted). See also Id., slip op. at 5, n.4.

Prior to the district court’s decision in Norris, supra, this court had decided an appeal regarding whether Singleton was entitled to a hearing as provided in Ford v. Wainwright, 477 U.S. 399 (1986), on whether he was insane and thus could not be executed. Singleton v. Endell, 316 Ark. 133, 870 S.W.2d 742 (1994) (Singleton I), cert. denied, 513 U.S. 960 (1994). The trial court denied the relief requested by Singleton, and we affirmed. In doing so, we considered only Singleton’s challenge that § 16-90-506(d)(1) was procedurally insufficient to comply with the requirements of Ford v. Wainwright, supra. We held that our procedures were not insufficient. But we specifically declined to review the issue of the administration of antipsychotic medication to Singleton without his objection because, as we stated then, it was apparent to us that Singleton preferred to present the medication issue exclusively in federal court. We concluded that our statutory procedure for deciding the competency issue passed constitutional muster.

Three things are clear to us from the district court’s decision in Norris and our own opinion in Singleton I: (1) the precise issue pending before the Jefferson County Circuit Court was not ripe until the State determined to medicate Singleton involuntarily in 1997, and the Governor set his execution date, (2) we did not reach this issue in Singleton I because it was not presented to us, and (3) the federal district court in Norris contemplated that the issue now pending in Jefferson County Circuit Court should first be raised in “an Arkansas forum.”

We turn then to the question of whether the Jefferson County Circuit Court or this court has jurisdiction to stay an execution. We have recently held that a circuit court does not have jurisdiction to stay an execution. Rector v. Clinton, 308 Ark. 104, 823 S.W.2d 829 (1992) (per curiam), citing Howell v. Kincannon, 181 Ark. 58, 24 S.W.2d 953 (1930). Our caselaw on this point is explicit and unmistakable.

As to whether this court may stay an execution, the apposite state statute provides that a “condemned felon” may be granted a reprieve by the Governor or by “writ of error from the Supreme Court” or by stay “by any competent judicial proceeding.” Ark. Code Ann. § 16-90-506(a)(l) (Supp. 1997). Further on in that same statute, it provides that the only officers that may suspend an execution are the Governor, the Director of the Department of Correction in cases of insanity or pregnancy, and “[i]n cases of appeals, the Clerk of the Supreme Court, as prescribed by law.” Ark. Code Ann. § 16-90-506(c)(3) (Supp. 1997). Thus, on the one hand § 16-90-506 appears to contemplate stays of executions by this court only in “cases of appeals” and on the other, stays by this court pursuant to a writ of error issued by this court or “by any competent judicial proceeding.”

There is no question but that this court has previously considered § 16-90-506(c)(3), and opined that our jurisdiction is limited to appeals. See, e.g., Howell v. Kincannon, supra. The Howell case, however, did not consider § 16-90-506 (a)(1) and what is meant by a stay “by any competent judicial proceeding.” In a later case, this court revoked the stay of execution issued by one justice, but in doing so included this footnote in the opinion:

It is argued in the briefs for appellee that under § 43-2621 Ark. Stats, and the concluding part of § 43-2623 Ark. Stats, (both sections from the Criminal Code of 1869), neither this Court, nor any Judge thereof, has power to suspend the execution after the date has been set by the Governor. But such argument overlooks some of the provisions of Act No. 55 of 1913 — as now found in § 43-2617 Ark. Stats. — which provision uses this language: “ . . . a writ of error from the Supreme Court, or should the execution of the sentence be stayed by any competent judicial proceeding, notice of. . . such writ of error or stay of execution shall be served upon the superintendent of the penitentiary . . . and the said superintendent shall yield obedience to the same . . . .” The said Act of 1913 constituted legislative recognition of the inherent judicial power, so the § 43-2621 and § 43-2623 Ark. Stats, cannot have the strict meaning argued for them.

Leggett v. State, 231 Ark. 13, 16 n.4, 328 S.W.2d 252, 255 n.4 (1959). Save for this footnote, what is meant by stay of execution “by any competent judicial proceeding” has not been discussed by this court. And the State does not address it in its response to Singleton’s petition.

This petition for a stay presents this court with unique circumstances. A petition for declaratory judgment and necessary writs is currendy before the Jefferson County Circuit Court which has no authority to stay an execution. A petition to stay is likewise percolating in the Eighth Circuit Court of Appeals, but the status of that petition is unknown. The petition pending in Jefferson County Circuit Court, arguably, did not become ripe for decision until Singleton was medicated involuntarily, beginning in August of 1997, and the execution date was fixed. The petition raises an issue that has not been decided by the United States Supreme Court and, as best we can determine, by any other court in this land. Indeed, the Eighth Circuit Court of Appeals expressly did not reach the issue in Singleton v. Norris, 108 F.3d 872 (8th Cir. 1997), cert. denied, 118 S. Ct. 118 (1997), and Judge Heaney in a concurring opinion referred to this precise issue as “problematic and unresolved.” Id., at 874 (Heaney, J., concurring). Though Singleton frames the issue broadly, we discern the issue to be whether the State can mandatorily medicate him with antipsychotic drugs in order to keep him from being a danger to himself and others when a collateral effect of that medication is to render him competent to understand the nature and reason for his execution.

Contrary to Singleton’s contention in his reply to the State’s response to the petition before this court, the Louisiana Supreme Court in State v. Perry, 610 So.2d 746 (La. 1992), did not address this exact issue. In Perry, the Louisiana Supreme Court held that the State could not medicate a prisoner against his will to make him fit for execution when there was no determination that forcible medical treatment was for the purpose of safeguarding Perry and others in prison under Washington v. Harper, 494 U.S. 210 (1990). In the instant case, a Harper decision was made by a three-person Medication Review Panel on August 18, 1997, that the State did have a legitimate reason to medicate Singleton without his consent, and that decision was not appealed by him to circuit court. It was that decision to medicate Singleton forcibly and the setting of the execution date that rendered this matter ready for determination.

Because the issue pending in Jefferson County Circuit Court is clearly ripe for decision but no response has been made by the State, and, thus, no decision has been rendered, and, secondly, in light of the fact that the issue before that court is a constitutional issue of first impression, we deem the proceeding to be a “competent judicial proceeding” under § 16-90-506(a)(1). Ordinarily, we would hear the issue on appeal but due to the fact that the execution is two days away, the likelihood of a decision by the circuit court and a meaningful appeal to this court occurring before execution appear to be exceedingly remote. It would be an anomaly in our law with the direst of consequences if a bona fide constitutional claim made ripe by the Medication Review Panel’s action in August of last year and by the fixing of an execution date could not be decided prior to execution. We, therefore, grant the stay of execution for the limited purpose of resolving this singular issue of public significance.

In doing so, we stress once more the uniqueness of our decision today. We have been zealous in stating that once an execution date is set, the issue of a reprieve rests with the Governor. See, e.g., Rector v. Clinton, supra. Yet, in Rector the issue at hand was Rector’s mental condition and, there, both the federal district court and the state trial court had found him competent for execution under the Ford v. Wainwright test. In the case before us today the issue that has not been resolved involves two competing policies: medicating an inmate against his will to protect him from himself and others, which, of course, is legitimate under Washington v. Harper, supra, and medicating an inmate in order that he may appreciate the nature and reasons for his execution, which may not be. When all is said and done, we are convinced that this issue must be resolved before Singleton can be executed.

The fact that this issue is brought to us at the eleventh hour after such a long delay is of significant concern to us. Were it not for the fact that the ripeness of the issue occurred after the Medication Review Panel issued its opinion for mandatory medication on August 18, 1997, and the Governor set the date for execution, we would deny the petition for lack of jurisdiction. That, though, is what distinguishes this case from Rector v. Clinton, supra. We underscore, however, what we said in Rector v. Clinton, supra, that we will not entertain recurring last-minute appeals on the issue of current sanity which could prevent an execution indefinitely with no good reason. Here, though, as explained in this opinion, the circumstances are different.

We grant the stay in order to give the Jefferson County Circuit Court an opportunity to consider Singleton’s petition.

Arnold, C.J., and Glaze and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. In 1979, Charles Laverne Singleton stabbed Mary Lou York to death, and upon overwhelming evidence presented at trial, Singleton was found guilty and sentenced to death. Now after nearly twenty years of state and federal court trials and appeals, Singleton is still in the courts defending himself against the death penalty. As this court said in Rector v. Clinton, 308 Ark. 104, 823 S.W.2d 829 (1992), “[E]ven death cases must come to an end.”

Although this court’s Rector case clearly requires a denial of Singleton’s motion to stay his execution, the majority opinion, using some rather bewildering logic, attempts to distinguish Rector. I first set out what this court said and held in Rector, which is almost totally ignored by the majority.

The Rector case involved almost the identical situation as Singleton’s, except there, we denied Rector’s motion to stay his execution eleven years after his conviction for murdering Conway Police Officer Bob Martin. Like Singleton, Rector filed a petition for declaratory judgment in circuit court, stating he was ineligible for execution because (1) a state cannot execute persons whose mental illness prevents comprehension of the reasons for the penalty, and (2) the Arkansas standard limiting executions of persons with mental deficiencies is more stringent than that required under the Supreme Court’s decision in Ford v. Wainwright, 477 U.S. 399 (1986), and Arkansas’s law should prevent Rector’s execution if his current mental impairment prevented him from assisting his counsel in coming up with reasons to stay the execution. Id. at 105. In denying Rector’s request to stay his execution, this court held that, under Ark. Code Ann. § 16-90-506 (1987), the circuit court lacked jurisdiction to stay execution based upon Rector’s claim of current insanity, and that the matter rested with the executive branch of government. This court summarized its holding in Rector as follows:

(1) The circuit court lacked jurisdiction to stay the execution on the basis of the allegation that Mr. Rector is ineligible for execution due to his mental condition; (2) even if that court had such authority, we could not disagree with its finding that there had been no change in Mr. Rector’s condition since his evaluation by federal authorities in 1989; and (3) Arkansas law does not pose for execution of a person who may be mentally deficient a standard different from that declared by the United States Supreme Court in Ford v. Wainwright. The matter of clemency rests with the executive branch.

(Emphasis added.)

The only essential difference between Rector’s situation and Singleton’s is that Singleton’s counsel advances the legal argument that the State cannot “forcibly” medicate a death-sentenced inmate in order to make him competent to be executed. However, if his argument had any merit, Singleton had every opportunity to have raised it both in federal court and in the state courts on several occasions. See Singleton v. Norris, No. PB-C-93-425 (E.D. Ark. June 2, 1995) (where Singleton raised and later abandoned the argument); Singleton v. Endell, 316 Ark. 133, 870 S.W.2d 742 (1994) (where Singleton chose not to mention the issue, and the court surmised that Mr. Singleton apparently preferred to present the issue in federal court).

Confoundedly, the majority court blindly adopts Singleton’s argument that our court in Singleton in some unspoken way looked to the federal courts to decide Singleton’s issue, and the federal district court was looking for Singleton to raise the issue in state courts. With all due respect, these assumptions are balderdash! The simple fact is that Singleton chose not to raise his issue in either the federal or state court. To reiterate, all this court said in Singleton was “it is apparent that Mr. Singleton would prefer to present the medication issue exclusively in the federal court.”

Singleton also had a third opportunity to raise his issue. The State Medication Review Panel, authorized under Ark. Code Ann. § 16-90-506 to review Singleton’s examination, reviewed and concluded that Mr. Singleton should be given a trial on mandatory medication to see if he returned to a higher level of function. Singleton never questioned the Panel’s decision, nor did he request its administrative review. Mr. Singleton’s counsel claims he could not have obtained a legal resolution to his forcible-medication argument because Singleton previously had chosen to take medication, but now he is being “involuntarily” medicated.

Obviously, if Singleton could simply choose at will when he wants or does not want medication, the constitutional issue he raises now (and earlier raised in the U. S. District Court), might never be decided. This court, in Endell, recited one report where Singleton asked to be taken off the medication because he was to see some “federal doctors.” And another physician reported that Mr. Singleton wanted to appear “crazy.” The judicial system should not be manipulated in such fashion. This court in Endell would have undoubtedly reached the issue if Singleton had seriously wanted it decided. The majority court’s suggestion to the contrary is wrong.

Fortunately, whether Singleton is being manipulative need not control whether he is entitled to another last-ditch opportunity to have an answer to the question whether the State is medicating him in order to make him competent to be executed. Instead, although the State has been medicating Singleton, the federal district court has found Singleton was not placed on medication to make him competent, so the State could execute him; rather, the court found he was being medicated to meet his medical needs. See Singleton, No. PB-C-93-425 at p. 14; see also, Washington v. Harper, 494 U.S. 210 (1990) (where Court held the safeguards provided by Washington law were sufficient and did not preclude the State from medicating the prisoner prior to the prescribed hearing on the issue if he posed a danger to himself or others). The federal court’s finding has never been challenged or appealed. In short, Singleton’s assertion that he is being forced to take medicine so he can be executed is a last minute red herring. It is untrue and not an issue. Instead, Singleton has been appropriately and lawfully receiving medication for his own medical needs, so he will not be a danger to himself or others.

In the Singleton v. Endell decision, we held that Singleton’s remedy is under § 16-90-506(d)(l) which the court declared to be constitutional. As I pointed out above, § 16-90-506(a)(l) places Singleton’s remedies for evaluation and review with the executive branch.

Lastly, the majority court offers the hollow suggestion that this court somehow has authority to stay an inmate’s execution even though § 16-90-506 only gives this court such authority when appeals or writs of error are involved. No such writ or appeal is before us. Nonetheless, the majority points to language in provision (a)(1) of § 16-90-506 which reads, “or should the execution of the sentence be stayed by any competent judicial proceeding,” and avails Singleton another judicial hearing. It takes little or no thought to understand that, under § 16-90-506, “a competent judicial proceeding” as far as the Arkansas Supreme Court is concerned is where an appeal or a writ of error is involved. Again, our Rector decision upheld the constitutionality of § 16-90-506 placing matters involving insanity with the executive branch, but the majority opinion dismantles the executive branch’s role in the reviewing and deciding of such matters.

To summarize, I submit that Arkansas’s trial and appellate procedures should be evenly interpreted, applied, and enforced. Over a twenty-year period, Singleton has had every opportunity to raise his full panoply of defenses, constitutional and otherwise, as to guilt and penalty. We decided as much in Rector when this court denied Rector any further stays. Maybe, in the future, Arkansas will decide the death penalty is one the state should abandon. But, until then, the State’s procedures under § 16-90-506(d)(1) should be fairly and indiscriminately followed. Mr. Singleton has been afforded due process and his other constitutional guarantees. To follow, now, the procedures established in § 16-90-506 (d)(1) will serve only to minimize the enormous delays between when capital-murder convictions are rendered and when a death-penalty sentence is administered.

As was done in Rector, I would deny Singleton’s stay motion.

Arnold, C.J., and Corbin, J., join this dissent.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    STATE of Arkansas v. Kenneth Lamont SLOCUM
    CR 97-244
    964 S.W.2d 388
    Supreme Court of Arkansas
    Opinion delivered March 12, 1998

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellant.

      Al Shay, for appeEee.
   David Newbern, Justice.

Kenneth Lamont Slocum was convicted of capital murder and sentenced to life imprisonment without parole. We affirmed the conviction. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996). Mr. Slocum sought post-conviction relief pursuant to Ark. R. Crim. P. 37 on the ground that his counsel was ineffective in that he failed to request an instruction (AMCI 2d 403) to the effect that he could not be convicted solely on the uncorroborated testimony of an accomplice. See Ark. Code Ann. § 16-89-111 (e)(1) (1987). In response, the Trial Court granted a new trial. The State appeals from that decision, and we reverse it.

At the trial on the capital-murder charge, Vernon Scott testified that Mr. Slocum gave him a rock of cocaine worth forty dollars in return for luring the victim, Willie Simpkins, to the home of a man named Hattison. Mr. Scott testified he did not know why Mr. Slocum wanted it done. Mr. Scott said that, while he and Mr. Simpkins were at Hattison’s, Elgin King and Mr. Slocum, who was brandishing a .45 caliber pistol, entered and abducted Mr. Simpkins. Mr. Scott said that, despite the fact that Mr. King and Mr. Slocum were wearing masks, he was able to identify Mr. Slocum whom he had known for most of his life. Mr. Simpkins’s body was found with both .45 and .38 caliber bullets in it, and a rubber mask was found nearby.

Mr. King was convicted of first-degree murder. We reversed and remanded that conviction on the ground that the Trial Court refused Mr. King’s proffer of AMCI 2d 403 with respect to Mr. Scott’s testimony. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). In Mr. Slocum’s direct appeal, however, we declined to reverse on the failure of the Trial Court to give the instruction because it had not been proffered to the Trial Court.

At the hearing on Mr. Slocum’s claim that his counsel’s failure to proffer AMCI 2d 403 resulted in his counsel being ineffective, the lawyer who represented Mr. Slocum at the trial testified as follows. He and his co-counsel sought to have Mr. Scott declared an accomplice as a matter of law. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997). That request was denied. Counsel then agreed that AMCI 2d 403 would be requested, but, through inadvertence, it was not done. It is clear, however, that counsel’s trial strategy was not to depend on evidence that Mr. Scott was an accomplice whose testimony was uncorroborated. Rather, their strategy was to challenge the State’s evidence that Mr. Slocum had participated in the crime.

Although Mr. Slocum did not testify, he had consistently denied his guilt in conversations with his counsel. Counsel’s testimony on the point at the Rule 37 hearing was as follows:

And I specifically recall my conversation with [co-counsel] where we decided we would not argue to the jury that Vernon Scott was an accomplice, so even if you believed him, you could not convict because we felt that that was not a beneficial argument to make. But, and during that same discussion, we agreed that it was crucial that we submit that issue to the jury.

At a later point, counsel was questioned about whether it might have been inconsistent to have argued to the jury that Mr. Slocum was not even present at the crime scene and that Mr. Scott’s testimony was uncorroborated. Counsel responded that it would not have been inconsistent but that it would not have been a “winning argument.”

The only evidence produced that might have been considered corroborative of Mr. Scott’s testimony was: (1) a .45 caliber bullet like the ones found in Mr. Simpkins’s body that was found at Mr. Slocum’s grandmother’s home, which was frequented by Mr. Slocum; and (2) testimony that Mr. Slocum had a motive to kill Mr. Simpkins because Mr. Simpkins was supposed to testify in a trial against one of Mr. Slocum’s relatives. Thus, the “corroborating evidence” was hardly substantial, but it is also questionable whether the jury would have found Mr. Scott to be an accomplice, given his protestation that he knew nothing of the plan to abduct and kill the victim.

It is difficult to understand counsel’s statement that the giving of AMCI 2d 403 was “crucial” to their client’s case in light of their concession that they had no plan to argue the accomplice-testimony issue to the jury but were following the tack of their client’s complete innocence. Taking counsel at his word that there was an intention to seek the instruction, we are nonetheless left with the defense strategy, which was to argue to the jury that the State had failed to prove Mr. Slocum’s participation and not to rely on the accomplice-corroboration point. That is so because of counsel’s clear testimony that there was no plan to argue the accomplice-corroboration point to the jury, even if the instruction had been given.

We are aware of only one other State appeal from the granting of Rule 37 relief. State v. Manees, 264 Ark. 190, 569 S.W.2d 665 (1978). Our decision in that case was that the Trial Court lacked jurisdiction to alter a sentence being served and that error occurred because of failure to recite formal findings of fact and conclusions of law. There was no need to state a standard of review for cases such as the one we now consider. In considering the standard of review to be applied, we see no need to vary from the one used when Rule 37 relief has been denied, i.e., that we will not reverse the decision unless it is clearly erroneous. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998) (per curiam), citing Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). The question we must decide is whether the Trial Court clearly erred in holding that counsel’s performance was ineffective, applying the standard set in Strickland v. Washington, 466 U.S. 668 (1984).

We recently discussed the principles relating to ineffective assistance of counsel in Thomas v. State, 330 Ark. 442, 447-48, 954 S.W.2d 255, 257-58 (1997):

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show that counsel’s representation fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his defense. Judicial review of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from counsel’s perspective at the time. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). A reviewing court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Id.
To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Thomas [v. State], 322 Ark. 670, 911 S.W.2d 259 [(1995)]. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id.; Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. 668; Thomas, 322 Ark. 670, 911 S.W.2d 259.

We have written on many occasions that a lawyer’s choice of trial strategy that proved ineffective is not a basis for meeting the Strickland test. See, e.g., Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995); Monts v. State, 312 Ark. 547, 851 S.W.2d 432 (1993). If counsel had proffered AMCI 2d 403 and it had been presented to the jury, and if counsel had then testified at the Rule 37 hearing that he declined to argue the accomplice issue to the jury because he did not consider the argument to have been “beneficial” or a “winning argument,” we most assuredly would have held that the Strickland test had not been met. The distinction here is that the instruction was not requested. Given the strategy choice of not asking the jury to follow that instruction, even if it had been given, we must say it is a distinction without a difference. True, the jury might possibly have seized upon the instruction and acquitted Mr. Slocum; however, we cannot say that the mistake made in this instance resulted in counsel’s performance being so deficient as to have denied a fair trial. It is difficult to say there was prejudice to Mr. Slocum in view of counsel’s choice, based on Mr. Slocum’s statements to him, to defend on what counsel referred to as “general denial.”

Counsel testified at the Rule 37 hearing that the failure to request the instruction did not result from a tactical decision on his part. It was, however, clearly a tactical decision not to argue the requirement of accomplice corroboration, for which counsel thought he had requested an instruction, to the jury. Given that tactical decision, it cannot be said that the result of the trial would have been different had the instruction been requested. Given the stringent standards set by the Strickland decision, which we have followed consistently, we hold that the Trial Court clearly erred in granting a new trial.

Reversed.


author: Donald L. Corbin, Justice.

text:
    Christine RAGAR v. R.J. BROWN and Crockett and Brown
    96-1202
    964 SW.2d 372
    Supreme Court of Arkansas
    Opinion delivered March 12, 1998

      Sloan, Rubens & Peeples, by: Kent J. Rubens; and Timothy O. Dudley, for appellant.

      Barber, McCaskill, Jones & Hale, P.A., by: R. Kenny McCulloch, for appellees.
   Donald L. Corbin, Justice.

Appellant Christine Ragar appeals the summary judgment granted in a legal malpractice case she brought against Appellees R.J. Brown, and Crockett and Brown, a law firm in which Brown is a partner. The Pulaski County Circuit Court rendered judgment in favor of Appellees on the basis that the three-year statute of limitations barred the action. Jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(15) and (17), as this case presents questions on the law of torts and is of significant public interest. Additionally, Appellant argues that this court should overrule precedent dating from 1877.

Appellant raises two points on appeal. First, she argues that the trial court erred by granting summary judgment on her legal malpractice claim. Second, she argues that the trial court erred by ruling that the statute of limitations barred her claim for breach of fiduciary duty. We hold that the trial court correctly ruled that the three-year statute of limitations barred Appellant’s claims and affirm the grant of summary judgment for both claims. We further uphold the occurrence rule for determining the date of accrual for legal malpractice claims.

The parties do not dispute the facts and dates of the underlying case or the procedural history of the legal malpractice action. In 1991, Appellees represented Appellant in filing her Chapter Thirteen bankruptcy petition. In the course of the 1991 representation, Appellees advised Appellant to transfer a parcel of real property to them to be held in trust in order to secure payment for their legal fees. Appellant conveyed her property, which consisted of real estate located on Shackleford Road in Little Rock, to Appellees before filing the voluntary petition on June 19, 1991. The bankruptcy court found that the property conveyance created a conflict of interest between Appellant and the Appellees and disqualified Appellees from representation. The bankruptcy court further found that the conveyance was fraudulent, thereby converting Appellant’s voluntary Chapter Thirteen petition, into an involuntary Chapter Seven petition which could not be dismissed. Appellees appealed both the disqualification order and the fraudulent-conveyance order to the federal district court. Both orders were affirmed on July 31, 1992.

Appellant filed this legal malpractice action against Appellees in Pulaski County on March 8, 1995. All of the acts alleged in Appellant’s complaint occurred on or before June 19, 1991. Her amended complaint alleged that she sustained no damages before July 31, 1992. Her second amended complaint added a claim for breach of fiduciary duty. Appellant did not, however, specifically plead the dates on which the alleged negligent actions occurred in either claim stated, but instead, included only the July 31, 1992 date. Upon motion by Appellees, the trial court reconsidered its earlier rulings, granted summary judgment, and dismissed both claims with prejudice on June 27, 1996. The trial court specifically held that the three-year statute of limitations governed by Ark. Code Ann. § 16-56-105 (1987) barred both claims. The trial court did not rule on Appellant’s final motion for reconsideration, in which she argued that the trial court had not considered the claim for breach of fiduciary duty. Appellant filed notice of this appeal on July 17, 1996.

Arkansas Rule of Civil Procedure 56(c) provides for summary judgment when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997), we explained that summary judgment is reserved for cases that have no genuine factual disputes. The moving party bears the burden of sustaining a motion for summary judgment; once the moving party meets this burden, the opposing party must present proof with proof and demonstrate that a material issue of fact survives. Id. We view the evidence in a light most favorable to the opposing party and resolve all questions and ambiguities against the moving party. Id. This court must review the evidence presented below to determine whether the trial court ruled correcdy. Wright v. Compton, Prewett, Thomas & Hickey, 315 Ark. 213, 866 S.W.2d 387 (1993). Summary judgment is proper when the statute of limitations bars the action. Alexander v. Twin City Bank, 322 Ark. 478, 910 S.W.2d 196 (1995). We will affirm a summary judgment when the plaintiff admits a dispositive fact. Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997).

Appellant first argues that the trial court erred when it granted summary judgment on the basis that the three-year statute of limitations governed by section 16-56-105 barred her suit filed on March 8, 1995. Section 16-56-105 provides for a three-year statute of limitations period in actions based in contract or liability, including unwritten breaches of duty. Since 1877, this court has consistently held that the three-year limitations period applies to legal malpractice actions. Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991) (citing White v. Reagan, 32 Ark. 281 (1877)).

Next, we must determine when the claim accrued, and whether it is barred by the limitations period. Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992). There are at least three common approaches used to determine when a cause of action accrues: (1) the “occurrence rule,” (2) the “damage rule” or “injury rule” and a variation called the “discovery rule,” and (3) the “termination-of-employment rule,” also named the “continuing-representation rule.” See Chapman, 307 Ark. 87, 817 S.W.2d 425. See generally 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 21 (4th ed. 1996).

Arkansas has adhered to the traditional occurrence rule in legal malpractice cases since 1877. Chapman, 307 Ark. 87, 817 S.W.2d 425. Under the occurrence rule, the malpractice action accrues when the “last element essential to the cause of action” occurs, unless the attorney actively conceals the wrongdoing. Id. at 88, 817 S.W.2d at 426. The rationale is to prevent attorneys from having to defend stale claims, to preserve evidence, and to treat all plaintiffs equally. Id. This court has held fast to this now-minority rule for attorneys and other professionals, including accountants and insurance agents. See Calcagno, 330 Ark. 802, 957 S.W.2d 700. In Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996), this court expressly included the application to legal malpractice actions:

We hold that the statute of hmitations for an insurance agent commences at the time the negligent act occurs, in keeping with our traditional rule in professional malpractice cases. However, in doing so, we recognize the harshness of this rule to the clients of not only insurance agents, but also of attorneys, accountants, and others who may avail themselves of this rule in defending against malpractice actions.

Id. at 427, 915 S.W.2d at 689 (emphasis added).

Appellant, nevertheless, argues that our holdings are inconsistent and that this court adopted the damage rule or the injury rule in two legal malpractice cases, Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989), and Pope County v. Friday, Eldredge & Clark, 313 Ark. 83, 852 S.W.2d 114 (1993). Under the damage rule, now the majority rule, the statute of limitations begins to run at the time the plaintiff is injured or suffers damages. See Chapman, 307 Ark. 87, 817 S.W.2d 425. Similarly, the discovery rule delays the accrual of the actionable negligence until the plaintiff discovers, or reasonably should have discovered, the malpractice.

We disagree with Appellant’s assessment of Stroud and Pope County. In those cases, this court recognized an exception to the occurrence rule that effectively tolls the statute of limitations whenever the plaintiff is prevented from bringing his or her malpractice claim. Appellant conceded during oral argument before this court that the facts of this case do not parallel either Stroud or Pope County.

The facts in Stroud, 297 Ark. 472, 763 S.W.2d 76, involved a default judgment rendered against the appellant that had been set aside but was reinstated on a prior appeal. Concluding that the actionable negligence ceased to exist during the period from the time the default judgment was set aside until it was reinstated, this court held that the appellant could not prove her malpractice action until the adverse judgment was entered against her. Similarly, in Pope County, 313 Ark. 83, 852 S.W.2d 114, we held that there was no actionable negligence from the time of the trial court’s favorable ruling for the plaintiff until the time it was reversed on appeal. We therefore refute that we adopted the discovery rule in either Stroud or Pope County.

This court distinguished Stroud when it decided Goldsby, 309 Ark. 380, 831 S.W.2d 142, and explained that the appellants’ malpractice action in Goldsby had never ceased to exist from the time the appellee attorney had prepared a warranty deed in 1980 and misrepresented that the appellants had a first mortgage on the subject property. Appellants were not aware of the misrepresentation until 1985 when they suffered a business loss as a result of the alleged misrepresentation. This court held that the three-year statute of limitations barred appellants’ 1986 malpractice suit and explicitly rejected the damage rule.

The distinguishing factor in both Stroud and Pope County was the judgment entered in favor of the appellant. Here, as in Goldsby, there was no intervening judgment in Appellant’s favor; hence, her malpractice claim never ceased to exist. At a minimum, Appellant was alerted to her claims for actionable negligence when the bankruptcy court entered the disqualification and the fraudulent-conveyance orders against her. Unlike Stroud, there was no point where Appellant was prevented from bringing suit. We are therefore not persuaded by Appellant’s argument that accrual of her action was delayed; her alleged damages were evident through the trial court’s adverse rulings, affirmed on appeal, and thereby never ceased to exist.

The majority of jurisdictions considering this context, regardless of the applicable rule, holds that a pending appeal by the damaged party does not serve to toll the statute of limitations when damages can be presently identified. See, e.g., Gulf Coast Investment Corp. v. Brown, 813 S.W.2d 218 (Tex. 1991) (holding that under the discovery rule, the statute of limitations accrued at the time an adverse proceeding was filed against the plaintiff, not when the trial court rendered final judgment against the plaintiff. Additionally, we are not convinced that the discovery rule would be an appropriate solution in response to the question of having to defend an older drafting, for example, a twenty- or thirty-year-old will. See Chapman, 307 Ark. 87, 817 S.W.2d 425. Nor are we convinced by her out-of-state authorities. See Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421 (Cal. 1971).

Appellant next contends that this court has recognized the termination-of-employment rule, also known as the continuing-representation rule in Wright, 315 Ark. 213, 866 S.W.2d 387. This rule parallels the “continuing-treatment doctrine” in medical malpractice cases. See, e.g., Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). Under either doctrine, the statute of limitations does not begin to run until the relationship between the professional and client has ended for a particular matter. Id. We again refute Appellant’s contention, because in Wright, this court applied the occurrence rule and determined that the alleged negligence was a corporate reorganization the law firm was hired to perform. This court concluded that the “last element essential to the cause of action” was a final stock transfer between the plaintiff s two corporations that was the last step of the reorganization. This court ultimately remanded the case to the trial court, because a question of fact existed among the numerous dates alleged. Such holding does not constitute an embracement of the continuing-representation doctrine.

We further refute Appellant’s claim that by applying the occurrence rule, we treat attorneys more favorably than physicians in professional malpractice cases. This court has strictly limited the application of the continuing-treatment doctrine in medical malpractice cases. See Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996) (holding that the continuing-treatment doctrine does not apply where the plaintiff alleges only an isolated act of negligence rather than a continuing course of negligent treatment). Moreover, the Arkansas Medical Malpractice Act follows the occurrence rule and essentially mirrors the application for legal malpractice actions. Chapman, 307 Ark. 87, 817 S.W.2d 425. Specifically, Ark. Code Ann. § 16-114-203(b) (Supp. 1997) provides that the cause of action in medical malpractice cases shall accrue on the date of the wrongful act. The act contains a discovery-rule exception for fraudulent concealment and an exception for situations when foreign objects are left in the patient’s body. Appellant’s out-of-state authority also requires a series of negligent acts by the attorney in order to apply the continuing-representation doctrine. Pittman v. McDowell, Rice & Smith, 752 P.2d 711 (Kan. App. 1988). Here, Appellant does not specifically allege a continuing course of negligent representation that occurred after the time the petition was filed.

Because Arkansas is a fact-pleading state, Appellant’s argument fails on the face of her complaint. Goldsby, 309 Ark. 380, 831 S.W.2d 142. Allegations of dates and times must give fair notice to defendants of the claims and the basis for such claims. Id. (citing ARCP 8 and Newbern, Arkansas Civil Practice and Procedure § 8-2 (1985)). Here, Appellant first alleged acts that took place on or before June 19, 1991. The date of July 31, 1992 appeared in Appellant’s amended complaint and second amended complaint as the alleged date on which she sustained damages. Because Appellant did not specifically plead the dates on which she alleges that Appellees gave her negligent advice, her pleading is insufficient on its face. Id.

In conclusion, Appellant’s cause of action accrued when the alleged negligent act occurred. This was on or before the time she filed her Chapter Thirteen petition on June 19, 1991; hence, her legal malpractice claim filed on March 8, 1995, is barred by the three-year statute of limitations. Chapman, 307 Ark. 87, 817 S.W.2d 425. Additionally, Appellant did not allege that Appellees concealed their alleged wrongdoing. Furthermore, the exception to the occurrence rule enunciated in Stroud, 297 Ark. 472, 763 S.W.2d 76, does not apply to Appellant’s situation. Appellant’s action never ceased to exist, thus she was not prevented from filing suit. This court narrowly construes the inherent exceptions to the occurrence rule in both medical malpractice cases and legal malpractice cases.

This court has expressly declined to retroactively change the legal malpractice occurrence rule to any of the other approaches. Chapman, 307 Ark. 87, 817 S.W.2d 425. The General Assembly’s silence for over 100 years indicates tacit approval of this court’s statutory interpretation. Id. Appellant has offered no compelling arguments or authorities to convince us to alter our long-standing acceptance and application of this rule of law, absent legislative directive. Stare decisis mandates this outcome, given our recent ruling in Calcagno, 330 Ark. 802, 957 S.W.2d 700. We respectfully decline this opportunity to change our interpretation of section 16-56-105 and hold that Goldsby, 309 Ark. 380, 831 S.W.2d 142, continues to be the Arkansas rule, and accordingly, do not depart from the occurrence rule. This court further clarified in Goldsby that Stroud, 297 Ark. 472, 763 S.W.2d 76, does not stand for the proposition that Arkansas has adopted the damage rule. Goldsby, 309 Ark. 380, 831 S.W.2d 142. We conclude the same and will continue to defer any departures therefrom to the General Assembly.

For her second argument, Appellant argues that the trial court erred in granting the motion for summary judgment on the claim of breach of fiduciary duty because the statute of limitations had not run. Section 16-56-105 governs unwritten breaches of fiduciary duty and provides for a three-year statute of limitations. For the reasons outlined above, this claim for breach of fiduciary duty was also barred. See Smith v. Elder, 312 Ark. 384, 849 S.W.2d 513 (1993).

Affirmed.

Kevin A. Crass, Sp. J., joins in this opinion.

Newbern, J., not participating.


text:
    David SMALL v. James E. COTTRELL et al.
    97-644
    964 S.W.2d 383
    Supreme Court of Arkansas
    Opinion delivered March 12, 1998

      Roachell Law Firm, by: Travis N. Creed, Jr., for appellant.

      W. Paul Blume, for appellees.
   Donald L. Corbin, Justice.

Appellant David Small, who was terminated from his position as a school mechanic, raises an issue of first impression that requires us to interpret the Arkansas Public School Employee Fair Hearing Act (“the Act”), codified at Ark. Code Ann. §§ 6-17-1701 — 1705 (Repl. 1993). Appellees are members of the board of directors of the Forrest City School District (“the District”), Superintendent Emerson Hall, and the Forrest City Public Schools. The St. Francis County Circuit Court upheld the school board’s decision. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(17), as this case presents an issue of significant public interest. We hold that Appellees substantially complied with the requirements of the Act, and we affirm.

The parties do not dispute the underlying facts. Appellant was employed as a mechanic for Appellees for over ten years and also drove a school bus when needed to substitute for absent drivers on regular routes. Appellant worked on a year-to-year contractual basis. At the time of his termination in May 1993, his contract began July 1, 1992, and would have ended June 30, 1993. In early 1993, Appellant filed a grievance with the District. For approximately three years, Appellant had been aware that other employees were given separate contracts and, in some cases, additional pay for bus driving. Appellant’s 1992-93 contract stated that his job title was “mechanic,” but did not include a job description. However, Appellant’s 1991 job description specifically stated that he would “substitute drive on regular routes.” Appellant received one and one-half overtime compensation when he worked in excess of his regular schedule. Appellant filed the grievance with his immediate supervisor Joe Carden, who was the director of transportation for the District. Carden did not respond in writing to Appellant’s grievance but told him he would pass it along to the next level of administration which was Deputy Superintendent Rodney Echols. Appellant was told he would not receive additional compensation for substitute bus driving.

On January 23, 1993, Appellant refused to drive the bus when Carden directed him. Appellant and Carden discussed that Appellant had not signed a contract with a detailed job description for the 1992-93 school year or for the previous year. Appellant and Carden agreed that Appellant’s job description had not changed for the 1992-93 school year, but Appellant refused to drive. Carden told Appellant that he would recommend termination or suspension to the school board.

On January 27, 1993, Superintendent Hall mailed a letter to Appellant that stated:

This is to inform you that based on a recommendation from your supervisor, Mr. Joe Carden, and Deputy Superintendent Rodney Echols you are hereby suspended from your job effective immediately. You will be recommended for termination at a later date.

The District’s school board met on February 8, 1993, and voted to terminate Appellant without giving him notice of the meeting. On February 25, 1993, Appellant filed a complaint in the St. Francis County Chancery Court against Appellees. Appellant also filed a motion for a preliminary injunction of his termination. On March 10, 1993, Hall sent the following letter to Appellant:

By this letter, I am advising you that the previous suspension and termination of your employment with the Forrest City School District is rescinded. Enclosed is a check in payment of your salary for the affected period.

On March 12, 1993, Hall again notified Appellant by letter as follows:

You are hereby notified that I intend to recommend that your contract with the Forrest City School District be terminated. The reasons for my recommendation are as follows:
Even though the possibility of driving a school bus is included in your job description, and you are, and have been, aware of that fact, you refused to obey the directive of your supervisor, Mr. Joe Carden, to drive the school bus when needed on January 23, 1993. Such refusal to carry out your reasonable and necessary duties constituted gross insubordination.
You have a right to a hearing on this recommendation before the school board. If you desire a hearing, you must make a request for same, in writing to my office, within thirty days of your receipt of this letter. The hearing will be held at the next regular school board meeting following the receipt of your request for a hearing, unless a later date is agreed to in writing.
If you request a hearing, you have the right to be represented by the person of your choice, and if you so request in writing, a record of the hearing will be preserved and a transcript provided to you at no cost.

Prior to the hearing, Appellant was suspended with pay. He did not return to work. Board meetings were normally held on the second Monday of each month. By letter dated March 31, 1993, Appellant requested a hearing, and the hearing was scheduled for the next regularly scheduled board meeting. The second Monday of April would have been on April 12, 1993. Appellant availed himself on April 12, 1993. However, the meeting took place on April 19, 1993. The District did not give written notice to Appellant of the specific date, although correspondence between Hall and Appellant’s representative, Jim Banks of the Arkansas Education Association (“AEA”), indicated that the April 19, 1993 date was discussed between Hall and Banks. Appellees agreed to reschedule the meeting for May 10, 1993, and notified Appellant by letter of the hearing. Appellant attended the May 10, 1993 board meeting with Banks. Before the proceeding, the attorney for Appellees cautioned the board members to consider only the evidence presented at that proceeding and further advised them that their prior vote to terminate Appellant had been rescinded.

Both Appellant and Carden testified that Appellant’s job duties were the same as they were for the 1991 contract. Appellant admitted that he was paid an overtime rate of time and one-half if he worked over forty hours per week. Appellant did not deny that he refused to drive the bus when his supervisor directed him to do so on January 23, 1993, and that was one of the duties for which he was hired. Appellees introduced the District’s policy which stated that insubordination is a ground for both immediate suspension and termination. Appellees also introduced Appellant’s 1991 job description, which contained the duty of driving the school bus on regular routes when necessary for Appellant’s position as “mechanic.” After the evidence was presented, the board members again voted to terminate Appellant.

On June 16, 1993, Appellant filed an amended complaint in the St. Francis County Chancery Court in which he alleged that the May 10, 1993 proceeding was “tainted.” Appellant further requested reinstatement and front pay, back pay, and punitive damages. Appellant’s second amended complaint, which he successfully transferred from chancery to circuit court, alleged that he was denied procedural due process when he was prevented from fully using the district’s grievance process. Appellant did not, however, produce any testimony which indicated that the termination hearing was tainted. One board member, Ronald Williams, testified that he voted against Appellant’s termination, but that he did not have his mind made up before he went into the hearing.

The circuit court held that the District had substantially complied with the Public School Employee Fair Hearing Act and entered an order in favor of Appellees, dismissing the complaint with prejudice on February 26, 1997. Appellant filed notice of this appeal on March 19, 1997.

This court set forth the standard of review for school board decisions in Murray v. Altheimer-Sherrill Pub. Sch., 294 Ark. 403, 743 S.W.2d 789 (1988):

The determination not to renew a teacher’s contract is a matter within the discretion of the school board, and the circuit court cannot substitute its opinion for that of the board in the absence of an abuse of discretion by the board. Leola School District v. McMahan, 289 Ark. 496, 712 S.W.2d 903 (1986); Chapman v. Hamburg Public Schools, 274 Ark. 391, 625 S.W.2d 477 (1981). Moreover, it is not this court’s function to substitute our judgment for the circuit court’s or the school board’s. Leola, supra; Moffitt v. Batesville School District, 278 Ark. 77, 643 S.W.2d 557 (1982). We will reverse only if we find on review of the trial court’s decision that the court’s findings were clearly erroneous. Ark. R. Civ. P. 52; Green Forest, supra.

Id. at 406, 743 S.W.2d at 790.

In Hamilton v. Pulaski County Special Sch. Dist., 321 Ark. 261, 900 S.W.2d 205 (1995), this court recognized that it is our responsibility to determine whether there has been procedural compliance under the Teacher Fair Dismissal Act. When required to review a statute, this court first looks to the plain language of the statute. Public Empl. Claims Div. v. Chitwood, 324 Ark. 30, 918 S.W.2d 163 (1996). When the statutory language is clear and unambiguous, this court follows the plain meaning of the words rather than interpreting it. Id.

For his sole argument on appeal, Appellant argues that the trial court erred when it held that his termination by Appellees was proper on the basis that it substantially complied with the provisions of section 6-17-1703. Appellant contends that the Public School Employee Fair Hearing Act requires strict compliance in order to protect his due process rights of notice and opportunity to be heard.

Section 6-17-1703 provides in relevant part:

(a) The superintendent of a school district may recommend termination of an employee during the term of any contract, or the nonrenewal of a full-time nonprobationary employee’s contract, provided that he gives notice in writing, personally delivered, or by letter posted by registered or certified mail to the employee’s residence address as reflected in the employee’s personnel file.
(c) Such written notice shall include a statement of the reasons for the proposed termination or nonrenewal.
(d) The notice shall further state that an employee being recommended for termination, or a full-time nonprobationary employee being recommended for nonrenewal, is entitled to a hearing before the school board upon request, provided such request is made in writing to the superintendent within thirty (30) calendar days from receipt of said notice.

It is clear that the General Assembly promulgated the Act to protect noncertified school employees’ rights to notice and opportunity to be heard by providing a reasonable hearing procedure when termination or nonrenewal is imminent. This is our first opportunity to determine the proper standard for compliance under the Act. We have, however, interpreted the Arkansas Teacher Fair Dismissal Act to require strict compliance due to the language contained in Ark. Code Ann. § 6-17-1503 (Repl. 1993), which reads in part:

A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school district’s applicable personnel policies.

See, e.g., Hannon v. Armorel Sch. Dist. #9, 329 Ark. 267, 946 S.W.2d 950 (1997). Appellant urges us to adopt the identical procedural requirement for noncertified school employees. For the reasons outlined below, we decline to adopt such requirement.

The trial court based its decision against Appellant on Murray, 294 Ark. 403, 743 S.W.2d 789, and concluded that substantial compliance is required and was followed under the Act. Murray was decided prior to section 6-17-1503. Although Murray concerned the Arkansas Teacher Fair Dismissal Act and a nonrenewal of a coach’s contract, it contained almost identical procedural facts. Without prior notice to Murray, the school board voted on the superintendent’s recommendation not to renew Murray’s teaching contract for the following year. The next day, the school district sent notice to Murray which informed him of the superintendent’s recommendation. The notice to Murray also provided:

I am also informing you that you may file a written request with the school board of the district for a hearing within 30 days after you receive this notice.
The hearing may be private unless you or the board shall request that the hearing be public. At the hearing, you may be represented by a person of your choice.

Id. at 405-406, 743 S.W.2d at 790. Later, the school district realized that its vote of nonrenewal took place before Murray was given notice or had an opportunity to be heard in contravention to the Teacher Fair Dismissal Act. The school board reconvened and voted to rescind its previous vote of nonrenewal. Murray requested a hearing which was held. At the conclusion of the meeting, the board again voted not to renew Murray’s contract. This court rejected Murray’s argument that the procedure violated his due process rights under Green Forest Pub. Sch. v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985), in which this court held that written notice of nonrenewal after the nonrenewal decision was made did not meet the requirements of substantial compliance under the Teacher Fair Dismissal Act of 1979, Ark. Stat. Ann. §§ 80-1264—1264.10 (Repl. 1980). Because the Altheimer-Sherrill school board formally rescinded all of its actions taken before Murray’s final hearing, this court held that substantial compliance was met. Additionally, counsel for the school board emphasized on the record that the board had rescinded its earlier decision, and further cautioned the board:

[You] should not vote based on any preconceived notions, indeed, if you have any, but should make your decision solely on what has been brought before you and will be brought before you during this hearing.

Murray, 294 Ark. at 408, 743 S.W.2d at 791. This court concluded:

This “cautionary instruction” coupled with the board’s formal rescission of its original vote cured any error resulting from the April 28 hearing. We presume that the board members are fair-minded and resolve matters presented to them on an impartial basis.

Id. Therefore, this court held that the school district had substantially complied with the procedural requirements inherent in the Teacher Fair Dismissal Act.

The General Assembly amended the Arkansas Public School Employee Fair Hearing Act in 1997 to include subsection (e), providing that noncertified school employees are no longer employees at will. We observe, however, that the General Assembly omitted the requirement of strict procedural compliance for noncertified employees covered under the Act. We therefore reject Appellant’s argument that the Act requires strict compliance. The express requirement found in the Teacher Fair Dismissal Act has compelled our recent holdings under the act covering certified teachers. Absent contrary legislative directive, we hold that substantial compliance is the applicable standard under the Arkansas Public School Employee Fair Hearing Act.

In conclusion, although Appellees concede that they initially erred when they terminated Appellant without notice on February 8, 1993, they later corrected the procedural defects under the Act. They complied the second time by sending notice which contained the reasons for the recommended termination to Appellant and notifying him of his right to a hearing. When Appellant missed the April 19, 1993 hearing, Appellees rescheduled it at the next regularly scheduled meeting time on May 10, 1993, at which time Appellant was given and availed himself of the opportunity to be heard and to cross-examine the witnesses who testified against him. The board was instructed to consider only the evidence presented at the May 10 hearing, and was advised that their previous vote was rescinded. We presume that the board members are fair-minded and did as instructed. There was no testimony to indicate otherwise or that Appellant’s hearing was tainted.

Accordingly, we hold that the trial court’s ruling which relied on Murray, 294 Ark. 403, 743 S.W.2d 789, was not clearly erroneous as applied to noncertified personnel and further hold that substantial compliance is the proper standard to apply pursuant to the Arkansas Public School Employee Fair Hearing Act. The trial court correctly found that Appellees did not violate Appellant’s procedural due process rights of notice and opportunity to be heard.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Phyllis June BROWN v. Billy Earl BROWN
    97-646
    962 S.W.2d 810
    Supreme Court of Arkansas
    Opinion delivered March 12, 1998

      J. Patrick McCarty, for appellant.

      Rex W. Chronister, for appellee.
   Robert L. Brown, Justice.

This appeal involves the distribution of a pension between divorced spouses. Appellant, Billy Brown, and appellee, Phyllis Brown, were married in 1951. In April 1981, Phyllis Brown began working at Hiram Walker & Sons, Inc., in Fort Smith, and the following year, she began to participate in the business’s retirement plan. On March 17, 1988, the couple separated, and they were eventually divorced on June 20, 1989. The divorce decree contained the following provision:

The Defendant (Phyllis Brown) has currently obtained an interest in a pension and savings plan through her employment at Hiram Walker. That the Defendant has been employed with this employer since April 20, 1981. The court finds that the Plaintiff (Billy Brown) shall have a one half interest in those pension and profit sharing benefits up to March 17, 1988.

There were, in fact, two pensions involved in the Browns’ divorce decree. Billy Brown’s military pension was also divided, with Phyllis Brown being awarded a one-half marital interest in ninety percent of his pension. The Arkansas Court of Appeals later held that her marital share included any postdecretal cost-of-living increases which enhanced the amount of Billy Brown’s pension. Brown v. Brown 38 Ark. App. 99, 828 S.W.2d 601 (1992).

Phyllis Brown continued to work at Hiram Walker until she retired in January 1996 at age 63. At that time, she began to draw retirement benefits in the amount of $978.72. That same year, her former husband filed this action in chancery court, seeking an accounting and a contempt order against her for failing to pay him the correct share of her pension benefits and refusing to provide him with information of what his share should be.

Phyllis Brown answered, and after receiving briefs and supporting documents, the chancellor ultimately made several findings in a modified order:

• that at the time of the divorce Phyllis Brown had accrued benefits in her retirement account in an amount which would allow her to receive approximately $414.00 per month if she continued to work at her current rate of pay until she retired on the normal retirement date of December 1, 1997;
• that between March 17, 1988, and the date she retired on January 1, 1996, Phyllis Brown received periodic merit increases in her monthly salary totaling $775.00;
• that these salary increases had the effect of raising her retirement benefits from $414.00 to $978.72 per month;
• that Phyllis Brown retired from Hiram Walker on January 1, 1996, and began drawing retirement benefits in the amount of $978.72 per month.

The chancellor initially concluded that even though the 1989 divorce decree was drafted by Billy Brown’s attorney, there was no merit to Phyllis Brown’s argument that the decree should be interpreted stricdy against her former spouse. He next considered Phyllis Brown’s postmarital enhancement argument that Billy Brown should not benefit from any increases in her salary following their separation. On this point, he concluded that Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986), was controlling and that all postmarital appreciation in benefits, including the salary increases, should be included for purposes of determining Billy Brown’s share in her pension. Accordingly, he awarded Billy Brown a share in her benefits of $978.72 per month.

On appeal, Phyllis Brown first contends that the divorce decree is subject to two interpretations and should be construed against the party under whose auspices the decree was drafted — in this case, Billy Brown. She cites cases to support her contention, but all of the cases she references involve the interpretation of a contract as opposed to a divorce decree. See Elcare, Inc. v. Gocio, 267 Ark. 605, 593 S.W.2d 159 (1980) (interpreting a sales contract and a “Care Agreement”); Sutton v. Sutton, 28 Ark. App. 165, 771 S.W.2d 791 (1989) (interpreting a separation agreement); DaCosse v. Ahrens, 2 Ark. App. 61, 616 S.W.2d 777 (1981) (interpreting a “Reconciliation Agreement”). We agree with the chancellor that this argument is without merit. Divorce decrees are not contracts but are orders of the chancery court. Moreover, the decree did not specify the method to be used in calculating the appropriate shares of Phyllis Brown’s pension. Hence, it was left to the chancellor to make that determination by subsequent order, which was done in this case.

Phyllis Brown’s second argument is that the chancellor erred in concluding that Askins v. Askins, supra, required the chancellor to include postmarital appreciation for purposes of calculating Billy Brown’s share in the pension. In the alternative, she urges that if we decide that the Askins case mandates such a ruling, we reconsider our decision in that case.

We have previously held that pensions are marital property and subject to distribution as such. Askins v. Askins, supra; Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986). In the instant case, a marital percentage was arrived at by using a numerator/denominator formula. Specifically, Phyllis Brown worked for 70 months while she was married to Billy Brown before separation and for a total time of 164 months, which included her years of marriage before separation and the following months until her retirement as well. This results in a fraction of 70/164 or 42.68% of her pension that was earned prior to separation. Billy Brown was entitled to a pension share based on one-half of the 42.68%, which is 21.34%. Both parties agree that this is the appropriate marital percentage to be applied.

The question for this court to decide is whether Billy Brown is entitled to one-half of Phyllis Brown’s accrued pension amount at time of separation on March 17, 1988, or 21.34% of the accrued pension amount, which is based in part on salary enhancements, in 1996. The precise issue is whether Billy Brown is entitled to benefit from any postmarital salary raises, when he did not begin receiving his pension share until Phyllis Brown actually retired some seven years after their divorce.

The chancellor clearly agreed with Billy Brown that he was entitled to base his pension share on the entire pension actually received by his former spouse, beginning January 1, 1996. Phyllis Brown counters that his marital share should only apply to the pension amount that she had earned at the time of their separation. She contends that the reason for this is any postmarital enhancements after that date should not be considered marital property because they were solely the result of her efforts. The amount of her pension against which the marital percentage of 21.34% should apply, according to Phyllis Brown, is $414.00 as ■opposed to $978.72.

We perceive the friction in this area to be the result of two competing principles of equitable distribution. On the one hand, there is the principle which Phyllis Brown espouses that all property acquired after divorce (or separation in this case) should not be part of the marital-property mix. On the other hand, there is the principle subscribed to by Billy Brown that both parties are entitled to increases in the value of marital property after divorce and before distribution, particularly when the divorced spouse does not begin receiving a share until some years after the divorce occurs.

We believe, as the chancellor concluded, that the issue of postmarital enhancement in benefits has been fully answered by this court. In Askins v. Askins, supra, we declined to exclude postmarital appreciation from the amount of the pension to be divided between divorced spouses. There, we first questioned whether the issue was procedurally barred but went on to hold that the chancellor operated within his discretion in dividing the pension as marital property the way he did. In our decision, we relied on two primary considerations. First, we recognized the fact that enhancements to a retirement plan are often most dramatic in the later years, and we indicated that it might be inequitable to allow a person who had supported his or her spouse through the lean years to be deprived of those later rewards. Secondly, we underscored that the chancellor has considerable discretion to divide marital property other than one-half to each party when it is equitable to do so. See Ark. Code Ann. § 9-12-315(a)(1)(A) (Repl. 1993). Those two principles guide us in affirming the chancellor in the case before us, and we note that other jurisdictions have reached the same conclusion. See, e.g., In re Marriage of Hunt, 909 P.2d 525 (Colo. 1995); Stoerkel v. Stoerkel, 711 S.W.2d 594 (Mo. Ct. App. 1986); Gemma v. Gemma, 778 P.2d 429 (Nev. 1989). See also Hare v. Hodgins, 586 So.2d 118 (La. 1991) (approving the Askins approach while allowing for exclusion in certain cases).

We are aware that there is a dispute in this case over the nature of Phyllis Brown’s postmarital salary increases. She contends that the seven salary increases following her separation were all merit increases. In support of her position, she points to her employer’s notices which describe the increases as “merit” increases. Merit increases, she maintains, should not be included to increase Billy Brown’s share, and she cites a case from the Louisiana Supreme Court as authority to support her argument. See, e.g., Hare v. Hodgins, supra. Billy Brown answers this argument by stating that in spite of the description on the notices, these were, in fact, little more than cost-of-living or longevity increases. He adds that the chancellor did find in his modified order that these were merit increases but declined to exclude them as improper enhancements.

We defer to the chancellor in this regard. Here, he considered the increases in Phyllis Brown’s salary following the separation and divorce and decided that they constituted legitimate adjustments for retirement benefits in which Billy Brown could participate. We made it crystal clear in Askins that this is the chancellor’s call under § 9-12~315(a)(l)(A), as is the case with all divisions of marital property. We do not read the chancellor’s order in the instant case to say that the Askins case divested him of all discretion in this area.

Affirmed.

       Phyllis Brown concedes in her brief in this appeal that the proper cutoff date for Billy Brown probably should have been the date of divorce, but the chancellor used the date of separation in his order and that is not an issue before us in this appeal.