author: T OM Glaze, Justice. R OBERT L. Brown, Justice,

text:
    Perry Burton HOLMES v. STATE of Arkansas
    CR 01-1057
    65 S.W.3d 860
    Supreme Court of Arkansas
    Opinion delivered February 7, 2002
    [Petition for rehearing denied March 14, 2002.]

      Frank E. Sha-w, for appellant.

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

Perry Holmes was charged with possession of methamphetamine, possession of drug paraphernalia, and possession of marijuana after police, responding to a call involving another individual, entered Holmes’s house and found drugs and drug paraphernalia inside. After the trial court denied his motion to suppress the items seized from his home, Holmes entered a conditional plea of guilty to the three charges; he then appealed to the court of appeals, and that court reversed his conviction. The State filed a petition for review in this court, and we accepted jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(b) (3), as the appeal involves issues of federal constitutional interpretation. We likewise reverse Holmes’s conviction.

On a petition for review, this court reviews the case as if the appeal had originally been filed in this court. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999). On review of a trial court’s denial of a motion to suppress, this court makes an independent examination based on the totality of the circumstances, and will reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 71, 954 S.W.2d 209 (1997). In making that decision, the court reviews the evidence in the light most favorable to the State. Id.

On April 23, 1999, the Faulkner County Sheriffs Department responded to a domestic violence call involving a man named David Ellis. Officer David Srite located Ellis at Holmes’s house, and as Srite pulled into Holmes’s driveway, Holmes and Ellis came outside. Because Srite had information that Ellis might be armed, he performed a pat-down search. Other officers arrived at the scene, and Srite asked them to take Ellis and Holmes to the squad cars to interrogate them.

Srite then saw a woman, later identified as Rosa Beth Allen, standing in the doorway of the house and decided to question her about Ellis. Srite testified that, when he asked her if there was anywhere that they could talk, Allen opened the door and stepped back. Interpreting Allen’s gestures as an invitation to come into the house, Srite stepped inside, whereupon he immediately smelled the strong odor of recently burned marijuana. He asked Allen where the marijuana was, and she pulled out a tray containing marijuana and drug paraphernalia. Srite then asked to whom the marijuana belonged, and Allen replied, “Perry.”

Srite then went outside to talk to Holmes, and Deputy Ursula Westmoreland entered the house to stay with Allen. Srite read Holmes his Miranda rights, and then asked Holmes to sign a consent-to-search form. After Holmes signed the consent, Srite took him inside, cleared off the couch to make sure it did not have any weapons hidden in it, and then searched the house. Srite and Westmoreland found roaches (the butts of marijuana cigarettes), seeds, and marijuana; after Holmes said there was methamphetamine in a refrigerator, the police retrieved that as well.

Holmes moved to suppress these items, but the trial court denied his motion, finding that Holmes freely consented to the search and that the police were justified in entering the residence and searching it out of concern for their own safety. On appeal, Holmes argues that the trial court erred in ruling that the officers’ concern for their safety justified the warrantless entry into his home. He also asserts that Rosa Beth Allen did not consent to the officers’ entry, and even if she had, she did not have the authority to do so.

We agree with Holmes’s argument that the trial court erred in denying his motion to suppress on the basis of the officers’ safety. Rules 3.1 and 3.4 of the Arkansas Rules of Criminal Procedure are relevant here. Ark. R. Crim. P. 3.1 (2001) covers the detention of persons and reads as follows:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.

Rule 3.4, which governs a police officer’s search for weapons, provides:

If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others. (Emphasis added.)

Under Rule 3.1, Officer Srite was entitled to stop and detain David Ellis, and because Srite had reason to believe that Ellis had a weapon, he was justified in searching Ellis’s outer clothing. However, as the last sentence of Rule 3.4 states, “[i]n no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer.” At the time of the search, Ellis was outside, and was promptly taken to a waiting squad car for further questioning. There was no evidence to show that entry into Holmes’s house was necessary or required to protect the officers’ safety. Thus, once Srite determined that Ellis either was or was not a danger to Srite’s safety, the search should have been terminated. Rules 3.1 and 3.4 did not authorize Srite’s entry into Holmes’s house, and the trial court erred in ruling otherwise.

Holmes’s second point on appeal is that the trial court erred in basing its denial of the motion to suppress on Allen’s “consent” to Srite’s search of the house. In response, the State contends that Srite did not go into the house to “search” for anything, but merely went in to question Allen about how long Ellis had been at that location. In resolving this issue, we first must consider what constitutes a “search.” Ark. R. Crim. P. 10.1 (2001) defines a search as follows: “[A]ny intrusion other than an arrest, by an officer under color of authority, upon an individual’s person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance, if such intrusion, in the absence of legal authority or sufficient consent, would be a civil wrong, criminal offense, or violation of the individual’s rights under the Constitution of the United States or this state.” (Emphasis added.) The commentary to Rule 10.1 notes that “[t]he key word in the definition is ‘intrusion,’ a term sufficiently broad to encompass any legally cognizable interference with an individual’s right to privacy. . . . [T]he definition of‘search’ is extended to cover any intrusions upon the privacy of an individual.” Srite’s entry into Holmes’s house clearly amounted to a search, within the meaning of this rule.

We next consider whether or not the search was reasonable. On this subject, the United States Supreme Court wrote, in Payton v. New York, 445 U.S. 573 (1980), the following:

[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.
* * *
It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.
* * *
The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home —■ a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their . . . houses. . . shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” [Citation omitted.] In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm fine at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton, 455 U.S. at 585-86, 589-90. Further, the Court has noted that, “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27 (2001).

Consistent with the above principles, this court has likewise held repeatedly that warrantless searches in private homes are presumptively unreasonable. See, eg., McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999); Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997). The burden is on the State to prove that the warrantless activity was reasonable. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). However, the presumption of unreasonableness may be overcome if the law-enforcement officer obtained consent to conduct a warrantless search. See Ark. R. Crim. P. 11.1 (2001); see also Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995).

In the present case, the State argues that because Holmes consented to the search of Iris home in writing, the search was constitutionally permissible. We cannot agree with this assessment. Holmes did not sign the consent-to-search form until after the initial intrusion had taken place and marijuana had been found. In Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991), the court of appeals correctly recited the “fruit of the poisonous tree” doctrine, which provides that evidence obtained by the exploitation of a primary illegality must be excluded. See Wong Sun v. United States, 371 U.S. 471 (1963). In applying this doctrine to the facts in the instant case, we must determine the propriety of Officer Srite’s initial intrusion, since if that entry was illegal, Plolmes’s subsequent consent cannot validate Officer Srite’s initial warrandess entry into the Holmes home.

In turning to the validity of Srite’s initial warrantless entry permitted by Allen, the State argues that Allen’s actions in opening the door to Srite constituted a valid “third-party consent” that rendered his intrusion into the home reasonable. Ark. R. Crim. P. 11.2 (2001) provides that “[t]he consent justifying a search and seizure can only be given, in the case of: . . . (c) [a] search of premises, by a person who, by ownership or otherwise, is apparently entided to give or withhold consent.” The State contends that Srite could have reasonably relied on Allen’s apparent authority to consent to his entry into Holmes’s house.

We first address the question of whether or not Allen consented to the search. This court has held that consent to an invasion of privacy must be proved by clear and positive testimony, and this burden is not met by showing only acquiescence to a claim of lawful authority. See, e.g., Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997); Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980). The concept of “implied consent” was examined in Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999), where this court looked to United States v. Gonzales, 71 F.3d 819 (11th Cir. 1996), and wrote as follows:

The question of “implied consent” . . . was more closely examined recently in U.S. v. Gonzalez, supra. In Gonzalez, the officer approached an individual outside her home and asked if she would consent to a search of her home. Following a conversation with her daughter, she told the officer she wanted to go inside and get a drink of water. The officer then told her he “wanted to go in” with her, and when she did not bar him from going in, he followed her inside. The Eleventh Circuit held that there was no consent to enter:
We have previously noted our hesitancy to find implied consent (i.e. consent by silence) in the Fourth Amendment context, and we agree with our colleagues in the Ninth Circuit that whatever relevance the implied consent doctrine may have in other contexts, it is inappropriate to ‘sanction entry into the home based upon inferred consent.’
Gonzalez then quoted from U.S. v. Shaibu, 920 F.2d 1423 (9th Cir. 1990), to which it had referred above:
The government may not show consent to enter from the defendant’s failure to object to the entry. To do so would be to justify entry by consent and consent by entry. “This will not do .’’Johnson v. United States, 333 U.S. at 17. We must not shift the burden from the government to show “unequivocal and specific” consent ■— to the defendant, who would have to prove unequivocal and specific objection to a police entry, or be found to have given implied consent.
Gonzalez, 71 F.3d at 830.

Norris, 338 Ark. at 409 (emphasis in original).

While we do examine the evidence in the light most favorable to the State when we review a trial court’s denial of a motion to suppress, we are unable to conclude that the State met its burden of proving by clear and positive testimony that Allen “consented” to Srite’s entry. When he testified at the suppression hearing, Srite conceded that Allen did not say “come on in,” or otherwise verbally invite him to enter. Rather, she opened the door and stepped back; she may have nodded. As the court of appeals noted, Allen could have been inviting Srite in, or she could have been “reacting to the command of a law enforcement officer who . . . was accompanied by at least two other officers who had already taken away the person who resided in the house.” To conclude that Allen’s actions amounted to an invitation to Srite’s entry would be to “sanction entry into the home based upon inferred consent,” which we are loath to do. Also, Srite conceded that Allen “appeared to be under the influence,” which added to the uncertainty and lack of clarity of what Allen intended by her actions. Based on the totality of the circumstances, we conclude that the trial court erred in denying Holmes’s motion to suppress.

Because we believe the State failed to prove by clear and positive testimony that Allen consented to Srite’s entry into the home, we need not consider whether or not Allen possessed apparent authority to give consent. Because the warrantless entry into Holmes’s house was unreasonable, we hold the trial court erred in denying Holmes’s motion to suppress.

Reversed and remanded.

Corbin and Brown, JJ. dissent.

R OBERT L. Brown, Justice,

dissenting. I am at a loss to know what Officer David Srite did wrong in this case. He was responding to a domestic violence call involving David Ellis. After patting Ellis down for weapons outside the house, he went to the front door and asked Rosa Beth Allen if he could talk to her about the matter. She opened the door, stepped back, and nodded. I view that as specific and unequivocal consent to enter. At this point, possession of illegal drugs by Perry Holmes was not even on Officer Srite’s radar screen. Everyone agrees that as he entered the house, his sole interest was domestic violence. After entering, he smelled marijuana.

My first problem with the opinion is that the majority analyzes this case as a consent-to-search case. It clearly is not. A consent to enter the house to talk is all that was involved. Other jurisdictions have recognized this important distinction between a consent to enter and a consent to search when there is no showing that the police officers gained entry by subterfuge to investigate another crime. See, e.g., State v. Pamer, 70 Ohio App.3d 540, 591 N.E.2d 801 (1990); Bell v. State, 676 S.W.2d 219 (Tex. Ct. App. 1984); Davis v. United States, 327 F.2d 301 (9th Cir. 1964). In Pamer, the facts are almost identical to this case. The sheriffs deputies were responding to a domestic disturbance and the appellant’s daughters let them inside the house at 1:30 a.m. Once inside, the officers saw marijuana in plain view. In refusing to suppress the marijuana, the Ohio Court of Appeals underscored the fact that the only intent of the deputies in entering the house was to assure that the daughters were safe — not to search for marijuana.

In Bell v. State, supra, the police officers were at the house to serve a protective custody order. A police officer knocked and a voice said, “come in.” The police officer entered and saw a woman injecting herself with a hypodermic needle. Next to where the woman was sitting was a plate of heroin. The Texas Court of Appeals refused to suppress the heroin and distinguished a consent to enter from a consent to search. The court specifically emphasized that there had been no showing that the police officers entered by fraud or deceit.

I distinguish these cases and the case before us from a situation where police officers have received a complaint of illegal activity and go to a residence with investigation or a search in mind without a search warrant. See, e.g., State v. Kennedy, 107 Wash. App. 972, 29 P.3d 746 (2001) (police investigating narcotics complaint saw plastic baggie with methamphetamine after consent to enter; drugs suppressed); State v. Buzzard, 194 W.Va. 544, 461 S.E.2d 50 (1995) (police investigating breaking and entering went to motel room where consent to enter given; court suppressed shoes in plain view used in the crime on basis consent not voluntarily given). Those fact situations are not the case before us.

What should Officer Srite have done differently? Should he have said, “I want to talk to you about Ellis and domestic violence, but if you have any illegal activity going on inside, don’t let me in.” That seems a highly unreasonable test for this court to invoke. Should he have had Ms. Allen sign a waiver of all rights before entering to talk, much like a Miranda waiver, or advised her that she did not have to consent? That approach might have more validity if this were a “knock-and-talk” case where consent to search was the issue from the beginning. See, e.g., State v. Ferrier, 136 Wash. 2d 103, 960 P.2d 927 (1998). But it is not. Again, the police officer only wanted to talk to her about Ellis and domestic violence, not Holmes and drugs. A consent to search for drugs was not on Officer Srite’s mind, when he was standing on the threshold of the house. I would not suppress the marijuana and drug paraphernalia under these facts.

For that reason, I respectfully dissent.

Corbin, J., joins.

       On redirect examination, Srite further testified that “[e]veryone else was outside except her, and that was the problem. I was running out of space to do a one-on-one investigation.” The context of Srite’s testimony reflects he wanted to go inside the house to talk to Allen.

       As already mentioned, the police were looking for David Ellis because they had received a report that he had violated a protective order and was possibly carrying a gun.

       Although the dissent emphasizes that Officer Srite’s objective was only to interrogate Allen about the alleged domestic violence incident, it nevertheless ignores the oft-repeated

        rule that a warrantless entry into a private home is per se unreasonable. Welsh v. Wisconsin, 466 U.S. 740 (1984); McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001); Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). Further, the dissent appears to take no notice of our emphasis on what, under Rule 10.1, constitutes a “search.” As discussed above, a search is defined as “any intrusion . . . upon an individuals person, property, or privacy, for the purpose of. . . obtaining information[.] . . . The definition of‘search’ is extended to cover any intrusion upon the privacy of an individual.” (Emphasis added.) Clearly, Officer Srite’s intrusion into Holmes’s house, without clear evidence of Allen’s consent, constituted an improper search.

       We do briefly address the State’s contention that, once inside, Srite’s detection of the odor of marijuana constituted reasonable cause to conduct a search. In support of this argument, the State cites McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999). That case, however, dealt with a vehicular search, not a warrantless search of a private home. It is well established that warrantless searches of automobiles may be reasonable when, under the same circumstances, a search of a home, place of business or other structure would not be because of die mobility of the automobile and the diminished expectation of privacy in an automobile. See, e.g., Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980); Williams v. State, 26 Ark. App. 62, 760 S.W.2d 71 (1988). Here, however, the initial warrandess entry into the home was unreasonable, and as such, the State’s argument that the discovery of the marijuana was the result of a “logical progression of events,” is without merit, as that theory depends on the initial stop being valid. See Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982); Adams v. State, 26 Ark. App. 15, 758 S.W.2d 709 (1988).


source: Caselaw Access Project

author: R OBERT L. Brown, Justice.

license: Public Domain

text:
    MISSISSIPPI RIVER TRANSMISSION CORPORATION v. Richard A. WEISS, Director of the Department of Finance and Administration of the State of Arkansas
    01-527
    65 S.W.3d 867
    Supreme Court of Arkansas
    Opinion delivered February 7, 2002

      Horne, Hollingsworth & Parker, A Professional Association, by: Michael O. Parker, for appellant.

      Michael f. Wehrle, for appellee.
   R OBERT L. Brown, Justice.

This is an illegal-exaction case. The appellant is Mississippi River Transmission Corporation (MRT). The appellee is Richard A. Weiss, in his official capacity as the Director of the Arkansas Department of Finance and Administration (DFA). Both parties moved for summary judgment, and summary judgment was entered in favor of DFA. MRT appeals the trial court’s grant of summary judgment to DFA on the issue of whether certain natural gas is taxable under the Arkansas use tax. MRT essentially raises two points on appeal: (1) whether an amendment to the statutory come-to-rest requirement is best left to the General Assembly; and (2) whether the come-to-rest requirement was complied with in this case. We agree with MRT on both points and reverse the order of summary judgment in favor of DFA. We further direct the trial court to enter summary judgment in favor of MRT.

The facts of this case are stipulated to by the parties. MRT is a natural gas pipeline company incorporated in Delaware with its principal place of business in St. Louis, Missouri. MRT owns and operates roughly 2,000 miles of natural gas pipeline and has four pipelines that pass through Arkansas, comprising approximately 300 miles of pipeline. Almost all of the gas transported by MRT’s lines originates outside of Arkansas.

At eight points along MRT’s Arkansas pipelines, compressor stations provide the force necessary to move the natural gas through the pipelines. These compressor stations consist of combustion engines, called compressor units, with various piping to facilitate the movement of the natural gas in and around the compressor units. The compressor units are fueled by natural gas diverted from the pipeline into the units. This gas is in constant motion until it reaches the combustion chamber of the compressor unit, where it is immediately ignited and fuels the engine. The compressor gas residue is discharged into the air as exhaust. The compressor unit pressurizes the natural gas not used to fuel the units and then sends the pressurized gas back into the pipeline.

Prior to November 1, 1993, MRT owned almost all of the natural gas that ran through its pipeline. However, pursuant to Federal Energy Regulatory Commission regulations, after November 1, 1993, MRT was prohibited from transporting its own natural gas through its pipelines. Instead, it contracted with its customers to provide gas-shipment services though its pipelines. These customers, in turn, provided the compressor gas in kind, the cost of which was deducted from their shipping contracts.

When MRT owned the natural gas, DFA taxed the gas used in the compressor units as a gross receipts or sales tax. This sales tax was predicated on MRT’s ownership of the natural gas. See Ark. Code Ann. § 26-52-103(a)(4)(B)(i) (Supp. 2001). This court upheld the levy of a comparable sales tax on compressor gas in Pledger v. Arkla, Inc., 309 Ark. 10, 827 S.W.2d 126 (1992), and concluded that the tax was not a burden on interstate commerce. After MRT ceased owning the gas, DFA decided it could no longer tax the gas used in the compressor units as a sales tax. DFA then began taxing the owners of the gas used in the compressor units as a use tax. In 1996, this court held that a use tax could not be levied against the gas owners, because the right to use the gas arose outside of Arkansas, and, thus, any taxable use occurred outside of the state. See Boral Gypsum, Inc. v. Leathers, 325 Ark. 272, 924 S.W.2d 805 (1996).

After the Boral Gypsum decision, DFA decided it could no longer hold MRT’s customers responsible for the use tax, because they were out-of-state owners. Instead, DFA opted to hold MRT responsible for the use tax on the compressor gas as the pipeline owner. DFA conducted a use tax audit of MRT from January 1, 1992, through December 31, 1994, and the audit resulted in an assessment of taxes against MRT for a variety of items. One item in the proposed assessment was a use tax on the compressor fuel for the fourteen-month period from November 1, 1993, to December 31, 1994. DFA’s final assessment for the use tax owing on the compressor gas for this period was $111,744.70 with $28,185.23 as added interest.

On May 26, 1999, MRT filed its complaint and alleged that the imposed use tax was contrary to the statute, Ark. Code Ann. § 26-53-106(b) (Repl. 1997), because its compressor gas never came to rest in Arkansas within the meaning of the statute. Both parties then filed cross motions for summary judgment and entered into a stipulation of facts. The trial court held that the compressor gas was removed from commerce and sufficiently ended. The court, accordingly, entered summary judgment in favor of DFA.

MRT raises essentially the same issue under two of its points on appeal: is an amendment to the come-to-rest requirement under § 26-53-106(b) solely a matter for legislative action and not judicial interpretation?

The come-to-rest test grew out of a case handed down by the United States Supreme Court in 1929. See Helson v. Kentucky, 279 U.S. 245 (1929). In Helson, the Commonwealth of Kentucky sought to tax gasoline used to propel a ferryboat across the Ohio River between Kentucky and Illinois. The Court recited the basic principles of the interstate commerce clause as they relate to a state’s power to tax or regulate interstate commerce:

Regulation of interstate and foreign commerce is a matter committed exclusively to the control of Congress, and the rule is settled by innumerable decisions of this court, unnecessary to be cited, that a state law which directly burdens such commerce by taxation or otherwise constitutes a regulation beyond the power of the state under the Constitution. It is likewise settled that transportation by ferry from one state to another is interstate commerce and immune from the interference of such state legislation. The power vested in Congress to regulate commerce embraces within its control all the instrumentalities by which that commerce may be carried on. A state cannot lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on. While a state has power to tax property having a situs within its limits, whether employed in interstate commerce or not, it cannot interfere with interstate commerce through the imposition of a tax which is, in effect, a tax for the privilege of transacting such commerce.

Helson, 279 U.S. at 248-49 (citations and quotations omitted). Without establishing a clear test, the Court went on to hold that Kentucky could not impose the tax on ferryboat gasoline, because the tax would discourage interstate transportation. Eight years later, the Court revisited the issue and developed the come-to-rest test. See Henneford v. Silas Mason Co., 300 U.S. 577 (1937). In the Silas Mason Co. case, Justice Cardozo wrote on behalf of the Court: “A tax upon the privilege of use or storage when the chattel used or stored has ceased to be in transit is now an impost so common that its validity has been withdrawn from the arena of debate. . . . The tax upon the use after the property is at rest is not so measured or conditioned as to hamper the transactions of interstate commerce or discriminate against them.” Silas Mason Co., 300 U.S. at 583.

Arkansas enacted its first use tax statute in 1949. See “The Arkansas Compensation Tax Act of 1949,” 1949 Ark. Acts 487. At the time, the Act conformed to the prevailing jurisprudence handed down by the United States Supreme Court regarding use taxes and the limitations put on states by the interstate commerce clause of the United States Constitution. See U.S. Const. Art. I, § 8, cl. 3; Henneford v. Silas Mason Co., supra; Helson v. Kentucky, supra. The Act required that any item of tangible personal property not subject to the Arkansas sales tax was subject to the Arkansas use tax, so long as “the transportation of such article has finally come to rest within this State or until such article has become commingled with the general mass of property of this State.” Act 487, § 5(a), now codified as Ark. Code Ann. § 26-53-106(b) (Repl. 1997) (emphasis added).

The come-to-rest principle prevailed for constitutional purposes until 1977, when the United States Supreme Court visited the issue once more. See Complete Auto Transit Inc. v. Brady, 430 U.S. 274 (1977). The Complete Auto Transit Court quoted with approval the Mississippi Supreme Court’s analysis of the tax at issue:

It will be noted that Taxpayer has a large operation in this State. It is dependent upon the State for police protection and other State services the same as other citizens. It should pay its fair share of taxes so long, but only so long, as the tax does not discriminate against interstate commerce, and there is no danger of interstate commerce being smothered by cumulative taxes of several states. There is no possibility of any other state duplicating the tax involved in this case.

Complete Auto Transit, 430 U.S. at 277. The four factors set out by the Mississippi Supreme Court have become the prevailing constitutional test for whether a tax burdens interstate commerce: (1) whether the activity sought to be taxed has a substantial nexus to the taxing state; (2) whether the tax is fairly apportioned with taxes paid to other states {e.g., whether there is a mechanism to avoid double taxation such as a setoff of taxes paid to other states); (3) whether the tax discriminates against interstate commerce {e.g., whether the tax is born of economic protectionism, calculated to encourage buyers to buy only in-state goods or services); and (4) whether the tax is fairly related to services provided by the taxing state. See D.H. Holmes Co. v. McNamara, 486 U.S. 24 (1988) (employing the four Complete Auto Transit factors). Since 1977, the Arkansas General Assembly has not amended the come-to-rest language in the use tax statute (§ 26-53-106(b)) to reflect the changes in commerce clause jurisprudence announced in Complete Auto Transit.

This court has applied the Complete Auto Transit factors to our sales tax statute when a sales tax was levied on compressor gas. See Pledger v. Arkla, Inc., supra. However, the sales tax statute at issue in Pledger, Ark. Code Ann. § 26-53-301 (Repl. 1991), had no come-to-rest language as does the use tax statute. Thus, the fact that this court used the Complete Auto Transit test in Pledger has no application to the case at hand.

We decline to adopt the Complete Auto Transit factors and substitute them for the come-to-rest test, when our General Assembly has enacted the come-to-rest requirement and that test is still part of the statute. We observe in this regard that the Complete Auto Transit decision was decided by the Court in 1977, and the General Assembly has had twelve opportunities since that time to amend the use tax statute and substitute the less stringent substantial nexus test set out in Complete Auto Transit. It has not done so. For these reasons, we agree with MRT that we should apply the come-to-rest standard in the use tax statute just as we find it codified at § 26-53-106(b) and not amend it by judicial decision to substitute the Complete Auto Transit test.

We turn next to the issue of whether the compressor gas in question meets the come-to-rest test. MRT argues that its compressor gas does not stop within the meaning of § 26-53-106(b), before it is ignited and consumed at the compressor stations. As such, it claims that the gas cannot be taxed by DFA under the use tax provision of the Tax Code. DFA responds that the compressor gas does come to rest at the same time it ignites in the combustion chambers of the compressor units and is consumed. The trial court, in upholding the tax, agreed with DFA and cited the Complete Auto Transit factors. The court further recognized that our statute still imposes the come-to-rest test but concluded that when the compressor gas was consumed, it came to rest within the meaning of the statute. Thus, it was taxable.

This case presents an issue of statutory interpretation within the context of a grant of summary judgment. We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See, e.g., Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000); George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). In this case, the facts are undisputed and were stipulated to by the parties. There were also cross motions for summary judgment. As such, the case was decided purely as a matter of statutory interpretation.

We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Fewell v. Pickens, 346 Ark. 246, 57 S.W.3d 144 (2001); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001); Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997).

When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000) ; Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Stephens v. Arkansas Sch. for the Blind, supra (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). An additional rule of statutory construction in the area of taxation cases is that when we are reviewing matters involving the levying of taxes, any and all doubts and ambiguities must be resolved in favor of the taxpayer. Barclay v. First Paris Holding Corp., 344 Ark. 711, 42 S.W.3d 496 (2001); Central and Southern Cos. v. Weiss, 339 Ark. 76, 3 S.W.3d 294 (1999).

Although our court has never directly addressed the issue before us today, other jurisdictions have. The Tennessee Supreme Court, in a pre-Complete Auto Transit case directly on point with this one, held that natural gas used to power compressor units does not come to rest for purposes of the use tax. See Texas Gas Transmission Corp. v. Benson, 223 Tenn. 279, 444 S.W.2d 137 (1969). In so holding, the court noted:

The undisputed proof is the fuel gas does not come to rest after it leaves the mains and enters the compressor engines. It is in a continuous flow and never stops moving until consumed by the engines.
Thus, the fuel gas does not come to rest in this State, nor does it become a part of the mass of property within this State. It furnishes energy to operate the compressors which maintain the constant flow of gas through this State in interstate commerce. It is, therefore, a necessary and integral part of the interstate operation.
The fuel gas being one of the means by which the commerce is carried on, it is exempted from the use tax under the statute.

Texas Gas Transmission Corp., 223 Tenn. at 284, 444 S.W.2d at 138. The Tennessee Supreme Court interpreted the come-to-rest provision in the statute literally in holding that the natural gas did not cease movement, and, thus, was not subject to the use tax. The Michigan Court of Appeals followed Texas Gas Transmission Corp. and reached the same conclusion in Michigan Wisconsin Pipe Line Co. v. State, 58 Mich. App. 318, 227 N.W.2d 334 (1975). In that case, the Michigan Supreme Court, in denying the use tax, emphasized that the fact the compressor gas was in transit when consumed was uncontested.

While Michigan Wisconsin Pipeline Co., supra, and Texas Gas Transmission Corp. v. Benson, supra, were statutory interpretation cases, both opinions relied on the United States Supreme Court’s interstate commerce clause jurisprudence. Both were written before the Complete Auto Transit decision, and both cited favorably the Supreme Court’s reasoning in Helson v. Kentucky, supra, in holding that the natural gas should not be taxed as that would be taxing an instrumentality of interstate commerce.

An examination of the plain language of § 26-53-106(b) supports the same conclusion as that reached by the appellate courts in Texas Gas Transmission Corp. v. Benson, supra, and Michigan Wisconsin Pipeline Co. v. State, supra. Section 26-53-106(b) reads:

(b) This tax will not apply with respect to the storage, use, distribution, or consumption of any article of tangible personal property purchased, produced, or manufactured outside this state until the transportation of the article has finally come to rest within this state or until the article has become commingled with the general mass of property of this state.

Ark. Code Ann. § 26-53-106(b) (Repl. 1997) (emphasis added). The emphasized portions of this statute clearly reveal that under its plain language, the General Assembly did not intend for consumption of a product to be the equivalent of its coming to rest. Rather, the statute contemplates that property must first come to rest before it is consumed in order for it to be taxable. Otherwise, the come-to-rest requirement would be meaningless. In this case, the parties have stipulated to the fact that the gas remains in continuous motion until it is ignited.

Only one court has held to the contrary. In Columbia Gulf Transmission Co. v. Broussard, 653 So. 2d 522 (La. 1995), the Louisiana Supreme Court stated:

When the natural gas compressor fuel is consumed, it comes to rest and becomes a part of the state’s property. Fuel must necessarily come to rest as it is consumed. It ceases to exist; it is terminated; it is used in Louisiana; it cannot be taxed in another state. Thus, the natural gas is subject to tax when it is consumed in the state under the language of the statute.

Columbia Gulf Transmission Co., 653 So. 2d at 523-24. The Louisiana Supreme Court was construing a use tax statute written exactly like the Arkansas use tax statute, and the facts of the Louisiana case are virtually indistinguishable from the case at hand. The Louisiana court, however, applied the Complete Auto Transit factors. We simply disagree with the interpretation of the Louisiana court and do so on the basis of the plain language of the Arkansas statute, which requires that the natural gas come to rest prior to consumption.

We hold that the compressor gas at issue in this case, which the parties agreed was in constant motion, did not come to rest before consumption, as the statute requires. Accordingly, the trial court erred in its statutory interpretation. We reverse the judgment of the trial court and remand the case with directions that the court enter judgment in favor of MRT.

Reversed and remanded.

       In the 1999 Legislative Session, Senate Bill 445 was introduced which would have removed the come-to-rest language from the use tax statute. The bill was withdrawn by its sponsor.


author: A NNABELLE CLINTON IMBER, Justice.

text:
    ARKANSAS DEPARTMENT of HUMAN SERVICES v. Rose HUFF
    00-1357
    65 S.W.3d 880
    Supreme Court of Arkansas
    Opinion delivered February 7, 2002

      Dana McClain, for appellant.

      Paul R. Post, for appellee.
   A NNABELLE CLINTON IMBER, Justice.

This case is on appeal .from the August 16, 2000, order of the Chancery Court of Sebastian County, Fort Smith District, Juvenile Division, wherein the trial court returned seven children to their mother and closed the case. The questions before us are whether a Colorado home study was properly excluded from evidence by the trial court and whether the Interstate Compact on the Placement of Children (ICPC), Ark. Code Ann. §§ 9-29-201 et seq. (Repl. 1998), applies to court-ordered placement of children with an out-of-state parent. Based upon the trial court’s authority under Ark. R. Evid. 403 to weigh the relevance of the evidence against the potential for prejudice and the plain language of the ICPC, we affirm the trial court.

Rose Huff requested assistance from the Arkansas Department of Human Services (ADHS) in July 1998. Ms. Huff had seven young children, the youngest of which had just been born prematurely and was still in the hospital. She was unemployed, homeless, and without transportation. Ms. Huff was walking around all day with six of the young children because they were not allowed to stay at the Salvation Army during the day. ADHS filed a petition for emergency custody of the children, requesting that the children be declared dependent-neglected. An ex parte order entered on July 31, 1998, placed the children in the custody of ADHS and appointed a guardian ad-litem for them.

On August 17, 1998, the trial court issued a probable cause order granting custody of the seven children to ADHS. Ms. Huff s oldest daughter had previously been sent to Colorado to live with some of Ms. Huffs family. After ADHS took custody of the other children and the trial court entered its adjudication order on September 21, 1998, finding the children dependent-neglected as defined in the Arkansas Juvenile Code, Ms. Huff moved to Colorado. The seven young children were subsequendy placed in the homes of Ms. Huff’s mother and aunt in Colorado through the ICPC. Due to a disruption, the children were returned to Arkansas less than three months later and placed in foster care. The case plan implemented called for reunification of the children with Ms. Huff. It required her to visit the children once per week by telephone and one weekend per month in person. ADHS provided air transportation for the monthly visits. Ms. Huff was ordered to maintain a stable income, maintain appropriate and stable housing, seek counseling, seek treatment for alcohol addiction, and visit with the children as ordered.

In September 1998, Ms. Huff found employment in Colorado, which she maintained through the August 2000 hearing. She also obtained housing. Ms. Huff attended nine of fifteen scheduled counseling appointments and then was dropped from the counseling program due to non-attendance. She also attended five of twelve drug and alcohol screenings before being dropped from the screening program due to missed appointments. Ultimately, she obtained reports reflecting that no further counseling was necessary. She completed a parenting class and visited her children each month. On July 22, 1999, after concluding that Ms. Huff had made progress in complying with the case plan, the trial court decided that the goal of reunification was still in the best interests of the children. On September 2, 1999, however, the court determined that continuation of custody with ADHS was necessary for the children’s health and safety.

ADHS filed a petition for termination of parental rights on September 27, 1999, because the children had been out of the home for more than one year and reunification efforts had been unsuccessful. A termination of parental rights hearing was held on December 6, 1999. The trial court terminated the parental rights of the father, but denied ADHS’s request to terminate the parental rights of Ms. Huff. In addition to existing requirements set by the court, Ms. Huff was ordered, as of May 8, 2000, to begin paying her own transportation expenses for her monthly visits with the children. At the December 6 hearing, ADHS proffered the results of a home study conducted on Ms. Huffs home in Colorado pursuant to the ICPC. The study revealed that Colorado officials found the home to be inappropriate and would deny placement under the ICPC. The trial court refused to admit the home study into evidence based upon the fact that no witness was present to be cross-examined as to its findings.

Following a review hearing on August 8, 2000, the trial court concluded that Ms. Huff had complied with the case plan and prior orders of the court “by cooperating with the Department, maintaining stable employment and housing, [paying] for her own travel expenses to visit, [making] all visits, [having] phone contact with the children and [providing] two drug assessments at this hearing,” and ordered that custody of the children be returned to her. Based upon its finding that the family required no further services, the trial court closed the case. ADHS now appeals from that order entered on August 16, 2000.

I. Jurisdiction

The appellant claims that the trial court erred by not admitting the Colorado home study into evidence. Ms. Huff argues that the issue of admissibility of the home study is not properly before this court. While the home study was proffered at the termination of parental rights hearing on December 6, 1999, Ms. Huff maintains that ADHS is barred from raising the issue on appeal because the study was not proffered at the August 8, 2000 hearing from which this appeal is taken.

Arkansas Rule of Appellate Procedure — Civil 2(c)(3) is determinative of which orders resulting from juvenile hearings are final appealable orders. Under that rule, orders resulting from termination of parental rights hearings (in juvenile cases where an out-of-home placement has been ordered) are final appealable orders. Ark. R. App. P. — Civ. 2(c)(3)(C). A notice of appeal must be filed within thirty days from entry of the judgment, decree, or order appealed from. Ark. R. App. P. — Civ. 4(a). Thus, Ms. Huff argues that ADHS should have appealed the court’s ruling on the admissibility of the home study within thirty days following the trial court’s entry of its order terminating parental rights and review order on December 13, 1999.

This court has held that, where an issue was not addressed below, we will not consider it for the firsr time on appeal. See B.C. v. State, 344 Ark. 385, 40 S.W.3d 315 (2001). ADHS could have appealed the trial court’s refusal to terminate parental rights under Ark. R. App. P. — Civ. 2(c)(3)(C), but it chose only to dispute the August 16 order returning custody of the children to Ms. Huff. While it is true that ADHS neither offered nor proffered the home study at the August 8 hearing, the issue of the home study was ruled on by the trial court at the August 8 hearing. ADHS attempted to introduce into evidence a “Court Report” which stated: “The Department recommends that all seven Huff children remain in foster care. The ICPC home study in Colorado on Rose Huffs home has been denied for the third time.” Ms. Huffs counsel objected to the portion of the report referring to the home study, as the court had already decided at the December 6 hearing that the home study would not be admitted into evidence without the presence of someone who could be cross-examined as to its contents. The court then ordered that the portion .of the report referring to the home study be stricken. In addition, at the conclusion the August 8 hearing, counsel for ADHS objected to placing the children in Colorado without an approved ICPC home study. The court replied: “I don’t think it’s required when the custody has been placed with the mother. We’re not asking Colorado to provide a thing.” The record shows that the admissibility of the home study was before the trial court at the August 8 hearing, and thus, the issue is properly before this court.

II. Admissibility of Home Study

ADHS asserts that the trial court abused its discretion in refusing to admit the Colorado home study into evidence as a business record under Ark. R. Evid. 803(6) or as a public record or report under Ark. R. Evid. 803(8). We review evidentiary errors under the abuse-of-discretion standard. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). The trial court has broad discretion in its evidentiary rulings; hence, the trial court’s findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. Id.

At the December 6 hearing, ADHS attempted to introduce the home study, and Ms. Huffs counsel objected based on the fact that the person who prepared the report was not going to be available to testify and be cross-examined. ADHS argued that the report was admissible under either Rule 803(6) or 803(8). The hearsay exceptions in Rule 803 include an exception for business records:

(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses [sic], made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Ark. R. Evid. 803(6). This court has previously stated seven factors which must be present for the records to be admissible under Rule 803(6): (1) record or other compilation, (2) of acts or events, (3) made at or near the time the act occurred, (4) by a person with knowledge (or from information transmitted by such a person), (5) kept in the course of a regularly conducted business, (6) which has a regular practice of recording such information, (7) all as shown by the testimony of the custodian or other qualified witness. Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (1979).

Rule 803 also includes an exception for public records and reports. Under Ark. R. Evid. 803(8), “records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, ... or factual findings resulting from an investigation made pursuant to authority granted by law” are not excluded by the hearsay rule. However, the following are specifically excepted from the Rule and are considered to be hearsay: “(ii) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party . . . (v) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.” Ark. R. Evid. 803(8).

We need not, however, address whether the Colorado home study is a business record or a public record or report. The fact that a piece of evidence falls within an exception to the rule against hearsay does not equate to automatic admissibility. Lovell v. Beavers, 336 Ark. 551, 987 S.W.2d 660 (1999). To prevent possible prejudice or confusion, a trial court must still have the authority to exclude a record under Ark. R. Evid. 403. Id. Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403. This court has held that the weighing under Rule 403 is left to the trial court’s sound discretion and will not be reversed absent a showing of manifest abuse. Lovell v. Beavers, supra. We have quoted favorably from McCormick on Evidence § 293 (4th ed. 1992):

[WJhere there are indications of lack of trustworthiness, which may result from a lack of expert qualification or from lack of factual support, exclusion is warranted under [Rule 803]. Moreover, inclusion of opinions or diagnoses within [Rule 803] only removes the bar of hearsay. In the absence of availability of the expert for explanation and cross-examination, the court may conclude that probative value of this evidence is outweighed by the danger that the jury will be misled or confused. This is of particular concern if the opinion involves difficult matters of interpretation and a central dispute in the case, such as causation. Under these circumstances, a court operating under the Federal Rules, like earlier courts, is likely to be reluctant to permit a decision to be made upon the basis of an un-cross-examined opinion and may require that the witness be produced.

Lovell v. Beavers, 336 Ark. at 555, 987 S.W.2d at 662. Here, the trial court identified the problem with admissibility of the home study: “we don’t have that person here to cross-examine and evaluate as to all of their motives and their thinking . . . you have to be able to weigh the credibility.”

Even prior to the enactment of the Arkansas Rules of Evidence, this court recognized the importance of cross-examination. In Arkansas Game & Fish Comm’n v. Kizer, 221 Ark. 347, 253 S.W.2d 215 (1952), this court held that landowners had a right to cross-examine the engineers who authored a survey regarding a lake at issue in the case. We said: “In a judicial investigation the right of cross-examination is absolute, and not a mere privilege of the one against whom a witness may be called. In a civil action a party has the right to cross-examine witnesses against him whether the evidence is given ore tenus or by deposition.” Id. at 351, 253 S.W.2d at 218. Similarly, in Trannum v. George, 211 Ark. 665, 201 S.W.2d 1015 (1947), where a narrative report composed by a welfare worker was offered as evidence in a child custody case, this court stated: “Certainly the custody of a man’s children ought not to be taken away from him on unsworn statements made out of court.” Id. at 671, 201 S.W.2d at 1018. See also Roberts v. Roberts, 216 Ark. 453, 226 S.W.2d 579 (1950).

The right of cross-examination is especially important in cases such as Trannum v. George where a fundamental liberty is at issue. The United States Supreme Court has commented on termination of parental rights:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). In the case now before us, the central issue before the trial court was the potential termination of Ms. Huffs parental rights. A fundamental liberty interest was at issue, and the court concluded that introduction of the Colorado home study would be too prejudicial in the absence of someone who could be cross-examined as to its contents. The trial court did not abuse its discretion by refusing to admit the Colorado home study into evidence.

III. Application of ICPC

ADHS contends that the trial court violated the ICPC when it caused Ms. Huffs children to be sent to Colorado without Colorado’s approval. The validity of this argument depends upon whether the ICPC applies in situations where a trial court is returning custody of children to an out-of-state natural parent. Appellate courts review chancery courts de novo on the record, but a decree is not reversed unless the chancellor’s findings are clearly erroneous. Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001).

At issue here, according to ADHS, is Article III of the ICPC, which describes the conditions for placement under the ICPC. Article III states, in relevant part:

(a) No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.
❖ * * *
(d) The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.

Ark. Code Ann. § 9-29-201(111) (Repl. 1998). As in McComb v. Wambaugh, 934 F.2d 474 (3d Cir. 1991), the question before us is whether the ICPC applies when a court in one state directs that a child be taken from foster care and sent to a natural parent in another participating state.

ADHS incorrectly contends that this is an issue of first impression in Arkansas. This court addressed the applicability of the ICPC in Nance v. Ark. Dep’t Human Servs., 316 Ark. 43, 870 S.W.2d 721 (1994). In that case, a mother living in Arkansas appealed an order of the juvenile court placing custody of her daughter with her former husband in Texas. The question before this court was whether the juvenile court, having found a child to be dependent-neglected, had the authority to make an award of custody of the child as between two competing parents. Id. On appeal, Ms. Nance argued that the mandatory provisions of the ICPC were not complied with when custody was placed with her husband in another state. Id. This court held that subsection (a) of Article III of the compact “makes it clear that it is meant to deal with children who are sent from a sending state into a receiving state ‘for placement in foster care or as a preliminary to a possible adoption.’” Id. at 52-A, 870 S.W.2d at 725.

Similarly, in McComb v. Wambaugh, supra, the United States Court of Appeals for the Third Circuit concluded that the ICPC does not apply when a court in one state directs that a child be taken from foster care and sent to a natural parent in another participating state. The McComb court focused on Article 111(a) of the Compact, quoted above, and held that, by its plain language, the scope of the Compact is limited to foster care or dispositions preliminary to an adoption. Id, The federal appellate court noted the definition of “placement” in Article 11(d):

the arrangement for the care of a child in a family, free or boarding home or in a child-caring agency or institution but does not include any institution caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, and any hospital or other medical facility.

Id. at 480. See Ark. Code Ann. § 9-29-201 (II)(d) (Repl. 1998). The court acknowledged that the Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC) adopted what is known as Regulation 3, stating that “ ‘placement’ as defined in Article 11(d) includes the arrangement for the care of a child in the home of his parent, other relative, or non-agency guardian in a receiving state when the sending agency is any entity other than a parent, relative, or non-agency guardian making the arrangement for care as a plan exempt under Article VIII (a) of the Compact.” McComb v. Wambaugh, 934 F.2d at 481. A regulation contrary to the statute under which it was promulgated cannot be upheld . See Yamaha Motor Corp., U.S.A. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001). The McComb court concluded that the regulation expands the scope of the Compact beyond that set out in Article III. McComb v. Wambaugh, supra. We agree.

Based upon this court’s holding in Nance v. Ark. Dep’t Human Servs., supra, and the federal appellate court’s holding in McComb v. Wambaugh, supra, as well as the plain language of the statute, we hold that the Compact, read as a whole, was intended only to govern placing children in substitute arrangements for parental care, such as foster care or adoption. As summarized by the McComb court: “the Compact does not apply when a child is returned by the sending state to a natural parent residing in another state. The language in Article III is unambiguous. ...” McComb v. Wambaugh, 934 F.2d at 482. Accordingly, the trial court’s finding that custody of the children should be returned to Ms. Huff without Colorado’s approval was not clearly erroneous.

Affirmed.

       The Court of Appeals for the Sixth District of California has likewise held that the ICPC is intended to apply only to interstate placements for foster care and those preliminary to a possible adoption, not to placements with a parent. In re Johnny S., 47 Cal. Rptr. 2d 94 (1995).

       The McComb court also pointed out that “[t]o construe the return of a child to his or her parent as a ‘placement’ within the Compact would result in the anomalous situation of imposing a financial obligation upon a sending state that supersedes parents’ duty to support their children.” McComb v. Wambaugh, 934 F.2d at 480.

       While several courts have concluded that the ICPC applies to out-of-state placements with natural parents, we reject their interpretation of the ICPC and conclusion regarding its applicability. Such an interpretation is contrary to the plain language of the statute. See, e.g., K.D.G.L.B.P. v. Hinds County Dep’t of Human Servs., 771 So. 2d 907 (Miss. 2000); Matter of Shaida W., 85 N.Y.2d 453, 649 N.E.2d 1179, 626 N.Y.S.2d 35 (1995); In re Paula G., 672 A.2d 872 (R.I. 1996).


author: R AY THORNTON, Justice.

text:
    Sedric Maurice SIMPSON v. STATE of Arkansas
    01-141
    65 S.W.3d 878
    Supreme Court of Arkansas
    Opinion delivered February 7, 2002

      Lea Ellen Fowler, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   R AY THORNTON, Justice.

Sedric Maurice Simpson was convicted and sentenced to death on two counts of capital murder, and we affirmed. Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999). Following the issuance of our mandate on January 4, 2000, tbe circuit court conducted a hearing as required by Ark. R. Crim. P. 37.5 (2001). At that hearing on January 24, 2000 the circuit court found Simpson indigent, and appointed counsel to represent Simpson in his postconviction proceedings. See Ark. R. Crim. P. 37.5(b) (2). Under the Provisions of Rule 37.5(e), it is provided that a “petition for relief under this rule shall be filed within ninety days after the entry of the order required in subsection (b)(2).” Id. Because the order under the provisions of subsection (b)(2) was entered on January 24, 2000, Simpson had ninety days from that date to file his petition for Rule 37 relief. His petition was timely filed on March 23, 2000, almost a month before the time for filing would expire. The state responded on April 27, 2000, and did not challenge the timeliness of Simpson’s petition.

On October 27, 2000, an order dismissing Simpson’s petition on the basis of Ark. R. Crim. P. 37.2(c) was entered by the circuit court. This order did not make any reference to the applicable time limit established by Rule 37.5(e) but erroneously relied upon a discrete section applicable generally to non-death cases as set out in Ark. R. Crim. P. 37.2(c), which provides in pertinent part:

If an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate was issued by the appellate court.

Id.

With reference to the question as to what rule is applicable, Ark. R. Crim. P. 37.5(a) states:

Purpose and scope. This rule shall apply only to persons under a sentence of death. Except as otherwise provided in this rule, the provisions of Rules 37.1, 37.2, 37.3, and 37.4 shall apply to a petition for post-conviction relief by a person under sentence of death.

(Emphasis added.) Flere, it is clear that the provision of Ark. R. Crim. P. 37.5(e), allowing ninety days after the appointment of counsel, is an exception to the sixty-day time limit imposed in non-death cases by 37.2(c). Appellant timely appealed the dismissal of his Rule 37 petition, and we agree that the circuit court erred in dismissing the petition under an inapplicable rule.

Accordingly, we reverse and remand with directions to reinstate the petition and conduct the hearing, make specific written findings of fact and conclusions of law, and to comply fully with the provisions of Ark. R. Crim. P. 37.5(h) and (i).

Reversed and remanded.