author: Per Curiam. Robert L. Brown, Justice,

text:
    LAWRENCE BROTHERS, INC. v. R.J. “BOB” JONES EXCAVATING CONTRACTOR, INC.
    94-805
    884 S.W.2d 620
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: Carrold E. Ray, for appellant.

      Stanley D. Rauls, for appellant.
   Per Curiam.

The appellee, R.J. “Bob” Jones Excavating Contractor, Inc. (“Jones”), moves to dismiss the appeal of the appellant, Lawrence Brothers, Inc. (“Lawrence Brothers”), the defendant below. Jones contends that Lawrence Brothers failed to file a timely notice of appeal and that, as a result, this court lacks jurisdiction to entertain the matter. We agree and therefore grant the motion to dismiss.

This case entailed a breach of contract action in which a jury awarded Jones $110,115.50 in compensatory damages. Judgment was entered on March 29, 1994. On April 6, 1994, Lawrence Brothers filed a motion for judgment n.o.v. and, alternatively, for a new trial on damages, requesting that the trial court enter judgment for $65,317.18.

A hearing was held on the post-trial motions on April 11, 1994, at which time the court verbally denied them, directing the attorney for Jones to “give me just a short order, just denying the motions on this.” On April 13, 1994, before the trial court entered its order of record on the post-trial motions, Lawrence Brothers filed a notice of appeal, followed, on the same day, by an amended notice of appeal. Ten minutes later, once again on the same day, the trial court entered its order denying the j.n.o.v. motion. The following is a breakdown of the relevant filing dates and times:

(1) March 29. 1994 judgment entered in favor of Jones.
(2) April 6. 1994 — j.n.o.v. motion filed by Lawrence Brothers.
(3) April 11. 1994 hearing on post-trial motions and verbal denial of post-trial motions.
(4) April 13. 1994. 9:07 a.m. notice of appeal filed by Lawrence Brothers.
(5) April 13. 1994. 4:11 p.m. amended notice of appeal filed by Lawrence Brothers.
(6) April 13. 1994. 4:21 p.m. order denying the j.n.o.v. motion entered by trial court.

Under Ark. R. App. R 4(c), the time for filing a notice of appeal is modified in the event a post-trial motion is filed. A notice of appeal filed prior to the disposition of a post-trial motion has no effect, and a new notice of appeal must be filed within the prescribed time dated from the entry of the order dealing with the post-trial motion or from the expiration of the thirty days allowed in the absence of a ruling.

Jones persuasively cites Kimble v. Gray, 313 Ark. 373, 853 S.W.2d 890 (1993), as authority for its position that Lawrence Brothers’ notice of appeal had no effect. That per curiam opinion affirmed an Arkansas Court of Appeals decision which held that, because the petitioner had filed her notice of appeal one day early, her notice of appeal had no effect under Ark. R. App. P. 4(c). See Kimble v. Gray, 40 Ark. App. 196, 842 S.W.2d 473 (1992). The court of appeals ruled, in Kimble, that the filing of a notice of appeal on the thirtieth day after a post-trial motion was filed was untimely and ineffective. In so doing, the appellate court relied on both the language of Ark. R. App. P. 4(c) (“A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the thirty-day period”) and the notes supplied by the reporter (“If ... an order granting or denying the motion is acted upon within the thirty-day period, the time for filing the notice of appeal begins to run upon entry of the order”):

[T]he wording of the rule, and the reporter’s notes, make clear that when the trial court rules on the post-trial motion, a notice of appeal is timely when filed “upon entry” of that order. When the trial court fails to rule on the post-trial motion, the trial court retains jurisdiction of the matter until “the end,” or “expiration,” of the thirtieth day.

40 Ark. App. at 198, 842 S.W.2d at 474. This court affirmed the dismissal of appeal, noting simply that the appellate court’s per curiam “succinctly sets out the court’s authority for dismissing Kimble’s appeal. Because we agree with the court of appeals’ per curiam and ruling, we merely reaffirm its decision.” 313 Ark. at 373-74, 853 S.W.2d at 890.

The Kimble decision is dispositive of the present matter. Measuring as we must, under Ark. R. App. P. 4(c), from the time of the trial court’s entry of its order, we hold that Lawrence Brothers’ filing of its notice of appeal on the afternoon of April 13 was untimely and ineffective.

The motion to dismiss the appeal is granted.

Brown, J., dissents.

Corbin, J., not participating.

Robert L. Brown, Justice,

dissenting. I would deny the motion to dismiss. This is the second time this precise issue has been presented to the court in fairly short order. See Cason v. House, et al., motion for rule on the clerk denied (94-759 October 3, 1994) (3 justices dissenting) (1 justice not participating). In Cason, the issue also was whether a notice of appeal filed in timely fashion with regard to the judgment, but after a post-judgment motion, was effective to appeal that judgment. The Supreme Court Clerk had refused to lodge the appeal because the notice of appeal was filed after a post-judgment motion, though within 30 days of the judgment. The notice of appeal referred only to the judgment. The motion for rule on the clerk failed for lack of a fourth vote. I joined the dissent.

In the case before us now, the Supreme Court Clerk has permitted the record in the appeal to be lodged. The additional facts are these. On March 29, 1994, judgment for damages was entered against the appellee, R.J. “Bob” Jones Excavating Contractor, Inc., and against appellant Lawrence Brothers, Inc. On April 6, 1994, Lawrence Brothers filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial on damages. On April 11, 1994, the trial judge had a hearing on the motion, rejected Lawrence Brothers’ arguments, denied the motion, and directed Jones’s attorney to prepare the order. On April 13, 1994, at 9:07 a.m. Lawrence Brothers filed a notice of appeal expressly directed only to the March 29 judgment. On that same date at 4:11 p.m., Lawrence Brothers filed an amended notice of appeal directed to the March 29 judgment and to the order denying the post-judgment motion. Ten minutes later at 4:21 p.m. an order was entered denying those motions. Under our cases the notice of appeal would not be effective for that order. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992), overruling State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991).

The paramount issue before us is whether either notice of appeal is valid for purposes of appealing from the adverse judgment when both were filed after the post-judgment motion but before the order disposing of that motion.

Ark. R. App. R 4 deals with the time for an appeal. Rule 4(a) states in part:

Except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from.

Rule 4(b) states:

Upon timely filing in the trial court of a motion for judgment notwithstanding the verdict under ARCP 50(b), of a motion to amend the court’s findings of fact or to make additional findings under ARCP 52(b), or of a motion for a new trial under ARCP 59(b), the time for filing of the notice of appeal shall be extended as provided in this rule.

Rule 4(c) further provides that:

If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additional fees shall be required for such filing.

The clear policy behind Rules 4(b) and (c) is' to extend the period in which a notice of appeal may be filed when a motion for a new trial, or a motion for JNOV, or a motion for additional findings of fact is filed. An additional policy expressed in Rule 4(c) is to lend finality to the appeal time for such motions by establishing a “deemed denied” date when the trial court does not rule within 30 days of a timely motion.

Here, though, the issue is different. Lawrence Brothers knew its post-judgment motion had been denied. The judge told it so at the hearing and directed Jones to prepare the order. Lawrence Brothers then sought to appeal from the original judgment and filed its first notice of appeal which was within 30 days of that judgment. That is what Ark. R. App. P. 4(a) contemplates. It then filed an amended notice of appeal that same date which also referred to the original judgment and which also was timely.

The post-judgment motions included in Rule 4 permit the trial court to reevaluate the verdict of the jury. But when the trial court has disposed of the motion, even without entry of a formal order, I do not read Rule 4(c) as foreclosing an appeal from the original judgment. To be sure, Rule 4(c) does require entry of an order granting or denying the motion in order for the appeal time to be extended for that denial. Otherwise, the motion is deemed denied on the 30th day from filing the motion, and the notice of appeal must be filed within 30 days of that date. A premature filing of the notice of appeal before entry of an order or the deemed denied date is ineffective with respect to the filed motion. But that is not what we have here.

The majority relies in large part on Kimble v. Gray, 40 Ark. App. 196, 842 S.W.2d 473 (1992) (per curiam), aff’d 313 Ark. 373, 853 S.W.2d 890 (1993). But that reliance is misplaced. In Kimble, we said that the appellant had filed the notice of appeal one day too early with regard to the motion for a new trial and, thus, the notice had no effect. We did not reach the issue of whether the notice was filed within 30 days of the original order, but a reading of the case shows that the notice was filed on the 31st day from the order appealed from. Thus, it would have been untimely with respect to that order also. But see Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994) (dictum); Banning v. State, 43 Ark. App. 106, 861 S.W.2d 119 (1993).

This court has not addressed the precise issue now raised in its prior decisions. There is no question, however, that both notices of appeal were timely and effective for an appeal from the original judgment. The notices were filed within 30 days of that judgment, and both notices referred to that original judgment. Our rules of appellate procedure have developed a thorny complexity over the years. We make a serious mistake when we interpret them so as to foreclose a legitimate appeal. For these reasons, I would deny the motion to dismiss.

Hays, J., joins in this dissent.

       in Banning, the notice of appeal was held to be ineffective though filed within 30 days of the original judgment but prior to the date that the post judgment motion was disposed of. However, the issue of whether the notice was timely for the original judgment was not addressed. In Fuller, the issue of the ineffectiveness of a premature notice of appeal was discussed in dictum but, again, not in connection with the original judgment.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Delbert O. LEWIS v. Lanbert B. WEST, Chairman of the Independent Party of Arkansas, Wayne M. Grommett, Secretary of the Independent Party of Arkansas, W. J. “Bill” McCuen, Arkansas Secretary of State Skip Cook, Intervenor

    94-1073
    885 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered October 19, 1994

      James F. Lane, for appellant.

      Winston Bryant, Att’y Gen., by: Angela S. Jegley, Senior Asst. Att’y Gen., for cross-appellant W. J. “Bill” McCuen.

      Mackey'& Wills, P.A., by: Frank J. Wills III, for intervenor Skip Cook.
   Tom Glaze, Justice.

On March 29, 1994, the deadline for filing as a party candidate, Delbert O. Lewis presented himself to the Secretary of State to file as an Independent Party of Arkansas (IPA) candidate for governor. The Secretary of State informed Lewis that the IPA was not a qualified political party as defined under Ark. Code Ann. § 7-1-101(1) (Repl. 1993). Lewis left, and no other person presented himself to file as an IPA candidate for governor. Lewis made no further efforts prior to the May 24 and June 14, 1994 primary elections to be an IPA gubernatorial candidate.

IPA officials, Chairman Lanbert B. West and Secretary Wayne M. Grommett, met with others at a called convention on August 14, 1994. These IPA members agreed to interview certain individuals on August 21, 1994 as possible nominees for governor. Lewis was invited, but did not appear. Skip Cook did appear, and after an interview, he was nominated by the convention to be IPA’s candidate for governor. On September 22, 1994, Lewis filed a mandamus action in Pulaski County Circuit Court, seeking an order compelling IPA officials West and Grommett to provide him with a certificate of nomination. Lewis also asked the court to direct the Secretary of State to certify him as IPA’s gubernatorial nominee. On September 23, 1994, Cook tendered a nomination certificate with the Secretary of State, reflecting Cook was IPA’s nominee for Governor. The Secretary of State conditionally accepted Cook’s tendered document. On September 27, 1994, Cook intervened in Lewis’s action to contest Lewis’s claims, and to seek an order, compelling the Secretary of State to certify Cook as the IPA gubernatorial candidate.

After a trial conducted on September 30, 1994, the trial court held as follows:

(1) The IPA was a political party under Ark. Code Ann. § 7-l-101(l)(A) because its candidate obtained 10.43% of the votes cast for President in the November 1992 General Election.
(2) Because the IPA became a party pursuant to Ark. Code Ann. § 7-1-101, it was not required to file a petition as a “new party” with the Secretary pursuant to Ark. Code Ann. § 7-7-203(g).
(3) The IPA did not become a qualified political party until September 19, 1994, at which time it filed the “anticommunist” affidavit required by Ark. Code Ann. § 7-3-108(b).
(4) The IPA, as a recognized and qualified political party, was not required to hold a primary election in order to have its candidates’ names printed on the General Election ballot for November 8, 1994. The court was unable to discover any statutes that required a recognized and qualified political party to hold a party primary. Ark. Code Ann. §§ 7-7-401(d)(l) and 7-7-402(a)(l) provide inferential authority that no primary is required under Arkansas law because those statutes refer to nominations by convention of delegates. The Arkansas Supreme Court, in Adams v. Whittaker, 210 Ark. 298, 195 S.W.2d 634 (1946), held under prior law that political parties are not required to hold primary elections in order to nominate candidates for office.
(5) Because the IPA did not hold a primary election, no person could file as its candidate on or before the March 29, 1994 filing deadline. Therefore, Lewis did not have a right to file as IPA’s gubernatorial candidate on that date even though the Secretary of State should have recognized the IPA as a “party” at that time. Even if the court were to decide that the Secretary of State should have accepted Mr. Lewis’ application, Lewis failed to file a political practices pledge required under Ark. Code Ann. § 7-6-102.
(6) After the IPA selected Skip Cook as its gubernatorial nominee on August 21, 1994, and after the IPA filed its oath required by Ark. Code Ann. § 7-3-108 on September 7, 1994, the Secretary of State should have accepted the IPA’s certificate of nomination from Mr. Cook as its candidate for Governor. That certificate was timely filed and Mr. Cook did file his political practices pledge on or before April 5, 1994.

The core issue in this appeal concerns the trial court’s holding that IPA was not required to hold a primary election. The trial court was correct that, because IPA’s Presidential candidate garnered 10.43% of the votes in Arkansas’s 1992 November General Election, the IPA is a qualified political party under Ark. Code Ann. § 7-l-101(l)(A). However, the trial court erred in ruling IPA, as a qualified political party, was not required under Arkansas law to conduct a primary election. In reaching its holding, the trial court relied in part on the case of Adams v. Whittaker, 210 Ark. 298, 195 S.W.2d 634 (1946), wherein the supreme court stated the following:

The present state of the law is that political parties are not required to hold primary elections to nominate candidates for office. They may do so or not, as the governing authorities of the parties may direct; but if a primary election is held, that election is a legal election, and must be held in conformity with the applicable laws of the state. (Emphasis added.)

While the Adams court’s statement was a correct analysis of the law in 1946, the General Assembly changed that law in 1957 when it enacted Act 205, Arkansas’s Compulsory Primary Act. That Act provided that all political parties shall select their candidates for office through primary election. Section 5 of the Act also made it clear that the Act’s purpose was to have party nominations by primary elections rather than by convention.

Cook argues that Act 205 was later specifically repealed by Arkansas’s Election Code, Act 465 of 1969, and the compulsory primary language is no longer the law. However, Cook misreads pertinent provisions in Act 465, now compiled in Subchapter 1 captioned Methods of Nomination, and specifically designated as Ark. Code Ann. §§ 7-7-101 — 105 (Repl. 1993).

Section 7-7-101 largely is a restatement of language found in Section 1 of the 1957 Compulsory Primary Act and provides that the name of no person shall be printed on the ballot in any general or special election in this state as a candidate for election to any office unless the person shall have been certified as a nominee selected pursuant to this subchapter [provisions 7-1-101 through 105]. Section 7-7-102 then follows — again tracking Act 205 language — and reads as follows:

(a) Nominees of any political party for United States Senate, United States House of Representatives, state, district, or county office to be voted upon at a general election shall be certified as having received a majority of the votes cast for the office, or as an unopposed candidate, at a primary election held by the political party in the manner provided by law.
(b) Nominees of any political party for township or municipal office shall be declared by certification of a primary election as provided in subsection (a) of this section. (Emphasis added.)

The above statutory provisions very clearly require political party nominees in special or general elections to be selected first at a primary election and then certified. Only two exceptions are provided under the election code of Act 465 and those exceptions are found in subchapter provisions §§ 7-7-104 and 7-7-105. These provisions provide the method for selecting party nominees when a vacancy in nomination or in office occurs.

A vacancy in nomination is defined as occurring when the nominee of a political party selected at a primary election shall not be certified because of the nominee’s death, resignation, or withdrawal arising subsequent to nomination and preceding the final date for certification of nomination. Ark. Code Ann. § 7-1-101(4) (Repl. 1994).In these circumstances, the political party must select its nominee in one of the three following ways: (1) convention of delegates, (2) special primary election or (3) petition of electors.

The 1989 Election Code provided for alternative methods for political parties to select a party nominee when its nominee, for legal reason, has vacated his or her nomination, and election-time constraints caused by the forthcoming general or special election make it impossible for the political party to select another nominee by primary election.

The reason for allowing alternative methods for selecting party nominees when vacancy in nomination occurs applies with equal force to a situation where a vacancy in office occurs. Under Code provision § 7-1-105(5), a vacancy in office occurs where a person is elected at a general or special election but, because of death, resignation, or other good and legal cause, he or she is unable to enter office.- If, for example, a person dies immediately after the November general election, political parties would find it impossible to plan and conduct a primary election under applicable primary election laws, and there still be time to hold a special election to fill the vacancy in office before the following January — the month when the elected officer takes office.

In sum, Arkansas’s Election Code through the foregoing provisions requires political parties to hold primary election except where a vacancy in nomination or vacancy in office exists. Neither of those two situations is present here.

Because Cook was selected by convention, not by party primary held by the IPA, the trial court erred in ordering the Secretary of State to certify Cook as IPA’s candidate for governor. Therefore, we reverse and remand that part of the trial court’s decision.

We must now dispose of Lewis’s argument, since Lewis, all along, has contended IPA’s nominees were required to be selected by party primary. As previously mentioned, Lewis appeared before the Secretary of State to file as the IPA gubernatorial candidate, but the Secretary of State would not accept Lewis’s filing. It is undisputed that, at the time set by law for filing for office as a party candidate, the IPA had promulgated no party rules, had no plans to conduct a primary and had established no ballot fees for filing for any offices.

Lewis testified that, while he appeared before the Secretary of State to file as an IPA candidate for governor, he never tendered any documents indicating he had satisfied IPA candidate requirements for eligibility or ballot fees. Ark. Code Ann. § 7-7-301 (Repl. 1993). Nor did he timely file a political practice pledge with the Secretary of State as required under Ark. Code Ann. § 7-6-102(e)(2)(B) (Repl. 1993). This failure, alone, is reason to prevent his name from appearing on the ballot. See also Stillinger v. Rector, 253 Ark. 982, 490 S.W.2d 109 (1973).

Other important reasons dictate that Lewis’s name should not appear on the ballot, not the least of which is IPA’s apparent decision not to hold a primary election. Obviously, if both Lewis and Cook (or any two candidates) had asked the Secretary of State to allow them to file as candidates to be the IPA nominee for governor (or any other state office), and the Secretary of State had accepted their filings, who would have underwritten and conducted the IPA primary election for those contested races? If Lewis had seriously believed he was entitled to have the Secretary of State accept his filing but the Secretary of State refused it, his remedy was to file a petition for mandamus and declaratory relief, as this court has previously held in State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 175 (1989). And because the provisions of elections laws are only mandatory if enforcement is sought before the election, he should have sought his relief before, not after, the 1994 primary elections. See Stillinger, 253 Ark. 982, 490 S.W.2d 109.

In conclusion, we affirm the trial court’s decision, dismissing Lewis’s petition for mandamus. The mandate is ordered issued within five days from the filing of this opinion unless a petition for rehearing is filed.

       Section 7-1-101(1 )(A) provides in relevant part that a “political party” means any group of voters which, at the last preceding general election, polled for its candidate for Governor in the state or nominees for presidential electors at least three percent (3%) of the entire vote cast for the office.

       Section 7-1-104(4) also allows such vacancy in nomination to occur where other good and legal cause may exist.

       Vacancy in office is defined under this-section to include other situations not pertinent here.

       This construction of the Code is also consistent with Section 5 of Amendment 29 to the Arkansas Constitution which provides only the names of candidates for office nominated by an organized political party at a convention of delegates, or by a majority of all the votes cast for candidates for the office in a primary election, or by petitions of electors as provided by law, may be placed on the ballot in any election.

       Lewis argues that he was the only person filing as an IPA candidate for governor, and as an unopposed candidate, his name, by law, was not required to be placed on the primary ballot. In other words, IPA’s failure to hold and conduct an actual primary, he says, should not be used to keep him from being IPA’s primary elected, certified gubernatorial candidate. We simply find no merit in such an argument, mainly because the contention totally ignores the undisputed fact that IPA was required to hold a primary election, and it did nothing under applicable primary election provisions to conduct a primary.


author: Tom Glaze, Justice. Gerald Brown, Special Justice, Robert H. Dudley, Justice,

text:
    Larry L. PAGE and the Christian Civic Action Committee v. W. J. “Bill” McCUEN, In His Official Capacity as Secretary of State of the State of Arkansas Mike Wilson, Indiv. and on Behalf of the Committee to Promote Arkansas, lntervenors Delta Resorts Limited Partnership, Intervenor

    94-922
    884 S.W.2d 951
    Supreme Court of Arkansas
    Opinion delivered October 20, 1994
    [Rehearing denied October 28, 1994.]

      Williams & Anderson, by: Leon Holmes, for petitioners.

      Winston Bryant, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for respondent.

      Dover & Dixon, P.A., by: David A. Couch and Philip E. Dixon, for intervenors Mike Wilson, individually and on behalf of the Committee to Promote Arkansas.

      Mitchell, Williams, Selig, Gates & Woodyard, A Professional Limited Co., by: Sherry P. Bartley, John Selig, and Marshall S. Ney, for intervenor Delta Resorts Limited Partnership.

       Dudley, J., and Special Justice William Enfield, would grant rehearing. Hays and Brown, JJ., not participating.

   Tom Glaze, Justice.

This case represents the third ballot title matter submitted for our review for the 1994 General Election. The first case was Bailey v. McCuen, Case No. 94-951 (opinion delivered October 14, 1994) where the court held two things wrong with the title, namely, (1) it omitted a legal rule used in construing workers’ compensation laws and the rule would change, requiring the courts to construe workers’ compensation laws “liberally” rather than “strictly” and (2) it failed to mention that legal fees payable on appeals are presently limited by law but would not be limited under the proposed amendment. The second case where this court invalidated the ballot title was in Christian Civic Action Committee v. McCuen, Case No. 94-881 (opinion delivered October 14, 1994). There, the court decided the title was misleading because it used the euphemistic phrase “additional racetrack wagering” when referring to the establishment of what would amount to gambling casinos at existing racetracks in Hot Springs and West Memphis. We noted that the drafters had used the terms “casinos” and “gambling houses” in telling the voters what would be prohibited at other locations.

In the present case, petitioners challenge the ballot title of a proposed amendment which, by popular name, is to authorize one casino in Crittenden County, create an Arkansas Casino Gaming Commission and permit the levy of casino taxes to fund crime prevention and law enforcement. Petitioners contend the title is designed in a manner that the voter will be unable to make an intelligent choice, fully aware of the consequences of his vote, by reading the ballot title while in the voting booth. Intervenors, Mike Wilson and Delta Resorts Limited Partnership, disagree, and argue the title summarizes the basic purposes and provisions of the proposal and the voter would be able to cast his or her ballot with a fair understanding of the proposal.

The proposal here is forty pages long. It comprises twenty-three sections and more than 150 sub-sections to describe its purposes. In preparing the ballot title, with the Attorney General’s assistance, the drafters used 587 words in their attempt to convey to the voter a fair understanding of the issue. See Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988). For comparison purposes, the ballot titles in Bailey and Christian Civic Action Committee I, contained 706 and 709 words respectively and those two cases involved proposals nowhere near the length or complexity as the one now before us.

Obviously, in drafting the ballot title for Amendment 5 here, the sponsors could not possibly cover the entire proposal because, if they had, the voter would have found it impossible to read, understand and cast his or her vote on the issue while at the polling precinct. As a consequence, the sponsors were necessarily forced to omit portions of the proposal when preparing the ballot title. We hold that some of those omissions were important for a fair understanding of the amendment and would give the voter “serious ground for reflection” on whether to vote for the measure. Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958).

One of the most serious omissions in the ballot title concerns the important substantive language contained in Section 12 of the proposal. That section reads, “Casino gambling shall be lawful and casino/resort development shall be considered appropriate land use in Crittenden County at a location described as:

That part of Section 3, Township 6 North, Range 9 East that lies North of the Burlington-Northern Railroad right-of-way and West of the St. Francis Levee District levee right-of-way; and that part of Section 34, Township 7 North, Range 9 East lying South and East of the drainage canal known as Drainage Ditch No. 2 and West of the St. Francis Levee District levee right-of-way, all of which is situated in Crittenden County, Arkansas.”

The foregoing provision specifies a known piece of land owned by unnamed individuals. Nonetheless, the measure’s ballot title states only that the measure authorizes the establishment of one casino “at a designated site” in Crittenden County to be operated by a gaming licensee “who can demonstrate ownership of the designated land.”

Any voter reading the ballot title, and being unaware of the specific legal description contained in the measure, would unwittingly be led to believe that “a designated site” is yet to be selected. Not so. The constitutional measure, if approved, guarantees some owner of a known and legally described parcel of property in Crittenden County the right to establish and operate a casino. Before casting their ballots, voters no doubt would pause for reflection if they were aware “the” designated site had already been established in the proposed constitutional measure itself, thereby guaranteeing the site’s owner whatever benefits that would result from the measure’s passage.

Another example of the ballot title not reflecting substantive and important provisions contained in the proposed amendment involves Section 11 .C, which sets forth the general powers of the Casino Gaming Commission. Twenty-nine (29) subsections are listed, most setting forth numerous powers in detail. A majority of those subsections are not mentioned in the ballot title. For example, Section 11.C.8 empowers the commission “to issue subpoenas and compel the attendance of witnesses for its meetings and investigations, to hold hearings, to administer oaths and to require testimony under oath.” In addition, the commission can initiate proceedings or actions to enforce provisions of Amendment 5 and then recommend those persons being investigated to be prosecuted for violations not only of any provision of Amendment 5 but of state law, too. A state grand jury has no greater powers. Furthermore, section 11.C.16 gives the commission authority to make any investigation necessary to determine whether there has been any violation of the proposed amendment or any regulations adopted thereunder. These undisclosed powers of the commission would give any disinterested voter serious ground for reflection.

A third serious ballot title omission concerns Sections 9 and 11.C.14 which provide as follows:

Section 9. The Casino Gaming Commission shall require the casino gaming licensee to work with the Casino Gaming Commission to provide training programs for Arkansas residents so that they may be qualified applicants for positions within the casino gaming establishment opened pursuant to this Amendment. These training programs may be operated through post-secondary vocational schools, colleges and universities currently existing in the state.
Section 11.C.14. The gaming activities of schools or training institutions regulated by the Casino Gaming Commission shall be deemed to be legal under the laws of the State of Arkansas. (Emphasis added.)

Although the ballot title reflects that training programs may be provided through existing post-secondary vocational schools, colleges or universities, it contains nothing to reflect that gaming activities conducted at these state institutions are made legal by the proposal. In sum, we have no hesitancy in stating the Arkansas voters, especially those residing where vocational schools, colleges and universities exist, would determine it important, when casting their ballots, to know that gaming activities will be legal in their communities.

Other substantive and misleading ballot title omissions could be listed, but the foregoing examples suffice. Neither Christian Civic Action nor Bailey involved the type of serious omissions presented here. The Amendment 5 sponsors’ choice or insistence in covering the establishment and operation of casino gaming in so much detail can be said to have sounded the proposal’s own death knell. Here, proposed Amendment 5 is so all-encompassing that to include every important factor of the proposal in the ballot title would cause the ballot title to be so complex, detailed and lengthy that the Arkansas voter could not intelligently make a choice on the title within the five minutes allowed in the voting booth. Cf. Dust v. Riviere, Secretary of State, 277 Ark. 1, 638 S.W.2d 663 (1977); see also Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988); Ark. Code Ann. § 7-5-522(d) (Repl. 1993). Although Amendment 7 to the Arkansas Constitution does not specify a limit on the length of a proposal, the proposed measure must be of a size capable of having a ballot title which will not only convey the scope and import of the measure, but also impart a description of the proposal so voters can cast their votes intelligently and with a fair understanding on the issue. In sum, proposed Amendment 5 is so expansive that it precludes the writing of an acceptable ballot title.

For the reasons given above, we hold Amendment 5’s ballot title deficient. Petitioner’s request for relief is granted, and the Secretary of State is enjoined from canvassing and certifying any returns on Amendment 5.

We point out at this stage that, during this 1994 election year, the court has been presented with more initiative and referendum measures and other election-issue cases than it has had in any past election year. Time constraints have not permitted us the deliberative time we would have liked when deciding such important matters. In 1989, the General Assembly passed Act 280 in an effort to provide timetables that would permit the early review of ballot titles. In a 4-3 decision, this court invalidated the Act, holding its provisions conflicted with Amendment 7. See Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990).

We commend the General Assembly’s past effort in attempting to establish reasonable statutory timetables to implement initiative and referendum measures under Amendment 7. We respectfully ask its further consideration and action and encourage the General Assembly to make another attempt to establish an initiative and referendum procedure that will permit early resolution of such issues. Until appropriate action is taken to correct the problems attendant to proposals submitted under Amendment 7, citizens can continue to expect measures to be removed from the ballot immediately prior to the election. This court does not enjoy being in the “last-minute” position of review. The people of Arkansas deserve an initiative and referendum procedure which allows them the confidence that measures, after having been adequately reviewed, will not be removed from the ballot. The sponsors of initiative proposals should also be assured their ballot titles and proposed measures meet required guidelines and rules before they spend their time, energy and monies in getting their proposal before the voters.

The mandate is ordered issued within five days from the filing of this opinion unless a petition for rehearing is filed.

Dudley, J. and Special Justice Enfield dissent; Special Justice Brown concurs.

Hays and Brown, JJ., not participating.

Gerald Brown, Special Justice,

concurring. The pros and cons of legalized gambling are not a part of this proceeding.

While, on the surface, this appears to present a ballot title issue, even a cursory reading of proposed Amendment 5 discloses a much more serious problem: the visceral damage which its adoption would inflict on our constitution and, indeed, on our system of government by constitution. .

I start with the premise that some things simply do not belong in a constitution.

My approach to the issue here involved (the role of a constitution in a constitutional form of government) is so simplistic that no citation of authority is necessary.

I realize that the learned members of this court need no history lesson, and none is intended, but sometimes it is helpful to harken back to basics.

Simply put, a constitution is a set of basic fundamental laws setting forth broad general principles by which people desire to be governed — an outline of the power that the people are willing to grant to the government — a skeletal directive from the people, leaving it to the legislative and executive branches of government to flesh out and implement. The judicial branch decides whether the constitutional goals are being met. If not, legislative remedies are available. Since constitutional changes are purposely difficult, specific detailed instructions should not be included. The constitution is not a “how to” manual.

The Attorney General’s Office is the first line of defense in preserving the character of our constitution. It filters from proposed amendments impurities which would pollute the process of government by constitution.

This court should preserve the integrity of our constitution by denying ballot access to proposed amendments which pollute it. Vigilance is required because pollution is insidious and incremental.

As the majority opinion points out, proposed Amendment 5 is too long, too detailed, to be susceptible to abridgment in a sufficiently informative ballot title. If the people of Arkansas desire to legalize gambling, that goal can be accomplished without constitutionalizing a monopoly and doing violence to the concept of constitutional government. The people can express that desire in a simple, straightforward manner and leave it to the legislature to implement, thereby preserving government by constitution, rather than government by Commission.

The power to protect the Constitution of the State of Arkansas is lodged only in this Court. Some pollution has already crept into our constitution, but the huge dose now being served up by proposed Amendment 5 is too much to gulp down in one swallow. Nibbling away at the edges is destructive enough, but a massive, frontal assault must be repelled.

I join the majority in requesting the General Assembly to continue its search for a solution to this troublesome problem. In the interim, I strongly feel that this Court should keep our constitution sufficiently free of debris so that all public officials can proudly raise their right hands and swear (or affirm) to uphold it.

I concur with the majority opinion in granting the petition.

Robert H. Dudley, Justice,

dissenting. In this original action petitioners seek to prohibit the Secretary of State from certifying the November 1994 general election results of the proposed constitutional amendment named “An Amendment to Authorize One Casino in Crittenden County, to Create the Arkansas Casino Gaming Commission, and to Levy Casino Taxes to Fund Crime Prevention and Law Enforcement.” The majority of the court votes to grant the petition and enjoin the Secretary of State from certifying the results of the election on the proposal. I respectfully dissent.

I.

THE HOLDINGS OF THE MAJORITY OPINION

The majority opinion grants the petition for four reasons: (a) the location of the proposed casino as described in the ballot title is misleading; (b) important provisions about the powers of the Gaming Casino Commission are omitted from the ballot title; (c) the ballot title fails to disclose that the proposal would allow gaming statewide; and (d) the text of the proposal is so expansive that an intelligible ballot title cannot be written.

A.

The majority opinion correctly states that the text of the proposed amendment provides that a casino would be located on a particular tract of land in Crittenden County and correctly states that the ballot title provides that the casino would be located at a designated site. The majority opinion then concludes that the ballot title is somehow inconsistent with the text of the proposal, and the ballot title is therefore misleading. The conclusion is fallacious.

The text of the proposal states that there is to be one casino, and it is to be located on a described tract of land in Crittenden County. The ballot title provides that it is “AN AMENDMENT TO THE ARKANSAS CONSTITUTION AUTHORIZING THE ESTABLISHMENT OF THE ONE CASINO AT A DESIGNATED SITE IN CRITTENDEN COUNTY TO BE OPERATED UNDER A RENEWABLE THREE YEAR LICENSE BY A QUALIFIED, BONDED CASINO GAMING LICENSEE WHO CAN DEMONSTRATE OWNERSHIP OF THE DESIGNATED LAND.” The ballot title plainly states that one casino would be authorized at a designated site. The text of the proposal and the ballot title are consistent. There is nothing misleading about this provision in the ballot title.

The petitioners do not even argue that this part of the ballot title is misleading. In fact, the petitioners tacitly admit that this part of the ballot title is clear because they contend that the misleading provision in this part of the ballot title is that it does not disclose the fact that the sponsor of the proposal, Mike Wilson, has acquired an option on the only site where the casino would be located.

The ballot title is not misleading because it provides that the casino will be located “at a designated site in Crittenden County.”

B.

The majority opinion next holds that the ballot title omits full disclosure of important powers of the Casino Gaming Commission. Again, I cannot agree.

The powers of the Casino Gaming Commission are disclosed in the ballot title. The part of the ballot title relating to the powers of the Commission is as follows:

CREATING THE ARKANSAS CASINO GAMING COMMISSION WHICH SHALL CONSIST OF FIVE (5) MEMBERS TO BE APPOINTED BY THE GOVERNOR, TO SERVE FIVE (5) YEAR TERMS; PROVIDING FOR REAPPOINTMENT OF THE COMMISSIONERS ONLY ONCE; PROVIDING FOR REMOVAL OF COMMISSIONERS DURING THEIR TERM BY THE GOVERNOR WITH A CONCURRENCE OF THE GENERAL ASSEMBLY; PROVIDING FOR STATE POLICE BACKGROUND CHECKS ON PROSPECTIVE COMMISSIONERS AND OTHERWISE ESTABLISHING QUALIFICATIONS FOR THE OFFICE; PROVIDING THAT THE COMMISSION SHALL BE FUNDED INITIALLY BY A LOAN OF STATE FUNDS TO BE REPAID WITHIN TWO (2) YEARS OF THE LOAN, AND THEREAFTER EXCLUSIVELY BY A ONE PERCENT ASSESSMENT ON GROSS REVENUES OF THE CASINO AND FEES PAID BY PROSPECTIVE LICENSEES; EMPOWERING THE COMMISSION TO SUPERVISE THE CASINO GAMING AUTHORIZED BY THIS AMENDMENT, INCLUDING THE POWER TO REQUIRE LICENSES AND STATE POLICE BACKGROUND CHECKS ON PERSONS SEEKING TO CONDUCT CASINO GAMING, SUPPLY EQUIPMENT TO AN ARKANSAS CASINO, OR BE EMPLOYED BY SUCH SUPPLIERS, OR AT THE CASINO IN CASINO GAMING ACTIVITY, AND THE POWER TO SUBJECT LICENSED GAMING EMPLOYEES TO ALCOHOL AND DRUG TESTING; EMPOWERING THE COMMISSION TO AUDIT ALL BOOKS AND FISCAL RECORDS OF THE CASINO.

The majority opinion holds that the foregoing part of the ballot title contains a material omission since it does not specify that the Commission would have the power to subpoena witnesses and compel them to attend meetings and investigations of the Commission. Such reasoning ignores the fact that the ballot title clearly provides that the Commission would have the authority to supervise all casino gaming authorized by the amendment, would have the authority to conduct investigations into persons, books and records associated with the proposed casino, and would have the authority to examine for violations of the amendment and the Commission’s regulations. A voter reasonably would be expected to view the Commissioners’ powers in such context and surely would expect the Commission to have the power of subpoena to carry out its specified duties. Contrary to the suggestion in the majority opinion, the text of the proposal would not give the Commission the authority to compel witnesses to testify regarding any matter that might be of interest to them, but rather they could be subpoenaed only on matters relating to casino gaming. When one reads the ballot title provisions about the powers of the Commission, it is difficult to believe that a voter would be given “serious ground for reflection” because the power of subpoena is not mentioned. See Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958).

Further, two of our cardinal rules in deciding this issue are: (1) A ballot title is sufficient if it identifies the proposed act and fairly alleges its general purpose. Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248 (1934); (2) not every detail of an amendment or how it will work in every situation need be revealed in the ballot title. Fertsl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988). We should follow our established rules.

C.

The third reason stated in the majority opinion for granting the petition is that the ballot title is misleading because it does not inform the voters that it would authorize statewide gambling. Again, I cannot agree because the proposal simply does not authorize gambling statewide. It authorizes gambling at one location, and it separately authorizes training programs for gaming employees, which could be conducted throughout the State. The two provisions are separate and distinct.

1.

Gambling is authorized at only one location. Section one of text of the proposed amendment provides, “Casino gaming is hereby permitted at a single site in the State of Arkansas as specified in Section 12.” A “casino gaming establishment” is defined under section 2(C) as “the facility operating at the site described in Section 12.” Section 12(A) provides, “Casino gaming shall be lawful and casino/resort development shall be considered appropriate land use in Crittenden County at a location described as: [metes and bounds description], all of which is situated in Crittenden County, Arkansas.” Part (C) of section 12 states that “[n]o more than one (1) casino gaming establishment shall be permitted to operate at the location described in Section 12(A).” Section three of the proposed amendment provides that “[g]aming may only be conducted by the licensed owner of a casino or a manager designated by the licensed owner and approved by the Casino Gaming Commission.” Section 13 (D)(1)(d) states that the Casino Gaming Commission shall issue a casino gaming license to an applicant who demonstrates “by clear and convincing evidence that the applicant currently owns land at the single site that has been approved for casino gaming by this Amendment, as set forth in Section 12.” These express provisions authorize only one casino, and its location is fixed.

2.

The majority opinion disregards the clear language of the proposal and focuses on a provision for training programs and concludes that these provisions, taken together, would allow gambling statewide.

The proposal makes it very clear that there would be only one casino, and it is to be located at a particular site in Crittenden County. Section 9 then provides that the Casino Gaming Commission shall require the holder of the license for the casino to work with the Commission to provide training programs for employees. It further provides that those training programs may be conducted at vocational schools, colleges, and universities currently existing in the State. Section 1 l.C. 14 provides that the commission shall:

Adopt rules and regulations necessary to regulate all schools or training institutions that teach or train gaming employees. The gaming activities of schools or training institutions regulated by the Casino Gaming Commission shall be deemed to be legal under the laws of the State of Arkansas. Any person desiring to operate a school or training institution must be licensed by the Casino Gaming Commission.

Without the provision deeming the “training programs” for “gaming activities” of the schools to be legal, the schools would be in violation of the provisions of the criminal code, which make it criminal to set up, keep or exhibit gaming tables and gaming devices. See Ark. Code Ann. §§ 5-66-103 — 104 (Repl. 1993). Without the provision there would be no exemption from the Johnson Act, 15 U.S.C. §§ 1171 & 1172 (1988 & Supp. 1993). The Johnson Act’s main purpose is to aid states in local enforcement of antigambling laws by prohibiting interstate and certain intrastate transportation of gambling devices. Section 1172(a) provides that it shall not be unlawful to transport in interstate commerce any gambling device into any state in which the transported gambling device is specifically enumerated as lawful in that state. If Arkansas law did not contain the above training provision in the proposed amendment, it would be illegal under both federal and state law for a school in Jonesboro, Little Rock, or some other city outside Crittenden County, to train mechanics on the repair of a gambling device.

In summary, section one of the text provides that casino gaming would be permitted at only one site and that is the site specified in Section 12. Section 2(c) defines a casino as the facility operating at the described site. Section 2(d) defines gaming as a game of chance located exclusively within a casino. Since gaming is defined as a game located exclusively within a casino and since a casino is defined as the facility at the single site, casino gambling would be permitted only at the single site and nowhere else. The “teaching programs” of “gambling activities” at the school sites simply does not authorize gambling statewide as the majority opinion holds. “Gambling” occurs when one plays a game of chance for money or other stakes. See Portman v. State, 204 Ark. 349, 162 S.W.2d 67 (1942). The teaching of “gambling activities” does not authorize the winning or losing of money or other stakes at the training schools.

D.

In its most far-reaching holding the majority opinion takes from the people of Arkansas a constitutional right by requiring a proposed measure to be short so that the ballot title can be simple. The holding has some appeal for all of us, but it is clearly in violation of the provisions of Amendment 7 to the Arkansas Constitution. The first paragraph of Amendment 7 provides:

The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option, to approve or reject at the polls any entire act or any item of an appropriation bill. [Emphasis added.]

A subsequent paragraph provides:

No limitation shall be placed upon the number of constitutional amendments, laws, or other measures which may be proposed and submitted to the people by either initiative or referendum petition as provided in this section.

Under the plain language of the amendment the people have reserved unto themselves the power to propose any legislative or constitutional measure, regardless how wise or ill-advised, and regardless how long or short. The duty of this court under the amendment is not to judge the merits of the proposal, but rather to see that the ballot title is intelligible, honest, and impartial. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988).

The constitutional right of the people to initiate any measure they chose should not be abridged. The first reason is obvious and needs no discussion: the constitution should be followed. However, there are other reasons for dissenting from the holding. Amendment 7 refers to initiated acts, as well as constitutional proposals. Many acts are long and, at times, cover even hundreds of pages. The holding apparently means that the people have lost the right to initiate a long complex act, such as a probate code or a criminal code. The people have lost the right to bypass the general assembly. The people have lost the right to put items in the constitution that, in the mind of the court, do not belong there. Such a holding is the antithesis of the intent of Amendment 7.

II.

THE HOLDING OF THE CONCURRING OPINION

The concurring opinion joins in the result of the majority opinion. The basis of the concurring opinion is that the text of the proposed amendment is so long and so detailed that it is like legislation. While I can clearly understand the proposition and have some sympathy for it, I cannot agree with it.

The opinion should not be followed for a number of reasons. First, the petitioners have not made such an argument. The issue has not been briefed by either of the parties. Neither party discussed the length of the text. Our judicial system is based on the adversarial process, and judges are dependent in a great part on attorneys developing each side of an issue. Because of this American tradition, courts do not usually strike off on their own and decide cases on grounds not argued. Without question, an important issue such as this should not be decided without arguments on both sides.

Second, the reasoning of the concurring opinion, as well as the majority opinion, will bring about a paradoxical result. Ballot titles are required for measures initiated by the public, but they are not required for measures submitted to the public by the general assembly. Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982). Under the reasoning employed in both the concurring majority opinions, the public cannot propose lengthy and complex matters for adoption, while the general assembly can so do. Such a result is directly in conflict with the purposes of Amendment 7, which reserves to the people the power to enact any proposal that the general assembly might enact.

Arguments can be made that Amendment 7 was rashly adopted by the people. The fact that the Constitution of the United States contains no such provision supports the argument that such a process could allow the majority to become a tyranny over the minority. But those arguments are immaterial to the issue before us. The people have in fact adopted Amendment 7, and it gives the people an unlimited right to the initiative process. That right should be taken away only by a vote of the people.

III.

CONCLUSION

The three holdings of the majority opinion that the proposed amendment contains misleading statements and omits material issues are important to the people involved, but at least those holdings affect only this case. To the contrary, the holding that the text of an initiated proposal must be comparatively short affects all future initiated proposals, whether they be initiated acts or initiated constitutional amendments, and it clearly takes away a right assured to the people under the Initiative and Referendum Amendment to the constitution. There is nothing in Amendment 7 that can be fairly construed as placing any limit upon the length, complexity, or subject matter of an initiated proposal. The issue has not been briefed. It has not been argued. This case has been expedited for immediate decision. The result is that an expedited edict of this court takes away a constitutional right.

Enfield, Special Justice, joins in this dissent.


author: Robert H. Dudley, Justice. Jack Holt, Jr., Chief Justice,

text:
    Charles L. PATTERSON v. STATE of Arkansas
    CR 94-412
    885 S.W.2d 667
    Supreme Court of Arkansas
    Opinion delivered October 24, 1994
    [Rehearing denied December 5, 1994.]

      G. Keith Watkins, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.

       Holt, C.J., would grant rehearing.

   Robert H. Dudley, Justice.

Charles L. Patterson was charged in a four-count information with aggravated robbery, burglary, and two counts of theft of property. The crimes were committed in Independence County and the information was filed there, but the trial judge granted a change of venue to Fulton County. This change was granted in part because the four crimes were allegedly committed by appellant while he was on furlough from a forty-year sentence in the Arkansas Department of Corrections and because appellant allegedly committed other crimes in Independence County. Appellant was convicted on all four counts and was sentenced to life imprisonment for the aggravated robbery, twenty years for the burglary, fifteen years for one of the thefts, and ten years on the other theft. A total of $40,000.00 in fines was assessed. The two sentences for the thefts were ordered to be run concurrently, while all others were ordered to run consecutively. The result is that appellant received sentences of life plus thirty-five years and was fined. He appeals from all four convictions. There was no reversible error, and we affirm.

Appellant’s first assignment is that the trial judge erred in refusing to dismiss all charges because of violation of the speedy trial rules. The trial judge ruled correctly. The four-count information was filed, and arrest warrants were issued, on June 19, 1992. That same day, appellant was arrested by federal officials in Odessa, Texas on separate federal charges. The federal authorities held appellant to answer charges in United $tates district courts in Colorado and Eastern Arkansas. On October 20, 1992, appellant was convicted in the United States District Court, Colorado District, of aircraft piracy, interference with a flight crew member, interstate transportation of a stolen aircraft, possession of a firearm by a convicted felon, and use of a firearm in relation to a crime of violence. He was sentenced to two hundred forty months in the United States Penitentiary at Leavenworth, Kansas. The next day, October 21, the prosecuting attorney wrote the circuit judge that appellant was being held by federal authorities for an additional federal trial in the Eastern District of Arkansas. The prosecuting attorney subsequently filed a detainer against appellant with the Federal Bureau of Prisons. On June 24, 1993, the Leavenworth Inmate Systems Manager notified the prosecuting attorney that appellant was currently out on a federal writ and would be notified of the detainer when he was returned to Leavenworth. Evidently the federal writ was issued to transport appellant to Arkansas because, on July 6, 1993, the United States District Court for the Eastern District of Arkansas found appellant guilty of air piracy and sentenced him to an additional three hundred thirty months at the federal penitentiary in Leavenworth.

The detainer warrant was served on appellant. On August 30, 1993, appellant was transported to Independence County for trial on the state charges. The warrants of arrest were served that day, and the next day, August 31, 1993, an arraignment was held and counsel was appointed. The trial court asked appellant’s appointed counsel if the next session of court in Fulton County, which would begin on October 25, was an agreeable trial date and counsel responded affirmatively. The trial court then set October 25, 1993, as the trial date. On October 20, 1993, appellant filed a motion to dismiss alleging that his right to a speedy trial had been violated. The motion was denied, and appellant’s trial commenced on October 25, 1993.

The general rule is that an accused’s trial must be held within twelve months of the date the charges are filed. A.R.Cr.P. Rule 28.2(a). It is undisputed that appellant’s trial began sixteen months and six days after the charges were filed, or four months and six days beyond the twelve-month period. Once it is shown that the accused’s trial took place outside the twelvemonth period, the State must show that the delay was justified under the rules of criminal procedure. Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). However, Rule 28.2 is interrelated with Rule 28.3, which sets out the periods of delay that “shall” be excluded in computing time for a speedy trial. Subsection (a) excludes a “period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . trials of other charges against the defendant.” A.R.Cr.R Rule 28.3(a).

A period of delay resulting from “trial of other charges against the defendant” in a foreign jurisdiction commences when the accused is taken to the foreign jurisdiction and ends when the trial in that jurisdiction is completed and the accused becomes available for extradition. Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988). In this case appellant was arrested by the federal authorities on June 19, 1992, and held for the first of his two federal trials, the one in the federal district court of Colorado. That trial ended on October 20, 1992. We do not know when appellant was transferred to the Leavenworth penitentiary and became available for extradition. However, if we use the date the trial ended as the date he became available, we find an excludable period resulting from “trials of other charges” that began June 19, 1992 and ended October 20, 1992; a total of four months and one day. Since the trial in the case at bar was only four months and six days outside the speedy trial period, the State only had to show another five days of excludable time. The additional excludable time was attributable to the other federal trial. On June 24, 1993, the Inmate Systems Manager of the federal penitentiary in Leavenworth advised the prosecuting attorney that appellant was “currently out on a federal writ” and probably would not be available on July 30, 1993. Appellant was then convicted of air piracy in the United States District Court for the Eastern District of Arkansas on July 6, 1993. This period, from June 24 to July 6, constituted an additional excludable period in excess of five days. In addition, appellant’s attorney agreed to the October 25, 1993 trial date. Thus, the trial court did not err in denying the motion to dismiss for lack of a speedy trial.

In a related argument appellant contends that he was not tried within the time required by the Interstate Agreement on Detainers. See Ark. Code Ann. §§ 16-95-101 to -107 (1987). This Act provides that, after a prisoner in another jurisdiction is notified that a detainer has been filed against him, he may send the prosecuting attorney notification of his place of imprisonment and request that a final disposition be made of the charges filed against him in this State. See Ark. Code Ann. § 16-95-101, Article 111(a) (1987). At that point, this State has one hundred eighty days to bring him to trial or the charges must be dismissed. Id.; see also Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993). Since appellant made no demand for trial in compliance with Article 111(a), there was no violation of the Interstate Agreement on Detainers. Walker v. State, 263 Ark. 485, 565 S.W.2d 605 (1978).

Appellant is procedurally barred from his next point of appeal. In it he argues that the trial court erred in denying his motion to strike a juror for cause. However, at the time the court denied his motion he had five peremptory strikes and did not use one of those strikes on the juror. In order to preserve for appeal an objection to an empaneled juror, a party is required to have exhausted his peremptory challenges and must show that he was forced to accept a juror who should have been excused for cause. Stanley v. State, 317 Ark. 32, 875 S.W.2d 504 (1994).

Appellant’s final argument involves an evidentiary ruling. Appellant called Ralph Garcia to the stand and asked him if one of the victims had made any statements to him about this incident. The trial court sustained the State’s objection based on hearsay. Appellant contends the answer should have been admitted as an inconsistent statement under Rule 613 of the Arkansas Rules of Evidence.

In order for this court to hold that evidence was improperly excluded, appellant must have made a proffer of the evidence under Rule 103. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). There was no proffer and the substance of the answer is not apparent. Therefore, we have no way of knowing whether the answer would have revealed an inconsistent statement. See A.R.E. Rule 103(a)(2). In addition, while extrinsic evidence of prior inconsistent statements is admissible for impeachment purposes under Rule 613(b), such evidence may not be admitted until the witness to be impeached has first been given an opportunity to explain or deny the statement. Chism v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). There is no showing that the victim was ever asked about a possible inconsistent statement.

Appellant received a life sentence. As a result, the record has been examined for any other rulings adverse to appellant that might constitute reversible error. See Ark. Sup. Ct. R. 4-3(h). No other adverse rulings constitute reversible error.

Affirmed.

Holt, C.J., dissents.

Jack Holt, Jr., Chief Justice,

dissenting. I must register my dissent in this matter because I believe that the State showed a lack of due diligence in securing Patterson’s return to Arkansas from incarceration in federal prison in Kansas and that a prejudicial speedy-trial violation thus occurred. The conviction should be reversed and dismissed. As the majority opinion devotes lit-tie attention to the underlying facts, it is necessary to set them forth in some detail.

Facts

On April 10, 1992, Ed and Alma Ward, residents of Batesville, in Independence County, Arkansas, reported that a man they identified as Charles L. Patterson had broken into their house and held them at gunpoint, demanding money. The Wards stated that Patterson called them by name and told them he was “on the run” and knew they had money in the house. Mrs. Ward told him that there was some money in a chest drawer. After finding the cash, Patterson asked for the keys to the Wards’ car and left their residence driving their 1990 Cadillac.

Thereafter, the following occurred:

June 19, 1992 — The Independence County Circuit Court issued an information and a bench warrant for Patterson’s arrest, charging him with burglary, aggravated robbery, and theft of property.
June 19, 1992 — Federal authorities arrested Patterson in Odessa, Texas.
September 15, 1992 —Patterson was tried on federal charges in the United States District Court of Colorado.
October 20, 1992 — Patterson was found guilty in the Colorado federal district court.
October 21, 1992 — Prosecuting Attorney Don McSpadden sent Independence County Circuit Judge John Dan Kemp a letter indicating his intent to amend the information to charge Patterson as a habitual criminal and outlining his status as a convicted federal prisoner (Colorado) awaiting trial in another federal jurisdiction (Arkansas); the prosecutor signaled his intent not to take any action to obtain custody prior to January 1, 1993.
March 22,1993 — Patterson was tried and convicted on federal charges in the United States District Court for the Eastern District of Arkansas.
June 24, 1993 —■ The Prosecuting Attorney for the Sixteenth Judicial District of the State of Arkansas filed a detainer against Patterson, charging him with aggravated robbery, burglary, and theft of property.
June 24, 1993 — A detainer-action letter was sent by the inmate systems manager of the United States Penitentiary in Leavenworth, Kansas, to the prosecutor’s office in Batesville, Arkansas, acknowledging the filing of the detainer; simultaneously, a memorandum was sent by a legal technician at the Leavenworth facility to the deputy prosecutor in Bateville, informing him that Patterson was “currently out on a federal writ” and would probably not be available on July 30, 1993 (presumably the date on which the State of Arkansas had hoped to obtain custody).
August 30,1993 — Patterson was transported to Independence County, Arkansas, from Kansas and was served with a copy of the bench warrant.
August 31, 1993 — An arraignment was held in the Independence County Circuit Court, and a trial date of October 25, 1993, was set.
October 20, 1993 — Patterson filed a motion to dismiss for denial of speedy trial, arguing that because more than one year had passed between the time the State filed charges against him and the time the State filed its detainer, the time provisions of the Interstate Agreement on Detainers Act could not operate to extend the twelve-month period prescribed for speedy trial under Ark. R. Crim. P. 28.
October 22, 1993 — The Independence County Circuit Court denied the motion, finding that the “delay of approximately twelve months and seventeen days was due to Patterson’s trial on another charge” (the federal proceedings in Colorado and Arkansas); that Patterson had failed to lodge a written notice and request for final disposition of the Arkansas charges as required under the Interstate Agreement on Detainers; and that there was no showing of prejudice to Patterson occasioned by the delay.
October 25, 1993 —- Following the granting of a defense motion for change of venue, Patterson was tried in Fulton County, Arkansas, and convicted and received consecutive sentences on the charges of aggravated robbery (life imprisonment), burglary (twenty years), and theft (fifteen years).

These circumstances are critical for an understanding of the due process and speedy trial violations.

Due process and speedy trial

Patterson was charged with burglary, aggravated robbery, and theft on June 19, 1992, and his trial was held on October 25, 1993, a period amounting to sixteen months and six days. In the only argument for reversal we need consider, Patterson contends that he was denied his rights to due process and speedy trial, as set forth in the Constitutions of the United States, the State of Arkansas, and the Arkansas Rules of Criminal Procedure. We agree.

According to Patterson, his due process rights were violated by the State when, some twelve months after Arkansas charges were filed against him, it filed a detainer with federal authorities on June 24, 1993, without notifying him of the charges against him or advising him of his rights. He asserts that the State was negligent and did not follow the established procedure for notifying authorities and defendants of pending charges as set forth in the Interstate Agreement on Detainers Act, Ark. Code Ann. § 16-95-101 (1987).

In a letter dated October 21, 1992, Prosecuting Attorney Don McSpadden informed Circuit Judge John Dan Kemp that:

Mr. Patterson has just recently been found guilty and sentenced in the Colorado Federal District Court on Federal charges. He awaits trial in Federal Court in Arkansas. Since the Federal guidelines call for a more readily and speedy trial than State guidelines, I would assume that the Federal people will have an opportunity to try Mr. Patterson prior to the State charges. Even if he is not tried on the Federal charges I do not see how he can be brought to trial prior to January 1, 1993.

There is nothing in the record to suggest that, prior to filing the detainer on June 24, 1993, the State endeavored in any way to obtain custody of Patterson. The prosecutor’s letter to the circuit judge, written a day after Patterson’s Colorado federal conviction, merely expresses the assumption that Patterson would be unavailable before January 1, 1993, and amounts to a declaration of the State’s abandonment, for the immediate future, of any effort whatsoever to secure his person for trial. The detainer was actually filed before Patterson’s July 6, 1993 sentencing on federal charges in Arkansas, while he was still being held in Leavenworth. Yet nothing is presented to explain why, if the detainer was filed nearly two weeks before the second conviction, it could not have been filed yet earlier — for example, after the March 22, 1993 trial in federal court in Arkansas or, for that matter, after the October 20, 1992 conviction in federal court in Colorado. The State obviously had been aware since at least October 21, 1992, that Patterson was in federal custody.

Under Article 111(a) of the Interstate Agreement on Detainers, Ark. Code Ann. § 16-95-101, a party is entitled to trial within 180 days only “after he shall have caused to be delivered to the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint.. . .” Therefore, Patterson’s failure to deliver notice of his request for trial on the Arkansas charges rendered the 180-day time period prescribed by the Interstate Agreement on Detainers inoperable. See Walker v. State, 263 Ark. 485, 565 S.W.2d 605 (1978).

Still, the timing of the filing of the detainer remains relevant to this court’s determination of the speedy-trial question. The limitation to prosecution under Ark. R. Crim. P. 28.1(c) is a period of twelve months, subject to certain periods to be excluded in computing the time for trial. Among the excluded periods provided for in Ark. R. Crim. P. 28.3 are the following:

(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant. . . .
(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained or he resists being returned to the state for trial.

(Emphasis added.) We have said many times that the State bears the burden of showing that any delay was caused by the defendant’s conduct or was otherwise legally justified. Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993); Rhodes v. Capeheart, 313 Ark. 16, 852 S.W.2d 118 (1993); Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991).

In denying the speedy-trial motion on October 22, 1993, the circuit court found that the “delay of approximately twelve months and seventeen days was due to Patterson’s trial on another charge” — specifically, the federal proceedings in Colorado and Arkansas — and thus excludable. The circuit court also found no showing of prejudice to Patterson occasioned by the delay. In addition, the court found that:

Although Patterson had the opportunity following his arrest by federal authorities to obtain his return to Arkansas to obtain his “speedy trial” by lodging a written notice and request for final disposition of these Arkansas charges under Article III of the Interstate Agreement on Detainers (A.C.A. § 16-95-101 et seq.), he chose not to file a request. This section cannot apply where no demand for trial was ever made by the defendant in compliance with Article 111(a)-

Further, the circuit court made a finding of unavailability because Patterson “was awaiting trial and sentencing on the federal charges in Colorado and Arkansas.”

The trial court cited, as authority for its ruling, Young v. Mabry, 471 F.Supp. 553 (E.D. Ark. 1978), aff’d 596 F.2d 339 (8th Cir. 1979), cert. denied 444 U.S. 853 (1979). That case points out that Article VI(a) of the Interstate Agreement on Detainers contains the key words for determining the duration of excludable periods under Article III: “whenever and for as long as the prisoner is unable to stand trial. ...” The federal court noted that “interpretive authority as to their legal construction is scant.” 471 F.Supp. at 561. However, the district court turned to other federal cases that indicated “that the statutory time limits should be tolled during those periods when a prisoner is removed from the custodial place of incarceration and taken to another jurisdiction, other than the demanding jurisdiction, to stand trial on charges pending there.” Id.

The problem with applying Young v. Mabry to the present set of circumstances is that, here, Patterson had been found guilty in the Colorado district court on October 20, 1992, and evidently was incarcerated in Leavenworth for the entire period up to his trial on March 22, 1993, in the eastern district court in Arkansas, and during the period following that trial and up to his sentencing on July 6, 1993. The record is completely void of any reference to the specific number of days that Patterson was in actual attendance in the federal courts. Neither is there any indication in the record of the number of days during which Patterson was engaged in hearings on pretrial motions, interlocutory appeals, or other “proceedings” revolving around his federal trials. The only evidence of the duration of his federal custody was the judgment entered by the Colorado District Court, which noted that “Defendant shall receive credit for 124 days spent in federal custody.” Patterson was simply not unavailable under Rule 28.3(e), and the State failed to sustain its burden of showing that the delay in securing Patterson’s return to Arkansas was due to the prisoner’s actions. See Walker v. State, supra.

This brings us to the question of whether the entire period during which Patterson was in federal custody can be comprehended under the term “other proceedings” in Rule 28.3(a). The answer is no. Subsection (a), by its phrasing, clearly indicates that “other proceedings” consist of actual trials on other charges or ancillary hearings, examinations, and interlocutory appeals. It is obvious that “other proceedings” under Rule 28.3(a) do not include periods of incarceration subsequent to trial. Indeed, had we intended that periods of incarceration should be generically excludable, we would have added the unqualified term to the rule.

The majority’s reliance on Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988), is misplaced. That case involved a defendant who actively resisted being returned from Arkansas from Texas by refusing to sign a waiver of extradition. (At the same time, he fought extradition to Tennessee on another charge.) As a result, both Arkansas and Texas were burdened with time-consuming extradition proceedings, and the delay was held properly chargeable to Allen. In the present case, there was no resistance on Patterson’s part; there was simply little action on the State’s part.

Thus, the fact that the nine-month-and-twenty-one-day period from September 15, 1992, to July 6, 1993, encompassed certain federal “proceedings” (i.e., trials and sentencing) in Colorado and Arkansas does not, in itself, adequately account for the State’s inaction for nearly the entire duration of Patterson’s federal incarceration. Fundamental fairness requires that prosecuting authorities act in good faith and with due diligence in bringing a defendant to trial in Arkansas once it has been brought to their attention that the defendant is being detained outside the state or in a federal prison of jail. See State v. Anderson, 121 Wash.2d 852, 855 P.2d 671 (Wash. 1993). Here, the prosecutor’s letter of October 21, 1993, offers confirmation in the most concrete manner that the State was aware Patterson was in federal prison following his conviction in the Colorado district court and that the State nevertheless elected not to file a detainer or to make other exertions to bring him to trial in Arkansas.

In light of the inapplicability of the Interstate Agreement on Detainers Act, our rules of criminal procedure required that Patterson have been brought to trial in Arkansas within twelve months, excluding periods of necessary delay. Ark. R. Crim. P. 28.1. The circuit court’s finding that the time Patterson spent in federal custody warranted the exclusion of twelve months and seventeen days was wrong. Patterson’s convictions for aggravated robbery, burglary, and theft should be reversed and dismissed. Instead, the majority has rewarded the State for neglecting to exercise due diligence in bringing Patterson to Arkansas.

I respectfully dissent.

       For purposes of the Interstate Agreement on Detainers Act, a detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising the proper authority that the prisoner is wanted to face charges in another jurisdiction. Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993).


author: Robert H. Dudley, Justice.

text:
    Mildred SIMMONS v. ESTATE OF Mary Evelyn WILKINSON, Deceased
    94-281
    885 S.W.2d 673
    Supreme Court of Arkansas
    Opinion delivered October 24, 1994

      Wells Law Offices, by: Bill G. Wells, for appellant.

      Haley, Claycomb, Roper & Anderson, by: H, Murray Clay-comb, for appellee.
   Robert H. Dudley, Justice.

Evelyn Wilkinson, the decedent, executed a will leaving her estate in trust for her brother. At his death the trustee was to distribute $10,000 to Mildred Simmons, appellant, and the remainder of the trust to the First Presbyterian Church in Warren. About four hours before her death, Evelyn Wilkinson attempted to make a codicil to her will. Appellant contends the codicil left $40,000 to her. The probate court found the alleged codicil was illegible. Appellant also contends that she reached a settlement with the church, and, under its terms, the church disclaimed any interest in the estate. The probate court found there was no settlement. On March 9, 1992, the probate court entered an order admitting the will to probate, refusing to probate the illegible codicil, and denying that the church had disclaimed its interest.

Appellant recognized that the order was a final order and sought to appeal. However, she failed to file her record within the time provided by Rule 5 of the Arkansas Rules of Appellate Procedure. She subsequently tendered the record and filed a motion for a rule on the clerk. We denied the motion. In re Estate of Evelyn Wilkinson, 311 Ark. 311, 843 S.W.2d 316 (1992).

Appellant went back to the probate court and filed a “motion to increase distribution” to her. Her arguments were that she should receive an increased distribution either because of the codicil or because the church disclaimed its interest. The probate court ruled that the claim was barred by the doctrine of res judicata. Appellant again appeals. We affirm.

The probate code contains the provisions that govern the time for appeal from orders of the probate court. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994). Section 28-1-116(a) of the Arkansas Code Annotated of 1987 provides that appellant had a right to appeal the order denying admission of the codicil. Appellant’s claim that the church disclaimed its interest was an argument that the church was barred from any participation in probate. Appellant obviously believed it was necessary to appeal both parts of the order within thirty days of its entry. She attempted to do so, but failed to comply with the Rules of Appellate Procedure, and her appeal was dismissed. Consequently, the order became final.

Appellant contends in this appeal that, even though she failed to timely perfect her first appeal, she could raise the same arguments a second time and appeal a second time. She contends that because her first appeal was dismissed, rather than decided on the merits, the doctrine of res judicata is inapplicable. The argument overlooks the provisions of the statute. One in particular provides:

When an appeal is taken from the order of final distribution in the administration of a decedent’s estate, all prior appealable orders and judgments to which the appellant has filed objections in writing within sixty (60) days after the order or judgment was rendered and from which an appeal has not been taken, except orders admitting or denying the probate of a will or appointing a personal representative, shall be reviewed at the election of the appellant. The appellant shall indicate the election by clearly stating in the appeal the orders which he desires to have reviewed.

Ark. Code Ann. § 28-1-116(d) (1987).

This second appeal is not an appeal from the final order of distribution. The appeal has nothing to do with the manner of administration. Rather, it is an attempt to appeal for the second time the order denying probate of the codicil and denying that the church disclaimed its interest. It is not timely. Appellant seeks to do indirectly that which the statute does not permit her to do directly. See Widmer v. Widmer, 292 Ark. 384, 729 S.W.2d 422 (1987); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980).

In a comparable chancery court case, Watkins v. Watkins, 242 Ark. 200, 412 S.W.2d 609 (1967), neither party appealed from the final decree. Subsequently, one party filed a bill of review and upon its denial sought to appeal. We affirmed the chancellor’s dismissal and wrote:

Under our holding in Pyles v. Holland, 187 Ark. 550, 60 S.W.2d 1029 (1933), the chancellor was right. There we held that a bill of review such as this one, for error supposedly apparent on the face of the record, must be filed within the time allowed for an appeal. We pointed out that if the rule were otherwise, “it would follow that an original decree might in effect be brought before the Supreme Court for re-examination after the period prescribed by law for an immediate appeal... In other words, the party complaining of the original decree would, in this way, be permitted to do indirectly what the statute has prohibited him from doing directly.”

Id. at 201, 412 S.W.2d at 610.

The probate court correctly ruled the arguments were barred by the doctrine of res judicata.

Affirmed.


author: Steele Hays, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Sharon BAILEY
    93-1386
    885 S.W.2d 677
    Supreme Court of Arkansas
    Opinion delivered October 24, 1994

      Elizabeth McGee, for appellant.

      Advocacy Services, Inc., by: J. William Cain, Jr. and Janet Cecil Baker, for appellee.
   Steele Hays, Justice.

This case involves a series of orders by which the Juvenile Division of the Pulaski County Chancery Court ordered Robert Michael Bailey, Jr. to complete a treatment program at the San Marcos Treatment Center in San Marcos, Texas. One order, entered September 10, 1993, directed the Arkansas Department of Human Services (DHS) to pay for the treatment from the time Medicaid was denied until such time as the juvenile was transferred to a step down program. DHS insists the juvenile court exceeded its powers in ordering family services at a specific institution and erred in entering judgment against DHS. We hold under these circumstances DHS may not appeal from litigation to which it was not a party.

Michael was adjudicated a member of a Family in Need of Services (FINS) by the Juvenile Division of the Pulaski County Chancery Court on March 6, 1990 [Case No. J-90-290]. At a periodic review hearing held on July 30, 1992, the chancellor ordered Michael to the San Marcos Treatment Center. The style of that case is Sharon Bailey v. Robert Michael Bailey, Jr. [Case No. J-90-290],

Subsequently, Michael was charged with theft by receiving, a Class C felony. The case, State of Arkansas v. Robert M. Bailey, was transferred to juvenile court. In a hearing on June 29, 1993, the chancellor determined she would defer a decision on transferring the case back to circuit court until Michael completed treatment at San Marcos.

On August 31, 1993, the chancellor entered an order in the case of Sharon Bailey v. Robert Michael Bailey [Case No. J-90-290]. The order stated:

Juvenile should complete treatment at San Marcos Brown school until such time he can be transferred to the vocational step down program in Austin, [Texas]. It has been determined by the CASSP team that Ark [ansas] DHS should pay for place with step down program due to the lack of appropriate place for juvenile in Arkansas.

Further, the chancellor entered an order on September 10, 1993 which concluded:

DHS shall pay for treatment at San Marcos Treatment Facility from the time medicaid was denied until such time as the juvenile is transferred to step down program.

The Department of Human Services filed a notice of appeal on September 28, 1993 in the case of Sharon Bailey v. Robert Michael Bailey [Case No. J-90-290]. DHS specified it was appealing the order dated August 31, 1993.

On October 14, 1993, the chancellor dismissed Case No. J-90-290 (the style of that case is Robert M. Bailey, Sr. v. Robert M. Bailey, Jr.). On October 19, 1993, DHS filed a motion, pursuant to ARCP Rule 60, to set aside the order dated September 10, 1993. In an order entered on November 4, 1993, the chancellor found DHS’s motion to set aside was procedurally invalid because it was filed after the case had been dismissed. Finally, on November 15, 1993, DHS filed a motion to clarify whether the September 10 Order was a valid, enforceable order. No further action occurred until DHS filed a second notice of appeal in the case Sharon Bailey v. Robert Michael Bailey [Case No. J-90-290] on December 17, 1993. DHS specified it was appealing the order dated September 10, 1993.

In the instant case, DHS’s name was never shown in the style of the case until this appeal and the state never entered an appearance by any type of pleading. In fact, the style of the case on both notices of appeal is “Sharon Bailey v. Robert Michael Bailey.” We find DHS’s appearances and involvement were pursuant to DHS’s obligations under the Juvenile Code. Ark. Code Ann. §§ 9-27-301 — 352 (Repl. 1993).

In a similar case, Department of Human Services v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990), we held that “not having been sued and not having waived its immunity, the state was not subject to a judgment to be awarded against a department of the state.” We noted that the state was never served with process and never entered an appearance by any type of pleading. Id. Also, we emphasized “the state had not filed a single pleading and its name was never shown in the style of the case until this appeal.” Id. Nevertheless, we said relief from the error must be addressed in the trial court, since one may not appeal from litigation to which it was not a party. The appeal was dismissed. Id.; Quattlebaum and CBM, Inc. v. Gray, 252 Ark. 610, 480 S.W.2d 339 (1972)

Under these circumstances we find any relief to which DHS may be entitled must be afforded in the trial court because our general rule is that this court cannot act upon an appeal taken by one not a party to the action below. Quattlebaum and CBM, Inc., supra; Crunkleton, supra; In the Matter of Allen, 304 Ark. 222, 800 S.W.2d 715 (1990). DHS’s relief should be obtained in the trial court. Quattlebaum and CBM, Inc., supra. DHS contends the instant case differs from Crunkleton because it had sought relief from the trial court. DHS did file an ARCP Rule 60 motion to set aside the judgment with the trial court; however, that motion was denied. DHS has not appealed the denial of its motion to set aside the judgment which would be the proper procedure. See generally Cole v. First Nat’l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990); Lawson v. Edmonson, 302 Ark. 46, 786 S.W.2d 823 (1990). DHS simply attempts to appeal the August 31 and September 10 Orders involving litigation to which it was not a party. See Crunkleton, supra.

Finally, we note that if DHS had standing to appeal the September 10 Order, the notice of appeal was not timely. Arkansas R. App. P. 4(a) provides in part that “a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree, or order appealed from.” The time for filing a notice of appeal from the September 10 Order expired on Monday, October 11, 1993. At that time, DHS had simply filed its notice of appeal as to the August 31 Order.

Thus, the only order with a timely notice of appeal is the August 31 Order. However, there is no award against the state in the August 31 Order. The chancellor simply concluded Michael should complete treatment at San Marcos. The order did not hold that DHS must pay for the treatment. In fact, the only reference made to DHS was that the Child and Adolescent Service System Program (CASSP) team had determined DHS should pay for a step down program after the treatment at San Marcos had been completed. In its brief, DHS admits CASSP can in no way bind a state agency to follow a CASSP recommendation. Accordingly, there is no award against the state in the August 31 Order.

Because DHS was not a party to the litigation, we find its relief under these circumstances should be obtained by challenging the judgment in the trial court.

Appeal dismissed.


text:
    Sammy Thomas BOREN v. Pamela M. BOREN
    93-1123
    885 S.W.2d 852
    Supreme Court of Arkansas
    Opinion delivered October 24, 1994

      The Roberts Law Firm, by: Robert L. Thacker, for appellant.

      Joe Kelly, for appellee.
   Steele Hays, Justice.

This case was certified to us by the Court of Appeals because it involves a question of significant public interest — whether a municipal or circuit court has concurrent jurisdiction with chancery court to enforce an agreement for child support. We hold that chancery has exclusive jurisdiction of all cases involving matters of child support.

Pamela Boren, appellee, and Sammy Boren, appellant, were divorced on December 9, 1977, by decree of the Chancery Court of Lonoke County. Pursuant to the decree, Mrs. Boren was awarded custody of the minor child and Mr. Boren was required to pay child support and medical insurance for the child.

The decree was modified in February 1992 by increasing the amount of child support payments and requiring the parties to share equally the cost of health care services not covered by insurance. A dispute subsequently arose as to the payment of child support, and of Mrs. Boren’s reimbursement for Mr. Boren’s share of medical expenses incurred but not covered by insurance.

On October 7, 1992, Mrs. Boren filed suit in small claims court of Carlisle Municipal Court, seeking judgment against Mr. Boren for child support delinquencies and medical reimbursements. Mr. Boren responded, denying liability and challenging the municipal court’s jurisdiction of the matter, arguing that chancery court had exclusive jurisdiction of matters relating to child support.

A trial was held and judgment was entered against Mr. Boren in the amount of $202.30. A post-trial motion to vacate the judgment was denied. An appeal was taken to the Circuit Court of Lonoke County solely on the issue of the municipal court’s jurisdiction. The circuit court found the municipal court had properly accepted jurisdiction of the matter. Mr. Boren appeals from that order, challenging the jurisdiction of the municipal court.

Appellant argues that chancery has exclusive jurisdiction over questions of child support that arise after the final divorce decree because the court retains continuing jurisdiction of divorce and matters relating to it. He cites case law and Ark. Code Ann. § 9-12-302 (1987) which provides that an “action for alimony or divorce shall be by equitable proceedings.” However, we believe the dispositive statute is Ark. Code Ann. § 9-14-105(a) (1987):

The chancery courts in the several counties in this state shall have exclusive jurisdiction in all civil cases and matters relating to the support of a minor child or support owed to a person eighteen or older which accrued during that person’s minority. [Our emphasis.]

Ark. Code Ann. § 16-13-201 (a) (1987) provides that circuit courts shall have original jurisdiction of all actions for the enforcement of civil rights or redress of civil wrongs, except when exclusive jurisdiction is given to other courts. Under §§ 9-14-105(a) and 16-13-201(a), chancery has been given exclusive jurisdiction in “all civil cases and matters relating to the support of a minor child,” [our emphasis] and we find the enforcement of a child support order is clearly a matter related to support of a minor child.

Reversed and dismissed.