author: Robert H. Dudley, Justice.

text:
    Na’eem NUMAN v. STATE of Arkansas
    CR 86-141
    722 S.W.2d 276
    Supreme Court of Arkansas
    Opinion delivered January 12, 1987

      Steve Kirk, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged in one information with three counts of burglary and in another information with one count of auto theft. In a consolidated trial, the jury found appellant guilty on all four counts. We affirm all four convictions.

Appellant attempted to. plead guilty to one of the three burglary charges, but the State objected and demanded a jury trial. The trial court held that the State was entitled to a jury trial. The appellant asks us to reverse this conviction and remand for him to plead guilty because, he argues, he had a right to plead guilty. We decline to reverse the conviction.

Under the Constitution of the United States a criminal defendant does not have an absolute right to have a guilty plea accepted, Lynch v. Overholser, 369 U.S. 705, 719 (1962), but a state may confer such a right by statute or rule. In Arkansas, we have no such statute or rule and, accordingly, a defendant does not have a right to plead guilty.

In its brief, the State cites Ruiz v. State, 275 Ark. 410, 630 S.W.2d 44 (1982), Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983), and Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), as precedent for the rule that a criminal defendant does not have an absolute right to plead guilty. Those cases are not authority in the case at bar because they are capital felony cases and are specifically governed by A.R.Cr.P. Rule 31.4. The case at bar is not a capital felony case and is not governed by that same rule.

Appellant’s second point of appeal is that his fifth and fourteenth amendment rights were violated when he was asked on cross-examination about his post-arrest silence. In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court of the United States held that questioning a defendant about his silence during and after receiving Miranda warnings violated the due process clause of the fourteenth amendment. The Court reasoned:

[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

However, in the concluding paragraph of its opinion, the Court left open the possibility that in some cases questioning about post-arrest silence could constitute harmless error.

The foundation for the harmless error rule in cases involving federal constitutional rights is Chapman v. California, 386 U.S. 18 (1967). There, the Court held that there may be some constitutional errors which are harmless, and do not require reversal, but the rule for such a doctrine would necessarily be a federal rule, and not various rules fashioned by the several states. The Court then wrote:

In fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one.
We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 85. There we said: “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”
We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.

Chapman, supra, at 22, 23, & 24.

Since Doyle we have had the opportunity to consider applying the Chapman harmless error rule to various fact situations involving a comment on post-arrest silence.

In Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981), the violation of the Doyle post-arrest silence doctrine was so egregious that it could not be harmless, so we did not even consider applying the Chapman rule. There, the defendant filed a threshold motion to prevent the State from arguing about the defendant’s post-arrest silence. The motion was overruled. The defendant took the stand and was questioned about his post-arrest silence. Finally, the prosecuting attorney in closing argument commented on the defendant’s post-arrest refusal to talk to the police by saying:

Mr. Ward didn’t want to talk about the matter. He wanted to talk about his lawyers. He knew he was in trouble. No, he wasn’t going to tell them.
No, huh-uh, and there is a very good reason for that because he done wrong. He done wrong, and he knew he had done wrong.

Similarly, in Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985), the violation of the Doyle post-arrest silence doctrine was so flagrant that it could not be considered a harmless error. There, the defendant refused to give a statement to the police and then, at trial, gave an exculpatory version of facts. Cross-examination was as follows:

[PROSECUTING ATTORNEY]
Q: Did you tell the police officer? Did you tell anyone else about being beaten?
[DEFENSE ATTORNEY]
Objection, Your Honor. She was taken into custody and is not required to make any statement after that.
THE COURT:
The objection is overruled, sir.
Q: Did you tell the police officers that you had been beaten and kicked and stomped by Ms. English?
A. I don’t believe I did.
Q: So this is the first time you’ve told anybody outside your counsel who is here today. Is that correct?
A: I didn’t know I had to tell the policeman that.
Q: No, I just asked you if you did.
A: I said I didn’t.

During closing argument the prosecutor highlighted the questions, over the objection of the defendant, by arguing that the discrepancy between the exculpatory story given at trial and the silence at and after the time of arrest gave rise to an inference that the story was recently fabricated.

On the other hand, the violation of the Doyle doctrine was slight in Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982). There the colloquy was as follows:

Q: Did Mr. Hobbs [defendant] make a voluntary statement to Captain Wilson on that date?
A: Yes, he did.
Q: Do you recall what he told Captain Wilson?
A: He told Captain Wilson that Cub Peel had something to do with the death of Marsha Bonds, and that — Gary asked him about his car. He said his car broke down somewhere around Texarkana. After that, he made the statement about Cub Peel. Then, he said, T don’t want to say anymore, until after I talk to my lawyer.’

After the witness testified that the defendant said that he wanted an attorney before saying anything further, the defendant objected and moved for a mistrial. The court declined to grant a mistrial but instructed the jury to disregard, and give no consideration to, the statement that the defendant wanted to talk to an attorney. No further questions on the subject were asked, and the prosecutor did not mention the matter in closing argument.

Since that case did not present a prosecutorial focus on the defendant’s silence by repeated questions or closing argument, and was not so egregious as to automatically cause harm, we weighed the error against the evidence of guilt. We held that the error was harmless in comparison to the overwhelming evidence of guilt. The Eighth Circuit Court of Appeals weighed the error in the same manner and reached the same result. Hobbs v. Lockhart, 791 F.2d 125 (8th Cir. 1986).

In the case at bar the error was not egregious; there was only one question without an answer. It was:

[PROSECUTING ATTORNEY]
Q: Did you ever tell anyone with the Sheriffs office of Conway County, the State Police, the City Police or anyone else, up until today, anything about this Jessie Clark being the one that broke into the Harwood house?
A: Uh, some. . .
[APPELLANT’S ATTORNEY]
Your honor, may we approach the bench?

An objection was then made and a mistrial was asked. The trial court declined to grant a mistrial and instructed the prosecutor not to ask any more questions on the subject. The trial court did not instruct the jury to disregard the question, probably because appellant’s attorney did not request it. The subject was never mentioned again.

A preliminary analysis of the improper question reveals that it concerns only one of the four convictions, the conviction for the burglary of the Harwood home. It does not touch upon the convictions for the other two burglaries, or upon the car theft. Thus, the error was committed only in the one conviction, the Harwood burglary. Accordingly, we affirm the convictions for the other two burglaries and the car theft without further discussion. We need only weigh the error in the Harwood burglary.

The question about the Harwood burglary was not answered, nor was there repetitive questioning, nor was there mention of the matter in closing argument. There simply was no additional highlighting of appellant’s post-arrest silence. The constitutional error was slight and therefore, we consider the weight of the evidence in order to determine whether the error was harmless. We weigh the evidence in this second stage because even slight error cannot be said to be harmless in a case in which the question of guilt or innocence is a close one, but it can be in a case where the evidence of guilt is overwhelming. In the Harwood burglary case the evidence of guilt is overwhelming.

That evidence is that on Sunday morning, January 15,1984, an eyewitness who was a member of appellant’s family saw appellant and his wife in his wife’s grandmother’s 1977 Chevrolet Monte Carlo automobile with Arkansas license KWG 318, in a part of Conway County near the Harwood home. At that time Mrs. Harwood was at church and Mr. Harwood was at their farm.

After finishing his farm chores, Mr. Harwood drove home and saw an unfamiliar car in his carport. As he pulled into his driveway, the unfamiliar car came speeding out across the front yard. Harwood observed that the car was a Chevrolet or Pontiac bearing Arkansas license KWG 310, or KWG 318, with a driver and a passenger. He immediately discovered that his house had been burglarized. He called the police and gave them his observations.

A member of appellant’s family testified that the appellant and his wife rushed home, hastily packed most of their belongings, got their children, and left the State in the 1977 Monte Carlo.

Subsequently, Mr. Harwood, from a mugshot, identified appellant’s wife as the passenger and gave a positive in-court identification of appellant. The evidence of guilt is overwhelming. Since the evidence of guilt is overwhelming and the error was slight we can declare that the error was harmless beyond a reasonable doubt.

Affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Wali MUHAMMED v. ARKANSAS SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT
    86-145
    722 S.W.2d 280
    Supreme Court of Arkansas
    Opinion delivered January 12, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: David S. Mitchell, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This appeal is from a determination by the Arkansas Supreme Court Committee on Professional Conduct that the appellant’s attorney’s license be suspended for one year. The appellant contends that the evidence before the committee was insufficient to support the suspension, that the committee’s action was contrary to the law and the facts, and that the committee lacked authority to suspend his license.

The committee found the appellant had violated DR 1-102(A)4 which was in effect at the time of the appellant’s alleged misconduct and which provided that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misconduct. See T. Robinson, The Arkansas Code of Professional Responsibility, 33 Ark. L. Rev. 605, 616 (1980). Rule 8.4(c) of the Model Rules of Professional Conduct which became effective January 1, 1986, {see our per curiam order of December 16, 1985) contains virtually the same provision. We find the evidence was sufficient and the committee had the authority to effect the suspension. After summarizing the evidence before the committee, we will discuss first the committee’s authority and then discuss together the appellant’s contentions that the committee’s decision was not supported by sufficient evidence and was contrary to the law and the facts.

The complaint to the committee against the appellant was filed by Robert L. Pierce, an attorney. Pierce had represented Jimmy Wilkerson in pursuing a workers’ compensation claim against Wilkerson’s employer. Pierce’s representation of Wilkerson terminated and was taken over by the appellant and the appellant’s law partner Mike Smith. Pierce and the appellant both testified they had reached an agreement to split equally the attorney fee to be received from the insurance company which would pay the workers’ compensation claim. Pierce testified he learned from Mr. Baldridge, an insurance company official, that the Wilkerson case had been settled. Later he spoke with Baldridge and learned the insurance company had issued the attorney fee check. He testified he then tried numerous times to telephone the appellant who would not return his calls, and he thereafter filed his complaint with the committee in the form of an affidavit.

Pierce’s affidavit, which he reaffirmed in his testimony, stated that when he learned from Baldridge that the insurance company check had been sent to Smith and Muhammed, he asked Baldridge to send him a copy of the front and back of the check. The check, a copy of which was before the committee, shows endorsement by “Pierce and Stanley.” Pierce’s affidavit stated that neither he nor Mr. Stanley nor Mr. Robinson (apparently another partner of Pierce) endorsed the check. The complaint was dated December 6, 1985.

Pierce further testified that the appellant came to Pierce’s office in December after Pierce had made the complaint which formed the basis of this action, and gave him a check for $400. Pierce testified he asked the appellant why the check was only for $400 and not $450 or half of the $900 fee and that the appellant had no explanation but said he would pay the rest. He testified he also asked the appellant why he had endorsed his (Pierce’s) firm’s name on the check. He said the appellant “replied, gave his answer,” and the issue was dropped from that conversation.

Presumably the answer given Pierce by the appellant was the same as the appellant’s testimony before the committee. The appellant testified that he had endorsed the check by signing it “Pierce and Stanley” after having been specifically authorized by Pierce to do so. He further testified that he mailed his firm’s check for $400 to Pierce in September, rather than delivering it December, 1985, and that the reason it was for $50 less than half the $900 fee was that he had subtracted his expenses of $100 before dividing the fee. The appellant produced for the committee’s inspection his firm’s check to Pierce and Stanley in the amount of $400, dated September 16,1985. The deposit stamp on the back of the check showed it was deposited on December 16, 1985.

Testimony was also given by the appellant’s law partner, Mr. Mike Smith. Smith testified that, at the appellant’s direction, he had listened, by way of a speaker phone, to the telephone conversation between the appellant and Pierce in which they agreed to divide the fee equally and that the appellant in that conversation had discussed subtracting his expenses from the $900 fee with the remainder to be divided. Smith further testified that the $400 check from Smith and Muhammed to Pierce and Stanley was mailed to Pierce on September 17, 1985. Upon examination by a committee member, Smith testified he had not seen the check mailed but he had seen the appellant draw it in September and assumed it was mailed shortly thereafter in the normal course of their office’s operations.

Smith testified that when the check from the insurance company was endorsed, the appellant wrote “Pierce and Stanley” and Smith wrote “Smith and Muhammed” and that that accounted for the apparent difference in the handwriting of the two endorsements which were written “at the same time.”

1. The committee’s authority

The appellant’s brief does not argue or cite any statute or case supporting the position that the committee lacked the authority to suspend his license. In an earlier petition for a writ of mandamus, however, the appellant argued that the committee adopted as its own the new court rules on attorney discipline, on or about June 15,1985, and that the committee had failed to follow the requirement of Ark. Stat. Ann. § 5-703(d) (Supp. 1985) that the rules be filed with the Arkansas Secretary of State. We denied the appellant’s mandamus petition on September 22, 1986. The appellant argued this point orally in this appeal, and the attorney general, acting as counsel for the committee, responded to the argument by pointing out that § 5-703 (d) is part of the Arkansas Administrative Procedure Act which by its terms does not apply to the courts. Ark. Stat. Ann. § 5-701(a) (Supp. 1985). To clarify the matter, we will address it.

The appellant’s argument on this point fails for several reasons. First, he has presented us with nothing, other than his statement, to show that our committee adopted the rules. This court adopted them as our own rules on March 11,1985, when we partially granted rehearing of our earlier decision not to adopt new rules. In the Matter of the Arkansas Bar Association: Petition for the Adoption of New Supreme Court Rules on Professional Conduct, 282 Ark. 605, 666 S.W.2d LIX (1984), reh. granted in part, 285 Ark. 604, 687 S.W.2d 118 (1985).

We adopted those rules to govern the procedure of our committee in considering matters of professional discipline of attorneys. Whether our committee adopted them independently is irrelevant. Clearly this court is not subject to the Arkansas Administrative Procedure Act.

Rule 7 of the Rules of the Court Regulating Professional Conduct of Attorneys of Law, the rules we adopted March 11, 1985, specifically provides that if the committee finds an attorney has been guilty of professional misconduct it may suspend the attorney. The committee thus had the authority to suspend the appellant’s license.

2. Sufficiency of the evidence

The conflict between Pierce’s testimony and that of the appellant and Smith is direct and substantial. Based on Pierce’s testimony the committee could have concluded that the appellant endorsed the insurance company check, by writing “Pierce and Stanley” on it, with no authority whatever and that the appellant made no effort to pay Pierce until after Pierce filed his complaint with the committee. Had the committee believed the appellant’s testimony and that of Smith, it could have concluded the appellant had Smith’s permission to endorse his firm’s name on the insurance company check and that the check drawn on the firm of Smith and Muhammed was mailed to Pierce in September. It was a swearing match.

The appellant cites three cases in support of his argument that the evidence against him was insufficient to support the committee’s determination that he violated DRT-102(A)4. The first is Fort Smith Gas Co. v. Cloud, 75 F.2d 413 (1935), in which a plaintiffs personal injury judgment was reversed because the trial court should have granted a directed verdict. In reviewing the evidence, the court of appeals concluded that the evidence showed the illness the appellee contended was caused by acts of the appellant was the result of voluntary and unnecessary acts by the appellee. The court noted that the appellee’s own evidence also showed he did not contract the complained of illness until after he had, sometime after the alleged misconduct of the appellant, engaged in other acts which might have caused the illness. The court said:

. . . it is well settled that where proven facts give equal support to each of two inconsistent inferences, judgment must go against the party upon whom rests the burden of sustaining one of these inferences as against the other. [75 F.2d at 416.]

The appellant in the case before us now asks that we apply that language and hold that because the evidence is in dispute we must find in his favor because the burden of proof was not upon him. It is enough to say that the quoted statement applies when the party bearing the burden has proved facts leading to two equally plausible conclusions, only one of which supports his position. It does not apply when there is a direct conflict in the evidence presented by adversaries. Henry H. Cross Co. v. Simmons, 96 F.2d 482 (1938), also cited by the appellant, is equally inapplicable here for the same reason.

The appellant cites Paty v. Harrell, 24 Ark. 40 (1862), in which this court, reviewing a chancery decision, found the evidence to be equally probative on both sides. We held that as the evidence presented in the trial court did not preponderate in favor of the party having the burden of proof, the judgment in her favor had to be reversed. We gave no weight whatever to the trial judge’s advantageous position with respect to judging the truthfulness of the witnesses. It has been many years since we reviewed chancery cases in that manner. Many early cases held that a chancellor’s factual determinations would be sustained on appeal unless against the preponderance of the evidence. Some of them even used language the same as or similar to that which now appears in Ark. R. Civ. P. 52(a), that is, that unless the chancellor’s findings on appeal are clearly erroneous, or clearly against the preponderance of the evidence, they will be affirmed. Greer v. Fontaine, 71 Ark. 605, 77 S.W. 56 (1903) (“clearly against the evidence”); Sulek v. McWilliams, 72 Ark. 67, 78 S.W. 769 (1904) (“there is not a reasonably clear preponderance against the decree without which this court will not reverse it”); Hinkle v. Broadwater, 73 Ark. 489, 84 S.W. 510 (1905) (“clearly against the preponderance of the evidence”); Taylor v. Rudy, 99 Ark. 128, 137 S.W. 574 (1911) (“against the preponderance of the evidence”).

In our de novo review of chancery court cases we do not hesitate to reverse where factual findings are clearly against the preponderance of the evidence. See, e.g., City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). However, where the preponderance depends largely upon the credibility of the witnesses, we defer to the superior position of the chancellor. Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W.2d 465 (1979). For these reasons we do not feel bound or even persuaded by Paty v. Harrell, supra.

Under our rules until recently the committee’s authority was limited to sanctions short of suspension or disbarment. If the committee sought either of those latter sanctions it could file a complaint in circuit or chancery court. As a result of the adoption of the rules as amended on March 11,1985, discussed above, our committee now has the authority to suspend but not to disbar. We have decided on appeal several cases resulting from judgments of courts with respect to attorney discipline initiated by our committee. In those cases we have developed a standard of review.

In Hurst v. Bar Rules Committee of the State of Arkansas, 202 Ark. 1101, 155 S.W.2d 697 (1941), we reviewed the decision of a circuit judge in an attorney discipline case and stated that such cases are civil in nature, the standard for decision is “preponderance of the evidence,” and that we would review them de novo. We reaffirmed that aspect of the Hurst case in Weems v. The Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975), reh. den. 257 Ark. 685-A, 523 S.W.2d 900 (1975), where we particularly noted that portion of the Hurst case in which we had said that in view of the safeguards provided to an attorney accused of misconduct by allowing him or her to present evidence to the committee and then to the circuit (or chancery) court we would give special deference to the judge’s findings.

In Walker v. Supreme Court of Arkansas Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982), we had before us an appeal from discipline administered directly by our committee. Although not explicitly, we apparently applied the same standard of review we had applied in the reviews of court decisions. We held the findings of the committee to be supported by a preponderance of the evidence and said: “The findings of the committee, in this respect [that the appellant had violated the Code], are not contrary to the weight of the evidence and must be affirmed,” citing the Hurst case. We reach the same conclusion in the case before us now. As the finder of fact, our committee must be free to believe or disbelieve the witnesses who appear before it when their testimony is conflicting. Pierce’s testimony, which formed the basis for the committee’s action, was substantial evidence that the appellant had endorsed the name “Pierce and Stanley” on the insurance company check without Pierce’s permission and that the appellant made no effort to live up to his agreement with Pierce until after Pierce had complained to the committee. Based on that evidence, the committee was entitled to find that the appellant violated DR 1-102(A)4. We do not reverse decisions made by the Arkansas Supreme Court Board of Law Examiners, which we also review de novo, unless we find the board’s decision to be clearly erroneous, Scales v. State Board of Law Examiners, 282 Ark. 578, 669 S.W.2d 895 (1984), and we will treat the findings of our committee on professional conduct the same way.

Before concluding this opinion, we must note that in his brief and during his oral argument before us the appellant contended that the only reason for the decision adverse to him is that he is a black person and his accuser is white. He contends that in another attorney fee dispute case which came before our committee no action was taken, and he argues that the only reason the committee has taken up this case is because of racial reasons. The appellant presented no testimony or other evidence with respect to the other case to which he has alluded. We have no idea what it was about or how to compare it with the appellant’s case. Our committee was certainly correct, however, in not regarding this case as a mere dispute over a fee. The appellant has presented no evidence whatever that either Pierce or the members of our committee were racially motivated in their actions.

Affirmed.

Glaze, J., not participating.


author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

text:
    FIRST STATE BANK OF MORRILTON, ARKANSAS v. Edith HALLETT
    86-119
    722 S.W.2d 555
    Supreme Court of Arkansas
    Opinion delivered January 20, 1987
    [Rehearing denied February 16, 1987.]

      Loh, Massey & Yates, Ltd., by: Howard C. Yates, for appellant.

      Gordon & Gordon, P.A., by: Ben Caruth, for appellee.

      Hays and Glaze, J J., dissent.

   Jack Holt, Jr., Chief Justice.

The appellant, First State Bank (FSB), concedes it failed to give the appellee, Edith Hallett, proper notice before it sold her collateral which it repossessed when she defaulted on a promissory note. FSB nevertheless sought a deficiency judgment against Hallett for the balance owed on the note. The trial court granted Hallett’s motion for summary judgment, dismissing the FSB claim. The issue on appeal is whether the failure of FSB as a secured party, to give proper notice to debtor Hallett of the time and place of the sale of repossessed collateral, as required by Ark. Stat. Ann. § 85-9-504(3) (Supp. 1985), absolutely bars FSB’s right to a deficiency judgment. We hold that it does and affirm the trial court. Jurisdiction in this court is pursuant to Sup. Ct. R. 29(1 )(c).

Hallett gave FSB a promissory note in the amount of $ 11,342.90, secured in part by a security interest in a 1983 pickup truck. Hallett defaulted. FSB repossessed the truck and sold it without written notice to Hallett of the sale date. A deficiency of $4,057.40 remained on the note. The trial court granted Hallett’s motion for summary judgment because FSB had not complied with § 85-9-504(3)’s guidelines for the disposition of repossessed collateral. That section states in pertinent part:

Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale.

The trial court’s ruling complies with our most recent decision, Rhodes v. Oaklawn Bank, 279 Ark. 51, 648 S.W.2d 470 (1983). In Rhodes, we reversed a deficiency judgment in favor of the secured party, and held:

When a creditor repossesses chattels and sells them without sending the debtor notice as to the time and date of sale, or as to a date after which the collateral will be sold, he is not entitled to a deficiency judgment, unless the debtor has specifically waived his rights to such notice.

FSB does not attempt to distinguish Rhodes, but rather argues that it should be overruled in favor of an earlier line of cases which took a different approach to this issue. Those cases did not bar a deficiency judgment altogether, but instead “indulged] the presumption in the first instance that the collateral was worth at least the amount of the debt, thereby shifting to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law.” Norton v. Nat’l Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538 (1966). See also, Universal C.I.T. Credit Co. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970); Carter v. Ryburn Ford Sales, Inc., 248 Ark. 236, 451 S.W.2d 199 (1970) and Barker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968). We think Rhodes represents the right approach and, although it did not expressly overrule these cases, its effect was to change our law.

Creditors are given the right to a deficiency judgment by Ark. Stat. Ann..§ 85-9-502(2) (Supp. 1985): “If the security agreement secures an indebtedness, the secured party must account to the debtor for any surplus, and unless otherwise agreed, the debtor is liable for any deficiency.” As stated, § 85-9-504(3) requires the creditor to send reasonable notification to the debtor before he disposes of this type of collateral. If the creditor does not dispose of the collateral in accordance with the code provisions, Ark. Stat. Ann. § 85-9-507 (Supp. 1985) gives the debtor “a right to recover from the secured party any loss caused by a failure to comply with the provisions of this Part [§§ 85-9-501 — 507].”

There is a split of authority nationwide on the correlation of these provisions of the code. A group of cases follows the position that § 85-9-507 gives the debtor a defense to a deficiency judgment when the creditor has failed to give proper notice, and that the deficiency judgment is reduced by the damages the debtor can prove. See Grant County Tractor Co. v. Nuss, 6 Wash. App. 866, 496 P.2d 966 (1972). Our previous cases, as represented by Norton, supra, followed this approach with the presumption in favor of the debtor that the collateral and the debt were equal and the burden placed on the creditor to prove a deficiency. The apparent majority position, however, with which we concur, is that § 85-9-507 is not applicable to the creditor’s action to recover a deficiency judgment, but is a separate affirmative action by the debtor to recover damages. The creditor’s right to a deficiency judgment is not merely subject to whether the debtor has a right to damages under § 85-9-507, but instead depends on whether he has complied with the statutory requirements concerning disposition and notice.

This view was explained in Atlas Thrift Co. v. Horan, 27 Cal. App. 3d 999, 104 Cal. Rptr. 315 (1972), quoting Leasco Data Processing Equip. Corp. v. Atlas Shirt Co., 66 Misc. 2d 1089, 323 N.Y.S. 2d 13 (1971):

“The plaintiff’s contention that a secured creditor’s right to a deficiency judgment under the described circumstances is limited only by the remedies set forth in 9-507 seems to me a tenuous one indeed, apart from the fact that no such effect was ever accorded the corresponding section in the Uniform Conditional Sales Act. . . .
“Preliminarily, it may be noted that Section 9-507 makes no direct allusion to the circumstances under which a right to a deficiency judgment may arise.
“More significant is the special nature of the language used: ‘the debtor or any person entitled to notification. . . has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this Part.’ If this were intended to authorize a defense to action for a deficiency judgment, it is hard to envisage language less apt to that purpose. The words used plainly contemplate an affirmative action to recover for a loss that has already been sustained — not a defense to an action for a deficiency. The distinction between an affirmative action and a defense is a familiar one, phrases that articulate the different concepts are familiar in the law, and it is unlikely that the experienced authors of the [Uniform Commercial Code] intended by the above language to provide a limited defense to an action for a deficiency judgment based on a sale that had violated the simple and flexible statutory procedure.
“It seems far more probable that this latter section has nothing whatever to do with defenses to an action for a deficiency, since it was never contemplated that a secured party could recover such a judgment after violating the statutory command as to notice.”

The Horan court concluded: “The rule and requirement are simple. If the secured creditor wishes a deficiency judgment he must obey the law. If he does not obey the law, he may not have his deficiency judgment.” Accord, see cases listed in “Disposition of Collateral — Required Notice,” 59 A.L.R.3d 401, § 3 (1974 and Supp. 1986).

When the code provisions have delineated the guidelines and procedures governing statutorily created liability, then those requirements must be consistently adhered to when that liability is determined. First State Bank v. Twin City Bank, 290 Ark. 399, 720 S.W.2d 295 (1986). Here, FSB failed to comply with the code’s procedures for disposition of collateral, and is therefore not entitled to a deficiency judgment under the code.

Affirmed.

Hays, Newbern, and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. The majority court decision overrules Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538 (1966) and its progeny as those cases have interpreted and applied Arkansas’s Uniform Commercial Code §§ 85-9-504 and 9-507 during the past twenty years. Because I believe the rule established in Norton to be a fair one and the one adopted in this cause to be punitive, I am obliged to dissent.

Unlike the court’s holding here, the Norton court rejected the debtor’s contention that the bank’s failure to give him notice of the intended sale completely discharged his obligation. Instead, that court, Justice George Rose Smith writing, held that, because the bank disposed of the debtor’s car without notice, the just solution is:

to indulge the presumption in the first instance that the collateral was worth at least the amount of the debt, thereby shifting to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law.

Id. at 150.

As one can readily see, our court in Norton wrestled with the same situation as presented in the instant case, and it derived a most workable and equitable solution which was designed to treat both debtors and creditors fairly. Frankly, I am unaware of any serious problems or criticisms that have arisen in the application of the Norton rule, especially that would demand or warrant this court’s changing the “rules-of-the-game” at this late date. The rule this court adopts today is a drastic and punitive one, and no public policy argument has been offered to support it.

Finally, I note the majority court seems to premise its holding, in part, on the California case of Atlas Thrift Co. v. Horan, 27 Cal. App. 3d 999, 104 Cal. Rptr. 315 (1972) which, in turn, quotes from Leasco Data Processing Equip. Corp. v. Atlas Shirt Co., 66 Misc.2d 1089, 323 N.Y.S.2d 13 (1971). While California may have adopted the same “no notice-no deficiency” rule now embraced by this court, the New York courts have since overruled the Atlas Shirt Co. case, thereby rejecting that punitive rule. The New York courts, I might add, have adopted Arkansas’s rule as set out in Norton. See Leasco Computer v. Sheridan Industries, 82 Misc.2d 897, 371 N.Y.S.2d 531 (1975) and Security Trust Co. of Rochester v. Thomas, 59 A.D.2d 242, 399 N.Y.S.2d 511 (1977) (citing Universal C.I.T. Credit Co. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970)).

I would reverse.

Hays and Newbern, JJ., join in this dissent.


author: Jack Holt, Jr., Chief Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    Deborah Lynn WALKER, et al. v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, et al.; Don VENHAUS, et al. Intervenors
    86-184
    722 S.W.2d 558
    Supreme Court of Arkansas
    Opinion delivered January 20, 1987

      Griffin J. Stockley, Central Arkansas Legal Services, for appellants.

      Stephen C. Sipes, for appellees.

      Steve Clark, Att’y Gen., by: David S. Mitchell, Asst. Att’y Gen., for intervenors.

      Youngdahl & Youngdahl, P.A., by: Thomas H. McGowan for amicus curiae, Arkansas Action for Foster Children.

      Paul R. Bosson, for amicus curiae, Arkansas Juvenile Judges Association.
   Jack Holt, Jr., Chief Justice.

The constitutionality of the Arkansas Juvenile Code’s placement of jurisdiction of juvenile matters in county courts is challenged by this appeal. We hold that the exercise of exclusive jurisdiction over juveniles is not a permissible function of the county courts under the Arkansas Constitution.

The Arkansas Department of Human Services, appellee, filed a petition in the Pulaski County Juvenile Court to declare that Deborah Lynn Walker’s two children were dependent-neglected as defined by Ark. Stat. Ann. § 45-403(4) (Repl. 1977). Walker filed a motion to dismiss, alleging that the county court’s jurisdiction over juvenile matters was unconstitutional. The motion was denied and Walker’s children were found to be dependent-neglected and were taken from her custody. The Pulaski County Circuit Court affirmed and Walker appealed the single issue of lack of jurisdiction, which we find in her favor.

The General Assembly by Act 215 of 1911, established a court, to be known as “Juvenile Court”, and to be administered by the county judges of this state. The Act gave the county courts original jurisdiction over dependent, neglected and delinquent children.

The Arkansas juvenile courts continued to operate under Act 215 until the passage of the “Arkansas Juvenile Code” in 1975. Ark. Stat. Ann. §§ 45-401 to -454 (Repl. 1977 and Supp. 1985). Pertinent portions of the Code continue exclusive jurisdiction in the county courts. Section 45-405 provides:

Jurisdiction over juvenile matters under this Act is vested in the county courts of the several counties of this State. When exercising jurisdiction under this Act, the county court shall be known as the juvenile court of the county in which it is located. The court shall be presided over by the juvenile judge of such county and may be opened and adjourned from time to time as the juvenile judge may deem proper. Proceedings under this Act shall be conducted at the place designated by the County Judge. The Clerk of the County Court shall be clerk of the juvenile court, and any law enforcement officer, juvenile probation officer or other person who is authorized by law to serve. process issued from any of the courts of this State may serve process issued from the juvenile court. [Acts 1975, No. 451, § 5, p. 1179].

Section 45-406 states that “[t]he Juvenile Courts . . . shall have original and exclusive jurisdiction in all cases of delinquency, juveniles in need of supervision and dependency-neglect arising under this Act.”

The purported constitutional basis for vesting the county courts with exclusive jurisdiction over juveniles is found in Ark. Const, art. 7, § 28, which provides:

The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided (emphasis added).

Some 67 years ago this court examined this portion of our constitution and, by a three-to-two vote, approved the vesting of jurisdiction of juvenile matters in the county courts. Ex Parte King, 141 Ark. 213, 217 S.W. 468 (1919). The majority found authority for placing jurisdiction in the county courts in the “all-embracing clause” of article 7, § 28 which provides for the county court’s exclusive original jurisdiction “in every other case that may be necessary ... to the local concerns of the respective counties.”

The King majority reasoned:

In the minds of the framers of our Constitution, the subjects of “paupers, bastardy, vagrants and the apprenticeship of minors” were considered matters of such local concern affecting the welfare of the immediate communities or counties, respectively, where these classes of persons might be found, that it was deemed wise to vest in the county courts, as subordinate governmental agencies in control of the affairs of the county, the jurisdiction over these subjects.
It occurs to a majority of us that governmental control over the subject-matter of infants, wards of the State, who are dependent, neglected and delinquent, as these terms are defined in the act under review, are in the same general class and are of the same character as the subjects above enumerated and were intended, in the general clause covering “every other case necessary to the local concerns of the respective counties,” to come under the jurisdiction of the county courts vested by that clause.
If infants are dependent, neglected and in indigent circumstances, they are paupers; if they are born out of wedlock they are bastards; if they are idle and homeless they are vagrants; and if they have no trade or vocation they are subject to apprenticeship. If infants belong to some one or all of these classes, they come within the jurisdiction conferred upon the county courts by the above provision of the Constitution. If within any of these classes, the fact that they are infants should not render them any the less amenable to such jurisdiction.

The King opinion also held that the juvenile act of that day did not “create a court”, which is prohibited by Ark. Const, art. 7, § 1. Instead, the court said, the legislature had only permissibly enlarged the subject matter jurisdiction of the county courts to embrace juvenile matters. We disagree.

Article 7, § 1 of our constitution specifically provides that the judicial power of our state shall be vested in one supreme court, circuit, county, and probate courts and in justices of the peace. Section one also grants general authority to the General Assembly to establish certain other courts such as municipal and chancery courts. Nowhere in the Constitution does it provide for the creation of a “juvenile court,” nor does it permit the General Assembly to establish one. The authority to create a court lies solely in our constitution. The majority in King opined that the general assembly had merely placed jurisdiction over juveniles in the county court. The language of the act, however, was in terms of creation of a juvenile court. The majority’s rationale is thus highly suspect.

Although we have alluded to King in several subsequent cases, our decisions do not show that its rationale has heretofore been challenged. See e.g., Dyer v. Ross-Lawhon, 288 Ark. 327, 704 S.W.2d 629 (1986); Robins v. Arkansas Social Services, 273 Ark. 241, 617 S.W.2d 857 (1981); Lee v. Grubbs, 269 Ark. 205, 599 S.W.2d 715 (1980); Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964); and Scott v. Brown, 160 Ark. 489, 254 S.W. 1074 (1923). Obiter dictum in Fortin v. Parrish & Reeves, 258 Ark. 277, 524 S.W.2d 236 (1975), quoted the holding from King with approval. Nevertheless, we take this opportunity to closely reexamine the issue of juvenile court jurisdiction under our constitution. The only proper and permissible course for us to follow is simply to give effect to the plain language of the constitution. City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). In doing so, we declare that even if the rationale in the King decision had been correct when it was decided, and we have strong doubts, times have changed and it is clearly wrong in today’s circumstances.

Two dissenting judges in King first expressed the view that juvenile matters are not encompassed by the term “local concerns.” Chief Justice McCulloch stated:

The control of infants and any other class of dependent or helpless persons is not a matter of “local concern,” within the meaning of that term as used in prescribing the jurisdiction of county courts. Such an application of it would convert it into a “general welfare clause,” under which authority might be conferred on the county courts in all of the varied and intricate matters affecting society in the county — health, morals or prosperity or anything else. Such was not, in my judgment, the intention of the framers of the Constitution in the use of the term “local concern.” I think it related solely to the antecedent term “internal improvement.” Little Rock v. North Little Rock, 72 Ark. 195.
The construction of jails and the maintenance of prisoners incarcerated therein are matters of local concern within the exclusive jurisdiction of the county court, but the control over prisoners charged with crimes is not within such jurisdiction, for it belongs to those courts which exercise criminal jurisdiction. Counties may, as matters of local concern, be authorized to build infirmaries for the care of insane persons and jurisdiction over it would be vested in the county court; but this would not carry with it jurisdiction over insane persons, which is, by the Constitution, vested in probate courts. So the counties could, by the Legislature, be authorized to build refuges for the care of dependent or incorrigible children, and that would constitute a matter of local concern, but it would not carry with it jurisdiction to determine when a child should be consigned to that refuge, ...

Justice Frank Smith argued in his dissent that “ ‘local concern’ must not be interpreted as meaning those things which the people of a particular community are locally concerned, for such a definition would include the suppression of crimes generally and many other matters over which no one would contend the county court had jurisdiction.”

Justice Smith also refuted the majority’s holding that the juvenile act did not create a court not sanctioned by the constitution. He stated:

I think it sufficiently appears from the analysis of the act under review contained in the majority opinion that a court, and not a mere administrative agency, has been created. It is so expressly stated in the act, and the jurisdiction of this court is defined and the practice and procedure therein are prescribed. It is true that certain functions of an administrative character are imposed on this court, but it remains a court notwithstanding that fact.

We agree with the reasoning of both of those dissenting opinions, particularly in light of the changes that have taken place since 1919. For King to vest the county court with exclusive jurisdiction over juveniles under a claim that they are “local concerns” of the county is erroneous. To the contrary, juvenile justice was and continues to be primarily a state concern. Juvenile matters today represent a major field of law with a statewide and nationwide social importance which preclude them from constituting an area of merely “local concern.”

As pointed out in the dissent in Kendall v. Henderson, 238 Ark. 832, 384 S.W.2d 955 (1964), quoting Cotham v. Coffman, 111 Ark. 108, 163 S.W. 1183 (1914), “the purpose can not, in the sense of the Constitution, be both a State and county purpose. It must be one or the other.” The same is true here. Jurisdiction over minors is a matter of state rather than local concern.

Walker presented extensive testimony to demonstrate the manner in which the role of the state and federal governments has long since surpassed the county’s role in providing care for troubled and homeless juveniles. Gordon Page, an administrator for the Arkansas Department of Human Services, testified that the federal government contributed approximately 13 million dollars for the care of dependent-neglected children in 1986, and the state appropriated approximately 8 million dollars. He stated that local governments contributed only a “small portion of funds” to child welfare services. Scott Gordon, director of the state Division of Youth Services, testified that only about 5% of the budget for that agency’s community-based programs for delinquent youth comes from county governments. The Division of Youth Services also carries out the federally funded Juvenile Justice Delinquency Prevention Act in Arkansas, the purpose of which is to “generally provide a comprehensive system of services designated to reduce and prevent delinquency.”

Walker points to her case as an example of the comparative roles of local and state governments, in that the petition to have her children found dependent-neglected was brought by an employee of the state, following the state Department of Human Services’ policy. Pursuant to state and federal laws, the juvenile court ordered extensive services to be provided by the Department of Human Services in attempting to reunite the family. In short, the county’s involvement is minor compared to that of the state.

It is clear that juveniles, such as Walker’s children, falling within the provisions of the Arkansas Juvenile Code present a wholly different concern than “paupers, bastardy, vagrants and the apprenticeship of minors.” The purposes of the juvenile act involve the “care, custody and discipline of juveniles,” rehabilitation of the juvenile’s family in cases of dependency-neglect, placing dependent-neglected juveniles in “suitable homes,” or, in the case of “misguided” juveniles, giving “aid, encouragement, assistance and counseling,” and failing that, placing the juvenile in a “suitable home, agency, institution, or other facility where he may be helped, educated, and equipped for useful citizenship.” Ark. Stat. Ann. § 45-402 (Rep. 1977). The statewide and nationwide network of agencies and sources of funding necessary to carry out the far reaching and critical purposes of the act are obvious and have been in place for many years.

The judicial nature of determinations of delinquency and the resultant placement of juveniles in state institutions has also been more specifically defined since King. In Application of Gault, 387 U.S. 1 (1966), the Supreme Court held that juvenile court delinquency hearings must encompass the essentials of due process and fair treatment given to adults. The Arkansas Legislature has passed extensive enactments to attempt to ensure that the Gault requirements are met in juvenile courts. County courts do not, however, possess the same judicial safeguards as other state courts. By virtue of state and federal regulations and funding in this area, it is most obvious that the primary focus is with the state and not with the county. County courts, by their very nature, have been unable to ensure the proper disposition of juvenile delinquency cases. Gault, supra. For these reasons, jurisdiction over juveniles cannot under any circumstances be placed in the county court.

It would be desirable to make our ruling prospective to allow for a period of transition and the passage of legislation or the possible adoption of a constitutional amendment. However, we do not have the power to hold a constitutional mandate in abeyance. City of Hot Springs v. Creviston, 288 Ark. 293-A, 713 S.W.2d 230 (1986), supplemental opinion issued on denial of rehearing. We leave the matter of achieving a constitutional system to the legislature, the body equipped and designed to perform that function. Dupree v. Alma School Dist., 279 Ark. 340, 651 S.W.2d 90 (1983).

In divesting the county court of its jurisdiction over juveniles, we note its de facto existence. See Tumbs v. State, 290 Ark. 214, 717 S.W.2d 492 (1986). We held in Tumbs, quoting Landthrip v. City of Beebe, 268 Ark. 45, 593 S.W.2d 458 (1980), that “[w]hen a court is organized under color of law, e.g., when its creation is authorized by law, but the proceedings creating it are irregular or defective, it is a de facto court and its judgments and proceedings are not open to collateral attack.”

This doctrine of validating acts of a de facto court is based on the sound principle of protecting the public and third parties. Accordingly, county courts have exercised jurisdiction over juveniles in the past under color of law and their proceedings and judgments may not be collaterally attacked.

The decision of the trial court is reversed.

Dudley, J., not participating.

Hickman and Purtle, JJ., concur.

Darrell Hickman, Justice,

concurring. When the smoke settles from our decision, two things will become obvious. Our legal decision is right, and it will not, or should not, disrupt the legal process in Arkansas. It will only strengthen it.

The General Assembly created a separate court in 1911, calling it the juvenile court. At that time the county judge had several judicial duties, including probate matters. Even so, the county court has always been a court of limited jurisdiction, not general jurisdiction, as are the circuit and chancery courts. There is no mention of juveniles or matters relating to juveniles in the constitutional article creating the county court. A bare majority of this court in 1919 found that the language of the constitutional provision creating the county courts could be stretched to include juvenile matters. The most obvious place, then and now, for such jurisdiction is with a trial court. We do not know why the General Assembly made the decision it did, nor why juvenile matters have been neglected so long by our legal system. More than likely it has simply been a case of inertia.

Once accomplished, it became easy to drift along with no one questioning the original wisdom of a decision. The circuit judges and chancellors have never expressed a desire for such jurisdiction and an establishment of sorts, the juvenile justice system, has grown up with a built-in interest to perpetuate a system long past due for correction.

In 1975 the General Assembly adopted a new juvenile code authorizing a system of juvenile referees to act for the county judge as juvenile judges. The referees have to be lawyers. The most noticeable example of the legislature’s intention to create a new court is found in a provision of the new code which reads:

The decisions of the juvenile referee shall be binding upon the county judge, who shall sign any order or judgment delivered by the juvenile referee and such order or judgment shall be a decision of the county judge.

Ark. Stat. Ann. § 45-440 (Repl. 1977).

In other words, the county judge is not the judge — the juvenile referee is the judge and the court. At the present time there are 61 lawyers serving as juvenile referees in Arkansas. Only 15 county judges still serve as the judge in such matters. So we have in place a new court system created in violation of the Arkansas Constitution.

Can legislation be passed to keep juvenile matters in the county courts? The answer is no. It is too late. As the majority opinion says, even if such a subject matter might have been proper in 1911, it is no longer even thinkable.

Fixing it may seem hard at first blush; but it will not be. All the legislature has to do is decide where to place jurisdiction for juvenile matters. The choices are either the circuit court or the chancery court, or both. At the present time the circuit court reviews all decisions made by the juvenile “court” and is familiar with the law and procedure. It would not be a bad decision to pronounce circuit courts would have jurisdiction in all juvenile matters. It might, however, add considerably to the case load of some of those courts. The legislature may consider simply transferring jurisdiction to the chancery courts. This might not be a bad decision. But juvenile delinquency laws are essentially penal in nature and traditionally reserved for law courts. It might not be constitutional in this regard.

The best answer would be to divide jurisdiction between circuit and chancery courts —juvenile delinquency questions to the circuit court, neglected and dependent children questions to chancery court.

At one time juvenile delinquents were considered criminals. While that view has softened, that part of the juvenile procedure directed to juvenile delinquents could rightly be considered a matter properly belonging in circuit court. Matters concerning dependent and neglected children obviously should be in chancery court where that judge already has jurisdiction over guardianship as probate judge and custody of children as chancellor. At last, one judge would have in his control all matters relating to custody, guardianship, or the care of neglected and dependent children. This solution would also spread out the additional work load caused by the added jurisdiction.

The least desirable answer, in my opinion, would be to simply pick up the existing juvenile referee system and transfer it in toto to chancery or circuit court. That will no doubt be the first solution considered. The legislature will have to consider practical as well as theoretical problems, such as what to do with the juvenile referees and what to do about the extra case load. The legislature ought to resist the temptation to continue using referees or the permanent referee system. Referees and masters are simply substitutes for the judge, and there is no place in our judicial system for permanent substitutes for judges. Such referees mean only one thing to the people that have to appear before them: their problem does not deserve the attention of a real judge. While no reflection is or should be cast on those who have served as referees, it would be a disservice to the people to continue to treat juvenile matters as a second-rate legal problem and continue a system that does just that. This matter deserves the full respect of our judicial system.

Juveniles in trouble are one of the most serious concerns for our society, our government, and our judicial system. There are rarely quick, easy, clear answers in juvenile matters. Such cases involve children out-of-control; children mentally, physically and sexually abused; children abandoned or neglected. These cases tax society and the legal system. But can there be more important questions which deserve the full attention of our judicial system? How many permanent wards of the state, who end up on welfare, in the penitentiary or in our mental institutions, surface first in juvenile courts? The problem demands the best attention we can give it and the best talent we have — that means a full-fledged judge, mature, experienced and directly accountable to the people.

Our constitutional scheme does not contemplate a court system of permanent referees who are not directly accountable to the people. The chancellors or circuit court judges, or both, will probably not welcome the work, and the juvenile referees may resist giving up their roles. But this is one instance where personal and selfish concerns must be set aside. Our judicial system can be set right, and it ought to be done as quickly and efficiently as possible. The benefits to the people, the law, and our judicial system will be immeasurable if it is done right. If not, the problem will languish until a later time when it has to be addressed again.

A good many trial judges can absorb the work load without inconvenience. Some may be pressed. A few might be overworked to the point that cases stack up. Some counties may require an extra judge to handle the case load. The figures are available showing the work load of the trial courts in each circuit, and they will readily tell where any extra judges are needed. Arkansas has been adding an average of one trial judge every year for the last ten years. More will be added this year. Almost certainly, our present system can absorb this extra work without serious disruptions. The cost for the transition should not be great. In fact the cost to the state and counties should be less than the present cost of the system. Once the smoke clears, I feel the legislature’s decision will not be all that difficult. If later adjustments are needed to correct an overload of a circuit, it can be done.

John I. Purtle, Justice,

concurring. I believe Ex Parte King, 141 Ark. 213, 217 S.W. 468 (1919) has been misunderstood over the years. I agree with that part of the King opinion which held that Act 215 of 1911 permissibly enlarged the jurisdiction of the county courts. The King opinion stated as follows:

“[I]t was not the intention of the Legislature to create a separate and independent tribunal and vest it with certain functions and powers, but rather to place within the jurisdiction and power of the county court, in the manner provided in the act, the subject-matter of the disposition of minors, who, for purposes of the act, are considered wards of the state.”

Although the King decision went on to state that the Arkansas Constitution vested jurisdiction of the subject matter in the county courts, it did not hold that such jurisdiction was exclusive. The specific question addressed in King was: “Was it within the power of the Legislature to confer upon the county court jurisdiction of the subject-matter contained in this act?” King at 219. Therefore, I think the opinion has been misread by those who have relied upon it over the last 60 years.

Regardless of whether King is overruled, I would hold that the General Assembly has the authority to assign the subject of dependent-neglected juveniles to any existing court, including the county court. By this opinion I do not mean to suggest that the matter should not be addressed by the legislature or that the decision as to the tribunal best suited to exercise jurisdiction of this kind should not be given careful consideration.


author: John I. Purtle, Justice.

text:
    Carl FORD v. Jimmy CUNNINGHAM
    86-123
    722 S.W.2d 567
    Supreme Court of Arkansas
    Opinion delivered January 20, 1987

      Eilbott, Smith, Eilbott, Humphries & Taylor, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   John I. Purtle, Justice.

The trial court granted appellee’s motion for a summary judgment on his complaint for contribution from a joint tortfeasor. Judgment was granted after pleadings and affidavits were filed and depositions taken. The appellee had settled a suit against three alleged joint tortfeasors and had taken a release in favor of all three defendants. The appellant argues on appeal that the court erred in finding that as a matter of law he was liable for contribution pursuant to Arkansas Stat. Ann. § 34-1002 (Repl. 1962). We agree and hold that there was a genuine issue as to material fact and that the court erred in granting a summary judgment.

On July 4, 1983, Jimmy Cunningham (appellee) borrowed his father’s automobile. He and Carl Ford (appellant) drove to the Pine Bluff Convention Center to watch a fireworks display. As they were leaving the convention center, the appellant picked up a large unexploded firecracker. He and the appellee examined the firecracker to determine if it was a “live” explosive. The firecracker was then tossed into the back seat of the vehicle. The two young men drove around the city and picked up William Meadows, a mutual friend.

After driving to a place near Third and State Streets in Pine Bluff, Meadows got out and lit the firecracker. Meadows reentered the auto and they drove away. The firecracker caused a fire which destroyed a grocery store building and its contents.

Based upon their conduct, the three young men were charged with Reckless Burning, a Class D felony. Subsequently, each of them entered a guilty plea to the reduced charge of criminal mischief, a Class A misdemeanor.

A negligence suit was instituted against the three, and Cunningham (appellee) paid $99,990 for a release of all the defendants. The civil suit was dismissed with prejudice. Cunningham then filed the present action for contribution from Ford, alleging that Ford was a joint tortfeasor. Appellant’s answer denied all allegations of negligence and denied that he was with appellee at the time the firecracker was ignited. In response to interrogatories, the appellant admitted the amount of the damages and that the appellee paid for a release of the defendants. In his answer, the appellant specifically denied any negligence on his part and denied that he had recklessly destroyed or damaged property.

The trial court granted the motion for a summary judgment after reviewing the pleadings, depositions, admissions, affidavits, the guilty pleas in criminal court, and the settlement of the civil suit. The affidavits made by Meadows and Ford denied any involvement or negligence on the part of the appellant as to the lighting of the firecracker.

Summary judgment, like a mistrial, is an extreme remedy. It will be granted only when there is no genuine issue of material fact. Township Builders, Inc. v. Kraus Construction Co., 286 Ark. 487, 696 S.W.2d 308 (1985); Lee v. Doe, 274 Ark. 467, 626 S.W.2d 353 (1981). The burden of proving that there is no genuine issue of material fact is upon the moving party, the appellee in the present case. All proof submitted must be viewed in a light most favorable to the party resisting the motion and any doubts and inferences must be resolved against the moving party. Leigh Winham, Inc. v. Reynolds Insurance Agency, 279 Ark. 317, 651 S.W.2d 74 (1983). A.R.C.P. Rule 56.

From the record we see that the appellant’s answer denied every issue of material fact. The responses to the interrogatories dispute the allegations of the complaint. The affidavits of Meadows and the appellant state that appellant was not negligent and had no involvement in the explosion of the firecracker. The only clearly undisputed fact was that the appellant pled guilty to the reduced charge of criminal mischief. Therefore, it is obvious that there were different conclusions concerning the same facts. The trier of fact is entitled to resolve the issues which are disputed. The purpose of a summary judgment, however, is not to try the issues, but to determine if there are issues to be tried. Township Builders, Inc. v. Kraus Construction Co., supra; Joey Brown v. Merchants National Bank, 284 Ark. 418, 683 S.W.2d 601 (1985). If there is any doubt whatsoever, the motion should be denied. Rowland v. Gastroenterology Assoc., 280 Ark. 278, 657 S.W.2d 536 (1983).

There can be no doubt that Meadows and Ford made the affidavits with personal knowledge as provided in A.R.C.P. Rule 56(e). The affidavits alone are sufficient to warrant a denial of the motion for a summary judgment. When coupled with the answer, responses to the interrogatories, and admissions, it becomes obvious that material facts were in serious dispute. The fact that appellant entered a guilty plea may be some evidence of negligence, but does not constitute negligence per se. Young v. Dodson, 239 Ark. 143, 388 S.W.2d 94 (1965).

Inconsistent statements are not a bar to civil actions. In the case of Lee v. Doe, 274 Ark. 467, 626 S.W.2d 353 (1981), the plaintiff initially stated he was an employee of an oil company, and he collected workers compensation benefits. Later he filed a civil suit alleging he was not an employee of the oil company. The defendant, the same oil company, moved for a summary judgment. Lee and his wife filed affidavits that he was not an employee. We reversed the summary judgment granted in favor of the defendant finding that there were still genuine issues of fact to be resolved. One of the factual issues was whether Lee was an employee or not. These inconsistent positions were matters to be decided by the trier of fact.

The trial court should not have granted the summary judgment. Therefore, we remand the case for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Pae JARREAU v. STATE of Arkansas
    CR 86-158
    722 S.W.2d 565
    Supreme Court of Arkansas
    Opinion delivered January 20, 1987

      William R. Simpson, Jr., Public Defender, Deborah R. Salings, Deputy Public Defender, Jerry Salings, Deputy Public Defender, by: Thomas B. Devine, III, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of rape and two separate counts of aggravated assault. He was sentenced to thirty (30) years on the rape conviction and six (6) years each on the two counts of aggravated assault, all three sentences to run consecutively. On appeal he argues the trial court erred in refusing to grant a mistrial when the state elicited testimony concerning the appellant’s decision not to make a statement after he was read his rights. Under the circumstances of this case we do not find the error to be prejudicial.

Evidence presented at the trial included eyewitness accounts of the crimes. However, since this appeal is concerned entirely with one phase of the trial, we will set out only the facts relating to that argument. The sufficiency of the evidence is not argued.

The appellant was tried for rape of one person and aggravated assault on two other persons. During the trial Officer Smith testified that about 3:35 p.m. on December 9,1985, the appellant gave an oral statement after his rights had been read to him. Officer O’Kelly subsequently testified that he and Officer Thomas read the appellant his rights about 4:35 p.m. on the same day and that he chose not to make a statement at that time. Officer Thomas was present both times the appellant’s rights were read to him. Thomas testified that the appellant chose not to make a statement after having been read his rights the second time. The appellant objected to Officer Thomas’ testimony as a comment on appellant’s right to remain silent and moved for a mistrial. The court overruled the objection and allowed the testimony. However, the state did not pursue this questioning. No limiting instruction was requested.

A defendant’s right to remain silent is so paramount we need not cite authority. The prosecution cannot comment on the exercise of this right by an accused. See Clark. v. State, 256 Ark. 658, 509 S.W.2d 812 (1974). However, the appellant cannot base his claim of reversible error upon testimony which he himself introduced on cross-examination of a state’s witness. Kaestel v. State, 274 Ark. 550, 676 S.W.2d 940 (1982); and Strode v. State, 259 Ark. 859, 537 S.W.2d 162 (1976). A case quite similar to the present one is Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982), where we held that it was not reversible error for the state to elicit testimony from an officer that the appellant had stated he did not want to talk until after he spoke with his attorney. In Hobbs the trial court instructed the jury not to consider the testimony. No such instruction was given in the present case nor was one requested.

The appellant relies upon Doyle v. Ohio, 426 U.S. 610 (1975), where the United States Supreme Court held that it was reversible error to use the appellant’s prior silence to impeach his in-court testimony that he had been framed. The Supreme Court had granted certiorari to decide whether such use of a defendant’s post-arrest silence violated due process. The Doyle Court stated:

“[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”

In the case before us the appellant’s prior silence was not used to impeach him. The defense objection concerning the reference to the appellant’s post-arrest silence came during the testimony of Officer Thomas. In fact, there was no objection to the testimony of Officer O’Kelly, who testified immediately before Thomas, even though O’Kelly’s testimony was identical to the testimony of Thomas.

The state relies on Chapman v. California, 386 U.S. 18 (1967), where the harmless error rule was considered. The Chapman decision stated: “[BJefore a federal constitutional error can be held harmless, the Court must be able to declare a belief that it was harmless beyond a reasonable doubt.” We considered both Chapman and Doyle in our recent decision in Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987). In Numan we weighed the gravity of the error against the evidence of guilt. We determined that the error was slight in comparison to the overwhelming evidence of guilt. We went on to explain: “We weigh the evidence in the second stage because even slight error cannot be said to be harmless in a case in which the question of guilt or innocence is a close one, but it can be in a case where the evidence of guilt is overwhelming.” The evidence of guilt was not a close one here; it was more than conclusive.

As stated in Hobbs, we will do a case by case evaluation to determine whether the error is harmless. However, we point out that the prosecution is on dangerous ground and courting prejudicial error when any reference is made concerning an accused’s election to remain silent. In many cases such a reference would be reversible error. The safest practice is to refrain from bringing the matter to the jury’s attention.

In the present case the state did not mention the post-arrest silence again after the appellant objected. Also, the same testimony was already before the jury in the testimony of Officer O’Kelly. With the abundant evidence of the appellant’s guilt, we can say without reasonable doubt that the error was harmless. In a case where the question of guilt or innocence is a close one, the result might be different.

Affirmed.


author: John I. Purtle, Justice. Steele Hays, Justice,

text:
    Neva SMITH, et al. v. The CITY OF SPRINGDALE, et al.
    86-166
    722 S.W.2d 569
    Supreme Court of Arkansas
    Opinion delivered January 20, 1987

      E. Kent Hirsch, P.A., for appellant.

      Davis, Cox & Wright, by: Constance G. Clark, for appellee Sunray of Arkansas, Inc.

      Michele A. Harrington, Acting City Att’y, for appellee City of Springdale.
   John I. Purtle, Justice.

The appellant filed lengthy pleadings which, among other things, sought an injunction against the City of Springdale and its agents to prohibit the illegal exaction of taxes. The amended complaint contained about forty pages. The appellees filed a motion to dismiss. The chancellor dismissed the amended complaint for failure to state facts upon which relief can be granted, pursuant to A.R.C.P. Rule 12(b)(6). The appellant divides his argument on appeal into ten (10) different points, most of which have no merit. We will not address the unmeritorious assignments of error. However, finding that the chancellor improperly dismissed the suit, we reverse and remand for proceedings not inconsistent with this opinion.

The basis of the action is a taxpayers’ suit to enjoin the illegal exaction of taxes by the City of Springdale through its water department. The water department collects a monthly sanitation fee of $5.15 from each water meter customer. A small portion of this monthly fee (.20) is kept by the city for the cost of collecting and remitting monies to Sunray Sanitation, Inc. Sunray has an exclusive contract, originally dated January 15, 1969, with the City of Springdale for collecting trash and garbage. The contract is supported by an ordinance and resolution. The contract is for a five year period. However, it has regularly been renewed at the end of four years for an additional period of five years. (The contract was renewed in 1973,1977, 1981 and 1985). There has never been competitive bidding for the contract.

The complaint alleged that the action by the city created a monopoly in violation of Article 2, Section 19 of the Constitution of Arkansas. A portion of Ordinance 787 reads: “No person or business entity except Sunray Sanitation, Inc., may empty garbage or trash receptacles for hire, or may convey and transport garbage or trash on the streets of the city for hire.” Only a part of the ordinance is included in the record. Since we do not take judicial notice of municipal ordinances, we are unable to determine whether other parts of the ordinance contradict or support the above quoted part of the ordinance.

The appellant states that she is a taxpayer and a property owner, as well as a citizen of Springdale. She also states that she is forced to pay the monthly fee for sanitation services furnished by Sunray and collected by the city through the water department. She sought to bring a class action on behalf of all others similarly situated. The class action was based upon Article 16, Section 13 of the Arkansas Constitution and A.R.C.P. Rule 23.

In dismissing the complaint the chancellor found: (1) that the action was inappropriate for a class action; (2) that the competitive bidding requirements of Ark. Stat. Ann. § 19-4425 (Repl. 1980) did not apply; and (3) that the ordinance was not unreasonable on its face.

The contracts pursuant to the ordinance clearly reveal that the city is a party to the contracts. Apparently the city owns and/ or controls the operations of the water department. The city keeps twenty cents (.20) from each customer and forwards the balance of the $5.15 monthly charge to Sunray. The appellant does not state how many customers are involved or how much money is collected annually.

Without question a city is authorized to enter into proper exclusive contracts for sanitation services. See Dreyfus v. Boone, 88 Ark. 353 (1908). Equity has the power to enjoin illegal exactions by municipalities. Dreyfus, supra; Article 16, Section 13, Constitution of Arkansas. The Dreyfus opinion cited with approval language from the case of In re Lowe, 54 Kansas 757, which states that “monopolies are upheld when deemed necessary in executing a duty incumbent on city authorities or the legislature for the preservation of public health.”

Even though the ordinance and contracts in question may be valid on their face, the City of Springdale did not comply with the competitive bidding requirements of Ark. Stat. Ann. § 19-4425 (Repl. 1980), which in part states:

[t]hat where the amount of expenditure for any purpose or contract exceeds the sum of two thousand dollars ($2,000), [now $5,000] the mayor or his duly authorized representative, shall invite competitive bidding thereon. . . .

The city also had in effect at the time an ordinance using the exact same language as the above statute.

As the city agreed to pay Sunray the sum of $4.95 on each water meter connection, it is reasonable to presume the contract amounted to more than two thousand dollars ($2,000). However, this is a matter of proof which must be considered by the trial court. The complaint together with all reasonable inferences states a cause of action on the question of competitive bidding.

The matter of whether this should be allowed as a class action is a fact question which is within the discretion of the trial court. The reasons for disallowing the class action were not stated. Therefore, the trial court may wish to reconsider this issue upon remand.

The case is remanded to the trial court with directions to reinstate the complaint on the issue of competitive bidding and on other matters reasonably necessary to resolve the issue.

Reversed and remanded.

Hays, J., dissents.

Glaze, J., not participating.

Steele Hays, Justice,

dissenting. I would affirm the chancellor as to the inapplicability of Ark. Stat. Ann. § 19-4425 to the agreement between Sunray of Arkansas, Inc. and the City of Springdale and in refusing to certify the case as a class action under A.R.C.P. Rule 23. The appellant has made no showing before the chancellor that a willing class of plaintiffs existed so as to justify a class action. On this record, she stands alone in her claim that the monthly sanitation fee of $5.15 is excessive and constitutes an illegal exaction. Ford Motor Credit Co. v. Nesheim, 287 Ark. 78, 696 S.W.2d 722 (1985).


text:
    Harold Lee MORRIS v. John W. GARMON
    86-126
    722 S.W.2d 571
    Supreme Court of Arkansas
    Opinion delivered January 20, 1987

      Martin, Vater & Karr, by: Charles Karr, for appellant.

      Bethell, Callaway, Robertson & Beasley, by: Edgar E. Bethell, for appellee.
   Robert H. Dudley, Justice.

In the original appeal of this case, Morris v. Garmon, 285 Ark. 259, 686 S.W.2d 396 (1985), we affirmed the holding of the probate court that Alren Iris Morrison was domiciled in Fort Smith at the time of her death. That holding meant that Arkansas law governed the probate, descent and distribution of the estate, and that the decedent’s grandchildren, who were pretermitted heirs of the predeceased child, inherited the estate. Following our decision, appellant Harold Morris, the decedent’s brother, filed a petition praying that the assets be transferred to him as an Independent Executor in Texas. The probate court denied appellant’s request and ordered the Arkansas personal representative to make final distribution to the heirs and close the estate. We affirm.

Appellant first argues that the trial court erred in refusing to strike appellee’s response to his petition praying transfer of assets, and in refusing to grant the petition by default since the appellee did not respond to his petition within 10 days. See Rule 2(c) of the Unif. Rules of Circuit and Chancery Courts. Appellant is precluded from raising the point because he did not preserve the appealability of the order refusing to strike and denying default.

Arkansas Stat. Ann. § 62-2016(a) and (b) (Repl. 1971) provides that all orders of a probate court are appealable except orders removing a fiduciary for failure to give a new bond or render an accounting, and orders appointing a special administrator. Section 62-2016(d) provides that in order to preserve the appealability of an intermediate probate order, the appellant must file a written objection to the order within sixty days from the date the order was rendered. The appealability of the intermediate order is then preserved and may be appealed at the time of appeal of the final order. Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980). Here, the order denying the motion to strike was filed on September 18, 1985, and no written objection was filed. The notice of appeal, after the final order, was given on March 12, 1986. Thus, the point was not preserved. However, even if the point had been preserved the probate judge had discretion in the matter, and she did not abuse that discretion by refusing to grant a default judgment on the merits which effectively would have been contra to our prior ruling.

Appellant’s next two points can best be discussed together. He argues that the probate court erred in failing to give full faith and credit to an order of the Texas probate court, and in failing to apply the doctrine of res judicata to an order of the Oklahoma district court. On second appeal, as in this case, the decision on the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. First American National Bank v. Booth, 270 Ark. 702, 606 S.W.2d 70 (1980). The rule is founded upon a policy of avoiding piecemeal litigation. First American National Bank, supra.

In our first opinion, we wrote:

Two points are presented on appeal: The Sebastian Probate Court erred in failing to give full faith and credit to the order of the Tarrant County Probate Court, admitting the will to probate in Texas, and the finding that Mrs. Morrison was domiciled in Ft. Smith is clearly erroneous.
The appellees maintain the full faith and credit argument was not presented to the probate judge, and the record bears out this contention. . . . We conclude the constitutional argument was not presented to the trial court and, hence, cannot be raised on appeal.
Appellant argues the issue of domicile is res judicata as that question was decided between these parties in connection with the Oklahoma proceedings. As with the full faith and credit issue, the point was not presented nor ruled on below.

The above quoted paragraphs demonstrate that appellant’s two points of appeal were decided in the first appeal. The first decision became the law of the case and is conclusive.

The final point asserted by appellant is that the probate court erred in failing to order the return of assets to him as the Independent Executor in Texas. The probate court was correct. Appellant has not presented any reason which would justify transferring the assets to Texas. Under Arkansas law, the two grandchildren of the decedent are pretermitted heirs and are entitled to inherit all of the assets of the estate. The probate court has ordered the Arkansas administrator to make final distribution and close the administration. Transferring the assets to Texas would serve no purpose whatsoever.

Affirmed.


author: Steele Hays, Justice.

text:
    Willie BLEVINS v. Larry NORRIS, Warden Maximum Security Unit
    86-16
    722 S.W.2d 573
    Supreme Court of Arkansas
    Opinion delivered January 20, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Willie Blevins filed a habeas corpus petition in the Circuit Court of Jefferson County where Tucker prison is situated and where Blevins is serving consecutive ten year sentences for burglary and theft. The Department of Correction had determined that because Blevins had a prior felony, his parole eligibility was delayed in accordance with Act 93 of 1977, which provides for the classification of convicted felons for purposes of parole eligibility based on the number of prior convictions. Blevins challenges the constitutionality of the act by a petition for a writ of habeas corpus.

The circuit court denied the petition and Blevins has appealed. He contends Act 93 is a bill of attainder and violates the Constitutions of the United States and Arkansas. We affirm the trial court.

In Bargo v. Lockhart, 279 Ark. 180, 650 S.W.2d 227 (1983), we said “habeas corpus petitions are restricted to the questions of whether the petitioner is in custody pursuant to a valid conviction or whether the convicting court has proper jurisdiction. Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961).” The opinion states:

Furthermore, in a similar case of Webb v. Bishop, 242 Ark. 320, 413 S.W.2d 862 (1967) we held that a habeas corpus petition was not the correct way to attack a revocation of parole. ‘Such an attack must be by direct proceeding and not collateral, as was attempted by appellant Webb.’ Webb, supra. See also Davis v. Mabry, 266 Ark. 487, 585 S.W.2d 949 (1979) where this court ruled upon an inmate’s parole eligibility date after he had filed a petition for declaratory judgment and mandamus in circuit court.

More recently in Baker v. Lockhart, 288 Ark. 91, 702 S.W.2d 403 (1986) and George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985), we said a habeas corpus petition must show a commitment is invalid on its face or the court lacked jurisdiction in order for a writ of habeas corpus to issue. The appellant makes no contention the court which convicted him was without jurisdiction, or that the judgment is facially invalid. His remedy, therefore, is not by habeas corpus.

Concerning the merits, appellant’s identical argument was addressed by the District Court in Schwindling v. Smith, 596 F. Supp. 224 (E.D. Ark. 1984), where, as here, the petitioner did not controvert his status as a prior offender, but rather, argued that his classification under Act 93 had not been judicially determined. On appeal the Eighth Circuit Court of Appeals affirmed in these words:

We see no constitutional infirmity in this procedure. Certainly judicial process is due process, but due process need not always include a determination by a court. If Schwindling wishes to attempt to show that he was in fact not convicted of three previous felonies, or that one or more of these convictions should not be counted against him for present purposes the law of Arkansas provides a procedure for such a challenge. He can supply relevant documentation to the Department of Correction, and, if the Department still disagrees with him, he can bring suit to have his records corrected. See St. John v. Lockhart, 286 Ark. 234, 691 S.W.2d 148 (1985). Thus, there is a forum available to Schwindling in which he can obtain a hearing and a reasoned determination whether the provisions of the parole-eligibility statute are being properly applied to him. The federal Constitution requires no more. (777 F.2d 431 (8th Cir. 1985)).

Affirmed.


author: Per Curiam.

text:
    Jerry ELLIS v. STATE of Arkansas
    CR 83-26
    722 S.W.2d 575
    Supreme Court of Arkansas
    Opinion delivered January 20, 1987

      Appellant, pro se.
    No response.
   Per Curiam.

On April 27, 1982, the petitioner Jerry Ellis was convicted in the Circuit Court of Jefferson County of kidnapping and aggravated robbery. We affirmed. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983). Petitioner now seeks permission to proceed pursuant to Criminal Procedure Rule 37 on the allegation that the circuit court did not have jurisdiction to try him for the offense of aggravated robbery.

Rule 37.2(c) provides that a petition claiming relief under the rule must be filed within three years of the date of commitment, unless some ground for relief would render the judgment of conviction absolutely void. See Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied 452 U.S. 973 (1981). Lack of jurisdiction is a ground sufficient to void a conviction. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985).

The petitioner here was accused of kidnapping a man in Jefferson County. The victim was driven to Little Rock where he was robbed. Ark. Stat. Ann. § 43-1414 (Repl. 1977) provides:

Where the offense is committed partly in one (1) county and partly in another, or the acts or effects thereof, requisite to the consummation of the offense, occur in two (2) or more counties, the jurisdiction is in either county.

The offense of kidnapping in this case occurred in Jefferson County and culminated in the aggravated robbery of the victim in Pulaski County. Under these facts, Jefferson County had jurisdiction to try the petitioner for both offenses. Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986). As petitioner has not shown that the judgment is his case is void, the petition under Rule 37 is not timely and is dismissed.

Petition dismissed.