author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice, Tom Glaze, Justice, David Newbern, Justice,

text:
    Charles C. OWEN v. Tom DALTON, City Manager and the City of Little Rock
    88-190
    757 S.W.2d 921
    Supreme Court of Arkansas
    Opinion delivered September 28, 1988

      Rose Law Firm, A Professional Association, by: Webb Hubbell, for appellant.

      Office of the City Attorney, by: Mark Stodola and Thomas M. Carpenter, for appellees.
   Jack Holt, Jr., Chief Justice.

The appellant, Charles C. Owen, a resident and taxpayer of Little Rock, brought suit against the appellee and its city manager to enjoin implementation of Little Rock Ordinance No. 15.311, primarily on the grounds that the Act pursuant to which the ordinance was adopted constituted special or local legislation in violation of Amendment 14 of the Arkansas Constitution. The ordinance provides for a change in the method of election of Little Rock’s seven member board of directors and was adopted pursuant to Act 808 of 1977, as amended by Act 840 of 1987. The only issue on appeal is the correctness of the trial court’s determination that Act 808, as amended, was not special or local legislation.

As we are unable to discover a purpose for the legislation, as written, which would bear some reasonable relationship to certain exemptions contained in the Act, we conclude that the legislation violates Amendment 14 and is therefore unconstitutional. Accordingly, we reverse.

The stated purpose of the legislation was to strengthen municipal government in this state by requiring that a majority of the members of the governing boards of cities of the first and second class be elected from single member districts having a substantially equal population. Section 2 of Act 808 generally provides that if the governing board of a city consists, for example, of seven members, four members shall be elected by ward or district, and three members shall be elected at large with the candidate in “position one” becoming mayor.

Prior to the suit by Owen, the seven member board of directors of Little Rock had been elected at large. In an effort to change the method of election for directors in Little Rock to that provided for by the Act, the board, pursuant to section 5 of Act 808, as amended by Act 840 of 1987, adopted an ordinance whereby a majority of the members of the board would be elected by ward or district; the remaining members were to be elected at large with position one being reserved for the mayoral candidate.

The pivotal part of the amended Act 808 is section 5, which provides:

The provisions of [this Act] shall not be applicable to any city in the state having a manager form of government and having a population of thirty thousand (30,000) or more persons, unless the city by ordinance of the governing body thereof chooses to be subject to this section. However, any such city may, by ordinance of the governing body thereof approved by a majority of the qualified electors of the city voting on the question, choose to elect all of the members of the governing body of the city from single member districts. [Emphasis ours.]

Prior to Act 840, section 5 did not provide for the adoption of an ordinance whereby the governing body of a particular city could choose to become subject to the Act, and the relevant population figure was 100,000 or more persons.

At the trial level, Owen’s efforts to enjoin implementation of the city’s new ordinance were based in large part upon the argument that Act 808, as amended, constitutes special or local legislation by virtue of “exemptions” such as the one created by section 5. We agree with the argument.

The Act carves out so many exceptions that its general purpose has become an empty statement. First, all cities with a population of less than 15,000 are excluded; that means most cities in Arkansas. The Act is then made applicable to all cities between 15,000 and 15,999, but not to cities with populations between 16,000 and 16,700. Cities located in counties with less than 34,000 people are excluded, as are cities whose form of government was established pursuant to Act 498 of 1973. As it stands after the amendment in 1987, two cities for certain, Little Rock and Hot Springs, with a city manager form of government and populations of over 30,000 have the option of being exempt from the Act or passing an ordinance like the one in question.

Amendment 14 provides that the “General Assembly shall not pass any local or special act.” An act is special if by some inherent limitation or classification it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate, and the legislation is local if it applies to any division or subdivision of the state less than the whole. Board of Trustees for Little Rock Police Pension Fund v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988).

While it is true that “statutes are presumed to be framed in accordance with the Constitution, and should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable,” Board of Trustees of Municipal Judges and Clerks Fund, City of Little Rock v. Beard, 273 Ark. 423, 620 S.W.2d 295 (1981), we have made it clear that we are not bound by the form of the legislation. That is, simply because the legislature states that an act is general in application, we are not bound by that statement. Rather, we look to the operation and effect of the legislation. If that operation and effect is necessarily local, then the act is local regardless of its form. Ark-Ash Lumber Co. v. Pride, 162 Ark. 235, 258 S.W. 335 (1924). As we said in Simpson v. Matthews, 184 Ark. 213, 40 S.W.2d 991 (1931), if the legislature is to decide whether an act is local or special legislation, then Amendment 14 serves no purpose, and it might just as well not have been adopted.

The controlling question before us is whether the limitations or classifications in Act 808, as amended, bear a reasonable relation to the purpose of the law. Lovell v. Democratic Central Committee, 230 Ark. 811, 327 S.W.2d 387 (1959). In that regard, if the classifications are such that the legislation applies only to political subdivisions of a certain population, the legislation is local if relative population has nothing to do with the subject-matter of the law. Mankin v. Dean, 228 Ark. 752, 310 S.W.2d 477 (1958); State ex rel. Burrow v. Jolly, 207 Ark. 515, 181 S.W.2d 479 (1944). A review of some of our previous opinions sheds ample light on the subject.

In Simpson, supra, an act applied only to counties with a population of over 75,000. At the time that could only apply to Pulaski County, and we quickly pointed out to the legislature that Amendment 14 could not be circumvented merely by classification on the basis of population. We said:

Judging from much recent legislation in this State, it would seem that the impression is prevalent that because classification on the basis of population may be proper for the purposes of legislation on certain subjects, therefore any classification on the basis of population is appropriate for the purposes of legislation on any subject. The sooner the minds of legislators and others are disabused of this erroneous impression, the better; for under any such rule the provisions of the Constitution against special legislation would become wholly nugatory. If it is permissible to adopt for any and all purposes a classification founded upon any and every arbitrary and illusive basis of population, we might have as many acts, general in form, but special in fact, as there are counties, cities, villages, townships, wards, and school districts in the State.

In Knoop v. City of Little Rock, 277 Ark. 13, 638 S.W.2d 670 (1982), this court held that Act 539 of 1981 constituted special legislation which contravened Amendment 14. Act 539 basically provided that in the 1982 general election cities having a population of 100,000 or more and a city manager form of government must directly elect the mayor by a majority vote. The Act further provided that each director in such cities would be elected by a majority vote with runoff elections, if necessary, held two weeks after the general election. Act 539 clearly would have applied only to the city of Little Rock.

The Act was special legislation because in the absence of some reasonable statutory difference in the powers or functions of the mayors of cities of different sizes, we could not, although the act was accorded presumptive validity, find any reasonable basis for granting to one city but not others the power of directly electing its mayor and holding runoff elections for the positions of mayor and city directors two weeks after the general election.

In Knoop, we found significant the following language from our decision in Street Improvement Districts Nos. 481 and 485 v. Hadfield, 184 Ark. 598, 43 S.W.2d 62 (1931):

The general rule is that classification is properly based on population when reasonably adapted to the subject of the statute. Otherwise the classification by population is special legislation ....
The authorities generally hold that classification of cities and towns by population can not be arbitrarily adopted as a ground for granting some of them powers denied others if, although there be a difference in population, there is no difference in situation or circumstances of the municipalities placed in the different classes, and the difference in population has no reasonable relation to the purposes and object to be attained by the statute.

In the case at bar, we are offered no rational basis for the plethora of classifications. Fair and adequate representation, if that is the concern of the Act, by district rather than by election at large, is not different merely because a city reaches a population of 30,000 inhabitants. Furthermore, the Act is a passel of contradictions and typical of legislation that is based purely on selective application. Act 808 mandates compliance by certain classes of cities, exempts others, and gives several cities the option to either come under the Act or to remain exempt. Even though the theme of the Act may be to provide fair and adequate representation, arbitrariness remains.

It is strongly argued that the legislature may well have concluded that fair and adequate representation of inevitably divergent views in cities with a manager form of government and populations in excess of 30,000 could best be accomplished by vesting these cities with the options now embodied in section 5. However, we find the distinction and treatment between cities of less than 30,000 and those above that figure to be wholly untenable, especially in light of the remaining classifications contained in the Act. The fact that the legislation on its face exempts cities such as Little Rock from the operations of the Act refutes any alleged purpose of fair representation where larger cities are concerned. Notwithstanding the legislature’s obvious attempt to amend the deficiencies contained in the original Act by permitting larger cities various options, a rational basis cannot be found for treating cities so differently on such a fundamental matter as the election of directors.

In this case we began with the presumption that the legislation at issue was framed in accordance with the constitution. In the past, when an act contained classifications such that the legislation applied only to political subdivisions of a certain population, we diligently attempted to discover whether relative population had anything to do with the subject-matter of the law, i.e., whether there was a rational relationship between the purpose of the legislation and the population based classifications or exemptions. We have undertaken the same search here but to no avail.

It would have been helpful in making this determination if the legislation, Act 808, contained any information reflecting such a relationship or if we had evidence available to prove that fact — such as legislative history. However, such is not the case. Despite our diligent attempt to determine if a rational basis exists as to the legislation before us, we find none.

In light of the foregoing, we conclude that Act 808 of 1977, as amended by Act 840 of 1987, violates Amendment 14 and is therefore unconstitutional. In accordance with the provisions of Rule 22 of the Rules of the Supreme Court and the Court of Appeals, the mandate is ordered to be issued at the time this opinion is handed down.

Reversed.

Purtle and Glaze, JJ., concur.

Dudley, Hays, and Newbern, JJ., dissent.

John I. Purtle, Justice,

concurring. I concur in the reasoning and result reached in the majority opinion. However, I concur to implore the General Assembly to resist future pressure to enact special and local legislation. It is not basically the fault of the General Assembly that such legislation is enacted. It is more the fault of special interest groups because it is they who generally initiate such special and local legislation through their lobbying efforts. However, the General Assembly can stop this practice by rejecting such proposals.

If the members of the legislature would simply refuse to consider such bills, it would save much of their time and a great deal of the taxpayers’ money. The people still retain the constitutional right to initiate and refer matters to the voters for consideration. In my opinion, that is the manner in which changes in local government ought to be handled. What could be more democratic than allowing the people in the counties and cities to control their own affairs to the fullest extent possible?

I had intended to end this concurrence with the two paragraphs above. After rereading the majority opinion and the concurring and dissenting opinions, I am compelled to add to my concurrence.

On October 5,1926, the people of Arkansas voted 80,500 to 44,150 to adopt Amendment 14 which simply says:

The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.

Slightly more than two years later this court was called upon to interpret this amendment and declare an act of the General Assembly unconstitutional. In the case of Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617 (1929), this court reviewed the history and purpose of Amendment 14. This court stated in Webb that the legislature had so disregarded the power to enact local legislation that the people took it upon themselves to remedy the situation. The court, speaking of the reason for enactment of Amendment 14 stated:

Numerous measures were enacted in all sessions of the General Assembly, general in their terms and nature, and from the operation of which from one or more of the counties of the state were excepted, and this amendment was adopted to remedy the evil, and the power of the General Assembly to enact local or special legislation was withdrawn, the General Assembly being prohibited by its terms from passing any local or special act.

The Webb case concerned a general sounding act that had been passed by the General Assembly applying to all of the counties in Arkansas. However, there was a provision which stated: “The provisions of this act shall in no way apply to or affect Gosnell Special School District in Mississippi County, Arkansas; provided, also, that the provisions of this bill shall not apply to Faulkner and Sharp Counties.”

The opinion in the Webb case contained a sentence which could not be improved upon for the opinion in the present case. The first sentence of the opinion by Justice Kirby stated: “The act appears, from its title indicating the purpose and its terms, to be general . . . .” The opinion continued by stating:

Amendment No. 17 [sic] reads: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” The language of the amendment is plain and unambiguous, and its meaning clear, disclosing the intention of the people in adopting it, and dispensing with the necessity of seeking other aids for its interpretation. The restrictive provisions of the constitution on the legislative power relative to the passing of local or special legislation, leaving its exercise to the discretion of the Legislature, had been so disregarded and abused as to create an intolerable condition.

The court went on to hold that the act of the legislature excepting the Gosnell Special School District and Faulkner and Sharp Counties from it rendered it special legislation and thereby invalid. The Webb opinion was so well written and so clearly reasonable that I again quote from it as follows:

If two counties and a special school district can be excepted from the provisions of a law otherwise general and operative equally and uniformly throughout the whole state, there would be no reason to say that twenty-five or fifty counties or seventy-four of the seventy-five counties of the State could be so excepted, leaving its application as a general law to but one county, abrogating by legislative determination and judicial construction the Constitutional Amendment prohibiting the Legislature from passing “any local or special act.” The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute.

Two years later this court decided the case of Simpson v. Matthews, 184 Ark. 213, 40 S.W.2d 991 (1931). The act of the legislature under attack in the Simpson case applied to “counties which now are or hereafter may have a population of 75,000 inhabitants according to the last federal census.' '’ There, as here, the act applied only to Pulaski County. The Simpson opinion clearly stated that classifications of counties and municipalities, according to population, might be reasonable, but to do so it must bear a reasonable relation to the subject of the legislation. The opinion was careful to point out that there must be something more than mere designation by population before such classification may be considered valid. The court stated:

The marks of distinction on which the classification is founded must be such, in the nature of things, as well, in some reasonable degree at least, account for or justify the restriction of the legislation.

Our opinions up until this time have generally held that the conditions attached to legislation must act uniformly upon all of its class and all of the conditions should be appropriate to accomplish the purpose for which the legislation was enacted. Much special legislation has been passed even after the people adopted Amendment 14. The Simpson opinion stated:

Judging from much recent legislation in this State, it would seem that the impression is prevalent that because classification on the basis of population may be proper for the purposes of legislation on certain subjects, therefore any classification on the basis of population is appropriate for the purpose of legislation on any subject. The sooner the minds of legislators and others are disabused of this erroneous impression, the better; for under any such rule the provisions of the Constitution against special legislation would become wholly nugatory. If it is permissible to adopt for any and all purposes a classification founded upon any and every arbitrary and illusive basis of population, we might have as many acts, general in form, but special in fact, as there are counties, cities, villages, townships, wards, and school districts in the State.

This court again considered a special act in the case of Humphrey, State Auditor v. Thompson, 222 Ark. 884, 263 S.W.2d 716 (1954). There we held that Amendment 14 was intended to prevent arbitrary classifications based upon no reasonable relation between the population and the subject matter of the act. Again, the court repeated that this court will look to the substance or practical operation of an act rather than to its title and form in considering its real operation. The act in question in the Humphrey case applied only to counties having a population of less than 6,000. Only Perry County met this distinction. Justice McFadden, in the Humphrey opinion, quoted from Webb v. Adams, supra, as follows:

The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute .... The courts look to the substance and practical operation of a law in determining whether it is general, special or local, and if its operation must necessarily be special or local, it must be held to be special or local legislation, whatever may be its form. ... A local law is one that applies to any subdivision or subdivisions of the State less than the whole. ... A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing, those upon which, but for such separation, it would operate.

One of the basic facts in the Humphrey case was highlighted by the following questions and answers from a witness which are stated as follows:

QUESTION: Would you know of any reason why that differential in population would make Perry County need a vocational school more than Montgomery County?
ANSWER: None.
QUESTION: And there would be no reason for Perry County having any special need over these counties that have a few more population than Perry County?
ANSWER: I wouldn’t know of any, no, sir.

Turn these questions around slightly in the present case and ask why Little Rock needs this act more than the others with a different population and the answer is bound to be — there is no reason. There is no reasonable or rational basis for the classification by population of the cities as to the form of government they have. In the present case population gerrymandering is more conspicuous than was the geographical gerrymandering which caused the revolution in the law known as “one man one vote.” All citizens are entitled to be heard on matters concerning their form of government. Allowing only some citizens to be heard will not suffice. Democracy does not start at 16,000 or 100,000.

A law is general when it operates on all counties, cities and towns alike, but it is special when it arbitrarily separates some person, place or thing from those upon which it would apply except for the exception. Laman v. Harrill, 233 Ark. 967, 349 S.W.2d 814 (1961). The legislation in the Laman case applied only to cities having a population over twenty thousand in a county which had a population over fifty thousand. The way it was worded it applied only to the city of North Little Rock. We held the act unconstitutional.

From early times our opinions have all recognized that in making a determination of whether an act is general or special, we look to the substance and practical operation of the legislation rather than its title, form and phraseology. Burrow v. Jolly, 207 Ark. 515, 181 S.W.2d 479 (1944). We struck down an act of the legislature which attempted to enact a law in counties having a population between 10,275 and 10,290 in the case of Wilson v. State, 222 Ark. 452, 261 S.W.2d 257 (1953). The present law mimics the population gerrymandering which was found to exist in Wilson. Another opinion of this court struck down a law which applied to only one county in a two county judicial district. Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

We have likewise struck down an act of the General Assembly applying to counties having a population of 10,200 to 11,000, according to the last federal census. The act applied only to Searcy County. Hensley v. Holder, 228 Ark. 40, 307 S.W.2d 794 (1957). Another act applying only to Pulaski County was struck down in City of Little Rock v. Campbell, 223 Ark. 746, 268 S.W.2d 386 (1954). We have also struck down legislation applying to certain municipal employees in counties having a population of over 150,000. See Special Board of Trustees v. Beard, 273 Ark. 423, 620 S.W.2d 295 (1981).

In my opinion the case of Knoop, et al. v. City of Little Rock, 277 Ark. 13, 638 S.W.2d 670 (1982), is dispositive of this case. The legislature had enacted legislation affecting the election of mayor in cities having a population of over 100,000 with the city manager form of government. The act denied the same power to cities having the manager form of government and with populations of less than 100,000. The opinion, written by Justice Frank Holt, properly disposed of the matter in a paragraph which I wish to set out in full:

The mayor in a city, regardless of its size, having a city manager form of government merely presides at board meetings, is recognized as head of the city government for ceremonial purposes, and signs all written agreements on behalf of the city. § 19-708(b). These powers are not altered in any way by Act 539. They are the same whether the mayor is elected by the directors or by the direct election with a majority vote. In the absence of some reasonable statutory difference in the powers or functions of the mayors of cities of different sizes, we cannot, although the act is accorded presumptive validity, find any reasonable basis for granting to one city but not to others the power of directly electing its mayor and holding runoff elections for the positions of mayor and city directors two weeks after the general election. Consequently, we must hold that Act 539 is special legislation which contravenes Amendment 14. We deem it unnecessary to discuss appellant’s additional argument that the act is local legislation.

Another special legislation case was decided by this court in Ferguson v. Brick, 279 Ark. 288, 652 S.W.2d 1 (1983). In the Brick case the legislation purported to apply only to cities having a population between 57,000 and 61,000. It was clearly unconstitutional. Shortly following that we decided the case of Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984). Special legislation in that case involved creating a municipal court in counties having a population of 26,500 to 28,000. Obviously only one county was affected by the legislation and we unhesitatingly declared it special legislation in violation of Amendment 14.

There are some cases when the population classification has been allowed to stand. In Lovell v. Democratic Central Committee, 230 Ark. 811, 327 S.W.2d 387 (1959),weallowedastatuteto survive which applied to cities of over 50,000 and were governed by the mayor-council form of government. In my opinion that is as far as this court has ever gone in upholding legislation based upon population. Even so it applied to all cities having a population of more than 50,000 and retaining the democratic form of government.

I cannot believe that the electors of any one city in the state of Arkansas are any smarter than the electors of another city. Neither the geographical size nor the population has any bearing on the intelligence of the citizens nor their right to vote for a representative form of government. It is my opinion that the constitution requires members of the city council or board of directors to be elected by the voters in districts and the mayor to be elected by the voters of the entire city. I see no reasonable basis or legitimate state purpose in classifying cities into separate categories for the purpose of exercising their right to vote for their representatives.

Neither the duties of the mayor nor those of the board of directors would be any different if the present act were upheld. Therefore, the Knoop case would clearly require that the legislation be held invalid. Since there is no reasonable purpose in using population as the basis for this type of gerrymandering, if this legislation is upheld, it must qualify on some other ground. The only other possible argument supporting this legislation is that it creates equality among the voters by giving the black residents of Little Rock an opportunity to vote on certain positions. If that is the case why not give them more opportunity and allow all of the directors to be elected by district.

The parties to this action have again waited until the last minute to appeal, thereby forcing this court to hurriedly dispatch its opinion. This same situation repeats itself every two years. Therefore, it is no wonder that our opinions are not unanimous. It is time that we return to fundamental constitutional precepts.

Tom Glaze, Justice,

concurring. Relying on longstanding precedent, the appellees correctly state the legal issue before us as follows: Whether the General Assembly could have had a rational basis for the classifications contained in Act 808 of 1977 as amended by Act 840 of 1987 (hereinafter Act 840). Even the appellees concede a couple of the classifications are constitutionally suspect, but it suggests those categories could be severed, thus not affecting the constitutionality of the remaining and basic portion of the Act. Unfortunately, even if the court severed the provisions the appellees concede are special legislation, the remaining basic scheme or classifications for electing directors and mayors in city management governments still want for logic and reason. Those remaining classifications by methods of selection are three-fold and appear as follows:

Population Method of Selection
1. up to 15,000 Directors: all at-large Mayor: Appointed by Board
2. 15,000 to 29,999 Directors: Majority by district; balance at-large Mayor: Elected by people
3. above 30,000 (1) Directors: All at-large
(2) Directors: Majority by district; balance at-large Mayor: Elected by people
(3) Directors: All by district Mayor: Appointed by Board

When viewing the above three separate groups of cities with manager forms of government, let us attempt to assign a reason for their respective classifications and different methods by which each group selects directors and mayors. Appellees suggest that cities that have a population of under 15,000 may be small enough that the peoples’ interests are similar in nature or kind so as to negate any significant value in having directors elected by single-member districts. Following such logic, one could further conclude that city governments, with a population of over 15,000 to 30,000 (the second group above), have grown to a point where the geographic needs and interests of the people warrant their directors to be elected by districts. That being so, the General Assembly’s enactment of Act 840 is reasonable since it requires single-member districts in the second group or class of cities. When, however, we review the third group — cities over 30,000 — we find single-member districts are not required. Instead, these larger class cities have an option to select their directors either at large or by district.

Why more populous cities should have an option to elect directors at-large when the smaller, second group of cities has no such option is truly puzzling. In fact, based upon the logic that cities become less homogeneous as they become larger, the rationale for single-member districts in cities over 30,000 is necessarily the same for those size cities that fall within the 15,000 to 30,000 classification. No reason exists for the disparate treatment given these two classifications of larger Arkansas cities by Act 840. To make any sense, both larger groups of cities should be permitted either the option to elect directors at large or by district or they both should be required — with no options available — to elect their directors by districts. As Act 840 presently reads, these classification provisions are inseverable and therefore constitutionally unsalvageable.

In sum, I agree with the result reached by the majority but do so because the classifications contained in Act 840 are inconsistent and provide no rational basis to the purpose of the law, viz., to assign a method by population of selecting directors by districts or at large for different sized cities with a city manager form of government. See Board of Trustees for Little Rock Police Pension Fund v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988); Lovell v. Democratic Central Comm., 230 Ark. 811, 327 S.W.2d 387 (1959); Knowlton v. Walton, 189 Ark. 901, 75 S.W.2d 811 (1934). Act 840 offends amendment 14 to the Arkansas Constitution as that amendment has been interpreted by longstanding precedent; for that reason alone, I feel Act 840 must fall under amendment 14 to the Arkansas Constitution.

Justice Newbern’s dissent suggests the majority decision overrules Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). He cites Sfreight for the proposition that it is the duty of the party challenging the constitutionality of legislation to demonstrate it could have no rational basis. Of course, that rule was adopted by this court many decades before Streight, and the majority opinion, without citing Streight, specifically acknowledges that rule. Unquestionably, the presumption is in favor of the constitutionality of any legislation passed by the General Assembly. That presumption cannot prevail, however, when there is no rational basis to support the arbitrary classification given Arkansas cities under Act 840. Newbern’s reference to affluent and less affluent districts and media expense for campaigning in no way addresses the disparate treatment given the three classifications of cities, as I have attempted to discuss above.

Justice Hays’s dissent, on the other hand, attempts to sustain Act 840’s constitutionality by propping it up with the “one man-one vote” rule announced in Reynolds v. Sims, 377 U.S. 533 (1964). Act 840 may be consistent with that rule, and it may not. It could be argued even cities under 15,000 should have single-member districts. It also could be contended that cities over 30,000 must have single-member districts and an option to allow at-large directors is unconstitutional. Those issues and arguments simply are not before us. The only question in this appeal is a state issue, viz., whether Act 840 contravenes amendment 14 to the Arkansas Constitution, i.e., whether the act is special or local legislation.

Steele Hays, Justice, dissenting. While I share the majority’s concern that this legislation is difficult to reconcile with Amendment 14, nevertheless, I believe a rational basis can be found in the self-evident intent of the enactments to promote greater compliance with the “one man, one vote” rule. That objective is both rational and mandatory. Reynolds v. Sims, 377 U.S. 533 (1964); Avery v. Midland County, 390 U.S. 474 (1967); Baker v. Carr, 369 U.S. 186 (1961).

The majority largely ignores the spirit of Act 840 and the higher principle to which it points, i.e. the general rule of law of “one man, one vote.” This general principle of law pervades Act 840, however, on closer examination, the exceptions carved out in this Act while appearing to make this legislation special or local, demonstrate an effort to provide these exceptions with the same opportunity to achieve the “one man, one vote” principle. The general overriding intent of Act 840 is to provide a system of electing a city’s officials which more closely promotes the “one man, one vote” rule. The exemptions that trouble the majority are aimed at providing for a more representative election by districts or wards.

Act 840 applies only to the city management form of government. All other forms of local government provide for a seemingly “one man, one vote” principle. For example, the mayor-council form of government provides for the selection of alderman from districts. Ark. Code Ann. § 14-43-307 (1987). Additionally, the city administered governments provide for a selection of a majority of the directors by district and the direct election of the mayor. Ark. Code Ann. § 14-48-110 (1987). As to the commission form of government, because only three commissioners are elected there is little reason to distinguish by districts and at large.

The classification by population simply ensures that the cities of Little Rock and Hot Springs, and potentially seven other cities should they elect a city management form of government, have the opportunity to afford their citizenry the option to enact an ordinance providing for more representative city government.

I would affirm the trial court.

David Newbern, Justice,

dissenting. We presume legislation to be not unconstitutional, we are permitted to speculate as to a rational basis for legislation, and we defer to the general assembly’s institutional ability and responsibility to determine the need for any particular law. These three principles have been stated often by this court. They were all restated and more than adequately supported in Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), where this court, in a very thorough opinion by Special Justice W.W. Bassett, Jr., made it clear that it is the duty of the party challenging the constitutionality of legislation to demonstrate that it could have no rational basis. That has not been accomplished in this case.

The classifications of cities under 30,000 population may or may not be unconstitutional. The question here is whether it constitutes local legislation to permit the upper classification, which includes the City of Little Rock, to choose a method of elections combining representation of wards with representation at large. My speculation is that the general assembly passed this law because its members knew that in larger cities representatives may come from only more affluent districts whose candidates can better afford expensive media for campaigning. The law permits a city to choose to allow its less affluent, and previously less influential, citizens to have a voice in government.

By overruling Streight v. Ragland, supra, and its predecessors we will shift the burden to the general assembly to justify its every act. It may seem laudable to remove a requirement that a party challenging legislation meet the difficult burden of “proving a negative,” but that burden has not been insurmountable in the past. We have been willing to declare legislation “special” or “local” in violation of Amendment 14 where we have been unable to find any redeeming rationality. See, e.g., Lawson v. City of Mammoth Spring, 287 Ark. 12, 696 S.W.2d 712 (1985); Arkansas Commerce Comm. v. Arkansas & Ozarks Ry., 235 Ark. 89, 357 S.W.2d 295 (1962); Board of Trustees v. Pulaski Co., 229 Ark. 370, 315 S.W.2d 879 (1958). While we have not stated the burden of proof in each of these cases, it seems to me we have clearly placed it upon the challenger. Now, virtually every piece of legislation involving the inevitable need for classifications will be subject to easy challenge because the burden will apparently be on the general assembly to have announced its rationale or upon the party supporting the legislation in question to know what it is through some as yet unknown process.

The duty of this court in our constitutional framework is to serve as a check on the legislative branch of government. That should mean, as it has until now, that we should intercede only when the general assembly has demonstrably overstepped the constitutional boundary. Until now, we have maintained our proper role by requiring the party challenging legislation to be the demonstrator. Judicial restraint should operate against the majority’s decision in two ways; we should not abandon our cases in this instance, and we should not tilt the delicate constitutional balance among our institutions.

I respectfully dissent.

Dudley, J., joins in this opinion.

       One provision of Act 840 exempted cities with a population of between 16,000 and 16,700, which applied only to Benton, Arkansas. Another one exempted governments formed under Act 498 of 1973, which included only Fayetteville.

       Although not fully discussed, the selection of mayoral positions also varies dependent upon the classification and size.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Roger MORGAN v. STATE of Arkansas
    CR 88-60
    757 S.W.2d 530
    Supreme Court of Arkansas
    Opinion delivered October 3, 1988

      Douglas, Hewett and Shock, by: J. Randolph Shock, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Darrell Hickman, Justice.

This is an appeal from an order denying relief under A.R.Cr.P. 37. We affirm.

Roger Morgan pled guilty to eleven separate felony counts on October 17, 1986. His sentence was ten years imprisonment with five years suspended. After he was imprisoned, he filed a document which he called a “petition for writ of error coram nobis and/or motion to vacate and set aside.” The trial court treated this document as a petition for relief under Rule 37, appointed present counsel, and ordered a hearing.

The petition alleged three grounds for relief. First, Morgan said he had ineffective assistance of counsel because his court appointed attorney, after his appointment, had sat as a special municipal judge in his case involving various minor charges, and, while acting in this capacity, had indicated that Morgan was going to be convicted and sentenced to Cummins on the felony counts; second, the arrest warrant was invalid for lack of probable cause; and third, in view of our decision in Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987), his conviction should be set aside.

On September 4, 1986, Morgan was arrested for theft by receiving of an automobile stolen in Oklahoma. Within a few days Morgan confessed to the remaining crimes he was ultimately charged with: a burglary and theft of property charge for a crime that had occurred on September 12, four counts of breaking or entering and four more corresponding theft of property charges for crimes that had occurred on July 17, August 20 and August 27. All of the offenses took place in Crawford County, Arkansas.

Morgan was arraigned on the theft by receiving charge on September 11,1986, and the court appointed Robert Marquette to represent him. Marquette was not present in court. The other felony charges were filed and served on Morgan on September 16.

On September 12 Morgan appeared in municipal court for some minor charges unrelated to his felony charges. The judge that day was Robert Marquette because the regular municipal judge was campaigning for office.

At the Rule 37 hearing, Morgan testified that the prosecuting attorney said at the municipal court proceeding that he intended to see that Morgan got some prison time on the pending felony charges, and that the prosecuting attorney told Marquette at that time Marquette had been appointed to represent Morgan.

Morgan pled guilty to the various offenses and Marquette fined him $179.25. Morgan said Marquette told the clerk Morgan could begin to pay his fines after he got out of Cummins. Morgan signed a “time payment card” which had the written notation that Morgan would pay fines beginning “when he gets out of Cummins.”

Marquette denied having made the statement about Cummins, and the municipal clerk said that the custom was for the defendant to make arrangements in the back of the courtroom how fines would be paid. Morgan mentioned none of the alleged conflicts of interest when he pled guilty in circuit court on October 17, 1986.

In fact he was very certain of what he was going to receive. After the court had read all the charges and what the sentences would be and there had been some discussion on the sentence, the following exchange occurred:

The Court: These are all to run concurrent. Costs will be waived. He’ll be given credit for his jail time. Now, do you understand that you’ll eventually be released from the Department of Correction, and at that time, your five-year-suspended sentence will start, do you understand that?
Morgan: Yes, sir. Can I ask a question?
The Court: Yes.
Morgan: All this, you just read off, when I go to prison, I’ll have a fifteen-year sentence with ten suspended?
The Court: Five suspended.
Morgan: I mean five suspended.
The Court: You’ll have ten years to serve.
Morgan: Yes, sir.
The Court: You’ll have six years to serve on the D Felonies; you’ll have ten years to serve on the C Felonies and the B. Felonies.
Morgan: When do I do the six years?
Marquette: Well, they all run at the same time.
Morgan: All right.
The Court: Do you understand they run along at the same time, they’re concurrent; if they were consecutive, you’d add them altogether; if they’re concurrent, you do not.
Morgan: Okay.
The Court: I thought you understood that.
Morgan: I did, but I didn’t understand it, the way you read it, though.
The Court: You do understand it, now?
Morgan: Yes, sir.
* * * *
The Court: Any questions about what we’ve done, here, Mr. Morgan?
Morgan: No, sir.
The Court: You’re pleading guilty because you’re guilty, as charged, is that correct?
Morgan: Yes, sir.

At Morgan’s Rule 37 hearing, he brought up several matters outside the allegations in his petition. He said that certain promises were made with respect to pending charges in Oklahoma. He testified that either the prosecutor or his deputy said that if he got time in Arkansas he would not get any time in Oklahoma regarding the stolen car. After he was transported to prison, he learned that Oklahoma had indeed placed a detainer on him. He testified he had pled guilty to a theft charge in Oklahoma and received a five year sentence in the summer of 1987. He said he had counsel.

He also testified that Marquette was not prepared to go to trial and was ineffective. When asked what he wanted the trial court to do, Morgan said:

Morgan: I’m asking that a five year term be reduced from my sentence, here in Arkansas, The Department of Corrections.
The Court: And you’re asking that, basically, the remainder of your sentence be reduced to time served?
Morgan: Yes, sir.

Morgan asks the same of us on appeal, although, alternatively, he asks for a new trial.

The trial judge made specific findings of fact on the disputed testimony. He found that the defendant was properly advised of his rights before he voluntarily made incriminating statements and that the arrest warrant was valid because the arrest was made based on probable cause; and, in any event, these contentions were waived by Morgan upon entry of his guilty pleas. He also entered findings that even though the letter appointing Marquette was mailed on September 11, 1986, Marquette was not aware of the appointment until after he presided as special judge on September 12; additionally, Morgan never raised this issue at his plea hearing.

Other findings were entered that there was no credible evidence presented that Marquette had anything to do with the filling out of the “time payment card”, and the fact that Marquette had sat as a special municipal judge and later was Morgan’s attorney did not amount to a conflict of interests which would make counsel ineffective in representing the defendant. The court’s 16th finding deserves repeating:

[T]he evidence reflects that the defendant, from the moment he first consulted with his court appointed attorney, never intended to fight this case on the merits of guilt or innocence. The cases were to be dealt with on the basis of the best sentence he could get.

Morgan has at least two prior convictions and was not charged as a habitual criminal although he could have been.

On appeal Morgan advances five arguments for reversal. First, he contends that the court was wrong to treat his petition as one for Rule 37 relief. He argues that it was factually impossible for him to have committed the burglary and theft on September 12,1986, because he was in jail that day. It was the trial judge, not Morgan or his counsel, who discovered this discrepancy. During examination of Morgan, the judge asked:

Q. You got arrested on September the fourth and, then some of these charges say you committed an offense on September the twelfth, do you think that’s a wrong date or what, Mr. Morgan? It says on or about the twelfth day of September, 1986, on the Burglary and Theft of Property, which was the Hinds Carney place, I don’t know what kind of place that is, it says on or about September the twelfth, do you think that’s the wrong date or there or what, or did you actually get out of jail after you were first put in?
A. No, sir.
Q. You did not get out?
A. No, sir.

Morgan’s petition did not mention this fact. He offered no evidence he was not guilty. The judge found this inconsistency during his examination of Morgan. Morgan said he was in jail on the 12th; nothing more was said, either by the state or by Morgan about whether this was a mistaken date or wrong charge. It was not until summation that counsel broached this argument.

The judge obviously did not put any stock in Morgan’s testimony and since his petition contained no reference to this conflict and the petition was not amended to make this argument, it was not proper to bring it up. The judge did not bother to include any reference to it in his findings. During Morgan’s testimony, he did not state he was not guilty of any of these offenses. Indeed, he has not denied his guilt to any of the charges.

We have repeatedly held that a conviction based on a guilty plea is difficult to overturn, because prejudice is difficult to prove. Crockett v. State, 282 Ark. 582, 669 S.W.2d 895 (1984). We do not consider matters outside the scope of the petition. Wiser v. State, 256 Ark. 921, 511 S.W.2d 178 (1974). Further, the appellant did not properly abstract the record so that this question could be resolved, and we had to go to the record to accurately state what happened in this regard.

The second argument is based on the conflict of interest which his court appointed attorney may have had. This was raised in his petition. In the judge’s findings of fact, he directly laid this matter to rest, resolving the factual dispute against Morgan. The mere fact that his court appointed attorney was sitting that day on some unrelated charges would not render him ineffective. The court found that Marquette did not say what Morgan said he did. He also found Marquette did not even know he had been appointed to represent Morgan at that time. It is for the trial court to weigh the evidence and resolve the credibility of witnesses. Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986).

The third argument is that Morgan’s statements should have been suppressed. This also was not a question raised in the petition; the petition asserted that the warrant was invalid because it was issued by the clerk, not the court, which was the matter addressed in Fairchild v. Lockhart, 675 F. Supp. 469 (E.D. Ark. 1987). Morgan argues in his petition that his arrest was illegal and the conviction should be set aside; on appeal he argues his confession was invalid. This is a different argument and we do not address it. In Hendrix v. State, 291 Ark. 134, 722 S.W.2d 596 (1987), we held an issue not raised in a petition for post-conviction relief is considered waived on appeal.

The fourth argument is that counsel was ineffective because he did not advise Morgan of the possible defenses or range of sentences to the charges. There is no mention of this in the petition, and we will not consider it on appeal.

Finally, the question of a lack of a factual basis for a guilty plea is raised. This question was not raised in the petition.

The trial court found that from the beginning Morgan sought to get as little prison time as possible. He had served time in both the Arkansas and Louisiana penitentiaries. He was not charged as a habitual criminal as he could have been. At the request of his family his counsel obtained an evaluation of his mental state.

Affirmed.


author: John I. Purtle, Justice. Robert H. Dudley, Justice,

text:
    Howard VAGI v. STATE of Arkansas
    CR 88-24
    757 S.W.2d 533
    Supreme Court of Arkansas
    Opinion delivered October 3, 1988

      Henry Morgan, and Taylor A. King, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant filed a petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37 in the Circuit Court of Clark County three years after pleading guilty to first degree murder. The appellant had agreed to plead guilty to first degree murder in exchange for the state reducing the charge from capital murder. The petition alleged that the state had promised Vagi that he would not have to serve more than ten years on his life sentence. After an evidentiary hearing on the petition, the trial court determined that it did not have the authority to order the state to release Vagi at the end of ten years. On appeal the appellant insists that the trial court did have the power to order the “contract” concerning his sentence specifically performed, and further that the appellant’s Fourth Amendment rights had been violated. (We are uncertain as to how the Fourth Amendment is implicated in appellant’s argument. We must surmise that the argument is based on the Due Process Clause of the Fourteenth Amendment.) For reasons stated below we hold that the decision of the trial court was correct.

The basic facts in this case are that Vagi was a hired triggerman in the murder of a Clark County resident. The victim’s wife and an associate were both convicted of capital murder in separate trials. Both convictions were overturned and the cases retried. The appellant had cooperated in all of these trials and had furnished the information which was the basis for the conviction of the other two co-defendants. In exchange for the appellant’s cooperation the prosecuting attorney agreed that if he would enter a guilty plea, the charge would be reduced to first degree murder. The evidence is conflicting as to whether the prosecutor in fact promised appellant that he would be paroled in seven to ten years. There is evidence that appellant’s trial attorney at the time told him that he might get out in nine to fifteen years, but that, in any event, there would have to be a commutation of his sentence before he would be eligible for parole at all.

The proceedings concerning the plea and sentencing are quite clear. The appellant simply entered a guilty plea to first degree murder and was sentenced to life imprisonment. However, at the Rule 37 hearing the trial judge seemed to indicate that the appellant probably did not understand that his sentence would have to be commuted before he would become eligible for parole. There was also a discussion prior to entry of the guilty plea that both the prosecuting attorney and the sheriff usually must write letters recommending commutation of a sentence. The appellant insists that the prosecutor and sheriff agreed to write such letters prior to the plea agreement. They denied having made such promises. Furthermore, there is no indication that these letters will not be written.

Pursuant to A.R.Cr.P. Rule 37.4, if the court finds that the prisoner is entitled to relief, then the court “may set aside the original judgment, discharge the prisoner, resentence him, grant a new trial, or otherwise correct the sentence as may appear appropriate in the proceedings.” The appellant contends that the court, after finding that he did not understand all the ramifications of his guilty plea, was authorized to “resentence” him. Without doubt the court has the power to “resentence” or “otherwise correct the sentence” when it is found that an error occurred in the proceedings. However, in the present case the court did not find that an error had occurred in the sentencing. Rather, the court found that it did not have the authority to enforce the agreement, if one existed, because such agreement involved the executive branch.

The appellant’s chief argument is that the state has failed to keep the agreement. In Hall v. State, 285 Ark. 38, 684 S.W.2d 261 (1985), we stated: “We agree the state must keep any bargain it has made, Santobello v. New York, 404 U.S. 257 (1971), and if it does not the guilty plea may be withdrawn. Mabry v. Johnson, 467 U.S. 504 (1984).” We reaffirmed this position in Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). There we upheld the right of the state to back out of any proposed plea bargain at any time before the guilty plea is accepted by the court. (Caldwell had accepted a plea offer but the new prosecutor had withdrawn the offer prior to acceptance by the court.)

The question presented in Mabry v. Johnson, supra, was “whether a defendant’s acceptance of a prosecutor’s proposed plea bargain creates a constitutional right to have the bargain specifically enforced.” Mabry held that a plea bargain agreement standing alone is without constitutional significance. The United States Supreme Court stated that it is only after the bargain has been embodied in the judgment of the court that a constitutionally protected interest arises. In the words of Justice Stevens: “The Due Process Clause is not a code of ethics for prosecutors. . . .” Mabry.

The Santobello opinion is instructive in the case before us. Santobello had agreed to plead guilty to a lesser included offense in exchange for the prosecutor’s promise to make no recommendation as to the sentence. The guilty plea was entered and a sentencing date set. Before sentencing, the trial judge retired and the new judge was told by the prosecutor that he recommended a sentence of one year in prison. Santobello objected to this recommendation. The new judge then announced that it didn’t make any difference what the prosecutor recommended; that he was going to do the sentencing anyway and that in his opinion Santobello should serve time in the penitentiary. Certiorari was granted in order to determine whether the state’s failure to keep the commitment concerning the sentence required a new trial. The United States Supreme Court remanded the case to the state court to determine whether the petitioner should be granted specific performance of the agreement or the opportunity to withdraw his guilty plea.

The Santobello opinion pointed out that such an agreement between the prosecutor and the accused, loosely called a “plea bargain,” is an essential tool of the administration of justice. The court correctly observed that if every criminal charge were subjected to a full-scale trial, both the state and federal governments would have to multiply their personnel and facilities many times over. The Santobello opinion stated:

Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.

Likewise, this tool in the administration of justice has been endorsed by this court. Garmon, infra. The state has not attempted to withdraw from the agreement it entered into with the appellant. The guilty plea was presented to the court and the state’s recommendation was also announced in the presence of the court. Accordingly, the court accepted the guilty plea and recommendation of the prosecutor and sentenced the appellant to a term of life imprisonment.

After serving only three years of the life sentence, the appellant filed a Rule 37 petition. We are not entirely certain of the grounds upon which he alleges he is entitled to relief. However, the thrust of his argument is that the state must perform its agreement that the appellant serve no more than ten years. He does not point out how the state has failed to live up to the agreement. Even if we were to accept the appellant’s statement that he was promised parole after ten years, he is not entitled to relief at this time. It is reasonably clear from the record that all of the parties involved in this agreement, with the possible exception of the appellant, fully understood that a person serving a life sentence is not eligible for parole. Furthermore, it is obvious that, under normal circumstances, at some point in time, a life sentence is commuted to a term of years by the executive branch of the government; only then does the prisoner become eligible for parole.

A somewhat similar situation arose in the case of Garmon v. State, 290 Ark. 371, 719 S.W.2d 699 (1986). Garmon also filed a Rule 37 petition attacking his sentence on the grounds that he was misinformed by his attorney about the length of time he would have to serve pursuant to the sentence he received. The attorney had told Garmon that kidnapping was a class A felony. After the sentence was pronounced it was determined that kidnapping was a class Y felony which authorized a longer sentence. We held that Garmon was not prejudiced by the error even if the risk of a greater sentence might have influenced his acceptance of the plea bargain. The opinion went on to state that the risk of a long term of imprisonment creates an incentive to negotiate a plea. Certainly it can be said that a life sentence, with the hope of parole at some future date, is an incentive to keep from being tried on a charge which could result in a death sentence or life without parole. In Garmon his attorney had written a letter which stated: “Normal parole eligibility was 1/6 of the sentence.” In fact, Garmon was required to serve 1/2 of a longer sentence. Therefore, erroneous advice concerning parole eligibility does not automatically render a guilty plea involuntary. Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986).

The appellant acknowledged the receipt of a letter from his attorney, prior to entry of his guilty plea, that it was the understanding of the attorney that the average time served on a life sentence was from nine to fifteen years. The letter also clearly told the appellant that eligibility for parole varied depending on the conduct of the prisoner and the policies of the Arkansas Department of Correction. At no point in the record do we find a flat promise that the appellant would be out in ten years. He was twenty-one years old and had completed two years of college at the time of his guilty plea. Furthermore, he has not denied his guilt, nor requested that his plea be vacated.

There is nothing in the record which requires that the appellant be granted any relief at this time. Neither is there anything which indicates that he will not be eligible for parole at some time in the future, perhaps within ten years. Under the circumstances we hold the trial court properly denied the petition.

Affirmed.

Dudley and Newbern, JJ., concur.

Robert H. Dudley, Justice,

concurring. I reach the same result as the majority, but do so on an entirely different basis.

The appellant was charged with capital felony murder. As the result of plea bargaining, the charge was reduced to first degree murder, the appellant pleaded guilty to that lesser charge, and the State recommended a life sentence. The trial court followed that recommendation. Three years later the appellant filed a Rule 37 post-conviction petition. In it, he alleged that he pleaded guilty in exchange for the recommendation of a life sentence only because the prosecuting attorney assured him that a life sentence would allow him to be paroled within ten years. In fact, he will not be eligible for parole until his sentence is commuted to a term of years, if that is ever done by the Governor.

The obvious primary issue for the trial court at the post-conviction hearing was whether the plea was based upon an agreement with the prosecutor for parole within ten years. It is impossible to clearly understand the trial court’s ruling, if any, on this point. However, under the peculiar facts of this case I would still affirm.

On the one hand, if the trial court found that there was no such agreement, the appeal would be affirmed since there was substantial evidence that no such agreement was made.

On the other hand, if the trial court found, as I believe it did, that there was such an agreement, this case is much more complex. The trial judge stated, in pertinent part:

If you had said to me life as a sentence on first degree murder, I would know that you meant life and I would know the requirements to be commuted to a number of years before there can be any possibility of parole. I don’t believe Mr. Vagi understood it quite that way. I cannot specifically perform the contract because I cannot order a commutation. I believe I would be restricted either to deny the Rule 37 or to find a justification for Rule 37 and offer the State the option of retrying Mr. Vagi on the original charge, capital felony murder. If I knock out the plea bargain or plea agreement, that’s where we stand.

A finding that a plea of guilty was coerced by the false promise of a prosecutor entitles a defendant to relief because the Due Process Clause has been violated. Mabry v. Johnson, 467 U.S. 504 (1984); Santobello v. New York, 404 U.S. 257 (1971); Hall v. State, 285 Ark. 38, 684 S.W.2d 261 (1985).

In Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975), a case exactly in point, the prosecutor told the accused that a confession “would not result in more than 21 years.” The accused confessed but then received a life sentence. We reversed, holding that the confession was involuntary.

Accordingly, the appellant is entitled to withdraw his plea of guilty, and he is entitled to that relief now. He does not have to wait ten years as the majority opinion states. However, in his brief the appellant indicated that he does not want to withdraw his plea, and in oral argument his attorney expressly stated that the appellant did not want the relief of being allowed to withdraw his plea of guilty. The only relief he wants is specific performance, and further, he contends that specific performance is a sentence of forty years.

Some state courts have given specific performance in cases of prosecutorial culpability. See Santobello v. New York, supra (Douglas, J., concurring); Note, Guilty Plea Bargaining: Compromises By Prosecutors to Secure Guilty Pleas, 112 U. Pa. L. Rev. 865, 876 (1964). However, appellant is not entitled to that relief. Under Arkansas law there is no entitlement to have the trial court impose a recommended sentence since a plea bargain does not bind the trial court. Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978) (overruled on another issue in White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986)); Ark. R. Crim. P. 25.3. It is illusory to argue that the trial court must specifically perform a bargain, when it was not involved in the bargain. There is a critical difference between an entitlement and a mere hope or expectation that the trial court will follow the prosecutor’s recommendation. See Olin v. Wakinekona, 461 U.S. 238, 248-251 (1983).

Accordingly, I would not grant the relief of specific performance. I would also deny the relief of withdrawal of the guilty plea, but only because the appellant rejects such relief.

I concur in the result.

Newbern, J., joins in this concurrence.


author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    Kenneth Dale HAMM v. STATE of Arkansas
    CR 88-35
    757 S.W.2d 932
    Supreme Court of Arkansas
    Opinion delivered October 3, 1988

      Shermer & Walker, by: M. Susan Walker, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was convicted of aggravated robbery. We reverse and remand for a new trial.

The appellant made a confession which was recorded on a microcassette and then transcribed by a police secretary. The confession was erased when the tape was reused. Consequently, the State was unable to provide the appellant with the recording of the confession for the purpose of comparing the recording with the transcript. The appellant moved to suppress the statement and expressly cited A.R.Cr.P. Rule 17.1 (a)(ii) and Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978). The trial court denied the motion and allowed the transcript of the confession to be read into evidence. This ruling was in error.

A.R.Cr.P. Rule 17.1(a)(ii) provides that the prosecuting attorney shall disclose to defense counsel “any . . . recorded statements . . . made by the defendant. . . .” In interpreting this rule, as it concerned witnesses’ statements, we said:

We are persuaded that Rule 17.1 imposed a duty upon the state to disclose to defense counsel, upon a timely request, all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use thereof.
We are further persuaded that appellant was not only entitled to the written transcription prepared by the state from the recorded statements, but appellant was entitled to discover the tapes not only because the tapes represented the best evidence, but without the tapes, appellant had no way of comparing the transcription in order to determine if the transcription was a correct reproduction of the recordings. Indeed, the statement as well as the tapes would have been most helpful to appellant in his cross-examination of state’s witnesses.

Williamson v. State, 263 Ark. 410, 565 S.W.2d 415 (1978).

Subsequently, we applied the rule to a defendant’s statement, as well as to witnesses’ statements, and wrote:

Arkansas R. Crim. P. 17.1 provides that the prosecutor shall disclose any written or recorded statement and the substance of any oral statement made by the defendant. In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), we held a defendant is entitled to the tape from which a written statement was transcribed. We pointed out that the tape represents the best evidence and without it the defendant has no way of determining if the transcript was a correct reproduction of the recording.
The state’s argument is that the Williamson case is distinguishable because in this case the tape is not available, and there it was available, but simply not supplied. Such a distinction should not have the effect the state would have us ascribe to it, for that would deprive the Williamson case of its meaning. The authorities could, with impunity, simply destroy the best evidence of what was said by the accused, and then assert its unavailability in every case.

Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988).

The State admits that the trial court’s ruling on this point was erroneous, but contends that we should still affirm the conviction because (1) the evidence of guilt was overwhelming, and (2) the error was harmless. We reject both contentions.

Excluding the transcription of the appellant’s confession, there was no overwhelming evidence of guilt. The victim testified that the robber held a small caliber pistol on him; he said it was probably a .32, but that it may have been a .22 caliber pistol. The police found a .22 caliber pistol in appellant’s attic, and appellant told the police that the pistol in the attic was his. Some unnamed person told the police that a car similar to the defendant’s car had been used in the robbery and that there were two white males in it at the time. During the trial the victim testified that the robber was not in the courtroom. Such proof does not constitute overwhelming evidence of guilt.

Similarly, the State’s harmless error rebuttal must fail. In Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), we adopted the position that we would not reverse a case for errors that were not shown to be prejudicial. The State now argues that the appellant has not shown prejudice as a result of the trial court’s error in admitting the transcribed statement. The prejudice lies in the fact that the recording was the best evidence, and that without it, the defendant had no way of determining if the transcription was an accurate reproduction of his recorded statement. It was established that the transcription was not perfect, although the errors that were pointed out were admittedly only typographical. In any event, we do not require an appellant to show prejudice when it would be impossible as a practical matter for him to do so. Common sense dictates that appellant could not recall every detail of a statement taken over a two-hour period, which covers more than seven pages in the transcript. This is especially true in light of the stress an accused is under when he makes a statement. Our finding is buttressed by the testimony of Detective Hunt, who, although under very little stress by comparison, talked to the appellant for two hours just before the recording was made, and then at trial testified that he could not remember what they talked about. To require the appellant to remember and point out every discrepancy between the transcription and his recorded statement in order to show prejudice would place an unfair and onerous burden on him.

In summation, the trial court erred in allowing the transcription of the appellant’s confession to be read into evidence. This does not mean, however, that upon retrial the trial court cannot allow oral testimony about the confession into evidence. It is the transcription itself which was admitted in violation of the rules of criminal procedure.

Appellant next asks that we reverse and dismiss, rather than reverse and remand, because he was charged by information rather than indictment. In many cases, including most recently Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988), we have upheld charges by information against challenges based on the Fifth and Fourteenth Amendments to the Constitution of the United States. Appellant is aware of our cases and asks us to overrule them. We decline to do so. In Mannix v. State, 273 Ark. 492, 621 S.W.2d 222 (1981), we stated that a prior decision will be upheld unless an injustice will result. We do not find any injustice in the case at bar. Accordingly, we decline to overrule our cases, and refuse to dismiss this case.

The appellant’s brief contains two other assignments of error. We discuss them because they are likely to arise again upon retrial. Appellant argues that the consent to search his house, which the police obtained from his wife, was defective because (1) she did not have authority to consent, (2) she was coerced into giving consent, and (3) the written consent was not dated.

A consent to search creates an exception to the search warrant requirement. A.R.Cr.P. Rule 11; Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). A consent justifying a search of premises can only be given by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent. A.R.Cr.P. Rule 11.2. Here, the trial court was not clearly erroneous in finding that the police reasonably believed that appellant’s wife had authority to consent to the search of the premises. The police knew that the utilities were registered in her name; they knew she and her daughter were there; they knew the wife and daughter’s clothes were there; and finally, she told the officers she lived there.

Appellant next contends that his wife’s consent was coerced. Again, we cannot say the trial court’s ruling was clearly erroneous. The appellant’s wife testified to coercion on the part of the officers. The officers did not recall any statement or action which was coercive. Faced with two versions of the circumstances surrounding the giving of consent, the trial court simply made a credibility determination as to which witness to believe.

The appellant next argues that the consent was invalid in its form because it was only dated with the year, not with the day and month. The argument is without merit. The consent form was positively identified as the one which was executed at the scene on the day of the search. It is immaterial whether the form was dated.

The next assignment of error, which will arise again upon retrial, involves appellant’s assertion that his confession was involuntary because it was given in response to threats and false promises. We can quickly dispose of the argument with regard to the alleged threat. The appellant said he was threatened; the police said he was not. The credibility issue was for the trial court, and we cannot say its ruling was clearly erroneous.

The claim of involuntariness as the result of a promise made by the police is a much closer issue. A statement induced by a false promise of reward is not a voluntary statement. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). Some police statements are so clearly false promises of rewards that we do not find it necessary to look beyond the statement and the police action to decide that the confession was involuntary. Examples of such statements are found in Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975), in which the prosecutor told a defendant, who later received a life sentence, that a confession “would not result in more than 21 years incarceration,” and in Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), in which the defendant received the maximum sentence after being promised a recommendation of leniency and perhaps even dismissal of the charge. Such false promises of rewards constitute prosecutorial misconduct, and the confessions induced by them are to be automatically excluded.

In other cases the police statement and the later action does not provide sufficient information to decide whether it constitutes a false promise of reward. In such cases it is the vulnerability of the defendant, as determined by the totality of the circumstances, which determines whether a false promise of reward was made. This is why “it would probably help if you go ahead and tell the truth,” Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981), and “things would go easier if you told the truth,” Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979), were not false promises of reward, while “I’ll help you any way X can,” Tatum v. State, 266 Ark. 506, 585 S.W.2d 975 (1979), and “I’ll help all that I can,” Shelton v. State, 251 Ark. 890, 475 S.W.2d 538 (1972), were false promises.

The promise made in this case was that the officer would do all that he could for the appellant. The trial judge could not determine from this statement and the officer’s actions whether it constituted a false promise which resulted in an involuntary confession. Thus, the trial judge had to take into account and determine whether the appellant was vulnerable to such a police statement. Factors to be considered in determining vulnerability include the age of the accused, his education, his intelligence, how long it took to get the statement, his experience, if any, in criminal law, and the delay between the Miranda warning and the confession. Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). Here, all of these factors were not developed, but upon retrial, they should be. The trial court could then make a better determination on the issue of the defendant’s vulnerability to the officer’s statement. That determination must be made with full awareness that the custodial confession is presumed to be involuntary, and the burden is upon the State to show that it was voluntarily and intelligently made. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).

Reversed and remanded.

Hickman, Hays, and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. I disagree that either Williams v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), or A.R.Cr.P. Rule 17.1(a)(ii), require a reversal of this case.

Appellant was arrested on the morning of August 22,1986, for the aggravated robbery of W.L. Ferguson, which occurred at 11:45 a.m. the previous day. At police headquarters appellant was given the Miranda warnings and signed the appropriate forms indicating that he understood his rights and chose to waive them. He agreed to give a statement to be recorded on a cassette tape, provided his wife and daughter were present. That was agreed to and appellant gave a recorded statement to Detective David Hunt in the presence of his wife and daughter.

Appellant’s statement consists of eight pages in question and answer form in which he stated that he and Ray Graves drove down Tyler Road in Russellville, that Ray got out of the car and appellant drove down and stopped in front of the Dairy Queen on Hwy. 64. When Ray came running back to the road appellant picked him up, drove him to the Confederate Inn at Morrilton and came home. He said Ray had a .22 pistol which appellant hid in his attic and got $1,000 in the robbery, that Ray gave him $400 which he flushed down the toilet when the police arrived at his house the next morning. He said they had decided to rob “Cowboy” Ferguson because appellant’s brother, Ricky Hamm, told them Ferguson had a lot of money and was old.

Prior to trial appellant filed a request for discovery, asking for “a copy of any written or recorded statements, or the substance of any oral statements, made by the accused.” (Emphasis supplied). The state responded by furnishing a typed, verbatim copy of appellant’s statement.

Appellant moved to suppress appellant’s confession as being coerced and because the original tape recording was not available. At the suppression hearing Detective Hunt testified that after the tape recording was transcribed by a secretary, he listened to it and determined that the typed transcription was accurate and for budgetary reasons the original tape was not preserved. The court denied the motion to suppress and appellant’s statement was admitted at trial.

I do not find a breach of A.R.Cr.P. Rule 17.1 (a)(ii) in this instance. Appellant asked for a copy of a defendant’s statements and makes no contention that he did not receive just that. Moreover, Detective Hunt, whom appellant’s counsel characterized (in oral argument) as “a very honest officer” testified that the copy was an accurate, verbatim transcription of the tape and appellant makes no claim to the contrary. The only inaccuracy the appellant could point to in the suppression hearing was that Detective Hunt spoke of the robbery as occurring at 11:45 p.m., rather than 11:45 a.m. on August 21. Whether this discrepancy was his mistake or a typographical error was not resolved, but it is undisputed that the robbery occurred in the morning and the state never claimed otherwise.

Nor does Williamson v. State, supra, govern this case. In Williamson, the prosecutor furnished a typed copy of a tape recorded statement of a witness to the defense, but refused to permit the defense to have access to the original tape even though he still had it in his possession. We held that it was error for the trial court to refuse to order the state to permit the defendant to have access to the original tape.

In contrast, the tape no longer exists in this case and there is no contention that its absence is due to bad faith. Nor is this the statement of a third party, it is the statement of the defendant himself which he does not deny having given. Neither the appellant nor his wife testified to any inaccuracies between the taped statement and the typed copy and in the absence of any contention that the copy is materially flawed, the trial court’s ruling of admissibility ought not to be reversed. A.R.E. 1003 provides that a duplicate is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original. Appellant not only made no showing of a lack of authenticity, he does not even allege it. I would affirm the trial court.

Hickman, J., and Glaze, J., join this dissent.


author: Robert H. Dudley, Justice.

text:
    C.L. YOUNG v. STATE of Arkansas
    CR 88-133
    757 S.W.2d 544
    Supreme Court of Arkansas
    Opinion delivered October 3, 1988

      Hawkins & Metzger, by: Jay P. Metzger, for appellant.

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

The appellant, C.L. Young, and Victor Carver were jointly charged with the crime of rape. There was substantial evidence from which the jury could find that the appellant threatened the victim, a young man, with a knife, told him to take off his clothes, and do whatever the co-defendant wanted him to do. The codefendant then committed both oral and anal sex on the victim.

The appellant did not commit the sexual acts, therefore, the appellant’s criminal liability for any sexual offense must be based upon the conduct of the codefendant. The jury found the appellant guilty of sexual abuse in the first degree, a felony requiring forcible touching but not penetration, and found the co-defendant guilty of sodomy, a misdemeanor requiring penetration but not the use of force. See Ark. Code Ann. §§ 5-14-108(a)(1) and 5-14-122 (1987). The appellant argues that the verdicts arising from the same trial are inconsistent and that we must reverse and dismiss his case. We do not find the verdicts to be inconsistent.

The appellant argues that since the jury found the co-defendant guilty of sodomy, a crime which does not require force and since the codefendant was the one who committed the sexual acts, a finding that appellant used force to commit a sexual act is an inconsistent verdict.

The appellant’s argument is based upon a false premise. That false premise is that the jury found that the codefendant did not use force. The jury found, as they were instructed they could, that the codefendant committed sodomy, an offense included within the definition of rape. Contrary to appellant’s assertion, they did not make a finding on whether the codefendant did or did not use force. By statutory definition, their finding was only that the codefendant was of the same sex as the victim and that he penetrated the anus or mouth of the victim. On the other hand, they found the appellant guilty of sexual abuse, which by definition includes a finding of force. The two verdicts are capable of reconciliation. “Inconsistency” is generally understood to mean some logical impossibility or improbability implicit in the jury’s findings as between jointly charged defendants. See Annotation, Inconsistency of Criminal Verdicts As Between Two or More Defendants Tried Together, 22 A.L.R.3d 717 (1968). The jury could have found that appellant was the more culpable of the two defendants because he is the one who actually used the knife to force the victim to submit to the sexual acts. Accordingly, they found him guilty of the greater charge.

Appellant’s next point of appeal concerns an evidentiary ruling. The codefendant gave an in-custodial statement in which he denied the crimes charged, but stated that one year earlier he had performed oral sex on the same victim. The trial court admitted the statement into evidence against the codefendant. The appellant contends that the evidentiary ruling was erroneous. The trial court ruled correctly.

A.R.E. Rule 404(b) permits introduction of testimony of other criminal activity under certain circumstances. If it is “independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court.” White v. State, 290 Ark. 130, 140, 717 S.W.2d 784, 789 (1986). This concept is the basis for our holdings that in trials for incest or carnal abuse the State may show other acts of intercourse between the same parties. Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). Such evidence helps in proving the sexual instinct of the accused, Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), and is expressly applicable to cases of sodomy. Hummel v. State, 210 Ark. 471, 196 S.W.2d 594 (1946). Accordingly, the trial court did not err in its evidentiary ruling.

Affirmed.

       The jury was instructed, without objection, that sodomy was a lesser included offense within the crime of rape. We express no opinion on the correctness of that instruction.


author: David Newbern, Justice.

text:
    Weldon COVELL and Martin V. Carmical v. Roger BAILEY, et al.
    88-86
    757 S.W.2d 543
    Supreme Court of Arkansas
    Opinion delivered October 3, 1988

      Paul D. Groce, for appellants.

      John Patterson, P.A., for appellees.
   David Newbern, Justice.

The appellants, Weldon Coveil and Martin V. Carmical, challenged an ordinance of the City of Beebe which rezoned property adjacent to theirs. They sought injunction, mandamus, and declaratory judgment against the appellees, who are the members of the Beebe City Council, and David McAfee, who is the owner of the land. Mr. McAfee is also a member of the city council but did not vote on the ordinance which proposed to change the zoning from R-l, single family residential, to R-3, multifamily dwellings. Before the merits of the case were to be heard, the city council rescinded the ordinance. The chancellor granted the council members’ motion for summary judgment. Mr. Coveil and Mr. Carmical contend the passage of the rezoning ordinance was improper because of numerous irregularities including failure to follow pertinent city ordinances and other laws. They argue the trial court should have decided the issues they presented despite the rescission of the zoning change because the city council is likely to do the same thing again. We hold dismissal of the case was proper.

In granting summary judgment, the chancellor found that the case was moot. The appellants argue that even if the case was moot, their allegations of improprieties on the part of the appellees should have been heard and resolved because this is the type of case where there is great public interest and likelihood that the issues might never be resolved. They say it is like an election case where usually an election has been held before allegations of improprieties in the conduct of the election can be resolved. See, e.g., Henley v. Goggins, 250 Ark. 912, 467 S.W.2d 697 (1971); Carroll v. Schneider, 211 Ark. 538, 201 S.W.2d 221 (1947). Cf. Velasquez v. Clanton, 286 Ark. 317, 691 S.W.2d 849 (1985). Their next two arguments go together. They contend the rescission of the ordinance was invalid because an invalid ordinance cannot be rescinded. They also argue the appellees cannot make the case moot by merely stopping the course of illegal conduct, citing United States v. W.T. Grant Co., 345 U.S. 629 (1953), and Dermott Special School Dist. of Chicot County v. Gardner, 278 F. Supp. 687 (E.D. Ark. 1968).

The answer to these arguments lies in the complaint filed by the appellants. Their plea for writ of mandamus asked that “in the future proper procedure be followed by” the appellees. The chancellor properly noted he had no authority to issue a writ of mandamus. Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 777 (1970). The appellants’ plea for an injunction asked that the “action” of the appellees be negated. There was no course of action alleged affecting other landowners or the public generally. The only allegations were of specific improprieties resulting in the passage of the ordinance which purported to rezone the land adjacent to that of the appellants. Whether or not the rezoning ordinance was void, the rescission of it put an end to the matter, and we agree with the chancellor’s conclusion that the case was moot.

This is not like the election cases cited above where it was likely that if the issues raised by the complaint were not decided because they became moot they might never have been decided. There is no time problem here as in election cases. Nor is there a comparable public interest in having decided the only issues raised by the complaint in this case, that is, whether the appellees acted improperly in enacting an ordinance which has since been rescinded.

The appellants challenge the propriety of entering a summary judgment. Although we agree there are no remaining material issues of fact, we are not convinced summary judgment is the proper way to dispose of a case that is moot. The result will be the same if the case is dismissed, and there will be no possible implication that any issue has been decided favorably to the appellees. Exercising our de novo review of chancery cases, Hyde v. C.M. Vending Co., Inc., 288 Ark. 218, 703 S.W.2d 862 (1986); Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985), we substitute an order of dismissal for the summary judgment.

Affirmed as modified.