author: Rosalind M. Mouser, Special Justice. David Newbern, Justice, Robert L. Brown, Justice,

text:
    Dr. John SMITH, Vice President for Student Affairs, UCA; Winfred L. Thompson, President, UCA; and Madison P. Aydelott, III; Ben F. Burton; Elaine Goods; Rush Harding, III; Jerry Malone; Joe M. White; and Dalda F. Womack, Board of Trustees; UCA v. Heather A. DENTON
    93-1297
    895 S.W.2d 550
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      Mary B. Stallcup, General Counsel for UCA, for appellants.

      Linda P. Collier, for appellee.
   Rosalind M. Mouser, Special Justice.

In this appeal from a decision of the Faulkner County Chancery Court finding the firearms policy of the University of Central Arkansas facially void and violative of substantive due process and setting aside the three-year suspension of appellee Heather A. Denton, a UCA student, the appellants — the University of Central Arkansas and members of its administration and Board of Trustees — raise four points for reversal.

UCA argues that (1) the court had no power to set aside UCA’s disciplinary action against Ms. Denton, unless the university’s action was arbitrary, capricious, and contrary to law; (2) UCA’s decision to suspend Ms. Denton was neither arbitrary nor capricious; (3) UCA’s decision to suspend Ms. Denton was not contrary to law; and (4) Ms. Denton received procedural due process. These four questions can be grouped more coherently under two broad issues: whether Ms. Denton received (1) procedural due process and (2) substantive due process. Although the chancellor did not address the former topic, we have determined, on de novo review, that Ms. Denton was denied procedural due process. We uphold the decision of the chancery court when it reaches the right result, even if it did not enunciate the right reason. Cawood v. Smith, 310 Ark. 619, 839 S.W.2d 208 (1992). It is unnecessary for us to address the substantive due process issue,

Ms. Denton requested and was denied damages and attorney’s fees. On cross-appeal, she contends that the chancellor erred in finding that the actions of UCA and its agents did not exempt them from their immunity and in denying her damages and attorney’s fees. We agree with the chancery court’s findings and affirm its decisions on both the appeal and the cross-appeal.

Facts

In December 1992, after several firearms incidents on its campus, UCA issued a revised firearms policy, which provided that:

Any student possessing, storing, or using a firearm on University controlled property or at University sponsored or supervised functions, unless authorized by the University, will be suspended from UCA for a period of not less than three years unless a waiver of the suspension is granted by the President upon the recommendation of the Vice President for Student Affairs.

A copy of the amended firearms policy was delivered to every student organization and residence-hall room and was published on January 11, 1993, in the student newspaper.

On the morning of Saturday, February 13, 1993, Heather A. Denton, a UCA freshman honors student on a full academic scholarship with no disciplinary record, loaned her automobile to a friend, Victor Smith, a non-student. The vehicle was returned to her later in the day.

That evening, Ms. Denton, Eric Patterson, a UCA student, and a mutual friend, Rita Patel, went “cruising” off-campus in Ms. Denton’s car, with Mr. Patterson driving. While they were stopped in downtown Conway, a confrontation occurred with unknown occupants of a pickup truck. During the incident, a third vehicle arrived on the scene, and, reportedly, an unidentified person in that car waved a handgun.

Soon after these events, Mr. Patterson drove Ms. Denton’s car back to the UCA campus. A Conway police officer, who had received a report about the incident (including the brandished weapon), located and followed Ms. Denton’s vehicle to the campus and then stopped and searched it. An unloaded semi-automatic weapon was found in a backpack-style book bag beneath the passenger seat. Ms. Denton, Mr. Patterson, and Ms. Patel denied knowledge of the presence of the gun, though Mr. Patterson stated that it was owned by Victor Smith. Mr. Patterson was arrested and removed from the scene of the stop. No action was taken against either Ms. Denton or Ms. Patel by law enforcement officials.

After becoming aware of the incident, appellant Dr. John Smith, UCA Vice-President for Student Affairs, interviewed Ms. Denton on Monday, February 15, 1993. During the interview, Dr. Smith advised her that she was being charged with a violation of the firearms policy and was being suspended pending a determination by the Student Judicial Board. Dr. Smith ordered Ms. Denton to leave the campus immediately. No written notice of the charge was given to Ms. Denton prior to this meeting, nor did Dr. Smith simultaneously document the interview.

On Wednesday, February 17, 1993, some four days after the incident, the Student Judicial Board conducted a hearing. Various witnesses gave testimony, including Victor Smith, who admitted that he was the owner of the. gun and that he had borrowed Ms. Denton’s car to go shooting at targets with Mr. Patterson and his brother. He said that after they had finished, he put the gun in the book bag and placed it in the floorboard behind the passenger seat without Ms. Denton’s knowledge or permission.

The Board found Ms. Denton not guilty of the charge, declaring its belief that she “did not have knowledge that the weapon was in the car,” and recommended that no action be taken against her. Dr. Smith, however, rejected the Student Judicial Board’s finding and determined that Ms. Denton should be suspended. Ms. Denton then appealed Dr. Smith’s decision to the University Discipline Committee, which found her guilty of a violation of the firearms policy but recommended that the sanction be reduced. Dr. Smith, to whom the recommendation had been referred, withdrew from further consideration of the case.

As a result, Ms. Denton appealed the decision to appellant Dr. Winfred L. Thompson, President of UCA, who upheld the University Discipline Committee’s guilt determination but rejected its recommendation of a reduced sanction. Dr. Thompson then imposed the three-year suspension provided for in the UCA firearms policy.

On March 11, 1993, Ms. Denton filed a petition for a temporary restraining order in the Faulkner County Chancery Court, requesting that the court stay or enjoin her suspension from UCA. The following day, the chancellor entered a temporary injunction. Subsequently, on March 31, 1993, Ms. Denton filed an amended petition for a permanent injunction, asserting that UCA’s firearms policy failed, on its face, to provide substantive due process and that UCA’s actions failed to provide procedural due process. An expedited hearing was held on April 8 and 16, 1993. The chancery court converted the temporary restraining order into a permanent restraining order, finding that:

the UCA gun policy violates the 5th and 14th Amendments to the Constitution of the United States of America, in that it is violative of substantive due process; that is, the policy is void on its face and violates basic principles of democracy. The policy is hereby struck and any attempts to enforce the said policy against any student subsequent to April 16, 1993, will be sanctioned by the inherent contempt authority of the Court.

Having found that the firearms policy was facially void, the chancery court declared the procedural due process issue moot and declined to issue a ruling on the question. The court also found that the actions of UCA and its agents did not remove their immunity and, therefore, that Ms. Denton was not entitled to damages and attorney’s fees. From that order, this appeal and cross-appeal arise.

Standard of review

As the Administrative Procedure Act is not applicable to this case, we consider the evidence presented at trial on a de novo basis. The avenue for judicial review of the substance of academic decisions is narrow. See Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985). There is a general policy against intervention by the courts in matters best left to school authorities. Henderson State University v. Spadoni, 41 Ark. App. 33, 848 S.W.2d 951 (1993).

It is undisputed that UCA is a state-supported institution of higher learning which may delegate to its administration disciplinary power over non-academic offenses. A chancery court has no power to interfere in the exercise of a state-supported university’s discretion in the promulgation and implementation of disciplinary measures unless it is shown by clear and convincing evidence that the university abused its discretion. See Springdale Board of Education v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987); Williams v. Board of Marianna School District, 274 Ark. 530, 626 S.W.2d 361 (1982); Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962). We hold that there was clear and convincing evidence, outlined in the discussion below, that UCA’s actions constituted an abuse of the university’s discretion.

Procedural due process

The Due Process Clause of the Fourteenth Amendment to the United States Constitution gives rights to a student who faces suspension or expulsion for misconduct at a tax-supported college or university. Henderson State University v. Spadoni, supra, citing Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). A student facing suspension is entitled, at the very minimum, to some kind of notice and some kind of hearing. Goss v. Lopez, 419 U.S. 565 (1975).

The UCA “Standards of Student Conduct” promulgates disciplinary procedures governing the enforcement of university regulations. The student handbook notes that “the University strives to protect the rights of students involved in the disciplinary process by providing specific due process procedures, including appeals, to insure fair and just hearings.” (Emphasis added.) The Vice President for Student Affairs is charged with the responsibility of overseeing the disciplinary process and is assisted by several committees and hearing officers who are assigned specialized functions. The Student Judicial Board, comprised of eleven voting student members and the Dean of Students or a designee in an advisory capacity, hears serious, suspendable offenses. Appeals may be made to the University Discipline Committee, UCA’s chief appellate body, which consists of three faculty members, three administration representatives, and three students.'

The disciplinary process is initiated by the filing of a written report of an alleged incident of non-academic misconduct with the Office of Vice President for Student Affairs. Thereafter, according to the “Standards of Student Conduct”:

The Dean of Students will receive incident reports and assign discipline cases to the appropriate council and/or hearing officer as needed. The Student Judicial Board [or other appropriate council or hearing officer] make their recommendations to the Vice President for Student Affairs. Disciplinary action shall be taken only after a hearing is held and the Vice President for Student Affairs has reviewed the action and made a final decision.

(Emphasis added.) The hearings are conducted informally, without strict adherence to the rules of evidence.

A notice provision is set forth in the “Standards”:

The student(s) accused shall be notified, in writing, of the alleged charge and of the date, time and place of the hearing. Notice of hearing will be mailed to the student(s) or delivered to the residence hall room, if the student(s) lives on campus, at least three (3) days prior to the hearing.

(Emphasis added.) The accused and complainant are afforded the right to be present at the hearing, to present evidence by witness, affidavit, or deposition, to bring an advisor to the hearing, and to question all witnesses.

Appeals are assigned to the University Discipline Committee and must be made in writing to the Vice President for Student Affairs within three days after a disciplinary decision is rendered. One or more of the following reasons may serve as the basis of an appeal:

1. Inadequate opportunity to prepare defense;
2. Inadequate evidence to justify decision; or
3. Sanction not in keeping with gravity of wrong-doing.

The Vice President for Student Affairs is vested with the authority to make the final decision regarding all disciplinary concerns.

In the present case, UCA failed to adhere to its own expressly enunciated standards for ensuring procedural due process. The procedures provided by the university were not structurally flawed; in terms of actual compliance, however, the letter and spirit of procedural due process were violated. To protect due process, the courts, in matters pertaining to a governmental entity’s observance and implementation of self-prescribed procedures, must be particularly vigilant and must hold such entities to a strict adherence to both the letter and the spirit of their own rules and regulations. See Powell v. Heckler, 789 F.2d 176 (3rd Cir. 1986); Koolstra v. Sullivan, 744 F. Supp. 243 (D. Colo. 1990).

Here, there was no indication that the Dean of Students' reviewed the charge against Ms. Denton before it was referred to Dr. Smith or before the case was assigned to the Student Judicial Board, as required by the UCA “Standards of Student Conduct.” Instead, Dr. Smith, Vice President of Student Affairs, interviewed Ms. Denton on Monday, February 15, 1993, and verbally advised her that a disciplinary hearing would be held by the board. Having ordered her to leave the campus immediately, he then caused to be delivered to her vacated residence-hall room a written notice, dated February 15, 1993, of the hearing before the Student Judicial Board to be held “at 7:00 p.m., on Wednesday, February 17, 1993.” The notice, which more properly should have been mailed to her permanent address, was sent to the dormitory room two days prior to the hearing rather than three days beforehand, as required by the “Standards.”

Thus, UCA, by the terms of its own self-imposed standards, failed to provide Ms. Denton the promised protection of “specific due process procedures.” Yet not only was there a failure to comport with the letter of procedural due process, there was also a failure to abide by its spirit. Throughout the proceedings, Dr. Smith acted in a variety of often-conflicting capacities. He was at once investigator, prosecutor, witness, and judge. Although Dr. Smith, as Vice President for Student Affairs, clearly held the ultimate authority in disciplinary matters, he overrode the decision of the Student Judicial Board. No provision was made in the UCA handbook for the Vice President for Student Affairs to step aside from a case, yet Dr. Smith did so following the University Discipline Committee’s technical finding of guilt and its recommendation of a reduced sanction.

The matter was submitted for review to UCA President Dr. Winfred Thompson. He retained the three-year suspension because Ms. Denton’s appeal was based only on the lack of adequate evidence and not on the appropriateness of the sanction.

While the severity of the sanction is a stated basis for appeal under the UCA “Standards for Student Conduct,” the fact remains that “[a]ll non-academic discipline hearings are informal,” according to the handbook. To deprive a student of her educational property interest on narrowly formal grounds as exemplified in these circumstances is to violate the spirit of procedural due process. We hold that Ms. Denton was denied the “rudimentary elements of fair play” required by the Due Process Clause. See Henderson State University v. Spadoni, supra, citing Dixon v. Alabama State Board of Education, 294 F.2d 150, 159 (5th Cir. 1961).

Under the circumstances, Ms. Denton was denied procedural due process. We therefore affirm the decision of the chancery court, albeit for a different reason than that given by the chancellor. Cawood v. Smith, supra.

Cross-appeal: Attorney’s fees

The Arkansas Constitution prohibits awards of damages in lawsuits against the State of Arkansas and its institutions. Ark. Const. Art.5, § 20. If officers and employees of the State of Arkansas act without malice and within the scope of their employment, they are immune from an award of damages in litigation.

The chancery court specifically found that none of the officers and employees of UCA acted with malice. Likewise, the actions of UCA’s officers and employees fail to rise to “such reckless disregard of the rights of another as to constitute the equivalent of ill will.” Bland v. Verser, 299 Ark. 490, 774 S.W.2d 124 (1989). We affirm the chancery court’s findings on Ms. Den-ton’s cross-appeal.

Based upon the facts as found by the chancery court and the law set forth herein, we affirm the chancery court’s decision in all respects.

Affirmed.

Newbern, J., concurs.

Brown, J., dissents.

Roaf, J., not participating.

David Newbern, Justice,

concurring. The problem in this case, I think, is that the UCA firearms policy is offended by “possession” of a firearm without knowledge. The Student Judicial Board found Ms. Denton not guilty because she had no knowledge the pistol was in her car. Dr. Smith testified the school policy was violated regardless of knowledge. The Chancellor apparently gagged on that point and declared the policy to be in violation of Ms. Denton’s right to substantive due process.

While I agree UCA violated its own procedures somewhat, I also agree with the dissenting opinion’s point that we seem to be stretching to decide the case on that basis. The dissenting opinion seems equally extended, however, in its apparent conclusion that the evidence is sufficient to show Ms. Denton knew of the presence of the pistol in her car because it was in a book bag which was not pushed under the seat. I know of no evidence that the book bag was transparent or that anyone told her the pistol was in it. I dare say that had the contraband been drugs we would not have found the evidence of the presence of it in Ms. Denton’s car satisfied the constructive possession factors required to hold her in “possession.” See Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Those factors all point to whether the accused had knowledge of the presence of the contraband.

Substantive due process requires that legislation be rationally related to achieving a legitimate governmental purpose. See Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990). No doubt UCA had a legitimate governmental purpose for its policy, and the zeal with which the administration sought to implement it is laudable up to a point.

A policy which can be the basis of punishment of one who is the victim of circumstances created by others without her knowledge can also be said to be related to that purpose. It could place even the most innocent student in fear of being punished and thus perhaps serve the purpose. Such a policy is, however, in my view, irrational and unfair to the point that it cannot be said to be rationally related to anything. The Chancellor got this case right. I concur in the result reached by the majority opinion.

Robert L. Brown, Justice,

dissenting. This case involves the suspension of Heather Denton for having a semi-automatic pistol (TEC .22) and four loaded clips of ammunition (three fully loaded with 30 rounds and one with 29 rounds) in her car on campus. The majority stretches to affirm this case and ultimately does so on a completely different basis than that employed by the chancellor. The chancellor granted the injunction because he believed that Ms. Denton lacked the culpable intent to possess the pistol or even knowledge of it. According to the majority, however, Heather Denton was not afforded procedural due process because the notice of her first hearing before the Student Judicial Board was inadequate and the letter of the Student Handbook was not followed in every respect.

The majority is wrong to equate minor lapses in Student Handbook procedures with a violation of the United States Constitution. It is also wrong to affirm for reasons not even raised by Ms. Denton in her pleadings or argued in her brief in this appeal. What she argued to the chancellor was that Dr. John Smith was somehow biased against her and that Dr. Thompson should have discussed the case with her and her mother prior to the Discipline Committee meeting. However, the chancellor found: “I think Dr. Smith was simply trying to enforce the policy as he had been instructed to. And I find no fault in the way he has conducted himself in this matter, whatsoever.”

The majority disagrees and raises procedural lapses never pursued by Ms. Denton. What is patently unfair about this is the University has not had the opportunity to answer the majority’s asserted procedural deficiencies which amount to findings and conclusions by an appellate court. Ms. Denton never asserted a violation of her procedural due process rights in this appeal. The University, as a matter of fact, did contend that due process was given to Ms. Denton and told this court specifically how and why. Ms. Denton did not take issue with that contention. Now a majority of this court does take issue with that contention and does so in a way that forecloses the opportunity of UCA to respond.

But irrespective of the majority’s stretch to find a theory for the affirmance, there was no violation of procedural due process in this case. In December 1992, the University Board of Trustees adopted the gun policy at issue because of firearm incidents on campus:

Any student possessing, storing, or using a firearm on University controlled property or at University sponsored or supervised functions, unless authorized by the University, will be suspended from UCA for a period of not less than three years unless a waiver of the suspension is granted by the President upon the recommendation of the Vice President for Student Affairs.

The gun policy was fully disseminated to the student body.

On February 13, 1993, Heather Denton and the driver and a passenger, Eric Patterson and Rita Patel, were stopped in Ms. Denton’s car, a two-door Pontiac Firebird, on campus by a Conway police officer, Michael Edgmon. Edgmon had been following the car after a disturbance report at a Conway intersection. He searched the car at which time the automatic pistol and clips of ammunition were located in a black bag which had been partially pushed under the passenger seat from behind that seat. The bag was not under the seat as the majority proclaims. Ms. Den-ton denied knowledge of the pistol and clips. Patterson told the arresting police officer that the pistol was owned by Victor Smith.

On February 15, 1993, Dr. John Smith, the University Vice President for Student Affairs, interviewed Heather Denton. He showed her the police report by Officer Edgmon and advised her that she was charged with violating the University’s gun policy and was suspended pending a hearing. According to Dr. Smith and Ms. Denton, after being advised of the charge, they discussed alternatives for a hearing. Dr. Smith told her that she could have an administration hearing as early as the next day before the Dean of Students, Dr. Gary Roberts, or a hearing before the Student Judicial Board. The latter hearing was already scheduled for Wednesday, February 17, 1993. Ms. Denton stated that she would talk to Eric Patterson about it. She opted for a hearing before the Student Judicial Board.

Dr. Smith testified that he sent her a copy of his suspension letter dated February 15, 1993, with notice of the disciplinary hearing before the Student Judicial Board and a copy of Officer Edgmon’s police report. It is unclear whether he gave a copy of either to her at that meeting. The letter and police report were introduced as a joint exhibit at the subsequent trial. Ms. Denton denied receiving the letter before the Student Judicial Board hearing, although she admitted seeing a copy of the police report before that meeting.

On February 17, 1993, the Student Judicial Board comprised of student members conducted a hearing on the matter. Ms. Den-ton was notified of the hearing and present throughout it. Various witnesses were called and testified on behalf of Ms. Denton, including Eric Patterson, Victor Smith, Heather Denton, and Rita Patel. Officer Edgmon, Associate Director of the Department of Public Safety Glenn Stacks, and Assistant Dean of Students John Cagle testified in support of the University’s position. The majority opinion is in error when it concludes that the Dean of Students did not review the charge against Ms. Denton before the Judicial Board hearing. His assistant was at the hearing and participated. The Student Judicial Board recommended that no disciplinary action be taken against Ms. Denton because the Board believed that she did not know the gun was in her car.

On February 22, 1993, Dr. John Smith, after listening to the tapes of the Student Judicial Board hearing and after interviewing Ms. Denton, Eric Patterson, Victor Smith, Rita Patel, and Officer Edgmon as well as the Chairman of the Student Judicial Board rejected the Board’s recommendation. He stated that he believed that she was “guilty of possessing a weapon on the UCA campus” and determined that suspension was in order. At the trial of this matter, he testified that possession of a weapon without knowledge was a violation of the gun policy but that knowledge of the weapon was important for deciding the penalty to be assessed. The inconsistencies in the participants’ stories played a part in his decision to assess the three-year suspension. As between concluding that Ms. Denton knew of the handgun in her car or did not know, he concluded that she did. He especially was influenced by the fact that Victor Smith testified that he had thrown his black bag with the gun and clips on the floor in the back seat and had not pushed it under the seat. He was also influenced by the fact that Ms. Denton had been in her car earlier that afternoon when the gun and ammunition were there.

Ms. Denton appealed Dr. Smith’s decision to the University Discipline Committee comprised of University faculty, staff, and students. On March 4, 1993, which was two weeks after the Student Judicial Board hearing, the University Discipline Committee voted unanimously to hear Ms. Denton’s appeal and did so. Ms. Denton was notified of the hearing and attended. At the hearing that followed, Ms. Denton in attendance with her mother, Paula Jamison, testified and was questioned by the Chair of the Committee. Officer Edgmon also testified as did Dr. Smith. Officer Edgmon showed the gun and ammunition clips seized from the Denton car to the Committee. The Committee voted 5 to 2 to uphold the decision of guilty but to lessen the sanction. The Committee also voted to affirm the decision of guilty as to Eric Patterson and the full three-year suspension.

Ms. Denton next appealed the matter to Dr. John Smith to make the final decision. Because of Dr. Smith’s involvement, he recused and turned the file over to University President Dr. Winfred Thompson. Dr. Thompson reviewed the matter, and on March 9, 1993, he upheld the Committee’s decision but instituted a full three-year suspension for Ms. Denton.

On March 11 and 18, 1993, Ms. Denton filed her petitions for declaratory and injunctive relief. Later, a hearing on the petition was conducted and testimony was taken. At the conclusion of two days of testimony, the chancellor stated his ruling from the bench in which he referred to “gaping inconsistencies” in Ms. Denton’s story. Later, the chancellor entered his decree (1) declaring the University’s gun policy to violate substantive due process, and (2) granting a permanent injunction against the University’s suspension of Ms. Denton. The chancellor further ruled that there was no need for him to discuss procedural due process and that issue was moot.

The standard of review for interference in university disciplinary matters is stringent indeed and was best summarized by a recent Court of Appeals decision:

There is a general policy against intervention by the courts in matters best left to school authorities. “Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint.... By and large, public education in our Nation is committed to the control of state and local authorities.” Goss v. Lopez, 419 U.S. at 578, citing Epperson v. Arkansas, 393 U.S. 97 (1968). The courts have been reluctant to interfere with the authority of local school boards to handle local problems. Fortman v. Texarkana Sch. Dist. No. 7, 257 Ark. 130, 514 S.W.2d 720 (1974). A chancery court has no power to interfere with school district boards in the exercise of their discretion when directing the operation of the schools unless the boards clearly abuse their discretion. Springdale Bd. of Educ. v. Bowman, 294 Ark. 66 (1987). The burden is upon those charging such an abuse to prove it by clear and convincing evidence. Bowman, 294 Ark. at 71, 740 S.W.2d 909. Undoubtedly these general principles apply to disciplinary hearings for students at state supported universities and colleges.

Henderson State University v. Spadoni, 41 Ark. App. 33, 35, 848 S.W.2d 951, 953 (1993). Accordingly, the courts of this state should be most reluctant to interfere in disciplinary proceedings of state colleges and universities such as we have here except when violations of due process rights are clear and unmistakable.

Here, if anything, Ms. Denton received more in the way of due process protection than is required. She had two full hearings where she was present and where she testified and other witnesses testified on her behalf: one before the Student Judicial Board, which found her not guilty, and one before the University Discipline Committee, which found her culpable. In addition, her case was reviewed by the University Vice President for Student Affairs, Dr. John Smith, and by the President of the University, Dr. Winfred Thompson. That totals four reviews of her case before she took it to court.

The seminal case for procedural due process protection of students at state universities is Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961). There, the students were expelled from college, and the Fifth Circuit Court of Appeals held that those students were entitled to notice of the charges and the witnesses against them and a hearing allowing both sides to present their positions in complete detail prior to expulsion as part and parcel of due process. Although the Dixon case is credited with establishing a property right in a student’s attendance at a state university, the United States Supreme Court has yet to decide that issue. The Court has, however, assumed a student’s property interest in higher education in order to reach certain due process issues. See Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985).

The Eighth Circuit Court of Appeals has discussed procedural due process in the context of an unruly demonstration on a college campus:

We do not hold that a school has the authority to require a student to discard any constitutional right when he matriculates. We do hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; that it may expect that its students adhere to generally accepted standards of conduct; that, as to these, flexibility and elbow room are to be preferred over specificity; that procedural due process must be afforded (as Judge Hunter by his first opinion here specifically required) by way of adequate notice, definite charge, and a hearing with opportunity to present one’s own side of the case and with all necessary protective measures', that school regulations are not to be measured by the standards which prevail for the criminal law and for criminal procedure; and that the courts should interfere only where there is a clear case of constitutional infringement.

Esteban v. Central Missouri State College, 415 F.2d 1077, 1089-1090 (8th Cir. 1969), cert. denied, 398 U.S. 965 (1970). (Emphasis added.)

Though we must assume that Ms. Denton did not receive written notice three days in advance of the Student Judicial Board hearing as the Student Handbook contemplates, she never complained of lack of notice. In fact, she had full notice of the hearing. In Dr. John Smith’s office on February 15, 1995, she was shown a copy of Officer Edgmon’s police report on the Saturday night incident. The two then discussed whether Ms. Denton wanted an expedited administrative hearing before the Dean of Students or a hearing before the Judicial Board in two days which was already scheduled to meet. She chose the latter. The Due Process Clause of the United States Constitution does not require a written three-day notice. It requires notice, and everyone admits that Ms. Denton got notice of the hearing in this case.

She also knew the witnesses against her and what they would say before the Judicial Board hearing on February 17, 1993. Ms. Denton admitted seeing the police report of Officer Edgmon, which was the essence of his testimony, before that hearing. She also knew in advance the administration’s position as testified to by Assistant Dean of Students John Cagle. Ms. Denton, Eric Patterson, Victor Smith, and a friend, Rita Patel, testified in her favor, and the Judicial Board found her not guilty. Dr. Smith then listened to the tapes of the Student Judicial Board hearing and again interviewed pertinent witnesses and the Chairman of the Judicial Board. He decided not to accept the Board’s recommendation.

Fifteen days later, Ms. Denton appeared with her mother at the University Discipline Committee hearing and testified on her own behalf as did Eric Patterson. She certainly had written notice and knowledge of the witnesses against her at this hearing. Officer Edgmon and Dr. Smith testified against her. After the University Discipline Committee hearing, Dr. Smith disqualified himself from making the final decision because of his previous involvement, and the University President, Dr. Thompson, made the ultimate determination. Short of having a full-blown judicial proceeding with counsel present and cross-examination, which due process does not require in this context, Ms. Denton was afforded more than adequate procedural safeguards. See Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961); Nash v. Auburn University, 621 F. Supp. 948 (D.C. Ala. 1985).

Moreover, Dr. Smith did not violate the spirit of due process. He did investigate the initial charge against Ms. Denton on February 15, 1993, but he did not attend the Student Judicial Board meeting on February 17, 1993 — Assistant Dean of Students John Cagle did. Dr. Smith did attend the University Discipline Committee meeting on March 4, 1993 but only for the purpose of explaining his decision to suspend. That Committee did not agree with Dr. Smith’s decision on the penalty, and for that reason he disqualified himself from making the final decision. Far from violating due process safeguards, Dr. Smith was zealous in making certain that they were provided, a fact which the chancellor acknowledged.

The majority complains that Dr. Smith performed protean roles in this matter. Then, illogically, the majority concludes that Dr. Smith was wrong to step aside and let President Thompson make the ultimate decision. The sole reason for Dr. Smith to remove himself from the final decision was to eliminate any suggestion of a conflict of interest. His actions were appropriate and should not be twisted into a reason for concluding that there was a denial of due process.

The majority cites no case for the principle that failure to adhere strictly to Student Handbook procedures amounts, in itself, to a violation of a constitutional magnitude. That is because there are none. Here, Ms. Denton did not complain of lack of notice of the first hearing because she received notice. She did not complain of surprise witnesses against her because there were none, and she had full opportunity to present her own case. That is all that due process requires.

I am fearful that by requiring such strict adherence to student handbooks and equating those procedures to what the U.S. Constitution requires, we undermine the ability of universities and even primary and secondary schools to enforce their disciplinary policies. In this case, a legitimate school gun policy was violated, and there were no procedural lapses of constitutional significance. Indeed, Ms. Denton was allowed to present her case fully on multiple occasions. I dissent.

      For convenience, the appellants will generally be designated as a group by the commonly recognized abbreviation “UCA.”

      UCA’s first point for reversal is, in fact, merely a statement of the appropriate standard of review, and we treat it accordingly.

      Although the federal cases cited deal with Social Security claims, the stated principle was intended to apply to all governmental agencies.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Charles PATTON v. STATE of Arkansas
    CR 95-230
    895 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      John F. Gibson, Jr., for appellant.
    No response.
   Per Curiam.

John F. Gibson, Jr., filed a motion for rule on the clerk on behalf of his client, Charles Patton. The appellant requests a “rule on the clerk to, reinstate his appeal by filing the record tendered herewith; for an order permitting the Appellant to proceed with a belated appeal of his convictions on counts one, two and three ..and Appellant further prays that a record be prepared at the cost of the State of the entire proceedings on counts one, two and three . . . This appeal, however, involves two separate judgment and commitment orders. In one case, the appellant was convicted of three counts of delivery of a controlled substance, and, in the second case, the appellant was convicted of a fourth count of delivery of a controlled substance.

The judgment and commitment order for the fourth count of delivery of a controlled substance was entered on January 5, 1994. On March 9, 1995, the appellant tendered the record with the clerk and filed this motion for rule on the clerk. In this case the record was tendered more than seven months after the entry of the judgment. See Ark. R. App. P. 5(b). It is the attorney’s duty to file the record on time. Franklin v. State, 318 Ark. 324, 885 S.W.2d 23 (1994). When a complete record is not available, a partial record will suffice. If attorney will concede by affidavit within thirty days from the date of this per curiam that it was his fault that the record was not timely filed, or if other good cause is shown, then the motion will be granted.

As to the convictions for the three counts of delivery of a controlled substance, the judgment and commitment order was entered on August 5, 1993. First, contrary to the appellant’s statements, that record, which was tendered to the clerk on March 7, 1994, contained the trial proceedings on counts one, two and three. Second, the Court of Appeals dismissed the appellant’s appeal for failure to file a brief.

Because counsel for the appellant merges the two cases, we are unable to grant the relief requested. The motion for a rule on the clerk is denied without prejudice to file a proper motion.

Glaze, J., not participating.


author: Jack Holt, Jr., Chief Justice. Ernie E. Wright, Special Associate Justice,

text:
    James ARTHUR, M.D., Allan C. Gocio, M.D., Hot Springs Neurosurgery Clinic, P.A., St. Joseph’s Regional Health Center, Inc., Calcitek, Inc., Sisters of Mercy Medical Systems, Sisters of Mercy Health System — St. Louis Pooled Comprehensive Liability Agreement, and American Medical International, Inc. d/b/a National Park Medical Center v. Betty Jo ZEARLEY and Herman Zearley, Brad Cazort and Sandra Partridge, as Administrators of the Estate of Charlotte Phillips Cox, Deceased
    94-1012
    895 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered April 10, 1995
    [Rehearing denied May 15, 1995.]

      Friday, Eldredge & Clark, by: J. Philip Malcom, Robert S. Shafer, and Allison Graves, for appellants James Arthur, M.D., Allan C. Gocio, M.D., Hot Springs Neurosurgery Clinic, P.A..

      Wright, Lindsey & Jennings, by: Edwin L. Lowther, Jr., for appellants St. Joseph’s Regional Health Center, Inc. and Sisters of Mercy Health System.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Lyn P. Pruitt and Rhonda M. Wheeler, for appellant Calcitek, Inc.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Mike Huckabay and Tim Boone, for appellant American Medical International, Inc. d/b/a National Park Medical Center.

      Hicks Law Firm, by: Charles R. Hicks, George R. Wise, Jr., Lamar Porter, Bob Davidson and George Ellis, for appellees.

      Special Justices Ernie E. Wright and Bruce T. Bullion, join. Newbern, Glaze, Brown, and Roaf, JJ., not participating.

   Jack Holt, Jr., Chief Justice.

This is an interlocutory appeal from an order certifying a class action. Appellees Betty Jo Zearley and Herman Zearley successfully sought certification in circuit court of a variety of tort claims centered around medical malpractice arising out of the alleged improper surgical implantation, by Drs. James Arthur and Allan C. Gocio, of a product known as “Orthoblock” into the spines of several patients. Appellees Brad Cazort and Sandra Partridge, acting as administrators of the estate of Charlotte Phillips Cox, deceased, were permitted to intervene in the lawsuit and serve as additional class representatives. We initially granted a temporary stay of the trial court’s order certifying the class and requested the parties to file briefs. In examining the issues on their merits, we hold that the trial court abused its discretion in allowing the testimony of appellees’ counsel at the hearing, and in certifying the cause as a class action.

The appellants are the physicians, their clinic, the hospitals where the surgeries took place, and the manufacturer of Orthoblock, who, together, make the following assignments of error: (1) that the trial court erred in certifying the class; (2) that the trial court erred in permitting class counsel to testify and act as advocate in the same proceeding; (3) that the trial court erred in failing to deny class certification when there were pending lawsuits arising out of the same transaction or occurrence; (4) that the trial court erred by adding additional class representatives; (5) that the trial court erred in ordering the hospitals to breach the physician-patient privilege by identifying nonOrthoblock patients; and (6) that the trial court erred in finding that venue was proper in Saline County. We hold that trial court abused its discretion in allowing the appellees’ counsel to testify and acts as advocate in the same proceeding, and in certifying a class where individual issues predominated over common questions of law or fact. In so holding, it is unnecessary for us to address the remaining arguments, and we reverse and remand this case to the trial court with instructions to decertify the class.

Facts

On June 24, 1993, Appellees Betty Jo Zearley and Herman Zearley filed a complaint in Saline County Circuit Court alleging medical negligence, battery, fraud, outrage, strict liability and breach of warranty arising out of the surgical implantation of a medical product called “Orthoblock” into Mrs. Zearley’s spine. The Zearleys named as defendants Dr. James Arthur, who performed the surgery, Dr. Allan Gocio, who assisted in the procedure, their clinic, Hot Springs Neurosurgery Clinic, P.A. (together, the “physicians”), Calcitek, Inc. (“Calcitek”), the manufacturer of Orthoblock, and St. Joseph’s Regional Health Center, Inc., (“St. Joseph’s), where the procedure took place.

Approximately one year later, on June 9, 1994, the Zearleys amended their complaint to request certification of over 300 of the physicians’ patients who had undergone similar surgeries involving Orthoblock, and added the Appellant American Medical International, Inc., d/b/a National Park Medical Center (“AMI”), where some of the patients’ surgeries had tdken place. In response, Calcitek argued that due to approximately 80 other actions filed in other counties arising out of the same circumstances, the Zearley’s request for certification should be denied.

After a hearing at which the trial court allowed, over objection, testimony of Charles Hicks, one of the attorneys for the Zearleys and other parties seeking to become class representatives, it announced by letter opinion on July 7, 1994, its intention to certify a class against all defendants except AMI, who had not yet entered an appearance. Thereafter, the Zearleys filed a motion to approve notice to prospective class members and to add additional representatives. At a subsequent hearing on September 15, 1994, with AMI having entered an appearance, the trial court approved notice and allowed, over the objection of appellants, appellees Brad Cazort and Sandra Partridge, attorneys and administrators of the estate of Charlotte Phillips Cox, deceased, to intervene as parties plaintiff and to become additional class representatives. The trial court also ruled, over objection, that venue was proper in Saline County. It is from these adverse rulings that this appeal is taken.

I. Attorney as witness and advocate

The physicians, in a position adopted by Calcitek, AMI, and St. Joseph’s, allege that the trial court erred in allowing one of the attorneys representing the class, Charles Hicks, to testify and act as advocate at the July 7, 1994, class certification hearing. During this proceeding, Mr. Hicks took the witness stand and testified under oath while his associate, Mr. Porter, asked questions of him on direct examination. As the physicians assert in their brief, Mr. Hicks testified as to the characteristics of Orthoblock, commented on what medical X-rays showed, summarized the anecdotal complaints of his clients, described medical tools allegedly used to insert the Orthoblocks, offered his opinion on the expected length of trial and the adequacy of potential compensation, and concluded that there was “no question this is a mass injury situation.” It was also through Mr. Hick’s testimony that all of the appellees’ exhibits were introduced. While Mr. Hicks was undoubtedly the primary witness at the hearing, Betty Zearley and Herman Zearley also offered testimony. The physicians objected to Mr. Hicks’s testimony at the July 7, 1994, hearing, and again a post-hearing motion to reconsider and to disqualify him as counsel, both of which were overruled by the trial court. On appeal, Mr. Hicks asserts that he merely assisted the trial court with an analysis and evaluation of the proof, and was not actually a witness in the case.

Model Rule of Professional Conduct 3.7 provides as follows:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

The general rule is clear and unmistakable. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. The reasoning underlying the general rule is to prevent prejudice and a conflict of interest. The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Conversely, a witness is to tell the truth without loyalty to either party and without regard to which side his testimony might favor. Combining the dissimilar roles of attorney and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and his client. The court of appeals has written that:

There are several reasons for the general rule. First, because of interest or the appearance of interest in the outcome of the trial, the advocate who testifies at trial may be subject to impeachment and the evidentiary effect of his testimony will be weakened, thus harming his client. Second, opposing counsel may be handicapped in cross-examining and arguing the credibility of trial counsel who also acts as a witness. Third, an advocate who becomes a witness may be in the unseemly position of arguing his own credibility. Fourth, the roles of advocate and witness are inconsistent and should not be assumed by one individual. Last, the attorney should not act as both trial counsel and a material witness because of the appearance of impropriety.

Ford v. State, 4 Ark. App. 135, 139, 628 S.W.2d 340, 342 (1982) (footnotes omitted).

Our case law is equally clear. In Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977), in interpreting an earlier version of the same rule, we wrote:

The Arkansas Reports are replete with cases where this Court has registered its disapproval of an attorney testifying in an action in which he is an advocate. See: Canal Insurance Company v. Hall, 259 Ark. 797, 536 S.W.2d 702 (1976); Watson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974).
In this action, one of the appellant’s attorneys testified in behalf of appellant. We must again take this opportunity to reiterate strongly our disapproval of an attorney testifying in an action in which he is an advocate. An attorney who is to testify in an action should withdraw from the litigation. On the other hand, if an attorney is going to serve as an advocate for his client, he should refrain from testifying in the action.

Id. at 551, 559 S.W.2d at 151.

Other cases where we have made similar statements include the following: Purtle v. McAdams, 317 Ark. 499, 879 S.W.2d 401 (1994); Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990); Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983); Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979); Jones v. Hardesty, 261 Ark. 716, 551 S.W.2d 543 (1977); Canal Ins. Co. v. Hall, 259 Ark. 797, 536 S.W.2d 702 (1976); Dingledine v. Dingledine, 258 Ark. 204, 523 S.W.2d 189 (1975); McWilliams v. Tinder, 256 Ark. 994, 511 S.W.2d 480 (1974); Watson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974); Montgomery v. First Nat’l Bank of Newport, 246 Ark. 502, 439 S.W.2d 299 (1969); Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W.2d 23 (1968); Rushton v. First Nat’l Bank of Magnolia, 244 Ark. 503, 426 S.W.2d 378 (1968).

The exceptions to the general rule are equally clear. They are:

(1) A lawyer can testify if the testimony relates solely to an uncontested matter; (2) A lawyer can testify to the nature and value of legal services rendered in the case by the lawyer or his firm to the client; (3) A lawyer can testify if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

Not one of the three exceptions is applicable to the case before us. These three exceptions are the only ones provided by the rule. It is a settled rule of construction that when certain exceptions are specified in a rule, all others are excluded. The Latin maxim is expressio unius est exclusio alterius.

In the case before us, the trial court allowed Mr. Hicks’s testimony on the basis that he had “testified in a hearing on dealing with a procedural consideration by the court.” Accordingly, the appellees ask us to agree that because the class certification was “procedural,” Mr. Hicks did not act as an “advocate at trial,” and, as such, the general rule prohibiting an attorney from testifying is not applicable. In rejecting the appellees’ argument, we recognize that there is no exception that allows an attorney to testify about the propriety of a class certification in a contested case, and note that the creation of such an exception would not be a legitimate construction of the rule. An attorney in our system of jurisprudence is to serve as an advocate and is to have complete loyalty, within the bounds of the law, to his client. The attorney so acted at the certification hearing. He testified on direct examination about the characteristics of Orthoblock; testified about what medical x-rays showed; summarized the anecdotal complaints of his clients; testified to the foundation for introduction of exhibits; testified about the medical tools used in the procedure; an even testified that there was “no question this is a mass injury situation.” The beginning of his cross-examination is abstracted as follows:

I am the plaintiff’s counsel on the record on all pleadings in these 80 cases. Mr. Porter, who’s been asking me questions [on direct] is employed by my law firm . . .
I have a financial interest in all of this litigation . . . that I’m testifying to as a witness. At this very moment I am testifying strictly as to factual issues and not acting as advocate. I did not renounce my contingency fee before I took that stand ... As I’ve testified and put my credibility as issue from that witness stand, I have still maintained an attorney/client relationship with the 80-something different litigants in the lawsuits. (Emphasis added.)

The issue was whether a class should be certified. The issue was fully, even bitterly, contested by all parties at the hearing. The record of the certification hearing contains ten volumes. The appeal to this court of the certification ruling contains one abstract, and eight briefs. Mr. Hicks engaged in full and complete advocacy, representing his known clients with all of his considerable ability. Aside from his clients’ interests, he had something very close to a personal interest. He not only sought class certification, he also sought the identity of all possible clients who might become members of the class, as he asked for, and obtained, an order requiring the appellants to disclose the names, addresses, telephone numbers, and social security numbers of over three hundred other patients who had this same procedure so that they would become members of this lawsuit. The witness was advocating a class action with all of his ability. Under these circumstances, we hold that it was error to permit Mr. Hicks to testify and act as advocate in the same proceeding. In declaring that this ruling was in error, we acknowledge the trial judge’s finding that he would have certified the class in the absence of Mr. Hicks’s testimony. That being the case, we must now examine the remaining evidence to determine whether the trial court erred in certifying the class.

II. Class certification requirements

We review questions of class certification under an abuse of discretion standard. See Summons v. Missouri Pacific Railroad, 306 Ark. 116, 813 S.W.2d 240 (1991). Arkansas Rule of Civil Procedure 23(a) sets out the prerequisites to a class action:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

See also Summons v. Missouri Pac. R.R., supra.

In addition to these prerequisites, the class action must also be maintainable under Rule 23(b), which states in pertinent part that:

An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

See also Lemarco Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991).

The crux of the physicians’ argument, which is again adopted by reference by Calcitek, AMI, and St. Joseph’s, is that the issue of informed consent is foundational to the individual claims and cannot be tried on a class basis. We agree, and find persuasive the cases cited by the physicians in support of their argument. In Harrigan v. United States, 63 F.R.D. 402 (E.D.Pa. 1974), a paralyzed veteran alleged that he was negligently and fraudulently induced to submit to urinary tract surgery, and that he would not have consented to the surgery if he had been fully and correctly advised of the nature and consequences of the operation. In refusing Harrigan’s request to represent a class of all paralyzed veterans who had undergone similar urological surgeries on the basis of allegedly similarly misleading information, the Pennsylvania district court recognized that the “thrust” of his complaint involved the issue of informed consent:

The concept of informed consent is a complex one involving such issues as what information was supplied to each patient, what the emotional condition of each patient was, what each patient’s understanding of the information conveyed was, and whether there was a necessity of dispensing with the requirement of informed consent due to emergency conditions. A determination of informed consent in each case depends upon a separate inquiry into the facts surrounding each operation and an application of the facts to the governing legal principles.

63 F.R.D. at 405.

The district court in Harrigan concluded that there were no common issues of fact or law. This decision was cited by the California Court of Appeal in Brown v. Regents of University of California, 151 Cal. App.3d 982, 198 Cal. Rptr. 916 (3d Dist. 1984), which held that individual issues substantially predominated over common questions where plaintiffs brought eleven claims including intentional concealment, misrepresentation, battery, and negligence, alleging that they were negligently and fraudulently induced to consent to coronary care and medical treatment at a university medical center. The plaintiffs in Brown sought to represent a class of similarly-situated patients who had died or had suffered injuries from their coronary care at a university hospital, yet the court refused to do so, recognizing that a number of areas required individual proof:

Whether a particular class member relied on the representation, for example will require close scrutiny of what was said between a class member and his physician. A class member’s particular medical condition and method of treatment must be examined in order to determine proximate cause of any claimed damage and the actual extent of such damage. All of the foregoing involve questions of what is medically appropriate for a particular patient under his particular circumstances . . .
. . . [T]he court must grapple with complex issues relating to a patient’s medical condition prior to surgery, the need for medical care and the extent of such care required by his condition, the variable nature of the dialogue between physician and patient, the surgical process itself, and post-surgical complications and care.

198 Cal. Rptr. at 920.

In their brief, the appellees argue that the cases cited by the physicians involved the sole issue of informed consent, while the use of Orthoblock in the surgeries here provides the “common link.” They argue that because the use of this product itself was experimental in that it was not approved by the FDA for use in spinal surgeries, the physicians breached their duty to obtain informed consent by failing to use the word “experimental” in patient conferences. We do not find this argument persuasive, for the appellees are in no position to know what was said in the physicians’ oral conferences with other patients, as Dr. Arthur, in his deposition stated that each of the communications with the Orthoblocks were oral and not written. The appellees’ argument is further weakened by their own complaints, as the issue of informed consent is woven throughout their claims for negligence, battery, tort of outrage, and fraud or fraudulent concealment.

In support of their position that the requirements of commonality and predominance have not been met, the physicians refer to Ark. Code Ann. § 16-114-206 (1987), which sets out the burden of proof for a plaintiff in an action for medical injury, as well as a framework for considering the issue of informed consent in subsection (b), which states, in pertinent part, as follows:

(b)(1) Without limiting the applicability of subsection (a) of this section, where the plaintiff claims that a medical care provider failed to supply adequate information to obtain the informed consent of the injured person, the plaintiff shall have the burden of proving that the treatment, procedure, or surgery was performed in other than an emergency situation and that the medical care provider did not supply that type of information regarding the treatment, procedure, or surgery as would customarily have been given to a patient in the position of the injured person or other persons authorized to give consent for such a patient by other medical care providers with similar training and experience at the time of the treatment, procedure, or surgery in the locality in which the medical care provider practices or in a similar locality.
(2) In determining whether the plaintiff has satisfied the requirements of subdivision (b)(1) of this section, the following matters shall also be considered as material issues:
(A) Whether a person of ordinary intelligence and awareness in a position similar to that of the injured person or persons giving consent on his behalf could reasonably be expected to know of the risks or hazards inherent in such treatment, procedure, or surgery;
(B) Whether the injured party or the person giving consent knew of the risks or hazards inherent in such treatment, procedure or surgery;
(C) Whether the injured party would have undergone the treatment, procedure, or surgery regardless of the risk involved or whether he did not wish to be informed thereof;
(D) Whether it was reasonable for the medical care provider to limit disclosure of information because such disclosure could be expected to adversely and substantially affect the injured person’s condition.

(Emphasis added.)

In accordance with this statute, the jury will be called upon to assess several factors which will vary with each individual plaintiff, including the “position of the injured person” under section (b)(2)(A), as each patient will have a unique medical history and condition, diagnosis, and treatment plan. The complaints presented to the trial court indicate that while some patients had Orthoblock inserted at one level of the vertebrae, others had the device inserted at two or three levels. The Orthoblock was also used in different sizes and was shaped to fit the patient as part of the surgical procedure, and while some patients had repeat surgeries, others, including Mrs. Zearley, had the Orthoblock removed.

It is also significant that the type of information that would customarily be given “at the time of treatment” under section (b)(1) will also vary from patient to patient. According to the deposition of Dr. Arthur, the Orthoblock surgeries were performed between November 1989 and January 1993. During this span of three years and two months, both the physicians’ .experience with the use of Orthoblocks and the available knowledge concerning cervical fusion surgeries were constantly changing, which affected the content of their disclosures to the patients and the applicable standard of care. For example, Dr. Arthur stated in his deposition that he offered one patient, Mr. Hall, three options regarding the materials which could be used in the fusion procedure: freeze-dried bone, bone from his hip, and Orthoblock. Dr. Arthur further explained how medical knowledge of HIV transmission via freeze-dried bone had changed since the time of Mr. Hall’s surgery.

Referencing section (b)(2)(B), the knowledge of the patient or other person authorized to give consent will necessarily vary by virtue of prior experience and contact with other patients, and this difference will likely affect the finding of fact regarding the individual patient’s appreciation of the risks and the adequacy of the disclosures that were made. Also at variance is whether the patient would have chosen the Orthoblock surgery regardless of the risk, or if he or she would have simply preferred not to be informed. The application of section (b)(2)(C) requires inquiry into all the circumstances surrounding each individual case, including the testimony and credibility of the patient, the distress of the patient’s circumstances, and the jury’s assessment of what transpired at the informed consent conference. Referring again to Dr. Arthur’s deposition, the doctor related that Mr. Hall was in extreme pain when the Orthoblock procedure was discussed, and that Mr. Hall stated to him, “I don’t care what you use in there; just make my arm quit hurting.”

The ultimate trier of fact, in determining whether any limitation upon disclosure was reasonable in light of the patient’s condition in section (b)(2)(D), will undoubtedly take into account the available alternatives to the particular patient, his or her prognosis for recovery, the degree of the patient’s pain and suffering, the patient’s emotional stability, and other individual medical or psychological factors. We cannot say, in the main, that these facts alone provide the requisite commonality which warrants the certification of a class. In sum, when applying Arkansas’s informed consent statute to the facts in this case, it is clear that individual issues predominate over questions common to the members of the class on the issue of informed consent alone.

In addition to the facts surrounding informed consent, there are other issues which are uncommon to the class members. For instance, the issue of causation appears uncommon, such that even if the jury were to find that the physicians had not made a proper disclosure, such a failure and the resulting use of Orthoblock in surgery may not be the proximate cause of the patient’s injury or loss; rather, other factors peculiar to the patient’s medical condition may be the sole or proximate cause of damages. Moreover, the appellees’ claims for breach of warranty against Calcitek are likewise uncommon and inappropriate for class treatment, for each individual claim alleges a breach of the warranties of fitness and merchantability which proximately resulted in damages. For these reasons, we see no need to further discuss the issue of breach of warranty. While Calcitek adopts by reference the physicians’ argument on this point, it emphasizes in its brief that the individual claims for products liability are not suitable for class treatment as well. Calcitek cites the case of Raye v. Medtronic Corp., 696 F. Supp. 1273 (D.Minn. 1988), in support of its position, in which a Minnesota district court, in a products liability action involving a pacemaker, reasoned as follows:

This case is very similar to the cases cited by defendant in which courts refused to certify classes in actions alleging defective medical products. In those cases and in this case, there simply are not enough common questions of law or fact to justify use of the class mechanism. Issues which would need to be separately litigated with respect to each member include: causation, liability, and damages.

696 F. Supp. at 1275.

The rationale of the Raye decision is helpful in analyzing the facts before us, as here, Calcitek’s potential liability could differ among the individual claims, as the actions of the physicians, St. Joseph’s, and AMI as intermediaries will likely be at variance. As the California Court of Appeal stated in Rose v. Medtronics, Inc., 107 Cal. App.3d 150, 166 Cal. Rptr. 16 (1980):

Like any manufacturer of a potentially defective product, the defendant may face claimants with varying periods of use of the product, varying needs for its replacement, varying elements of causation, varying degrees of injury, and varying amounts of damages.

166 Cal.Rptr. at 20.

As the manufacturer of Orthoblock, Calcitek will face individual claimants who had the devices inserted at various levels of their spines over a three-year period, and who had varying needs for subsequent surgical procedures. As stated previously, the issue of informed consent will likewise vary from patient to patient, affecting the elements of causation, degree of injury, and damages.

Granted, when looking at the pleadings, there are common questions of law among the individuals seeking class certification, as all complaints allege the same legal theories of recovery — medical negligence, battery, fraud, outrage, strict liability and breach of warranty. We have said that under our Rule 23, a party seeking class certification has to show that there were common questions of law or fact. See International Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988), quoting Ross v. Ark. Communities, 258 Ark. 925, 529 S.W.2d 876 (1975). However, the party seeking certification must also show that the class action is superior to individual remedies. Id. Here, due to the large number of issues which are individual to each prospective class member, class certification is not superior to individual actions. In short, under the circumstances in this case, we hold that the trial court abused its discretion in ordering certification.

III. Conclusion

Granted, we have held that a trial court has broad discretion to allow or disallow an action to proceed as a class action. Summons v. Missouri Pac. R.R., supra, International Union of Electrical, Radio and Machine Workers v. Hudson, supra. While our approach taken recently to questions of class action certification has been described as liberal, we have not held that a trial court’s discretion is so broad that it cannot be the subject of proper review. See Summons v. Pac. R.R., supra.

On the record before us, we have no hesitation in holding that the trial court abused its discretion in allowing Mr. Hicks’s testimony, and in subsequently ordering certification. In so holding, we dissolve the temporary stay and reverse and remand the trial court’s order with instructions to decertify the class.

Special Justice Bruce T. Bullion joins in this opinion.

Special Justice Ernie E. Wright concurs in part and dissents in part.

Newbern, Glaze, Brown, and Roaf, JJ., not participating.

Ernie E. Wright, Special Associate Justice,

concurring in part, dissenting in part. I concur in the Majority opinion reversing the judgment of the trial court certifying this case as a class action; however, I disagree with its holding that the trial court abused its discretion in allowing Mr. Hicks, an attorney for the appellees, to testify at the pretrial proceeding on the procedural issue of whether the case should be certified as a class action. The word “pretrial” suggests proceedings preliminary to the trial itself, which normally refers to a trial on the merits.

Mr. Hicks’s testimony was not before the jury in a trial of the case on its merits, as it was offered and received by the trial court only on the procedural issue. I believe an appropriate application of Rule 3.7 is to construe it as applicable to testimony at trial of a case on its merits or incident to final disposition of the case, such as in summary judgment. There is substantial authority supporting this view. See Kapco Mfg. v. C & O Enter., 637 F. Supp. 1231 (N.D. Ill. 1985); Mobley v. Harmon, 313 Ark. 361, 854 S.W.2d 348 (1993); Parker v. State, 271 Ark. 84, 607 S.W.2d 378 (1980); and Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992).

In Mentor Lagoons, Inc. v. Rubin, 510 N.E.2d 379 (Ohio 1987), the Ohio Supreme Court reversed the trial court for refusing to allow the attorney for a party to testify on the ground that it might be in violation of the Code of Professional Responsibility. The court stated that the rule does not go to the competency of the testimony and that the trial judge must determine the competency of the testimony without reference to the disciplinary rule.

The federal courts, in dealing with the model rule, look with disfavor upon an attorney testifying on behalf of his client; however, they do not construe the rule as going to the competency of the testimony. See 9 A.L.R. Fed. 500-525. In the case of United States v. Morris, 714 F.2d 669 (7th Cir. 1983), the Seventh Circuit held that the district court did not abuse its discretion in allowing the attorney for the defendant to testify at a pretrial suppression hearing.

The trial judge has considerable discretion regarding the admission of evidence, and, on appeal, when the appellant fails to establish that the attorney’s testimony prejudiced him, the admission of the testimony is not a ground for reversal. In Re Marriage of Lee, 481 N.E.2d 1045 (Ill. App. 1 Dist. 1985). In Arkansas, the rule on appellate review is in accord, as this court does not reverse absent a showing of prejudice. Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993); Arkansas Public Service Comm’n v. Yelcot Tel. Co., 266 Ark. 365, 585 S.W.2d 362 (1979).

It is clear that the majority has concluded that the order certifying the class should be reversed on grounds other than Mr. Hicks’s testimony. It follows that the admission of the testimony is not properly included as a ground for reversal. While there may well be some question as to the propriety of attorney Hicks testifying, I do not view the action of the trial judge in allowing the testimony as an abuse of discretion or as any ground for reversal.

      Ms. Cox, had a pending action against the physicians, Calcitek, and AMI at the time of her death. Her attorneys, Cazort and Partridge, testified at the September 15, 1994, hearing in support of their motion to intervene and to serve as class representatives, which the trial court granted in its entirety.

      See Kenneth S. Gould, New Wine in an Old Bottle — Arkansas's Liberalized Class Action Treatment Procedure — A Boon to the Consumer Class Action?, 17 U. Ark. Little Rock L.J. 1 (1994).


author: Tom Glaze, Justice.

text:
    William L. AUSTIN and Deborah M. Austin, his wife v. ARKANSAS STATE HIGHWAY COMMISSION
    94-997
    895 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered April 10, 1995

      Branch, Thompson & Philhours, by: Robert F Thompson, for appellants.

      Robert L. Wilson, Chief Counsel, by: Charles Johnson, for appellee.
   Tom Glaze, Justice.

The appellants, William and Deborah Austin, purchased a tract of land on the outskirts, but within the city limits, of Paragould. The property is bounded on the west side by Highway 49 and the other three sides are bordered by property owned by different owners. The Austins had the property rezoned for commercial use.

A dispute resulted between the Austins and appellee Arkansas State Highway Commission when the Commission worked on a Highway 49 bridge located just north of the Austins’ property. Apparently, without notice to the Austins, the Commission’s bridge crew extended a metal guard rail south from the bridge and along the highway right-of-way fronting the Austins’ property. The Austins complained that the guard rail eliminated access to their property, and they lost all economic and beneficial use of it. As a result, the Austins filed suit in circuit court against the Commission, alleging that the Commission had taken their property in violation of the Due Process and Equal Protection Clauses of-the United States Constitution. The Commission moved to dismiss the Austins’ suit, stating the court lacked jurisdiction over the Commission because the Commission is a state agency which enjoys sovereign immunity under Article 5, Section 20 of the Arkansas Constitution. The Austins responded, arguing the Federal Supremacy Clause, Article 6, Section 2 of the United States Constitution, required the circuit court to enforce their constitutional claims. The trial court granted the Commission’s motion to dismiss, and the Austins challenge that decision in this appeal.

Arkansas law is well established that the Highway Commission cannot be sued, and this immunity cannot be waived even by the legislature. Bryant v. Ark. State Highway Comm., 233 Ark. 41, 342 S.W.2d 415 (1961); Ark. State Highway Comm. v. Nelson Bros., 191 Ark. 629, 87 S.W.2d 394 (1935). However, where the Commission threatens to take private property without making any provision for compensation, the landowner is entitled to enjoin the Commission from taking the property until an amount sufficient to cover the damages is first deposited in court. Such an injunction, restraining the commissioners from acting illegally, is not regarded as a prohibited suit against the state. See Ark. State Highway Comm. v. Partain, 192 Ark. 127, 90 S.W.2d 968 (1936). But where the landowner stands by and permits the Commission to take, occupy, and damage his lands, he could not maintain an action against the Commission to recover his damages, for such a coercive proceeding will constitute a suit against the state. See Ark. State Highway Comm. v. Bush, 195 Ark. 920, 114 S.W.2d 1061 (1938); Federal Land Bank of St. Louis v. Ark. State Highway Comm., 194 Ark. 616, 108 S.W.2d 1077 (1937).

Here, the Austins point out that they were never notified of the Commission’s work until after its completion, and they were unable to seek an injunction or claim damages before the taking took place. A similar situation occurred in Bryant, where the Highway Commission, without notice to the landowners, quickly closed their motel business’s only exits, and they had no time to seek injunctive relief. Nonetheless, this court explained Arkansas’s rigid and mandatory sovereign immunity provision as follows:

[I]t is contended that the Commission closed the exits so quickly that there was no time for an injunction to be sought. This argument misconceives the basis for the Commission’s immunity to suit after the taking or damage has occurred. The landowner’s inability to recover damages does not rest upon the doctrine of laches, in that he has slept upon his rights. Rather, the underlying reason for the court’s holding is simply a recognition of the fact that an action to compel the State to redress a past injury would unquestionably constitute a suit against the State. Such a proceeding is plainly forbidden by the constitution.

Based upon Arkansas’s sovereign immunity law, the Bryant court upheld the trial court’s dismissal of the landowner’s suit against the Commission.

While the Austins seem well aware of Arkansas’s mandatory sovereign immunity law, they argue that the trial court should still have jurisdiction to enforce their due process and equal protection claims under the Supremacy Clause. In reviewing the record, it does not appear the trial court specifically ruled on these federal claims, but, instead, it merely determined the Austins’ suit was in the nature of an inverse condemnation action against the State Highway Commission and should be dismissed because it violated Arkansas’s sovereign immunity law. Nonetheless, the lower court, in reaching its decision, apparently did consider the case of Light v. Blackwell, 472 Fed. Supp. 333 (E.D. Ark. 1979, aff’d mem. 620 F.2d 307 (8th Cir. 1980)), wherein a federal district court had an inverse condemnation case before it when it wrestled with the same-type constitutional claims the Austins now advance. In Light, the district court in pertinent part stated the following:

The complaint alleges that plaintiffs have been deprived of their constitutional right of due process because of the unlawful taking of their property without payment of just compensation in violation of the Fifth and Fourteenth Amendments. The plaintiffs here have not been deprived of due process since due process remedies are available to the plaintiffs in state court for the alleged taking of their property. Cf. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L. Ed.2d 711 (1977). Equitable relief could have been sought in the Pulaski County Chancery Court whereby the defendants for the State may be enjoined from the taking of property until just compensation is provided therefor. See Flake v. Arkansas State Highway Comm’n, 251 Ark. 1084, 476 S.W.2d 801 (1972), and Arkansas State Highway Comm’n v. Partain, 192 Ark. 127, 90 S.W.2d 968 (1936).
In the event a taking occurred before the plaintiffs had the opportunity to seek injunctive relief in the Pulaski County Chancery Court, then the plaintiffs have available to them the remedy of resorting to the State Claims Commission. See Ark. Stat. Ann. § 13-1401, et seq. (Repl. 1968) [now Ark. Code Ann. §§ 19-10-201 -210 (Repl. 1994)]. The State Claims Commission satisfies the constitutional requirement of due process, and is readily available to the plaintiffs for the relief they seek for the alleged wrongful acts. Thus having the remedies of the Pulaski County Chancery Court and/or the State Claims Commission available to them, it is not necessary for plaintiffs to resort to federal court for relief (Emphasis added.)

We agree with the Light decision where it holds that a landowner’s due process and equal protection claims are satisfied under Arkansas law since the landowner, claiming a taking of property, may either seek prospective injunctive relief in chancery court or damages from the State Claims Commission. Certainly, such holding is consistent with Roesler v. Denton, 239 Ark. 462, 390 S.W.2d 98 (1965), where this court held that in considering claims against the state, the State Claims Commission’s procedures and remedy satisfied the due process requirements.

We should further mention that this court, citing Armstrong v. Manzo, 380 U.S. 545 (1965), and Parratt v. Taylor, 451 U.S. 524 (1981), stated that the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner and due process requirements of the Constitution are satisfied when an adequate post-deprivation procedure exists. Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990). In Fireman’s Ins. Co., the court concluded that such due process requirements were met by Arkansas’s post-deprivation procedure under the State Claims Commission process.

We also point out that the Austins’ due process argument is the same argument advanced, considered and rejected by this court in Ark. State Highway Comm. v. Flake, 254 Ark. 624, 495 S.W.2d 855 (1973). There, the court made short shrift of the constitutional argument in a somewhat different way, by stating the following:

Counsel for the appellees, perforce conceding that “the award may appear to conflict with prior decisions of this court,” nevertheless insists that the landowners’ inability to sue the State involves a denial of due process of law. We cannot agree. Sovereign immunity was a common law doctrine that originated centuries before the Fourteenth Amendment was adopted. It still exists in many forms. In the Bryant case, supra, we considered and rejected the same arguments that are now presented by the appellees. We are urged to overrule that decision, but we think it should be sound.

We mention the Austins’ reliance on Lucas v. South Carolina Coastal Council, 504 U.S. 970 (1992), where South Carolina enacted restrictions upon the use of shore front property and those restrictions/regulations deprived the property owner of the economical viable use of his property. In Lucas, the Supreme Court held that the property owner suffered a “taking,” and here the Austins argue they suffer a similar taking, since the State Highway Commission erected a barrier across their property, thereby eliminating access to and losing all economical beneficial use of their property. Lucas is of no help to the Austins, since whether the Austins suffered a “taking” is not the threshold issue. As discussed above, even assuming a “taking” was had by the State Highway Commission’s actions, the pertinent questions to be answered are whether Arkansas’s sovereign immunity law is enforceable and whether a landowner’s right to seek injunctive relief in chancery court or damages via the State Claims Commission satisfy due process requirements. We answer those questions in the affirmative.

Finally, the Austins frame a second issue, contending the State Claims Commission cannot assume jurisdiction of constitutional claims because of the separation of powers. The issue was apparently not presented to .or decided by the trial court, and, as a consequence, we need not do so here. Suffice it to say that, in the circumstances of this case, the State Claims Commission has the jurisdiction to consider the Austins’ claim for damages against the state under Ark. Code Ann. § 19-10-204 (Repl. 1994) and such claim and hearing procedures are fully set out in Ark. Code Ann. §§ 19-10-205-210 (Repl. 1994).

For the reasons stated above, we affirm the trial court’s dismissal of the Austins’ suit.

Dudley, J., not participating.

      We note that, in rejecting the landowner’s due process argument, the Flake decision makes no mention of the State Claim Commission procedure, but instead, the court premised its decision based on the historical fact that sovereign immunity is a common law doctrine that originated centuries before the Fourteenth Amendment.