text:
    UHS OF ARKANSAS, INC. v. CITY OF SHERWOOD, Arkansas, et al.
    88-8
    752 S.W.2d 36
    Supreme Court of Arkansas
    Opinion delivered June 20, 1988
    [Rehearing denied July 18, 1988.]

      William H. Sutton; Walter A. Paulson II; H. Charles Gschwend, Jr.; Friday, Eldredge & Clark; and Robert L. Brown,

      P.A., for appellant.

      Steve Clark, Att’y Gen., by: George A. Harper, Special Asst. Att’y Gen., for appellees the Health Services Agency, the Health Services Comm’n, the Dep’t of Health (Division of Health Facilities Services), and the State of Arkansas.

      Howell, Price, Trice, Basham & Hope, P.A., by: Max Howell and William H. Trice HP, and Bob Dawson, for appellees.
   Steele Hays, Justice.

Appellant is UHS of Arkansas, Inc. Appellees are the City of Sherwood, Health Management Associates, Inc., Continental Medical Systems, (“The Sherwood Petitioners”), The Health Services Agency, The Health Services Commission, The Department of Health and The State of Arkansas (“The Health Respondents”).

The Sherwood Petitioners filed a suit for declaratory judgment against the Health Respondents in the Second Division of the Pulaski Chancery Court. After the declaratory judgment was entered UHS filed a motion to intervene, which the chancellor denied. The single issue presented on appeal is whether the motion to intervene should have been granted. We hold that it was error to deny UHS the right to intervene under the circumstances of this case.

This litigation arises because of Act 593 of 1987, codified as Ark. Code Ann. §§ 20-8-101 et seq. (1987). The act, as amended during the Extraordinary Session of the 1987 General Assembly, created The Health Services Agency and The Health Services Commission to evaluate the need for health services in Arkansas and to govern the issuance of permits for new or expanded facilities. The act mandated a two year moratorium on such facilities, but provided for certain classes of exemptions from the construction moratorium, one class apparently designed to exclude only the cities of Sherwood and Maumelle. It also provided for certain exceptions to permit requirements.

The Sherwood Petitioners’ declaratory judgment suit was filed on October 21, 1987. The petition alleged that Sherwood came within the exemption from the construction moratorium of Act 593 and that the section of the act did not violate Amendment 14 of the Arkansas Constitution prohibiting special or local legislation. Nineteen days later, on November 9, the Respondents answered the petition and on November 12 without a hearing of any kind a declaratory judgment was entered declaring that Act 593 was not special or local legislation and was, therefore, constitutional. The court further found the Petitioners were exempted from the moratorium and that no permit was required of them. Thus, the litigation between the Petitioners and the Respondents was concluded in twenty-two days. On the day after the judgment, UHS filed its motion to intervene and to reopen on the grounds that its rights were materially affected by the judgment, that the judgment was advisory in that no justiciable controversy existed between the parties, and that the judgment constituted a denial of due process. On appeal, UHS asserts it should have been granted intervention as a matter of right, in spite of the fact that the motion was made one day after the judgment was entered. We agree.

UHS operates a residential psychiatric facility within two miles of Maumelle. Charter Hospital of Little Rock, Inc. planned to construct a similar facility within Maumelle itself. When Charter obtained an exemption from the construction moratorium from the Health Services Agency, UHS sought review of that administrative decision in the circuit court and Charter intervened. Named as defendants in the suit by UHS were the State of Arkansas, Department of Health and The Health Services Agency and Commission. UHS also filed a second suit naming Charter as respondent seeking interpretation of the permit exceptions and a declaration that the moratorium exemption provisions were special and local legislation as applying only to Maumelle and Sherwood. Part of this litigation was pending in the same division of the Pulaski Chancery Court when the Sherwood Petitioners filed their suit in October.

Before examining the applicable legal principles, we observe that the pleadings of the Sherwood Petitioners and the Health Respondents, consisting entirely of the petition and answer, clearly demonstrate the lack of any justiciable issue between these parties. The petition alleges that Sherwood is entitled to a permit under Act 593, which the answer admits, and that Act 593 is constitutional, which the answer also admits, though it phrases it in the negative by “denying” that the act is ««constitutional. Plainly, there was no controversy between the parties on any point asserted in the pleadings. In Cummings v. City of Fayetteville, 294 Ark. 151, 741 S.W.2d 638 (1987), we repeated the requirements for declaratory judgments noted much earlier in Andres v. First Arkansas Development Finance Corp., 230 Ark. 594, 324 S.W.2d 97 (1959):

1. there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it;
2. the controversy must be between persons whose interests are adverse;
3. the party seeking declaratory relief must have a legal interest in the controversy; in other words a legally protectable interest; and
4. the issue involved in the controversy must be ripe for judicial determination.

Turning to the timeliness of the motion to intervene, we note that the status of the proceedings is only one of several factors to be considered. 26 Fed. Proc., L. Ed. § 59:376. The general rule is that post-judgment intervention will be allowed only upon a strong showing of entitlement by the applicant or a demonstration of unusual and compelling circumstances and the courts have shown a strong reluctance to grant intervention after a final judgment. Id. § 59:400. The Arkansas Court of Appeals stated in Bank of Quitman v. Phillips, 270 Ark. 53, 603 S.W.2d 450 (1980), that absent extraordinary and unusual circumstances, post-judgment intervention should not be allowed.

We consider first, whether UHS was entitled to intervention under ARCP 24(a) as a matter of right:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

An applicant must establish not only a sufficient interest, but also that the disposition of the action may as a practical matter, impair or impede an ability to protect one’s interest and that the interest is not adequately represented by the existing parties. UHS meets that test.

A party qualifies as having sufficient interest to intervene, where, as a result of a ruling on a governmental regulation, the party would suffer economic damage. 26 Fed. Proc., L. Ed. § 59:279. This theory supporting intervention recognizes an intervention by right where the interest of a company was in maintaining the economic vitality and competitive ability of its sole supplier. Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129 (1967). Similarly, UHS’s interest in the ruling on a regulatory exemption affecting it economically is sufficient, where one of two moratorium exemptions under the allegedly unconstitutional provision allows construction of a competing facility within the same geographic market.

A sufficient interest, however, is not conclusive. If the disposition would in no way affect an applicant’s ability as a practical matter to protect its interest, intervention is denied. 26 Fed. Proc., L. Ed. § 59:294. The issue of impairment is one of degree and must be weighed against competing interests of the plaintiff and defendant in the progress of their litigation without undue complication and in the public’s interest in a prompt resolution. Id., § 59:292.

One who does not intervene, whether or not by right, is not at risk of being bound by the litigation and is not subject to res judicata. 59 Am. Jur. 2d Parties § 131. Billabong Products, Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). The impairment that is faced by one who has been denied intervention and proceeds with his own litigation, is that of stare decisis. The courts are divided on whether this factor is sufficient impairment under Rule 24, see Intervenor — Impaired Interest, 74 A.L.R. Fed. 632 (1985), but when the issue is one of first impression and is being heard by the same court, the stare decisis effect is significant and the practical impairment requirement is met. Id., § 3; 29 Fed. Proc., L.Ed, § 59:295. In the case before us, UHS is facing not only stare decisis, but a decision of first impression to be determined by the same trial judge.

When these factors are weighed against such inconvenience as might result to the suit of the appellees, conducted as it was in a matter of twenty-two days from the time the complaint was filed to the time of the judgment, and consisting of the barest of pleadings, we have no hesitancy in holding that the practical impairment to UHS outweighs other considerations.

Another factor is whether an applicant’s interest is adequately represented. When the interest is identical with that of a party to the litigation, the interest is adequately represented, but where the applicant’s interest is significantly different from that of any party to the action, it is not, especially where those interests are adverse. 59 Am. Jur. 2d Parties § 141.

It is obvious UHS’s interest was not adequately represented in the Sherwood case. It was the contention of UHS that a provision of the act was unconstitutional and, as we have seen, none of the original parties on either side of the Sherwood case had any interest in finding the legislation unconstitutional.

Given the foregoing, we hold UHS was clearly entitled to intervene by right under Rule 24. That being so, we turn to the question of the timeliness of the motion to intervene. As we have noted, a post-judgment intervention will be allowed only upon a strong showing of entitlement or a demonstration of unusual and compelling circumstances. Here, we find both. While the motion to intervene did not precede the judgment, we think it was timely under the circumstances. The entry of the judgment was accomplished with extraordinary haste. Appellant’s motion to intervene was filed only twenty-three days after the petition was filed and only three days after the answer was filed. No discovery had been conducted, no depositions taken and no hearings had been held. At that stage of a proceeding, where little or no litigation has ensued, timeliness is generally not a consideration. See 26 Fed. Proc., L. Ed § 59:392. It would not be reasonable to charge an intervenor with untimeliness under these circumstances, where the motion for intervention would clearly have been timely but for the expedited manner with which the judgment was entered.

Nor can we say the original litigation would be burdened. Obviously, no great effort had been expended in the proceedings prior to the attempted intervention where the entire matter was concluded in so short a time.

In conjunction with our consideration of appellant’s interest in intervention and the matter of timeliness, we note as well the purpose of intervention, which is to eliminate duplication of judicial effort by avoiding a multiplicity of suits and to implement the basic jurisprudential assumption that the interest of justice is served when all parties interested in a controversy are afforded an opportunity to be heard. Id., § 59:255 (and cases cited therein).

Not only did UHS present to the trial court sufficient interest for intervention and, under the circumstances, a timely attempt, but it also provided the opportunity for the court to avoid a multiplicity of suits. Allowing appellant’s motion for intervention would have enabled all parties with an interest in the subject matter to be heard, and the suit could have been decided on the basis of a genuine controversy.

Reversed and remanded.


source: Caselaw Access Project

author: Tom Glaze, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Henry GUNN, Jr. v. STATE of Arkansas
    CR 86-194
    752 S.W.2d 263
    Supreme Court of Arkansas
    Opinion delivered June 20, 1988

      Marjorie M. Keel, Lonoke County Public Defender, for appellant.

      Steve Clark, Att’y Gen., by; C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted by a jury of second degree murder and sentenced to twenty years imprisonment. The Arkansas Court of Appeals, in an unpublished opinion, Gunn v. State, CA CR 85-29 (August 28, 1985), affirmed the appellant’s conviction. Pursuant to A.R.Cr.P. Rule 37, appellant filed a petition for post-conviction relief in this court, asserting a multitude of allegations regarding ineffective assistance of counsel. We granted appellant permission to petition in circuit court for an evidentiary hearing, limited to the issue of whether the prosecutor had entered the jury room, during the jury’s deliberations, to tell the jury about the parole system; and, if so, whether he suffered prejudice from his counsel’s failure to request a mistrial. Gunn v. State, 291 Ark. 548, 726 S.W.2d 278 (1987).

On September 21, 1987, the trial court held that the testimony elicited at the hearing clearly reflected that neither the prosecuting attorney nor his staff had entered the jury room. In this appeal, appellant does not question the trial court’s finding regarding the prosecutor. Instead, he now argues that error resulted at trial because the trial judge had communicated with the jurors during their deliberations, which violated Ark. Code Ann. § 16-89-125(e) (1987) and contravened this court’s holding in Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). We affirm.

In Madewell v. State, 290 Ark. 580, 720 S.W.2d 913 (1986), we held that all grounds for relief pursuant to Rule 37 must be asserted in the original or amended petition. See A.R.Cr.P. Rule 37.2(b) and (e). Accordingly, we consider only those allegations of ineffective assistance of counsel which the appellant raised in his petition and which we granted permission to consider. Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). Here, appellant alleged in his original petition that his counsel was ineffective because he failed to object or argue at trial and on appeal that the prosecutor entered into the jury room and made remarks to the jurors concerning the parole system. Nowhere in his thirty-five page petition did appellant allege any misconduct by the trial judge. On remand of this matter for an evidentiary hearing concerning the prosecutor’s alleged misconduct, the trial court heard and considered additional testimony regarding what misconduct, if any, the trial judge may have committed during the jury’s deliberations.

Suffice it to say, based upon the appellant’s original petition, we remanded this matter for an evidentiary hearing regarding the prosecutor’s, not the trial judge’s, alleged misconduct. The appellant may not employ such a hearing to develop other grounds for relief to those originally pled in his Rule 37 petition. In this appeal, appellant alleges and argues for the first time that error obtained as a result of the trial judge’s misconduct, therefore, we do not consider that issue.

Even if we reached the merits of appellant’s new allegation, we still would deny his request for post-conviction relief. A review of the testimony of the jurors reflects that even if the judge had gone into the jury room to answer a question, no information of substance was relayed to the jury. See Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987). The three jurors who recollected that the judge came into the jury room said that the judge stated either he could not answer their question concerning possible sentencing or he remarked the choices in sentencing were those given them in the jury instructions. The foreman testified that the judge gave them an answer and stated that he could not deliberate on either side — “He could not deliberate on anything that would be according to the jury to do.” Based upon the record before us, we are unable to hold that the outcome of the appellant’s trial was affected by his counsel’s failure to request a mistrial.

We affirm.

Purtle and Newbern, JJ., dissent.

John I. Purtle, Justice,

dissenting. I am unable to understand the reason or logic of the majority opinion. The appellant’s petition for Rule 37 relief was based upon the appellant’s belief that either the prosecutor or his deputy had entered the jury room during the jury’s deliberations. Our Per Curiam of March 23, 1987, granted the appellant an evidentiary hearing because this case was a “glaring example of an occasion when an evidentiary hearing is necessary.” The Per Curiam granted the appellant a hearing on his petition for the purpose of determining “whether the prosecutor entered the jury room.” Hearings were held in the circuit court on June 22, 1987, and September 11, 1987.

The circuit court denied relief basically because the court determined that it was the trial judge who entered the jury room rather than the prosecutor. No doubt the prosecutor and his deputy had made some investigation into the allegations prior to the hearing on June 22, 1987. The petition had been pending in the circuit court for several months prior to the hearing. Nine of the jurors testified at the hearing and all of them exonerated the prosecutor and his deputy. We do not know how the absent jurors would have testified. Several jurors testified that persons other than the prosecutor or his deputy entered the jury room during the deliberations. In fact, it was determined at these hearings that the jury deliberated for awhile in the court room and then moved into the regular jury room. Some of the testimony of those jurors who did testify indicated the jury deliberations had been tainted by at least the appearance of impropriety.

Juror Johnnie Kinley stated:

We had a question about something and Garland Bain [circuit clerk] came back. We had a question that had something to do with the punishment. I do not remember who answered the question. We asked Mr. Bain could we put life without parole and he said he did not know. He came and asked someone and he came back and said no, we could not do that, it would have to go to the high court.

The testimony of Juror William Taylor was as follows:

I do not recall either the prosecutor, his deputy, or any of his staff going into the jury room when we deliberated. The court man came in. We sent for him. He came in there to answer some questions. He stuck his head in at the door and that was it. It was the judge. He didn’t have a robe on. I would know him if I’d see him.

Juror Betty Winn testified:

The Judge, I believe his name was Spence, went into the room during deliberations. I could identify him if I saw him. (At this time Mr. Garland Bain was brought back into the courtroom.) That is not the man who came in the jury room during deliberations. The man who entered the jury room was a silver-haired guy. He was the judge during the trial. He didn’t have his robe on when he came into the jury room. We asked him if we could sentence him without parole and he told us that we couldn’t. We had the choices that were there that was given to us. We deliberated in this courtroom for a few minutes because the other room had something going on in it.

Juror Okie Bryant stated:

I believe that Mr. Bain came in because we had some questions for the judge. He went to the judge and got the information and came back. I know Mr. Bain.

Juror Althena Lingo stated:

The older man out in the hall, I think he is the Court Clerk, entered the jury room. I think the Judge came in to answer a question for the jury as we were deliberating.

All the jurors indicated that someone had entered the jury room during the deliberations and some of the jurors indicated a discussion had taken place with a non-juror concerning parole eligibility. This gave the appearance of impropriety even though whoever entered the jury room may have done so with utmost sincerity. Since the record is inadequate, we are unable to determine who entered the jury room and what exactly was discussed.

I realize this case was tried before we rendered the opinion in Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). I presume that trial courts are now making a record of all the proceedings which occur during the trial, including any discussions between the jury and others.

In Tarry we stated:

[W]e must infer that the judge went back into the jury room and answered the questions in some fashion; we do not know exactly how. The procedure was improper and must be deemed prejudicial to the defendant.

The same reasoning should apply in the present case. The appellant named the wrong person as the one who entered the jury room because he was not acquainted with prosecutor and judge. He should not be penalized for this mistake and we should consider the matter on its merits. This court today holds that the appellant wasn’t prejudiced merely because he was mistaken as to the identity of the person who entered the jury room. That distinction is not just splitting hairs; it is irrelevant.

Newbern, J., joins in this dissent.

       The trial court held a second hearing after some jurors testified at an initial hearing that either the bailiff or trial judge had entered the jury room and had responded to a question posed by the jury regarding what punishment could be given the appellant. The state actually subpoenaed the jurors, and no objection or mention of A.R.E. Rule 606(b) was interposed. We need not detail the sometimes vague testimony given by the jurors in their attempt to recall what had occurred three years ago during jury deliberations except to say that no vagueness or dispute existed concerning the prosecutor. All agreed that neither the prosecutor nor his deputy spoke to the jury during its deliberations.


author: Per Curiam. John I. Purtle, Justice,

text:
    Rev. Louis J. FRANZ, Individually and as Next Friend of Ronald Gene Simmons v. STATE of Arkansas
    CR 88-76
    751 S.W.2d 355
    Supreme Court of Arkansas
    Opinion delivered June 20, 1988

      Mark S. Cambiano, for petitioner.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for respondent.
   Per Curiam.

The execution of the sentence of Ronald Gene Simmons, Sr. to death is temporarily stayed.

The parties and the petitioner are directed to file contemporaneous briefs by June 27, 1988.

The questions to be briefed are: the standing of the petitioner, whether this court should have mandatory review of death cases, or, if there is no mandatory review, whether a decision to waive appeal in a death case should be reviewed by us, and, if so, whether the defendant in this case understood the choice of life or death, and knowingly and intelligently made that choice.

Any of the parties and the petitioner may appear before this court on Tuesday at 9:00 a.m., June 28,1988, for oral argument. Each party and the petitioner will be allotted 20 minutes.

A writ of certiorari is granted to bring up the records in the hearings held to determine the competency of the defendant to waive appeal. The parties and the petitioner need not abstract those records.

Temporary stay of execution granted, the parties and petitioner to proceed in accordance with this opinion.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I am compelled to dissent because there is no requirement or procedure for mandatory review of all death sentences. Although the appellant has an absolute right to appeal his conviction, he has the corresponding right to waive that appeal, provided he does so knowingly and intelligently. The trial court has made the determination that the appellant knowingly and intelligently waived his right to appeal. Unless we decide to change our rules, we are bound to apply the existing rules in all cases including this one.

The petition to amend our rules has been pending since June 6,1988. We have so far not deemed it appropriate to amend our rules to provide for such review. Since such a decision would not require any factual determination, there is no reason or justification to stay this proceeding.


author: Darrell Hickman, Justice.

text:
    David C. DUNCAN v. Donald R. MITCHELL
    88-123
    752 S.W.2d 43
    Supreme Court of Arkansas
    Opinion delivered June 27, 1988

      Pearson, Woodruff & Evans, by: Marsha C. Woodruff and Ronald G. Woodruff, for appellant.

      Bassett Law Firm, by: Curtis L. Nebben and Gary V. Weeks, for appellee.
   Darrell Hickman, Justice.

The question in this case is whether the trial court was wrong in denying the appellant’s motion for a new trial. We conclude the motion should have been denied because it was untimely. The trial judge should have summarily denied the motion under ARCP Rule 59(b).

On November 23,1987, the appellant got a $3,100 personal injury judgment. The appellant filed a motion for a new trial on November 25, 1987, contending the amount was in error. The motion was ultimately denied on December 15, 1987. A second motion for a new trial was filed on December 11,1987, alleging jury misconduct.

At the hearing on the second motion for a new trial, the appellee pointed out that the motion was untimely and that the basis of the motion, the affidavit of a juror, was clearly inadmissible because it related to a matter that occurred in the jury room, citing A.R.E. Rule 606(b). The appellant responded by asking for an opportunity to offer testimony from the juror, who made the affidavit, of a conversation that occurred outside the jury room between men who may have been on the jury panel.

The judge allowed the appellant to proceed and eventually denied the motion as meritless. However, the hearing should not have been held. The motion was untimely, because a motion for a new trial must be filed within ten days of the judgment. ARCP Rule 59(b).

Affirmed.


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

text:
    Michael HINKLE v. Lillie PERRY, Western Indemnity Company, Inc. and B.L.C. Insurance Co.
    87-354
    752 S.W.2d 267
    Supreme Court of Arkansas
    Opinion delivered June 27, 1988

      Daggett, Van Dover, Donovan & Cahoon, by: Robert J. Donovan, for appellant.

      Wilson, Bell & Neal, for appellee Lillie Perry; Rieves <fe Mayton, by: Elton A. Rieves IV, for appellee and cross-appellant Western Indemnity Company, Inc.; and Wright, Lindsey & Jennings, for appellee Principal Casualty Insurance Company (formerly B.L.C. Ins. Co.).
   Steele Hays, Justice.

This is a damage suit arising from a motor vehicle collision between appellant Michael Hinkle and appellee Lillie Perry. Ms. Perry struck the rear of Hinkle’s vehicle while he was stopped in traffic, and he sued her for personal injuries and property damage. Hinkle was driving a 1980 Oldsmobile titled in the name of “Michael’s Auto Sales,” Hinkle’s business.

Ms. Perry was uninsured, so Hinkle joined as defendants, his own insurance carrier, Principal Casualty Insurance Company (formerly B.L.C. Insurance Company), appellee, and his parents’ insurance carrier, Western Indemnity, also an appellee. Western had insured the Oldsmobile through a policy issued to Hinkle’s parents.

The trial court granted summary judgment to Principal, finding that the Oldsmobile was not covered by Principal’s policy. The case was tried to a jury which found for Hinkle and awarded $500 in damages for personal injuries, and $300 in property damage. On appeal, Hinkle raises three arguments for reversal and Western cross-appeals the denial of a directed verdict.

I

Hinkle first argues the trial court erred in failing to grant a new trial on the issue of damages because the amount of the verdict was clearly against the preponderance of the evidence. Hinkle contends the evidence showed that he had incurred $6,976 in medical expenses, yet the jury awarded only $500 for his personal injuries. On that basis Hinkle maintains he is entitled to a new trial limited to the amount of damages. ARCP Rule 59. We reject the argument. We have held a number of times that we will not affirm a judgment on the issue of liability and order a partial new trial on the issue of damages. In DeVazier v. Whit Davis Lumber Co., 257 Ark. 371, 516 S.W.2d 610 (1974), we said:

The relief which appellants seek is not permissible. We have consistently refused to affirm a judgment on the issue of liability and allow a partial new trial or one limited only to the issue of damages. Clark v. Ark. Democrat Co., 242 Ark. 497, 413 S.W.2d 629 (1967); Manzo v. Boulet, 220 Ark. 106, 246 S.W.2d 126 (1952); and Krummen Motor Bus & Taxi Co. v. Mechanics’ Lbr. Co., 175 Ark. 750, 300 S.W. 389 (1927). See also 58 Am. Jr. 2d, New Trial, § 27. The rationale is that a verdict, the foundation of the judgment at law, is an entity which cannot be divided by the trial court. Therefore, the trial court was correct in denying appellants’ motion for a new trial.

And see Johnson v. Truck Ins. Exchange, 285 Ark. 470, 688 S.W.2d 728 (1985).

II

Hinkle also contends the trial court erred in refusing to give that portion of AMI 2204 which allows a jury to consider transportation costs as part of the “reasonable expense of any necessary medical care, treatment and services rendered.” (AMI 2204). Hinkle had seen three different doctors who were located some distance from his home. He testified to the number of visits he had with each one and to the approximate distances involved. Beyond that, there was no evidence of the cost of transportation. The trial court sustained an objection to the transportation expenses because the evidence was too speculative. We cannot say the proof was such that it was error to refuse to so instruct the jury.

Ill

As his last point, Hinkle argues the trial court erred in granting summary judgment to Principal Insurance Company, successor to B.L.C. Insurance Company. A policy had been issued to Hinkle by B.L.C. providing for uninsured motorist coverage, and Hinkle had joined the company as defendant in his suit. Principal was granted summary judgment on the grounds that the policy did not provide coverage for any damages arising from the use of the vehicle that was involved in this accident. Hinkle appeals from the order granting that judgment.

Principal’s claim for denial of coverage was based on one section of the policy provision on uninsured motorists:

EXCLUSIONS:

A. We do not provide coverage under this endorsement for bodily injury sustained by any person:
1. While occupying, or when struck by, any motor vehicle owned by you or any relative which is not insured for this coverage under this policy.
{Relative is defined by the policy as “a person living in your home and related to you by blood, marriage or adoption. . ,”)

Principal’s motion for summary judgment contended that the car Hinkle was driving at the time of the accident was in fact owned by him, and had not been insured for coverage under his policy. Therefore, the exclusion clause precluded any recovery.

In a motion for summary judgment, the burden is initially on the movant to show he is entitled to the judgment and there is no issue of fact. Once he makes a prima facie showing of entitlement, the respondent must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact. Hughes Western World v. Westmoor Mfg., 269 Ark. 300, 601 S.W.2d 826 (1980).

Principal presented evidence in its motion to prove Hinkle had purchased the 1980 Oldsmobile in August 1985, that it was titled in the name of Michael’s Auto Sales, and that the car was not insured under Hinkle’s policy with Principal. It further showed through depositions, interrogatories and statements by Hinkle that in addition to being titled in the name of his business, he had possession of the title certificate.

Hinkle countered with an affidavit stating that he had purchased the vehicle for resale through Michael’s Auto Sales; that his parents had contacted him about purchasing the automobile and had taken possession of it; that on the day of the accident Hinkle had exchanged vehicles with his parents so that they could move an article in his truck; that the trade was for a day only, and on that particular day the accident occurred. Hinkle also stated his parents had purchased insurance to cover the 1980 Oldsmobile.

While possession of personal property is prima facie evidence of ownership, Velder v. Crown Exploration Co., 10 Ark. App. 273, 663 S.W.2d 206 (1984), it is only prima facie evidence of title and must yield to actual title. Forrest v. Benson, 150 Ark. 89, 233 S.W. 916 (1921). Hinkle’s proof for summary judgment established only bare possession with the possible intent to buy, which bestowed upon the parents no status beyond that of bailees. See 8 Am. Jur. 2d Bailment § 40. As against one with title, then, ownership rests with the holder of the actual title. With no greater evidence than Hinkle produced, the trial court was correct to find the appellant owned the automobile in question and therefore recovery was excluded under his policy.

Hinkle’s reliance on his parents’ purchase of insurance is misplaced. Their purchase of insurance on the vehicle does not change the result, as an insurable interest is not dependent on ownership (see 7 Am. Jur. 2d Automobile Insurance § 42). The fact that one has an insurable interest is not probative of ownership but only goes to proof that the interest is among those considered insurable as opposed to those which are not. The question here would have been what the nature of the insurable interest was, and Hinkle’s evidence showed only that his parents were bailees.

IV

Western Indemnity Company raises one issue on its cross-appeal. Michael Hinkle’s parents had taken possession of the 1980 Oldsmobile he had purchased for his auto sales business with the idea they would drive it and then decide if they wanted to buy it. It was under these circumstances that the Hinkles purchased insurance for the vehicle from Western Indemnity.

Michael Hinkle joined Western as a defendant in his suit, claiming coverage under the policy Western had issued to his parents. Western moved for a directed verdict on the grounds that the Hinkles did not have an insurable interest in the vehicle. The motion was denied, and Western cross-appeals.

Citing our statute on insurable interests, Ark. Code Ann. § 23-79-104 (1987) [Ark. Stat. Ann. § 66-3205 (Repl. 1980)] Western argues that the Hinkles did not have “any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance,” initially, or “at the time of loss.” Western contends that while the parents had possession, the title remained with Michael Hinkle, that no money was ever exchanged for the car, and no contract was ever entered into for purchase of the car. Western further maintains that even if the parents were found to be bailees, that relationship was terminated when the parents “re-delivered” the car to Michael on the day of the accident, and there was no insurable interest “at the time of the loss.”

We stated in Sullivant v. Pennsylvania Fire Ins. Co., 223 Ark. 721, 268 S.W.2d 372 (1954), that “[a bailment] may be comprehensively defined as a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it, or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be.” Such a contract of bailment may be implied from the circumstances of a transaction or from the words and acts of the parties evincing a purpose to enter into that relation toward the property, as well as by an actual agreement. 8 Am. Jur. 2d Bailment § 63.

An arrangement whereby the property is delivered to a party for the purpose of ascertaining whether the property is suitable for purchase, is a typical bailment. Id., §§ 40, 44. The arrangement is not a gratuitous bailment, but one that is for the mutual benefit of the parties. Id., § 26. A bailment for mutual benefit of the parties requires the bailee to exercise ordinary care. Warren v. Geater, 206 Ark. 518, 176 S.W.2d 242 (1943).

There is no doubt that the Hinkles were bailees in this case. They took possession of the car with the understanding they were going to try it and purchase it if it proved satisfactory. The Hinkles had the car for some period of time and had put about 1000 miles on it at the time of the accident. Furthermore “[i]t is universally recognized that a bailee in possession of property has an insurable interest in the goods in his possession and may insure them for their full value.” 8 Am. Jur. 2d Bailment § 137. See also, Couch on Insurance, § 24:22; Farmers Butter & Dairy Coop v. Farm Bureau Mutual Ins. Co., 196 N.W.2d 533 (Iowa 1972) (plaintiff was a bailee with insurable interest while in possession of a truck for a trial period with option to purchase); Bird v. Central Mfgs. Mutual Insurance Co., 120 P.2d 753 (Or. 1942) (plaintiff was bailee with insurable interest while borrowing a car for a trip). We have no difficulty holding that Michael Hinkle’s parents were bailees and had an insurable interest in the vehicle in question.

Western contends, however, that even if the Hinkles had an insurable interest as bailees, that status was terminated at the time of the accident by virtue of the “re-delivery” of the property. Redelivery is only one of the ways a bailment may be terminated, and the fact that a bailor shares with the bailee the use and enjoyment of the subject of the bailment, does not necessarily mean the bailment has terminated. It depends on the circumstances of the case whether use of the property by the bailor will be considered a termination of the bailment, and if the facts are in dispute, it is for the jury to determine. Id. 8 Am. Jur. 2d Bailment § 292.

Here, the only evidence on this point was that the parents were in continuous possession of this vehicle and that Hinkle had borrowed the car for only a day. The parents contend they were planning to buy the vehicle, and would have, had it not been for the accident. There was evidence from which the jury could find that the bailment had not terminated by redelivery of the car and at the time of the accident, the Hinkles still had an insurable interest in the vehicle.

AFFIRMED.

Hickman, J., and Dudley, J., concur.

Newbern, J., concurs in the result, but would affirm pursuant to Rule 9.

Robert H. Dudley, Justice,

concurring. I concur in the affirmance of the trial court, but I do so on the first two points of appeal because of the appellant’s flagrant violation of Rule 9(d) of the Rules of the Supreme Court and the Court of Appeals. I agree with the reasoning expressed by the majority on the third point.

Point one of .the appellant’s argument is: “The trial court erred in failing to grant a new trial on the issue of damages.” Yet, in his abstract, appellant makes no reference to a motion for a new trial being filed with, being presented to, or being ruled upon by the trial court.

Point two is: “The trial court erred by deleting that portion of A.M.I. 2204 instructing the jury that Mr. Hinkle [appellant] may be entitled to recover transportation expenses incurred in securing medical care.” Even so, the appellant failed to abstract any part of the proffered instruction.

The appellant has tacitly admitted that his brief was flagrantly deficient on the first two points of appeal. In his reply brief, he wrote:

Due to error, the appellant’s attorney failed to abstract the motion for new trial, the trial court’s order ruling on the motion for a new trial, a disputed instruction and three questions on voir dire.
When this defect was raised, the appellant voluntarily republished his abstract and brief and filed a motion with the court asking permission to file the republished abstract and brief. Since the appellees responded to all of the points raised on the merits, no prejudice nor delay will result if appellant’s republished brief and abstract is considered on Point One and Two.

Because the appellant’s brief is flagrantly deficient on the first two points of appeal, I would affirm those two points on the basis of Rule 9(d) of the Rules of the Supreme Court and Court of Appeals, and I would not reach the merits of those two points.

Hickman and Newbern, JJ., join in this concurrence.

       Appellant’s apparent theory for recovery was that if he did not own the car he was driving at the time of the accident, he would be covered by his policy.

       We note that even though Western issued the policy and the Hinkles told the agent they were planning to buy the car, and did not state they owned it, the doctrines of waiver and estoppel do not apply. We have specifically held that in view of the strong public policy against enforcing insurance contracts in which there is no insurable interest involved, those doctrines are completely inapplicable to create coverage which otherwise does not exist. Farm Bureau Mutual Insurance v. Glover, 2 Ark. App. 79, 616 S.W.2d 755 (1981).


author: Steele Hays, Justice.

text:
    Billy Jack KAIN, Jr. v. STATE of Arkansas
    CR 87-222
    752 S.W.2d 265
    Supreme Court of Arkansas
    Opinion delivered June 27, 1988

      Frazier and Ferguson, by: Gregory Ferguson, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor Gen., for appellee.
   Steele Hays, Justice.

This is a belated appeal from an order of the Craighead Circuit Court denying a Rule 37 petition by Billy Jack Kain, Jr.

Appellant was charged in August, 1982 with kidnapping and rape. After several psychiatric examinations with conflicting results, appellant was adjudged to be competent and on September 7, 1984 he entered a plea of nolo contendere, receiving a sentence of twenty-three years with ten years suspended.

In January, 1987 appellant filed a petition under Rule 37 alleging that he did not receive effective assistance of counsel in pleading to the charges because his attorney should have asserted the defense of speedy trial. The trial court denied the petition without a hearing and Billy Jack Kain has appealed, alleging the trial court erred in denying his petition without a hearing and that he was denied a speedy trial. The arguments are without merit.

If it can be shown on the record, or on the face of the petition itself, as in this case, that the allegations have no merit, the circuit court need not hold an evidentiary hearing. Lomax v. State, 285 Ark. 440, 588 S.W.2d 283 (1985). Moreover, where the record clearly establishes that the petition is without merit we will affirm, notwithstanding the trial court’s failure to make specific reference to the parts of the record relied on to deny the petition, which the rule also requires. Morrison v. State, 288 Ark. 636, 707 S.W.2d 323 (1986); Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979).

Appellant calculates his period of incarceration prior to being released on bond at 751 days, from which he deducts 342 days for delays attributable to continuances at his request or for psychiatric examinations, both excludable under Rule 28.3, for a net period of incarceration of 409 days. Thus, he argues, he was not tried within twelve months as now provided in Rule 28.1(c).

Appellant’s argument misinterprets the rule. The present wording of Rule 28.1(c) was adopted by amendment on July 13,1987, and expressly provides that the change applies to defendants charged after October 1, 1987. Appellant was charged on August 17, 1982 and therefore comes within an earlier provision of Rule 28.1(c), that is, eighteen months. It follows that the argument that appellant was denied a speedy trial is, on its face, without merit.

Appellant points out that the trial court failed to rule on a motion filed on April 30, 1984 asking that the court reporter make a stenographic record of all oral proceedings. Without implying that the point has merit, we note it was not asserted in the Rule 37 petition and we will not consider an issue raised for the first time on appeal. Hendrix v. State, 291 Ark. 134, 722 S.W.2d 596 (1987).

AFFIRMED.


author: David Newbern, Justice.

text:
    Edward Gene KAISER v. STATE of Arkansas
    88-89
    752 S.W.2d 271
    Supreme Court of Arkansas
    Opinion delivered June 27, 1988
    [Rehearing denied September 12, 1988.]

      Burris & Berry, for appellant.

      Steve Clark, Att’y Gen., by: /. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is a property forfeiture case resulting from the arrest of the appellant, Edward Gene Kaiser, for possession of marijuana. Kaiser was found to have a small amount of marijuana on his person, and he pleaded guilty to a misdemeanor possession charge. Kaiser’s car was stopped by Randolph County officers who had received information from Missouri officers that Kaiser would be travelling through Randolph County in a gray or silver 1979 Lincoln, license number KLN 436, and that he was carrying a pistol and $25,000 cash or 50 pounds of marijuana. Sheriffs officers found a pistol and $10,000 cash in the trunk of Kaiser’s car, and those items were ordered forfeited pursuant to Ark. Code Ann. § 5-64-505 (1987). The sole question is whether the state presented evidence sufficient to support reasonable suspicion to stop Kaiser’s car. The court of appeals, in Kaiser v. State, 24 Ark. App. 19, 746 S.W.2d 559 (1988), affirmed the forfeiture judgment by a tie vote, three-to-three. We reverse the court of appeals decision and remand to the trial court because the state presented no evidence supporting the reliability of the tip received from the Missouri State Police.

Testimony of the Randolph County Sheriff made it clear that the sole basis for the stop of Kaiser’s car was the information received from the Missouri State Police who had told the sheriff their information came from a reliable informant. In his response to the forfeiture petition Kaiser contended the stop, search, seizure and arrest were without a warrant, without probable cause and in violation of the Arkansas Constitution and the United States Constitution prohibitions against unreasonable searches and seizures. In a brief in support of the response, Kaiser clearly argued that:

There is nothing in the record to indicate who the informant was, and there is nothing in the record to indicate how the informant obtained the information, when it was obtained, or how it was obtained. There is absolutely nothing in the record to indicate that the informant had any degree of reliability or had any means of obtaining knowledge, and . . . neither Sheriff Shultz nor the Arkansas State Police officers who were working on the matter, made any inquiries as to the reliability of the information furnished them by the Missouri officers.

Although it is stated in more general terms, Kaiser raises the same argument here.

The state concedes that the exclusionary rule applies in forfeiture litigation which is “quasi-criminal” in nature, citing One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965); see also United States v. United States Currency $31,828, 760 F.2d 228 (8th Cir. 1985). We have applied it in a case somewhat similar to this one. In Little Rock Police Department v. One 1977 Lincoln Continental Mark V, 265 Ark. 512, 580 S.W.2d 451 (1979), we affirmed a trial court’s refusal to order forfeiture of a car found to contain 3.14 pounds of marijuana. We held there was not sufficient proof of the informant’s reliability.

The Randolph County Sheriff did not act improperly in stopping Kaiser’s car on the basis of the information from the Missouri State Police. That, however, does not end the inquiry into the propriety of the stop. If the Missouri officers had not developed a reasonable suspicion of Kaiser based on the reliability of the informant, the seizures resulting from the stop could not stand and neither can the forfeitures.

In United States v. Hensley, 469 U.S. 221 (1985), the issue was whether police could stop and briefly detain a person described on a “wanted flyer” issued by another police department, and whether evidence obtained as the result of such a stop was admissible. The court noted its prior holdings that police could stop a moving vehicle upon reasonable suspicion of ongoing criminal activity. Hensley was being sought as a suspect in a completed armed robbery. The first question addressed was whether the kind of investigative stop authorized by Terry v. Ohio, 392 U.S. 1 (1968), would be permissible in the case of suspicion of an offense which was not ongoing. The court concluded that, “if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.” 469 U.S. at 229.

The second issue addressed by the Supreme Court in the Hensley case is like the one before us now. Officers of St. Bernard, Ohio, had issued the flyer in question. It was relied on by officers in Covington, Kentucky, to stop the defendant. At the trial an officer from St. Bernard testified extensively about his interview with the informant upon whose information the flyer was based. The trial court concluded that “the wealth of detail concerning the robbery revealed by the informant, coupled with her admission of tangential participation in the robbery, established that the informant was sufficiently reliable and credible.” The Supreme Court concluded that the information carried enough indicia of reliability to justify an investigatory stop, 469 U.S. at 234, citing Adams v. Williams, 407 U.S. 143, 147 (1972).

The opinion in the Hensley case was written for a unanimous Supreme Court by Justice O’Connor. In the course of reaching the conclusion that the information possessed by the St. Bernard police was sufficient to justify the stop by the Covington officers, the opinion states:

We conclude that, if a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification... to pose questions to the person, or to detain the person briefly while attempting to obtain further information .... If the flyer has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment. In such a situation, of course, the officers making the stop may have a good-faith defense to any civil suit. . . . It is the objective reading of the flyer or bulletin that determines whether other police officers can defensively act in reliance on it. . . .Assuming the police make a Terry stop in objective reliance on a flyer or bulletin, we hold that the evidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop,. . . and if the stop that in fact occurred was not significantly more intrusive than would have been permitted the issuing department. [Citations omitted; emphasis in original; 469 U.S. at 232-233.]

The Supreme Court seems to conclude that the intrusion which the Fourth Amendment protects against may occur, but then it may not, absent reasonable suspicion, bear fruit. Justice O’Connor’s opinion recognizes this anomaly but concludes that the course chosen is the practical one. To exclude altogether evidence obtained after a stop based on second-hand police information would undermine the advantages of modern police communications.

The Supreme Court’s opinion makes it clear that the failure of the issuing police agency to have reasonable suspicion to stop and search a vehicle cannot be immunized from a Fourth Amendment objection by passing the information on to another police officer or department which then acts upon it. In this case, the informant may well have been a reliable one, and the Missouri State Police may well have had a reasonable suspicion of Kaiser. We cannot know that, however, as the record is devoid of testimony supporting that conclusion.

Reversed and remanded for orders consistent with this opinion.


author: Tom Glaze, Justice.

text:
    LITTLE ROCK PORT AUTHORITY v. W. Ross McCAIN
    88-95
    752 S.W.2d 44
    Supreme Court of Arkansas
    Opinion delivered June 27, 1988
    [Rehearing denied September 12, 1988.]

      Friday, Eldredge & Clark, by: Robert S. Shafer, for appellant.

      Owens, McHaney & Calhoun, by: James M. McHaney, Jr., for appellee.
   Tom Glaze, Justice.

Appellant acquired a railroad liability insurance policy covering tort liability that might arise from the operation of its locomotive. Appellee, a taxpayer, filed a declaratory action against appellant, contending that the appellant’s expenditure for the premium payment of such insurance was an illegal exaction and an abuse of appellant’s discretion because appellant was entitled to governmental tort immunity pursuant to Ark. Code Ann. § 21-9-301 (1987). Appellant responded that the insurance is necessary because it has exposure to tort suits under Ark. Code Ann. § 23-12-902 (1987), which provides that all railroads built and operated in the state shall be responsible for the damages they cause persons and property. At trial, both parties stipulated that the appellant’s insurance premiums would be reduced if a finding was made that appellant was immune, by state law, from tort liability. The appellee moved for judgment on the pleadings and stipulation, and consistent with that motion, the trial court held that appellant’s locomotive operation was immune from tort liability and entered a judgment in appellee’s favor. On appeal, appellant maintains the court was wrong in its construction of § 21-9-301 and that § 23-12-902 remains a potential source of tort liability for the appellant so long as it operates its locomotive.

We first note that while appellee alleged in his complaint that the appellant’s premium payment was an illegal exaction under article 13, section 16 of the Arkansas Constitution, the trial court never held the payment was illegal, nor do we think it should have. Pursuant to Ark. Code Ann. § 23-79-210 (1987), appellant is authorized to purchase liability insurance even in instances where it is not subject to tort liability. See Kirksey v. City of Ft. Smith, 227 Ark. 630, 638, 300 S.W.2d 257, 261 (1957). That statutory provision provides in relevant part that when liability insurance is carried by any municipality (or its agency or subdivision), not subject to suit for tort, and a person suffers personal or property damage on account of the municipality’s negligence, the injured person has a direct cause of action against the insurer to the extent of the policy limits. In sum, while § 23-79-210 does not require a municipality, which is not subject to suit for tort, to carry liability insurance, the statute does authorize and provide for a direct action against the insurer by the injured person in the event the municipality carries such insurance. Id.; § 23-79-210(c)(l); see also Leflar, Acts of 1947 General Assembly: Acts 46 and 362, Torts and Liability Insurance of Tort-Exempt Agencies, 1 Ark. L. Rev. 215 (1947), (a discussion of Act 46 of 1947, the predecessor and essentially identical law which was reenacted and compiled in § 23-79-210).

Because the appellant is authorized by law to purchase liability insurance under § 23-79-210, appellee’s assertion that an illegal exaction would result from paying the insurance premium is erroneous. Appellee’s only manifest interest in this cause is one of disagreement with appellant’s discretionary, but legitimate, decision to purchase liability insurance. Accordingly, we need not reach the issue as to whether the appellant was subject to tort immunity in the operation of its locomotive, and we hold that the trial court was wrong in reaching and deciding that issue. We reverse and remand this case with directions to enter an order vacating the judgment and dismissing the appellant’s action.


author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    STATE of Arkansas v. James HURST
    CR 88-20
    752 S.W.2d 749
    Supreme Court of Arkansas
    Opinion delivered July 5, 1988

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellant.

      Thomas J. O’Hern and Arthur L. Allen, by: Arthur L. Allen, for appellee.
   Jack Holt, Jr., Chief Justice.

The issue in this case is whether the State can appeal from a dismissal by a circuit court of a petition to revoke a felon’s probation. We conclude that it cannot and dismiss the appeal.

The appellee, James Hurst, pleaded guilty to robbery charges and was sentenced to five years probation, a $100.00 fine plus costs, fifty hours community service, one year supervised probation, and one day in prison. Subsequently, the State petitioned to revoke his probation on the grounds that he had committed the crimes of capital murder, aggravated robbery, and theft of property. At the revocation hearing, the trial court dismissed the petition with prejudice because the State had failed to have Hurst examined at the state hospital pursuant to Ark. Code Ann. § 5-2-305(b)(4) (1987) within the sixty-day limit of Ark. Code Ann. § 5-4-310 (1987).

The State attempts to appeal from the trial court’s order. Although the issue as to whether the State can appeal from this order was not raised by the parties, we have a duty to raise this question as it is a matter of subject matter jurisdiction. See Roy v. International Multifoods Corp., 268 Ark. 958, 597 S.W.2d 129 (1980). See also Hall v. Lunsford, 292 Ark. 655, 732 S.W.2d 141 (1987).

As a general rule, the State has no right to appeal except as conferred by constitution or rule of criminal procedure. See State v. Bibby, 47 Ala. App. 240, 252 So. 2d 662 (1971). See also United States v. Burroughs, 289 U.S. 159 (1933).

Ark. R. Crim. P. 36.10 governs appeals by the State. Rule 36.10(a) provides that the State may appeal from a pre-trial order in a felony prosecution (1) granting a motion under Rule 16.2 to suppress seized evidence, or (2) suppressing a defendant’s confession. Rule 36.10(b) permits the State to appeal from non-interlocutory orders following either a misdemeanor or felony prosecution.

Rule 36.10 does not empower the State to appeal from a dismissal by a circuit court of a petition to revoke a felon’s probation. Rule 36.10(a) is inapplicable because an order dismissing or granting a petition to revoke is not a pre-trial order in a felony prosecution. Furthermore, such an order is not one granting a motion to suppress seized evidence or one suppressing a defendant’s confession. Rule 36.10(b) does not apply since this appeal does not follow a misdemeanor proceeding. Accordingly, we dismiss the appeal.

Appeal dismissed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I believe the majority is mistaken in concluding that Ark. R. Crim. P. 36.10(b) does not apply because “this appeal does not follow a misdemeanor or felony prosecution, but rather a revocation of probation proceeding.” A revocation of probation proceeding is a continuation of the original criminal prosecution. 24 C.J.S. Criminal Law § 1618(11) (1961); McGuire v. State, 200 Tenn. 315, 292 S.W.2d 190 (1956). As such, the trial court’s order of dismissal was a final order, from which the state has filed a notice of appeal, within the plain language and intent of the rule’s drafters. To conclude that this appeal is not governed by Rule 36.10(b) means that a revocation proceeding is an extraordinary proceeding for which new and specialized rules of procedure will be required. In my view our present statutory framework offers sufficient ground for the state’s appeal.

Not only does Rule 36.10 authorize the state to appeal from a revocation proceeding, but Ark. Code Ann. § 16-91-112 (1987), states in part:

(a) Where an appeal on behalf of the state is desired, the prosecuting attorney shall pray the appeal during the term at which the decision is rendered, whereupon the clerk shall . . . transmit [the record] to the Attorney General
(b) If the Attorney General, on inspecting the record, is satisfied that error has been committed to the prejudice of the state, and upon which it is important to the correct and uniform administration of the criminal laws that the Supreme Court should decide, he may, . . . take the appeal.

There is no language limiting the state to appeal from convictions only. In fact, while appeals by the state usually involve pre-trial orders, in State v. Manees, 264 Ark. 190, 569 S.W.2d 665 (1978), the state appealed from a trial court’s order attempting to modify a sentence which had been partially served. Addressing the primary question on appeal, we acknowledged that the trial court lacked jurisdiction to modify, amend or revise a judgment after the term at which the sentence was pronounced. But significantly, in allowing the appeal, we implicitly acknowledged that the state is authorized to appeal from orders touching on post-conviction matters. That authority derives from both Ark. Code Ann. § 16-91-112 (1987), and Ark. R. Crim. P. 36.10(b). I respectfully dissent and would decide the case on its merits.


text:
    Milton JONES v. STATE of Arkansas
    CR 88-5
    752 S.W.2d 274
    Supreme Court of Arkansas
    Opinion delivered July 5, 1988

      John L. Kearney, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Milton Jones was convicted of the capital felony murder of Annie Bell Hall Killingsworth and sentenced to life imprisonment without parole. His contentions on appeal are meritless, and we uphold his conviction.

On July 31, 1986, Mrs. Killingsworth was murdered at her home in Pine Bluff, Arkansas. The evidence showed that she was smothered with a pillow. Jones was seen near Mrs. Killings-worth’s house the night she was murdered with Roosevelt Ferguson, a friend of Jones’s. Jones left town that night and was arrested in Kansas City, Missouri, several weeks later. He confessed to participating in the murder, claiming that Ferguson actually smothered the victim while he (Jones) held her arms down. According to Jones’s confession, they took $10,000 from the house and divided it between them.

On appeal, Jones argues first that the trial judge should have suppressed his confession because it was not voluntary, and second that there was insufficient evidence to support his conviction. Jones confessed to the crime at Pine Bluff on August 26, 1986. He testified at the suppression hearing that he was threatened and beaten, and that the voice on the tape recording confessing to the crime was not his. Two officers, who picked up Jones in Kansas City and interviewed him, disputed Jones’s version of the events leading up to the confession, refuting each allegation directly. It was purely a question of credibility to be resolved by the trial court. We look at the totality of the circumstances to determine if a confession is voluntary, and we find nothing in this case which would warrant a finding that the trial court was wrong to admit Jones’s confession into evidence. See Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987); Wilkins v. State, 292 Ark. 596, 731 S.W.2d 775 (1987).

The evidence needed to support a conviction when there is a confession is merely evidence that the offense was committed by someone. Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987). That evidence unquestionably existed in this case, and additional circumstantial evidence clearly points to Jones’s guilt. His fingerprints were found in the victim’s home, and he fled the state after the murder without picking up his paycheck or telling anyone where he was going.

In compliance with Rule 11 (f) of the Rules of the Supreme Court, we have examined all objections decided adversely to the appellant and find none that involve prejudicial error.

Affirmed.


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

text:
    B. Dewey FITZHUGH v. STATE of Arkansas
    88-41
    752 S.W.2d 275
    Supreme Court of Arkansas
    Opinion delivered July 5, 1988
    [Rehearing denied September 12, 1988.]

      Richard B. Adkisson, for appellant.

      Henry C. Kins low, for amici curiae Arkansas Trial Lawyers Association.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The issue in this appeal is whether the trial court violated appellant’s right to due process in a contempt proceeding. We hold the conviction for contempt violated the Due Process Clause of the Fourteenth Amendment.

Since the sufficiency of the evidence is not questioned, we will state the facts in an abbreviated form. Appellant Fitzhugh, an attorney, represented his client in a complicated lawsuit and in some subsequent garnishment proceedings. Weeks later, one of the parties asked for a hearing on a motion to require appellant’s client to pay some money into the registry of the court. The appellant went to court for a hearing on that petition. At the end of the hearing the trial judge announced that some of the appellant’s earlier actions had been unethical and constituted a fraud on the court. He found appellant guilty of contempt and assessed a fine of $500.00. The appellant had never received notice that he was charged with contempt.

The first issue is whether the contempt proceeding was a criminal proceeding or a civil proceeding. The critical features which determine the nature of the proceeding are (1) the substance of the proceeding and (2) the character of the relief.

The purpose of a criminal contempt proceeding is that it is brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order. A civil contempt proceeding is instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of those parties. Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215(1974) , see also Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911). However, the substantive difference between civil and criminal contempt often becomes blurred. The character of the relief, rather than the trial court’s characterization of the substantive proceeding, becomes the critical factor in determining the nature of the proceeding for due process purposes. The Supreme Court of the United States has clearly set out the distinction between the types of relief:

“If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if “the defendant stands committed unless and until he performs the affirmative act required by the court’s order,” and is punitive if “the sentence is limited to imprisonment for a definite period.” Id., at 442. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order.
The distinction between relief that is civil in nature and relief that is criminal in nature has been repeated and followed in many cases. An unconditional penalty is criminal in nature because it is “solely and exclusively punitive in character.” Penfield Co. v. SEC, 330 U.S. 585, 593 (1947). A conditional penalty, by contrast, is civil because it is specifically designed to compel the doing of some act. “One who is fined, unless by a day certain he [does the act ordered], has it in his power to avoid any penalty. And those who are imprisoned until they obey the order, ‘carry the keys of their prison in their own pockets.’ ” Id., at 590, quoting In re Nevitt, 117 F. 448, 461 (CA8 1902).

Hicks ex rel. Feiock v. Feiock,_U.S. _, 108 S. Ct. 1423 (1988).

Here, the $500.00 fine is unconditional and is to be paid to the court. Without question, the punishment is punitive in nature as it has no coercive or compensatory aspect.

These distinctions between civil and criminal contempt lead up to the fundamental proposition that criminal penalties may not be imposed on an alleged contemner who has not been afforded the protections that the Constitution requires of criminal proceedings. Id. The Due Process Clause, as applied in criminal proceedings, requires that an alleged contemner be notified that a charge of contempt is pending against him and be informed of the specific nature of that charge. Id. Notice of the charge and the nature thereof were not given in this case. Therefore, the judgment of conviction for contempt must be reversed.

Reversed and remanded.

Purtle, J., dissenting in part.

John I. Purtle, Justice,

dissenting. I dissent from that part of the opinion which remands the case to the trial court. All of the relevant facts and the law have been fully developed and presented to this court in the present appeal. In effect, this court has found insufficient evidence to support a criminal contempt charge. Therefore, it is double jeopardy to try the appellant a second time on the same offense.

The majority opinion is well written and succinctly recites the law on the subject of contempt. However, the opinion simply reaches the wrong result.

We have a committee established for the express purpose of reviewing complaints concerning alleged unethical conduct on the part of attorneys. If the trial court believes, as he has stated, that the action of this attorney was unethical, then the matter should be referred to the Committee on Professional Conduct.

I would reverse and dismiss.


author: Robert H. Dudley, Justice. Tom Glaze, Justice, Jack Holt, Jr., Chief Justice, Darrell Hickman, Justice,

text:
    SOUTHWEST ARKANSAS COMMUNICATIONS, INC. v. James Eric ARRINGTON
    88-36
    753 S.W.2d 267
    Supreme Court of Arkansas
    Opinion delivered July 5, 1988

      Smith, Stroud, McClerkin, Dunn & Nutter, by: John F. Stroud, Jr., for appellant.

      Graves & Graves, by: Albert Graves, Jr., for appellee.
   Robert H. Dudley, Justice.

The appellant asks us to overrule our case interpreting the usury amendment to the Constitution of Arkansas. We decline the invitation.

The appellant sold the appellee a television satellite dish on January 27,1987, and a television and videocassette recorder on February 17,1987. The purchases were to be paid for through the use of a revolving charge agreement with an interest rate of 12.5 % per annum. At the time the federal reserve discount rate was 5.5 %; thus, the interest rate was more than 5 % above the federal reserve discount rate. After making two payments the appellee filed suit alleging that he had been charged an usurious rate of interest. The appellant counterclaimed, alleging that the entire debt was due and that it was entitled to foreclosure. The chancellor decreed that the revolving charge agreement was void as to all unpaid interest and that the appellee was entitled to double recovery of the interest paid. We affirm.

In 1982, Article 19, Section 13 of the Constitution of Arkansas was amended by the passage of Amendment 60 to read in part as follows:

§ 13. Maximum lawful rates of interest.
(a) General Loans:
(i) The maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5 %) per annum above the Federal Reserve Discount Rate at the time of the contract.
(ii) All such contracts having a rate of interest in excess of the maximum lawful rate shall be void as to the unpaid interest. A person who has paid interest in excess of the maximum lawful rate may recover, within the time provided by law, twice the amount of interest paid. It is unlawful for any person to knowingly charge a rate of interest in excess of the maximum lawful rate in effect at the time of the contract, and any person who does so shall be subject to such punishment as may be provided by law.
(b) Consumer Loans and Credit Sales: All contracts for consumer loans and credit sales having a greater rate of interest than seventeen percent (17 % ) per annum shall be void as to principal and interest and the General Assembly shall prohibit the same by law.

The following year, in July 1983, this court was called upon to interpret the amendment’s provisions in Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983). At issue in Bishop was the interest that could be charged on consumer loans and credit sales under Amendment 60. Utilizing the plain meaning rule, this Court held:

The language used in Amendment 60 is clear and unambiguous, and we have no authority to construe the amendment to mean anything other than what it says. Section 13(a)(i) provides that the “maximum lawful rate of interest on any contract” (emphasis ours) shall not exceed 5 percent per annum above the Federal Reserve Discount Rate at the time of the contract. The word “any” means exactly what it says, and a consumer loan certainly falls within the category of “any contract.”
Section 13(b), when read in conjunction with Section 13(a), provides for a further limitation on interest rates but is applicable only to consumer loans and credit sales. Section 13(b) specifically limits the maximum interest rate on such loans to 17 percent. These separate subsections are in no way conflicting and each has its own penalty for violations.
It is clear, therefore, that the provisions of Amendment 60 have a two-fold limitation on the maximum amount of interest a lender can charge on a consumer loan or credit sale — the lesser of 17 percent or 5 percent over the Federal Reserve Discount Rate. Here, since this contract has a rate of interest in excess of the lawful rate provided for under Section 13(a), it is void as to the unpaid interest as provided by Section 13(a)(ii).

Id. at 110, 655 S.W.2d at 429.

In summary, we held that subsections (a) and (b) are to be read together, with the purpose of subsection (b) being a further limitation on consumer loans and credit sales. In asking us to overrule Bishop the appellant argues four formal points of appeal. However, those four points can be, in substance, summarized as two alternative arguments: First, the meaning of the amendment is plain but is contrary to the interpretation given it by this court; that the amendment plainly indicates that subsections (a) and (b) are not to be read together; that under subsection (b), consumer loans and credit sales are to have a fixed ceiling of 17 % without regard to the federal reserve discount rate; that the federal reserve discount rate is applicable only to “general loans,” which are something less than all loans since the term does not include consumer loans or credit sales. Second, if appellant’s first argument cannot be gleaned from the amendment’s language, the amendment is ambiguous; that if there is an ambiguity, this court must look to rules of construction and extrinsic evidence to discover legislative intent; and these rules and the evidence support appellant’s asserted interpretation.

These arguments are the same arguments which we considered and rejected in Bishop. There, we clearly held that the meaning of the amendment was plain and contrary to the interpretation advanced by the appellant. We held there was no ambiguity and, therefore, no need to resort to rules of construction or to extrinsic evidence.

Even if the majority of the present court thought that the amendment were ambiguous, we would not adopt the appellant’s argument concerning the intent of the voters in adopting the amendment. The only reason for including a usury provision in the constitution is for the protection of the consumer. The ballot title on this amendment provided that it was “to control interest rates and set the penalty for violations thereof.” A voter most likely would have intended that he should have the protection of an interest rate which floats with the economic demand of the time, that is, 5 % above the federal reserve discount rate for all credit users, yet, at the same time, protects the small borrower on consumer loans and credit sales from an aberration of rates, such as existed in 1981, with a ceiling of 17%.

In addition, this has been our interpretation since we decided Bishop in 1983. We have stated:

A cardinal rule in dealing with constitutional provisions is that they should receive a consistent and uniform interpretation so that they shall not be taken to mean one thing at one time, and a different thing at another time. Certainly, when a constitutional provision or a statute has been construed, and that construction consistently followed for many years, such construction should not be changed.

O’Daniel v. Brunswick Balke Collender Co., 195 Ark. 669, 674, 113 S.W.2d 717, 719 (1938).

Our interpretation of Amendment 60 has been a part of the law of this State for almost five years, and we will not change it without sufficient reason. However, our concern for stare decisis is not our only reason for rejecting the appellant’s arguments. We continue to feel that in Bishop we correctly interpreted the amendment, and we take this opportunity to reaffirm our commitment to that decision.

Affirmed.

Holt, C.J., Hickman, and Hays, JJ., dissent.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. While I join the majority, I cannot agree that provisions (a) and (b) of section 13 of amendment 60 are clear and unambiguous. In my view, no one can read the language contained in these two provisions without being confronted with a genuine dilemma as to what was intended. I write this concurrence to attempt to illustrate how this court should have construed this ambiguous provision. Since after utilizing the proper rules of construction the same result would be reached as in Bishop, I am obliged to join the majority in affirming our previous holding.

As pointed out in Justice Hickman’s dissent, the amendment can be read two ways: (1) consumer loans are only limited by the lawful maximum rate of 17 % interest under provision (b); or (2) consumer loans are additionally entitled to any protections afforded in provision (a) which provide for a maximum rate of 5 % interest above the federal discount rate. As is often the case with newly enacted statutes and constitutional provisions, a language problem arose when construing and applying amendment 60, and this court was, and again is, called on to resolve the existing ambiguity and to determine the constitutional intent of the amendment.

Conceding that an ambiguity is inherent in the wording of amendment 60 does not in any way decide the issue before us. Such a concession does, however, compel a further duty by this court to analyze and construe amendment 60 to determine its intent rather than merely saying, as the court did in Bishop, that the “plain meaning” of the language in amendment 60 requires consumer loans to be subject to the discount rate formula in provision (a).

In the present case, the appellant, in an effort to provide insight as to the intent of the drafters of amendment 60, proffered testimony by certain respected bankers, a state senator and an economist. However, none of the proffered testimony is admissible. We have stated numerous times that courts may look to legislative journals and public documents where there is ambiguity, in order to find the intention of the legislature. See, e.g., Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007 (1935). But this court has never held that a senator or representative may testify giving his or her opinion on the subject; in fact, the Wiseman court made it very clear that extraneous aids were not admissible when they merely encompassed individual views regarding legislative intent. The court further said, “So in ascertaining the meaning of a statute the court will not be governed or influenced by the views or opinions of any or all of the members of the legislature, or its legislative committees or any other person.” Id. at 1025, 88 S.W.2d at 1009.

The appellant, in our case, is apparently well read on the dissenting opinion in Bishop', however, in my view that opinion served only to mislead its readers by suggesting that the use of extrinsic evidence is a permissible method to determine the meaning of amendment 60. In suggesting that evidence from the draftsmen of amendment 60 should be admissible, the dissenters cited Sutherland Statutory Construction, but neither Sutherland nor the cases cited in the Bishop dissent permit that conclusion. For example, in Railroad Roofing v. Financial Fire & Casualty Company, 171 N.J. Super. 375, 409 A.2d 300 (1979), the court quoted the following from Sutherland'.

In recognition that there is no necessary correlation between what the draftsman of the text of the bill understands it to mean and what members of the enacting legislature understand, and that the intent of the legislature is the determining consideration as compared to the views of the draftsman, their views are not generally considered proper grounds on which to base the interpretation of an act, in this country any more than in England. However, if the draftsman’s views were clearly and prominently communicated to the legislature when the bill was being considered for enactment, so as to give reason to believe that the legislators’ understanding of the bill would have been influenced by the draftman’s communicated views and so as to be visible to others who are concerned to understand the meaning of the act, there is reason to invoke an exception of the general rule and attach weight to the draftman’s views.

The court in Railroad Roofing went on to conclude that the extrinsic information offered there had not been clearly and prominently communicated to the legislature.

The Bishop dissent also cites American Waterways Operators, Inc. v. United States, 386 F. Supp. 799 (D.D.C. 1974), where the court considered the construction placed upon an act by the administrators who participated in its drafting and who made their views known to Congress as shown by the Senate debates on the conference committee report. In Congress, official verbatim records of committee meetings and debates are kept, and in the federal courts statements of members of the committee or of interested parties at the hearing have been considered as aids in determining the legislative intent. See Sutherland Stat. Const. § 48.10 (4th Ed). However, the Arkansas General Assembly, unlike Congress, does not maintain a record of its proceedings, and therefore has no record from which courts could ascertain legislative intent. In sum, the American Waterways case is in no way helpful in resolving the issue involving amendment 60 in Bishop or in the present case.

In construing an ambiguous provision, this court should focus on voters’ intent and not the intent of legislators or vested-interest groups. We have held that in construing the provisions of the constitution we endeavor to effectuate as nearly as possible the intent of the people in passing the measure, and if necessary as a means of attaining that end, a liberal interpretation will be warranted as it may be ascertained from the language used. See Knox v. Williamson, 241 Ark. 455, 408 S.W.2d 501 (1966); Raney v. Raulston, 238 Ark. 875, 385 S.W.2d 651 (1965). The court now faces the problem of how to determine the voters’ intent. The dissenters in Bishop would have us believe that we should consider newspaper articles and media broadcasts as evidence allowable under A.R.E. Rule 803(24) to ascertain the voters’ intent. Again, the Bishop dissent wrongly cites Arkansas cases for the proposition that liberal views of evidence should be taken in statutory construction. That proposition has never been the law in Arkansas, and there is no case authority for allowing newspaper articles and media broadcasts into evidence to show the voters’ intent under the hearsay exception, Rule 803(24).

In determining the meaning of section 13 of amendment 60, we must look to the amendment itself and its ballot title to ascertain the voters’ intent. The ballot title stated the following:

An amendment to section 13 of article XIX of the Constitution of the State of Arkansas to control interest rates and set the penalty for violation thereof.

From the above language, the voters were asked to control Arkansas’s interest rates. Arkansas’s prior constitutional provision provided for a maximum rate of interest of 10 % regardless of whether a loan was commercial or a consumer one. All parties agree that Arkansas’s new amendment limits consumer loans to a maximum interest rate of 17 %. The question, however, is did the voters intend that they should benefit from the control regulation in provision (a) of the amendment when that federal reserve discount rate affords a lower interest rate than the 17 % amount provided in provision (b) ? Quite clearly, it would seem reasonable to apply such a construction to the meaning of provision (a) not only because voters, as consumers, would normally be expected to limit or control the amount of interest they would pay on a loan, but also because the language in (a) states in effect that in any contract, the maximum legal rate shall not exceed 5 % per annum above the federal reserve discount rate. While appellant argues the words any contract should be limited to commercial loans only, such a proposition is far from clear, given the confusing language in amendment 60. Appellant’s argument also ignores the logic that voters would normally be expected to avail themselves of the lowest interest rate, if two different rates were available, as may be the case under provisions (a) and (b) of amendment 60. Under the appellant’s theory or construction of the amendment, commercial loans, given the money market today and during the past few years, would be limited to substantially lower legal interest rates than the 17 % rate which appellant says it should be able to charge for a consumer loan. Again, such an argument does not seem compatible with the voters’ intent when trying to give meaning to what they had in mind when they voted to control interest rates.

While I am of the view that news articles and other printed materials are not permissible for the court to consider in its attempt to give meaning to amendment 60, I did review the articles and materials proffered in Bishop and found they were of little value. In fact, those materials could be read to support either of the two views argued in Bishop and here, ©n the other hand, the individual views given both here and in Bishop are very much weighted in favor of the position that consumer loans are subject only to the maximum rate of 17% interest under provision (b) and not the discount rate calculated under provision (a). But, for reasons I have set out above, those individual views are simply not admissible.

Undoubtedly, if our General Assembly had a system by which a record could be made of its proceedings when construing and passing legislation, valuable information would then be available to the courts when confronted with constitutional and statutory problems such as that presented in Bishop and the case at hand. Until such extrinsic-aid information is provided for our courts, this court is not allowed to consider extraneous testimony from draftsmen, sponsors, legislators and others. The dissent in Bishop and the dissenters in this case are wrong in suggesting otherwise. If we are to allow testimony of special interest groups which might be knowledgeable of constitutional amendments, it would appear just as plausible to permit voters to testify concerning their opinions.

Because I am of the opinion that the appellant has not demonstrated that the result reached in Bishop was wrong, I believe the majority court is correct in refusing to overrule that decision.

Jack Holt, Jr., Chief Justice,

dissenting. I join my colleague Justice Hickman in his dissent and note with approval the conclusions of Special Justice Richard F. Hatfield in his dissenting opinion in Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983), when he observed that the majority erred in its interpretation of Amendment 60 in two respects:

1. It fails to properly consider the entire document and give meaning to each word by concentrating on the wording of Section 13(a)(i), and,
2. It views Amendment 60 too strictly and, in a sense, in a vacuum. Since it finds no ambiguity in the document, it does not consider the history of the times and voters’ intent in passing Amendment 60. Furthermore, their construction does not, in my judgment, follow the plain meaning of Amendment 60 when this history is examined.

I think the majority was wrong in Bishop, when it declared that the language used in Amendment 60 is clear and unambiguous, and is wrong again now. Since the majority finds that Bishop is established precedent that the meaning of the Amendment is plain, that there is no ambiguity, and that there is no need to resort to rules of construction or to extrinsic evidence, it has closed the door on Amendment 60. For me to labor over rules of construction or to editorialize as to the admissibility of the extrinsic evidence offered by appellant in this case would be wasted effort and of little, if any, value.

I dissent.

Hays, J., joins in this opinion.

Darrell Hickman, Justice,

dissenting. The majority implies the decision in Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983), may have been wrong or based on a faulty premise but will stand anyway. Of course, the Bishop decision was entirely wrong in its first premise and that is the language of the amendment is clear and unambiguous. If the language were clear, there would have been no dispute among court members then or now. The language of Amendment 60 is not clear, and we do have to find its meaning. The amendment reads:

(a) General Loans:
(i) The maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.
(ii) All such contracts having a rate of interest in excess of the maximum lawful rate shall be void as to the unpaid interest. A person who has paid interest in excess of the maximum lawful rate may recover, within the time provided by law, twice the amount of interest paid. It is unlawful for any person to knowingly charge a rate of interest in excess of the maximum lawful rate in effect at the time of the contract, and any person who does so shall be subject to such punishment as may be provided by law.
(b) Consumer Loans and Credit Sales: All contracts for consumer loans and credit sales having a greater rate of interest than seventeen percent (17 % ) per annum shall be void as to principal and interest and the General Assembly shall prohibit the same by law.

The amendment can be read two ways: as the majority chose to read it in Bishop, or as providing for a maximum of 17 % interest rate on consumer loans and a maximum rate of 5 % interest above the federal discount rate on all general loans. Why would paragraph (b), regarding consumer loans, be included if it did not have significance? Why doesn’t the amendment say that paragraph (b) is subject to paragraph (a)? It doesn’t because consumer loans are to be treated differently, having a maximum of 17% interest rate.

We went over all this in Bishop, and I can understand the reluctance of the majority to overrule Bishop. But to permit a bad decision regarding a constitutional provision to remain, especially when it can be corrected early (this is our first opportunity to reexamine Bishop), is simply poor appellate practice. More than anything, the constitution should be correctly interpreted.

If we followed the majority’s reasoning, we would never overrule a decision. In City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986), we overruled 50 years of decisions regarding bond issues to finally read the constitution the way it should be read. The error regarding revenue bonds compounded as years went on; it could have been stopped dead in its tracks if this court had faced its responsibility. While I foresee no doom from the majority decision, I do see a clear mistake uncorrected.

Finally, the majority says that anyway the principle of stare decisis applies. I applaud this statement because I was beginning to think the majority had forgotten that principle of law. See Southern Farm Bureau Life Ins. Co. v. Cowger, 295 Ark. 250, 748 S.W.2d 333 (1988); Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987).

I would correct the mistake now.

Hays, J., joins in this opinion.