author: Donald L. Corbin, Justice.

text:
    Debra E. BELL v. The ESTATE of Robert L. BELL, Deceased
    93-1253
    885 S.W.2d 877
    Supreme Court of Arkansas
    Opinion delivered October 31, 1994

      Baxter, Wallace, Jensen & McCallister, by: Ray Baxter, and Page & Thrailkill, by: Danny Thrailkill, for appellant.

      Batchelor & Batchelor, by: Fines F. Batchelor, Jr., for appellee.
   Donald L. Corbin, Justice.

Appellant, Debra E. Bell, appeals from an order of the Crawford County Probate Court fixing the shares of the proceeds of a compromise settlement of the wrongful death claim arising from the death of appellant’s spouse, Robert L. Bell (“Decedent”), allocable to appellant and to each of her minor children, Daren Bell (“Daren”), and Matthew Joel Houck (“Joel”). In accordance with the general wrongful death statute, Ark. Code Ann. § 16-62-102 (1987), the statutory beneficiaries of this action were appellant, Daren, Joel, Decedent’s sole surviving parent, sibling and adult children. The wrongful death claim was filed in the United States District Court, Western District of Arkansas, settled by compromise agreement, and the shares of the settlement proceeds allocable to each statutory beneficiary, other than appellant, Daren and Joel, was also determined by agreement. After the probate court appointed a separate guardian ad litem for each of Daren and Joel, a hearing was conducted and the remaining settlement proceeds were fixed by the probate court pursuant to its order entered on August 5, 1993. Appellant appeals from this order and contends the probate court erred because: (1) it made an unfair distribution of the settlement proceeds that was against the evidence presented at the hearing, and (2) it allowed testimony regarding collateral sources of income in fixing the amount of the shares. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3). We find no merit to appellant’s arguments and affirm the judgment.

I.

THE APPORTIONMENT

Preliminarily, we note that on April 7, 1993 the probate court entered an order to seal and close the estate file in consideration of the parties’ nondisclosure agreement governing the settlement agreement. In accordance therewith, we do not discuss the dollar amounts involved in this case.

Subsections (g) and (h) of the general wrongful death statute, section 16-62-102, provide that the court approving a compromise settlement shall fix the share of each beneficiary, upon the evidence, and that the probate court shall consider the best interests of all the beneficiaries. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981). Subsection (f) of the statute directs that, if the case is tried, the sum fixed for damages shall be that which is “fair and just compensation for the pecuniary injuries, including a spouse’s loss of the services and companionship of a deceased spouse and mental anguish resulting from the death, to the surviving spouse and next of kin of the deceased person.”

The factors set forth in subsection (f) also guide the probate court’s determination of the apportionment of the settlement proceeds in those cases where the damages issue is not tried. See Estate of Campbell, 294 Ark. 619, 745 S.W.2d 596 (1988). We have stated that, although probate cases are reviewed de novo on appeal, distribution of wrongful death proceeds does invoke the trial court’s discretion in some measure. Id. The appellant has the burden to show the trial court was wrong and that prejudicial error was sustained. Sutton, 273 Ark. 396, 620 S.W.2d 293.

At the apportionment hearing in this case, the probate court heard testimony from three witnesses: appellant; her father, Mr. William Phelps; and an economic consultant retained by the estate, Dr. Ralph Scott, of Hendrix College. A pretrial report from the guardian ad litem for each minor was also filed with the court. The evidence showed as follows:

1. At the date of his death, the Decedent was a 42-year-old self-employed drywall hanger/painter with an average annual taxable income of approximately $20,000.00 and an estimated remaining work life expectancy of 34 years. The household expenses of the Decedent and appellant were approximately equal to their income; consequently, they had no savings.

2. Appellant was 32 years old at the date of the Decedent’s death. She had worked in various jobs for minimum wage, and was then attending a nursing program at a local school. After the Decedent’s death, appellant was emotionally and physically unable to work or continue the nursing program.

3. The Decedent and appellant married in 1982. They had one natural child, Daren, and were also raising appellant’s child by an earlier marriage, Joel. Joel had no personal relationship with his natural father, although the natural father paid monthly child support to appellant.

4. Substantial evidence was presented of the grief and mental anguish caused by the Decedent’s death to appellant and both minors, including the need for psychological counseling for appellant and Joel.

5. The estate’s economist, Dr. Ralph Scott, testified about his estimations of the value of the Decedent’s income and household services now lost by appellant and the minors as a result of the Decedent’s death. Those estimations, discounted to present value, established a dollar range which included the entirety of the remaining settlement proceeds available for distribution. With respect to the lost income of the Decedent, Dr. Scott also testified to compare the dollar value of that income which was lost by the appellant with the dollar value of that income which was lost by the minors; those dollar values, expressed as a percentage of the entire lost income computation, established that 52% of the lost income was sustained by appellant, and 48% of the lost income was sustained by the minors. Dr. Scott testified his computations of these economic losses did not address any other compensable element of loss permitted by the wrongful death statute, e.g., mental anguish.

6. Appellant received a lump sum $50,000.00 benefit as beneficiary of a life insurance policy insuring the Decedent’s life.

7. Appellant, Joel and Daren each received an equal amount from the Social Security Administration, on a monthly basis, on account of the Decedent’s death.

8. Acting by their guardians ad litem, the minors proposed the following allocation of the remaining settlement proceeds.

Daren proposed the sum be distributed:

Recipient Percentage Share
To Appellant 35% to 45%
To Daren 40% to 50%
To Joel 10% to 20%

Joel proposed the sum be distributed:

Recipient Percentage Share
To Appellant 33.3%
To Minors 66.7%
TOTAL 100.0%

Joel proposed the minors’ share be further divided, not equally, but based upon their specific losses, age, other support and specific needs.

9. Appellant proposed the sum be distributed:

Recipient Percentage Share
To Appellant 72%
To Daren 14%
To Joel 14%
TOTAL 100%

After the hearing, the court issued a six-page order of distribution reciting that the court considered all of the evidence presented at the hearing, the reports of the guardians ad litem, as well as the entire estate file and the amounts of the settlement proceeds paid to another of Decedent’s adult children who had recently lived with the Decedent and appellant. The court’s order fixed 50% of the remaining settlement proceeds for distribution as appellant’s share, to be paid to her outright, and fixed the other 50% of those proceeds, in unequal portions, as the shares for the two minors, Daren (32.5%) and Joel (17.5%).

Appellant argues that the court’s apportionment was unfair, arbitrary and blatantly against the evidence presented at the hearing. We disagree with appellant and find the evidence does support the probate court’s apportionment order. We note that the probate court’s 50/50 apportionment of the remaining proceeds between appellant and the minors, in fact, roughly approximates Dr. Scott’s apportionment of the economic losses as noted above (52% to appellant and 48% to the minors). Clearly, in fashioning its order, the court considered the evidence presented by Dr. Scott, and, in addition, considered the compensable elements enumerated in the wrongful death statute which Dr. Scott’s computations did not address.

In appellant’s brief, she argues this court should modify the probate court’s order and apportion the remaining settlement proceeds in accordance with Dr. Scott’s recommendation that each minor should receive approximately 14% of the remaining settlement proceeds as a college fund, and that the balance of those proceeds should be paid outright to appellant. In rejecting this argument, we note that the wrongful death statute directs that each beneficiary’s share shall reflect that beneficiary’s fair and just compensation for his injury suffered as a result of the Decedent’s death. In this case, an allocation based on the cost of providing a college education to the minors would not be true to the statute’s purpose because the evidence showed that these minors could not have expected the Decedent to provide their expenses for a college education had he lived. Appellant also argues that the probate court’s order should be modified to pay the minors’ shares outright to the appellant, as the minors’ natural guardian, rather than to the guardians of their estates. We summarily dispose of this point which appellant failed to raise before the probate court, and which we will not consider for this first time on appeal. Hawkins v. City of Prairie Grove, 316 Ark. 150, 871 S.W.2d 351 (1994).

II.

COLLATERAL SOURCE RULE

Appellant’s second argument is that the probate court erred in admitting evidence in violation of the collateral source rule of certain payments made to appellant, Daren and Joel, on account of the Decedent’s death, specifically, the life insurance proceeds paid to appellant, and the monthly Social Security Administration benefits now paid to appellant, Daren and Joel. We find no merit to this argument.

The “collateral source rule,” we have stated, is “a general rule that ‘recoveries from collateral sources do not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result.’ ” Green Forest Pub. Schools v. Herrington, 287 Ark. 43, 49, 696 S.W.2d 714, 718 (1985) (quoting Amos, Adm’x v. Stroud & Salmon, 252 Ark. 1100, 482 S.W.2d 592 (1972)). A review of the history and purpose of the rule informs our holding in this case.

The rule was first applied in the United States in 1854 and has been a part of American tort law thereafter. V. Schwartz, Tort Law Reform: Strict Liability and the Collateral Source Rule Do Not Mix, 39 Vand. L. Rev. 569, 570 (1986). The rule operates to exclude evidence of payments received by an injured party from sources “collateral” to (other than) the wrongdoer, such as private insurance or government benefits, received on account of the decedent’s death in determining the amount of the damages sustained by that injured party for which the wrongdoer is liable. Consequently, the injured party who is compensated for his injury by collateral sources as well as by the wrongdoer receives a double recovery. Id. For that reason, the collateral source rule has been criticized by commentators who point out that it is incongruous with the compensatory goal of the tort system:

But in these cases the courts measure “compensation” by the total amount of the harm done, even though some of it has been repaired by the collateral source, not by what it would take to make the plaintiff whole. It is “compensation” in a purely Pickwickian sense that only half conceals an emphasis on what defendant should pay rather than on what plaintiff should get.

F. Harper et al., The Law of Torts § 25.22, at p. 651 (2d ed. 1986). Although the weight of authority in American jurisprudence is that the collateral source rule governs in most contexts, the rule has been modified or substantially abandoned in over a dozen states since 1986. Id. (Cum. Supp. No. 1 1994).

In Arkansas, however, the collateral source rule persists and its application has been extended to cases other than tort actions. See, e.g., Herrington, 287 Ark. 43, 696 S.W.2d 714 (evidence of unemployment compensation benefits was barred by collateral source rule in action under Teacher Fair Dismissal Act). This court has held that, in applicable proceedings, the collateral source rule applies unless the evidence of the benefits from the collateral source is relevant for a purpose other than the mitigation of damages. Parrish v. Newton, 298 Ark. 404, 768 S.W.2d 17 (1989). The issue presented in this case is whether the collateral source rule applies in the context of the proceeding to apportion the wrongful death settlement proceeds among the beneficiaries of the action.

Although substantial authority exists affirming the applicability of the collateral source rule in the wrongful death proceeding to determine the liability and damages recoverable from the tortfeasor, we have located no Arkansas authority and scant authority from other jurisdictions squarely addressing the precise issue before us. See generally, Annotation, Compensation from other source as precluding or reducing recovery against one responsible for personal injury or death, 18 A.L.R. 678 (1922), supplemented by Annotation, 95 A.L.R. 575 (1935); Annotation, Division among beneficiaries of amount awarded by jury or received in settlement upon account of wrongful death, 14 A.L.R. 516 (1921), supplemented by Annotation, 112 A.L.R. 30 (1938) and Annotation, 171 A.L.R. 204 (1947); S.M. Speiser et al., Recovery for Wrongful Death and Injury §§ 6:7-6:14 (3d ed. 1992); 22A Am. Jur. 2d. Death §§ 305-10 (1988); 25A C.J.S. Death § 37(1) (1966). We note Schultz v. Western Farm Tractor Co., 111 Wash. 351, 190 P. 1007 (1920), in which a widow-administratrix appealed the apportionment award of wrongful death proceeds to her and the decedent’s issue where the trial court considered evidence of a life insurance benefit and backpay award to widowadministratrix. The widow argued those payments were immaterial. Without addressing the collateral source rule, the Washington Supreme Court affirmed the apportionment order stating “[o]ne of the inquiries here was the financial condition the parties were left in because of the death . . . and it seems to us clear that the property received by either claimant arising from the death is a proper subject of inquiry.” Id. at 353, 190 P. at 1008.

A review of the history of our current general wrongful death statute illustrates that from the effective date of Act 53 of 1883, the original precursor to our current statute, and continuing until the repeal and replacement of that legislation by Act 255 of 1957, the amount recovered in the wrongful death action was required to be distributed in accordance with the laws of distribution and descent. Hicks v. Missouri Pac. R.R. Co., 181 F. Supp. 648 (W.D. Ark. 1960). Effective with the 1957 legislation, the apportionment of the award was made by the court or jury in accordance with the evidence. Id. This change was regarded as essentially a procedural change in the method by which the distribution of the amount recovered would be determined since the substantive right of the beneficiaries of the action to collect their allocable share of the damages continued in force. DeLong v. Green, 229 Ark. 100, 313 S.W.2d 370 (1958). Clearly, an historical distinction has been built into the wrongful death legislation between the proceeding to determine the apportionment of the award and the proceeding to determine the liability and computation of damages recoverable from the tortfeasor, which distinction is preserved in the scheme of our current statute where the issue of fixing the amount of damages is dealt with in subsection 16-62-102(f) and the issue of fixing the shares of the statutory beneficiaries in that award is dealt with in subsection 16-62-102(g).

Carrying on in our review of the history of our state’s wrongful death legislation, we note this court in interpreting another wrongful death act, Act No. 88 of 1911, which was applicable for deaths caused only by railroad accidents, found the statute did not provide a methodology for determining who should participate in the damages award and to what extent. Perforce the court concluded “to formulate a rule of distribution consonant with reason and the principles of sound justice,” and directed as follows:

[t]he fairest rule, it appears to us, is that it should be for the jury to say from a consideration of all the facts and circumstances whether the plaintiff in a given case had suffered pecuniary injury, and, if so, what was its extent as compared with the others entitled to share in the fund — that, also, to be determined from a consideration of all the circumstances in the case, and from this his proportionate share will be fixed.

Faulkner v. Faulkner, 186 Ark 1082, 1092, 1093, 57 S.W.2d 818, 822 (1933).

Appellant argues the wrongful death statute clearly contemplates the collateral source rule should be applied and cites subsection 16-62-102(f) as her authority. As we have noted, however, subsection (f) merely addresses fixing the amount of the damages when the wrongful death action is tried. In this case, by contrast, the amount of damages was reached by compromise agreement and was finalized prior to the commencement of the apportionment proceeding. Therefore, the amount of damages recovered from the wrongdoer could not have been mitigated or reduced by the introduction of evidence of collateral sources of income at the apportionment proceeding. It follows then that the public policy concern which engendered the collateral source rule — recoveries by the injured party from collateral sources shall not benefit the wrongdoer by reducing the damages award for which he is liable — and which supports the rule’s application in the context of the proceeding to determine the liability and the damages recoverable from the wrongdoer is simply not an authentic consideration in the context of this proceeding to apportion those damages among the various injured parties.

In conclusion, we find, consonant with reason and the principles of sound justice, that the probate court committed no error in considering all the circumstances of the case, including the challenged third-party payments, in fixing the shares of the statutory beneficiaries before it, and hold that the collateral source rule was not applicable to this proceeding. In so holding, we do not modify the application of the collateral source rule in the context of the proceeding to determine the liability and damages recoverable from the wrongdoer. We note that to avoid any perceived prejudice, the trial court may bifurcate the issues of determining liability and fixing the damages under subsection 16-62-102(f), from the issue of fixing the shares of the statutory beneficiaries in those damages under subsection 16-62-102(g). ARCP Rule 42(b).

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Shawn SEBASTIAN v. STATE of Arkansas
    94-335
    885 S.W.2d 882
    Supreme Court of Arkansas
    Opinion delivered October 31, 1994

      Daniel D. Becker and Terri L. Harris, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Shawn Sebastian,

appeals an order of the Garland County Circuit Court denying his motion to transfer to juvenile court two Class C felony charges of theft by receiving. This interlocutory appeal is permitted by statute; jurisdiction is therefore properly in this court. Ark. Code Ann. § 9-27-318(h) (Repl. 1993); Ark. Sup. Ct. R. l-2(a)(12). We find no merit to appellant’s arguments and affirm the order denying the transfer.

Pursuant to the discretion given in section 9-27-318(c), the prosecutor filed a felony information in circuit court charging appellant with two counts of theft by receiving property valued over $200. The information alleged appellant committed the crimes on February 24, 1994, when he was sixteen years old. The stolen property included a tool box, radar detector, Marlin .22 rifle, and three rods and reels.

Appellant moved to transfer the case to juvenile court. After a hearing on the motion, the circuit court considered all the factors enumerated in section 9-27-318(e) and found inter alia, there was clear and convincing evidence that appellant had a repetitive pattern of adjudicated offenses and that due to his prior history, character traits, and mental maturity, appellant’s prospects for rehabilitation within the juvenile system were nonexistent. Accordingly, the circuit court denied the motion to transfer.

As the party seeking the transfer, appellant had the burden of proof to show a transfer was warranted under the statute. Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). Section 9-27-318 provides in pertinent part:

(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

The circuit court made its decision to retain jurisdiction after a hearing in which a juvenile court intake officer and juvenile court probation officer testified for the state. Their testimonies revealed that appellant had been involved in the juvenile justice system since October 1992 and that since that time he had had numerous prior adjudications, including probation violations and failures to appear for numerous and multiple charges of criminal impersonation, criminal trespass, burglary, theft by receiving, criminal mischief, and escape. Both witnesses observed that appellant had not been sent to all the programs within the juvenile justice system, including the training school, but opined there were no available programs within the juvenile justice system that would successfully rehabilitate appellant.

In support of the transfer, appellant testified in his own behalf. He stated that he was sixteen years old, unmarried, no longer in school, and working at odd jobs to support his four-month-old baby. He stated his father had attempted to help him with his problems by grounding him and making him work, but admitted his father’s attempts had been unsuccessful. Appellant testified that some of the programs outside the juvenile justice system, such as the C-step program or a challenge program, might be successful in rehabilitating him. He also stated the training school might be a viable alternative.

At the conclusion of the hearing, the circuit court announced its findings of fact from the bench. The circuit court stated since two Class C felonies were involved and appellant could potentially face a sentence of imprisonment for ten years on each count, the offenses involved were serious within the meaning of the statute. The circuit court acknowledged there were no allegations of violent acts committed against any persons in the present case, but observed that, since appellant was in possession of a firearm as a result of this crime, there was at least the potential for violence. The court stated that the current offense was part of a repetitive pattern of adjudicated offenses. As for appellant’s past history, character traits, and mental maturity, the circuit court observed that, since appellant was out of school, out of a job, and had fathered a child, the hope for rehabilitating appellant in the juvenile justice system was nonexistent. Accordingly, the circuit court found there was clear and convincing evidence that appellant should be tried as an adult in circuit court.

Appellant contends the felony theft by receiving charges were improperly retained in the circuit court because there was no violence in the commission of the offense; the crimes were not rape or homicide and therefore were not serious offenses; the crimes were classified as felonies only because of the value placed on the property by the victims, and therefore were not serious offenses; his record of prior adjudicated offenses contained only one felony, the remainder being misdemeanors resulting in probation or dismissals; and nothing in his past history or character traits demonstrates he has a propensity for violence. We find no merit to any of appellant’s arguments.

In making its decision, the trial court is not required to give equal weight to each of the statutory factors. Williams, 313 Ark. 451, 856 S.W.2d 4; Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). If a trial court determines a juvenile should be tried in circuit court as an adult, its decision must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f); Williams, 313 Ark. 451, 856 S.W.2d 4. We do not reverse a circuit court’s denial of a juvenile transfer unless we determine the denial was clearly erroneous. Id.; Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991).

We address appellant’s arguments summarily by pointing out that where, as here, there is evidence that the current felony charges were part of a repetitive pattern of offenses, that past efforts at rehabilitation in the juvenile court system have not been successful, and that the pattern of offenses has become increasingly more serious, these factors alone prevent us from holding the trial court’s ruling on the transfer motion clearly erroneous. Johnson v. State, 317 Ark. 521, 878 S.W.2d 758 (1994); Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991).

We are well aware that, while the use of violence in committing a serious offense is a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile, the commission of a serious offense without the use of violence is not a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile. See Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992). However, unlike Blevins, factors are present in this case that warrant the circuit court’s retention of jurisdiction, regardless of the absence of the use of violence in committing the crimes. Based on the evidence presented, we cannot say the trial court was clearly erroneous in holding appellant should be tried as an adult in circuit court.

The order denying appellant’s motion to transfer is affirmed.


author: Robert L. Brown, Justice.

text:
    S.T. and C.B. v. STATE of Arkansas
    94-163
    885 S.W.2d 885
    Supreme Court of Arkansas
    Opinion delivered October 31, 1994

      Val. P. Price, for appellant C.B.

      Christopher M. Jester, for appellant S.T.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This case concerns the criminal offense of possession of a handgun by minors. Both minors, C.B. and S.T., were arrested for possession of a handgun on public school property. The precise issue before us is whether the handgun possessed by the girls falls within the definition of handgun set out in our Criminal Code. We conclude that it does, and we affirm the juvenile judge’s disposition of the case.

The facts of this case are not as clear from the record as they might be. S.T. and C.B. are minor girls who in October 1993 attended Annie Camp Junior High School in Jonesboro. Both girls were 13 years old at the time of the offense and were on probation for previous juvenile offenses. On October 21, 1993, the two girls carried the pistol in question, which belonged to a third girl, to school. C.B. testified that they took the weapon to school because S.T.’s mother did not want the pistol in her house. During the trip to school, possession of the gun was transferred to C.B.

At school, C.B. was sent to Principal Jim Ellis because she refused to go to “in-school suspension.” While in the principal’s office, C.B.’s father, Robert Whitaker, arrived, and C.B. gave the handgun to him. Mr. Whitaker in turn gave the handgun to the principal. Mr. Ellis then removed the hammer which was loose. He did not know whether the pistol had a firing pin in it at that time. Mr. Whitaker slightly contradicts Mr. Ellis’s testimony. He believed that the pistol was in two separate pieces before he gave it to the principal.

Subsequently, Karl McSwain, a deputy sheriff for Craig-head County, examined the gun and found it to be inoperable because several parts were missing, including the hammer and firing pin. He later testified that without both pieces the gun could not be fired. He did not know whether the gun had those two pieces at the time it was discovered on school property. He admitted that with a hammer and firing pin, the weapon could fire.

Both S.T. and C.B. contended at the ensuing hearing that they could not be guilty of possession of a handgun because the handgun found was not capable of firing rimfire or centerfire ammunition which is what the definition of “handgun” in the Code requires. Ark. Code Ann. § 5-73-119(b) (Repl. 1993). In addition, S.T. argued that she did not have possession of the firearm on school property.

The juvenile judge adjudicated S.T. and C.B. to be juvenile delinquents. He found C.B. guilty of possessing a handgun on school property, a felony, and S.T. guilty of the lesser offense of a minor in possession of a handgun, a misdemeanor. See Ark. Code Ann. §§ 5-73-119(a)(1)(A) and (a)(2)(A) (Repl. 1993). Both girls were committed to the Youth Services Center.

S.T. and C.B. argue one point on appeal. They contend that the handgun possessed was inoperable and, thus, did not qualify as a handgun under state law. The definition of a handgun follows:

(b) A handgun is a firearm capable of firing rimfire ammunition or centerfire ammunition, and which is designed or constructed to be fired with one (1) hand.

Ark. Code Ann. § 5-73-119(b) (Repl. 1993). Because the hammer was separated and not attached and because the firing pin was missing when the pistol was retrieved by Principal Ellis and then examined by Deputy Sheriff McSwain, appellants urge that this was not a weapon capable of firing the specified ammunition.

The appellants cite this court to multiple cases where various courts have interpreted the applicable statutes in their jurisdictions to require that the gun be immediately operable at time of possession. The State, on the other hand, has directed us to authority holding that under certain definitions the pistol need not be immediately operable for a violation but merely designed to fire certain types of ammunition. Still other authority exists for the principle that if the weapon can be readily assembled to fire, that renders it sufficiently operable for a violation. These three approaches as well as the issue in general are fully analyzed, discussed, and summarized in a 1990 American Law Reports Annotation, Fact That Gun Was Broken, Dismantled, or Inoperable As Affecting Criminal Responsibility Under Weapons Statute, 81 ALR 4th 745 (1990). The precluded offenses and the statutory definitions vary from jurisdiction to jurisdiction. This is the first time that we have been called upon to interpret § 5-73-119(b) and the phrase “capable of firing rimfire ammunition or center-fire ammunition” in the context of operability.

The juvenile judge in his findings and decision appears to have adopted the design interpretation:

The Court does find — I have examined the weapon, and I do find that it lacks a firing pin. However, it’s going to be the Court’s finding that the State has met its burden of proof, and that the petition is substantiated beyond a reasonable doubt. In making that determination, I do find that this is a firearm which is capable of firing [rim] fire ammunition or center fire ammunition. And I think the fact whether it was capable of firing that type of ammunition at the time it was taken on school property is of — has no bearing, and is therefore irrelevant.
It’s the Court’s finding that the legislature put that definition in the statute to distinguish a firearm which was capable of firing either [rim] fire or center fire ammunition from the type of pistol that might be described as a pellet gun, or a B-B gun, a water pistol, a toy pistol, in other words, something other than this type of weapon. And the [capability] of firing [rim] fire ammunition or center fire ammunition is in reference to the type of ammunition that may be fired from the weapon, and not whether the weapon was capable of actually being — or was mechanically sound and capable of actually firing that ammunition at that place and time. So, I think the capability refers to the ammunition that can be used by that particular weapon, and not whether or not it was operable at the time. So, I’m going to find that the petition has been substantiated.

We affirm the juvenile judge’s decision. In so doing, we look to the following principles of interpretation. The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993). On the other hand, when this court interprets a penal statute it is well settled that the statute must be strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed. Id.; quoting Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1988). But strict construction of penal statutes does not override the primary consideration of all statutory construction, which is to ascertain the intent of the legislature. Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985).

The definition of handgun in § 5-73-119(b) uses the phrase “capable of firing rimfire ammunition or centerfire ammunition” in its first clause. It does not read, “capable of firing at time of possession;” nor does it merely read “capable of firing” without reference to certain ammunition. The juvenile judge found the association between ability to fire and the particular ammunition to be important and hinged his decision on that point. Moreover, the second clause of § 5-73-119(b) uses the terms “designed or constructed to be fired with one (1) hand.” It is our opinion that the General Assembly used the phrase “capable of firing” and “designed or constructed to be fired” synonymously and interchangeably. Thus, if the firearm was designed to fire that particular ammunition, it would qualify as a handgun.

We have also looked to legislative comment on the handgun statute. In enacting Act 649 of 1989, now codified as Ark. Code Ann. § 5-73-119 (Repl. 1993), the General Assembly expressed its intent in the Emergency Clause:

It is found and determined by the General Assembly that the possession of handguns by young Arkansans contributes substantially to the commission of crimes and injuries to innocent persons, and that the possession of such weapons by persons on school property has resulted in numerous recent injuries and deaths.

Act 649 of 1989, § 7. The General Assembly amended the statute by Act 1189 in 1993 and stated again the purpose of the statute:

(a) The General Assembly of the State of Arkansas finds that the State of Arkansas is experiencing an increase in violent crime committed by school age juveniles and the growth of street gangs made up largely of school age juveniles. The General Assembly of the State of Arkansas further finds that the number of school related crimes is increasing.
(b) It is the intent of the General Assembly of the State of Arkansas to insure the safest possible learning environment for our students, teachers and other school employees.

Act 1189 of 1993, § 1(a), (b).

The intent behind this statute is, therefore, clear — to insure safety at our public schools. We have no doubt that C.B. and S.T. knew that they were breaking the law by taking the handgun to school. And we agree with the juvenile judge that whether this particular pistol was immediately operable on school property is irrelevant. It was designed to fire rimfire or center-fire ammunition, and that resolves the issue. Were we to hold otherwise, legislative intent could be easily thwarted. A student could bring a pistol missing one essential part, such as a hammer or firing pin, onto the school premises with impunity. The handgun could then be assembled on campus at the whim of the possessor. Alternatively, a student could brandish a fully operable weapon on school property, then remove an essential part, claim inoperability, and be beyond the reach of the statute. Such an interpretation not only flies in the face of legislative intent, but it reaches an absurd result. We will not interpret our statutes to reach a result contrary to the clear intent of the legislature. Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994).

In short, the fact that the handgun was temporarily inoperable when school officials discovered it does not prevent prosecution under the statute. In certain authority cited by appellants, the issue surrounded pistols originally constructed to operate but which were so rusted or in such disrepair that operation at time of arrest was impossible. That is not the case before us, and we decline to address those hypothetical circumstances. Here, certain pieces were missing but, according to Deputy Sheriff McSwain, had they been located and the weapon assembled it would have been operable.

Affirmed.


author: Per Curiam.

text:
    R. Robert BAILEY, and Ed H. Smith, Individually, and on Behalf of the Committee to Save Arkansas Jobs, Inc., and all Others Similarly Situated v. W.J. “Bill” McCUEN, Secretary of State Committee for a Safe Workplace, Intervenor

    94-951
    886 S.W.2d 592
    Supreme Court of Arkansas
    Opinion delivered October 31, 1994

      Robert S. Shafer, for petitioners.

      Winston Bryant, Att’y Gen., by; Melissa Rust, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioners, R. Robert Bailey and Ed H. Smith, acting individually and on behalf of The Committee to Save Arkansas Jobs, Inc., and all others similarly situated, filed this original action petition against W.J. “Bill” McCuen, Secretary of State. With respect to the proposed amendment to our state Constitution (“Constitution”) known by the popular name “An Amendment to the Arkansas Constitution to Restructure the Workers’ Compensation Commission and Revise Workers’ Compensation in Law,” petitioners sought an order invalidating the proposal, removing it from the November 8, 1994 general election ballot, and directing that any votes cast on the proposal not be counted. Intervenor, Committee For A Safe Workplace, sponsored the initiative petition.

Petitioners challenged the sufficiency of the proposal under Amendment 7 to the Constitution based on the initiative petition, specifically, the validity of a number of the signatures thereon (“Count I”), and the ballot title (“Count II”). On that basis, this case was severed into two parts, corresponding to Count I and Count II, to be separately submitted to this court. Bailey v. McCuen, 318 Ark. 49, 884 S.W.2d 937 (1994). After submission of Count II of this case, we delivered our opinion on October 14, 1994 granting the petition. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994). In consequence, the issues presented by Count I of this case are rendered moot, and the petition with respect to Count I of the case is, therefore, dismissed.


text:
    Frank WILLIAMS, Jr. v. STATE of Arkansas
    CR 93-988
    885 S.W.2d 679
    Supreme Court of Arkansas
    Opinion delivered October 31, 1994

      Thomas A. Potter, for appellant.
    No response.
   Per Curiam.

This is a capital murder case in which Frank Williams, Jr. was convicted and sentenced to death by lethal injection. Counsel for appellant, Thomas A. Potter, was ordered to appear on October 17, 1994, to show cause why he should not be held in contempt for failure to file the abstract and brief in this cause. See per curiam opinion delivered on October 3, 1994. At the show cause hearing, Mr. Potter appeared and stated that he had prepared an abstract and brief on behalf of the appellant. We granted his motion to file a belated brief and, subsequent to the hearing, Mr. Potter filed the abstract and brief.

At the hearing, Mr. Potter entered a plea of guilty to the contempt order and offered mitigating circumstances. After hearing and considering counsel’s statements and other matters before the court, we find Mr. Potter in contempt of court for failure to file a timely abstract and brief on behalf of appellant, and impose a fine of $250.00 for such conduct. We direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.

It is so ordered.

Corbin, J., not participating.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Sherry WALKER, Individually and as Chair of the Committee to Preserve the Medicaid Trust Fund, and on Behalf of All Others Similarly Situated v. W.J. “Bill” McCUEN, in his Official Capacity as Secretary of State of the State of Arkansas John Bland, as Chairman of Citizens Against Unfair Taxes, Intervenor

    94-1149
    886 S.W.2d 577
    Supreme Court of Arkansas
    Opinion delivered November 3, 1994

      Wilson, Engstrom, Corum & Coulter, by: Stephen Engstrom', and John Pagan, for petitioner.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Deputy Att’y Gen., for respondent.
   Donald L. Corbin, Justice.

Petitioner, Sherry Walker, individually and as chair of the group known as The Committee To Preserve The Medicaid Trust Fund, and on behalf of all others similarly situated, filed this original action pursuant to Amendment 7 to the Arkansas Constitution, against respondent, W.J. “Bill” McCuen, as Secretary of State of the State of Arkansas. Petitioner challenges the sufficiency of the ballot title of Referred Act 1 on the November 8, 1994 general election ballot. Referred Act 1 is Act 7 of the Second Extraordinary Session of 1992 and is popularly known as the Soft Drink Tax Act. The sponsor of Referred Act 1, a group known as Citizens Against Unfair Taxes (“CAUT”), was permitted to intervene and filed a motion to dismiss this action. Respondent has joined in that motion. We granted petitioner’s request to expedite this case. Walker v. McCuen, 318 Ark. 389, 886 S.W.2d 577 (1994).

The facts giving rise to this case began on January 28, 1993, when the Attorney General certified the popular name and ballot title to respondent for a proposed referendum of the Soft Drink Tax Act. The Attorney General’s certification reflects that the popular name “ARKANSAS SOFT DRINK TAX ACT” was accepted as proposed, but that the ballot title was changed to include a reference to the disposition of the revenues generated by the tax. The full text of the ballot title is appended to this opinion.

Consequently, on March 2, 1993, CAUT filed a petition with respondent to refer Act 7 on the 1994 general election ballot. On April 6, 1993, and again on April 21, 1993, CAUT supplemented the petition by submitting additional signatures in support of the proposed referendum. On August 24, 1993, respondent certified Act 7 as Referred Act 1 to appear on the 1994 general election ballot.

Petitioner filed this original action on October 24, 1994. Petitioner requests we enjoin respondent from placing Referred Act 1 on the general election ballot, or alternatively that we enjoin respondent from counting any ballots cast for Referred Act 1.

I. SOFT DRINK TAX ACT

The legislative history of the soft drink tax is essential to an understanding of petitioner’s argument in this original action. The General Assembly created the soft drink tax when it passed Act 7 in the Second Extraordinary Session of 1992. Section 9 of Act 7 states the revenues generated from the tax would be deposited in the State Treasury as general revenues. Act 7 contained an emergency clause declaring the effective date of the act to be March 1, 1993. Act 7 is the legislative act CAUT sponsored for referendum by the electorate for approval or disapproval in the 1994 general election.

Also in the Second Extraordinary Session of 1992, the General Assembly passed Act 3, subtitled “An act to provide financial relief to the Arkansas Medicaid Program,” which directed into the state’s general revenues those “new revenues” generated solely from enactments of the 1992 Second Extraordinary Session, and required the first $34,300,000 of such revenues generated in the fiscal year ending June 30, 1993 to be deposited in the Grants Fund Account of the Department of Human Services for use in the Medicaid program. Act 3 contained an emergency clause declaring the act would become effective immediately upon passage and approval; the Governor signed and approved the act on December 18, 1992. CAUT did not include or make reference to Act 3 in its referendum petition.

In addition to the soft drink tax, the General Assembly passed numerous revenue-raising measures during the Second Extraordinary Session of 1992, including but not limited to: an additional excise tax on packs of cigarettes; taxes on home health care agencies, personal care service providers, long-term care facilities, nursing facilities, and intermediate care facilities for the mentally retarded; a gross receipts tax on numerous services such as providing transportation or delivery of money, providing a credit report, providing pool cleaning services, and providing indoor tanning services; a gross receipts tax on dues and fees to health and fitness clubs and private clubs permitted by the Arkansas Beverage Control Board to dispense alcoholic beverages. Also in the Second Extraordinary Session of 1992, the General Assembly limited the amount of the 2% discount available to retailers making prompt payment of gross receipts taxes and placed a 5% penalty on the failure to make tax prepayments. Thus, the sums generated by all the foregoing measures were considered “new revenues” under Act 3.

In the regular session of 1993, the General Assembly passed Act 1073, which, in section 11, created a new fund in the State Treasury for the biennial period ending June 30, 1995, to be known as the Arkansas Medicaid Program Trust Fund (“Medicaid Trust Fund”). Section 20 of Act 1073 expressly amended section 9 of Act 7 to provide that revenues generated from the soft drink tax during the biennial period ending June 30, 1995, were to be deposited in the Medicaid Trust Fund. Act 1073 contained an emergency clause declaring the effective date to be July 1, 1993.

In the Second Extraordinary Session of 1994, the General Assembly passed Act 27 which amended Ark. Code Ann. § 26-57-908, the statute creating the Medicaid Trust Fund which had previously amended Act 7. Act 27 removed the time limitation on the existence of the Medicaid Trust Fund in the State Treasury and provided that if the Arkansas Medicaid Program should be discontinued for any reason, the revenues from the soft drink tax must be used to provide services similar to Medicaid. As stated in section 4 of Act 27, its purpose and intent were to assure that revenues from the soft drink tax would never become general revenues of the state-, but would be used exclusively to provide Medicaid or similar services. Act 27 contained an emergency clause declaring it effective upon passage and approval; the Governor signed and approved the act on August 23, 1994.

II. ARGUMENTS PRESENTED

Petitioner challenges the sufficiency of the ballot title on two bases: it is misleading and contains a fatal omission. Petitioner contends the ballot title is misleading because it falsely asserts that revenues from the soft drink tax are deposited in the state’s general revenues. Petitioner argues the ballot title fatally omits the fact that the revenues from the tax are earmarked for the Arkansas Medicaid Program. Petitioner asserts the ballot title was insufficient from the outset because of the failure to include a reference to the fact that Act 3 earmarked the revenues for Medicaid. Additionally, petitioner asserts the 1993 and 1994 amendments to Act 7 compound the insufficiencies. Thus, we are asked to evaluate the sufficiency of the ballot title in light of three other acts, namely Act 3 of the Second Extraordinary Session of 1992, Act 1073 of 1993 (“the 1993 amendment) and Act 27 of the Second Extraordinary session of 1994 (“the 1994 amendment”).

Generally, respondent contends petitioner’s argument must fail because its adoption by this court would allow the legislature to thwart the power of referendum expressly reserved to the people in Amendment 7. If we adopt petitioner’s argument, respondent fears the legislature could simply amend any measure that has been referred to the electorate and thereby defeat the referendum. This argument is premised on the claim that the 1993 and 1994 amendments to Act 7 are unconstitutional because the right of referendum as stated in Amendment 7 precludes the legislature from amending a measure that has been referred to the people.

Respondent argues petitioner’s claim regarding Act 3 must fail because Act 3 literally does not amend Act 7. Respondent points out that if the 1993 and 1994 amendments are disregarded as unconstitutional, then according to Act 7, the soft drink tax revenues are to be deposited into the general revenues of the state. Act 3 merely transfers some of the revenues from general revenues to the grants account for Medicaid. Thus, argues respondent, in reality, the soft drink tax revenues are deposited in general revenues; therefore, the ballot title is not misleading and does not contain a fatal omission.

In its motion to dismiss pursuant to ARCP Rule 12(b)(6), intervenor CAUT essentially relies on the same basic argument as respondent but contends petitioner has not stated fácts upon which relief can be granted by this court.

III. OPERATIVE DATE FQR ANALYSIS

Before we consider the merits of the petition, we must determine the operative date for our analysis of the sufficiency of the ballot title. Of the four legislative acts described in the preceding section of this opinion, which do we consider in determining petitioner’s challenge?

In its motion to dismiss, CAUT argues the operative date is the date the referendum petition was filed with respondent, March 2, 1993. CAUT’s argument would require that we disregard both the 1993 and 1994 amendments. Likewise, respondent contends the operative date is the date the petition is filed with its office. Petitioner contends the operative date is August 24, 1993, the date respondent certified the referendum petition. Petitioner’s contention would, for purposes of our review, require that we consider the 1993 amendment creating the Medicaid Trust Fund, but not the 1994 amendment.

This court has held that for a petition to qualify as an initiative measure under Amendment 7, the petition must, prima facie, contain at the time of filing the required number of signatures. Casteel v. McCuen, 310 Ark. 568, 838 S.W.2d 364 (1992); Ellis v. Hall, 219 Ark. 869, 245 S.W.2d 223 (1952) (per curiam); Dixon v. Hall, 210 Ark. 891, 198 S.W.2d 1002 (1946). The same rule applies to petitions for referred measures.

We hold that once a petition for referendum bearing the prima facie requisite number of signatures is filed with the Secretary of State, the people’s right of referendum commences pursuant to Amendment 7. This rule protects the electorate’s right of referendum early in a lengthy qualification process. Contrary to petitioner’s claim, our rule does not conflict with Wait v. Hall, 196 Ark. 508, 118 S.W.2d 853 (1938), which merely states that the Secretary of State’s power to extend the period for filing signatures in support of a referendum is limited to one thirty-day extension past the ninety days provided in Amendment 7.

According to the Receipt for Referendum Petitions issued by respondent to CAUT on March 2, 1993, the petition filed on that date contained 43,113 signatures while only 41,785 were required. Thus, the operative date for our analysis is March 2, 1993, the date the initial petition for referendum was filed with respondent. March 2, 1993, is the date the referendum process began and the date the referred act was held in abeyance pursuant to Amendment 7.

IV. BALLOT TITLE ANALYSIS

We turn now to our analysis of the sufficiency of the ballot title of Referred Act 1. A ballot title must be free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994). In addition, a ballot title must be intelligible, honest, and impartial so that it informs the voters with such clarity that they can cast their ballots with a fair understanding of the issues presented. Id. This court is liberal in construing Amendment 7 and in determining the sufficiency of a ballot title under that amendment. Id.; Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605(1994). But if information omitted from the ballot title is an essential fact which would give the voter serious ground for reflection on whether to vote for the measure, it must be disclosed. Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994); Bailey, 318 Ark. 277, 884 S.W.2d 938.

We recently summarized these principles into two standards. If omitted information, had it been included in the ballot title, would have given a voter serious ground for reflection on how to vote, the omission renders the ballot title insufficient. Bailey, 318 Ark. 277, 884 S.W.2d 938. On the other hand, if statements contained in the ballot title have a tendency to mislead the voter so as to thwart a fair understanding of the issues presented, the ballot title is likewise insufficient. Id.

A. Effect of 1993 and 1994 Amendments

Amendment 7 is silent on the legislature’s power to amend a measure once it has been referred to the people. This silence is no doubt due to the very nature of the power of referendum. Referendum is a reservation by the people of a part of the legislative power and a limitation on the full exercise of the legislative function by the legislature. Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912) (holding under prior initiative and referendum amendment). Thus, in order to preclude a legislature from defeating direct expression of popular will through the power of referendum, legislative amendments which effect legislative acts subject to referendum are not considered in evaluating the sufficiency of the ballot title. This must be if the people’s reserved right of referendum is to have any meaning.

Petitioner contends the 1993 and 1994 amendments to the referred act were valid and constitutional because they were made in good faith and not for the purpose of frustrating the referendum process. Petitioner alleges the amendments were good faith attempts to clarify the General Assembly’s original intent, as expressed in Act 3, to use the soft drink tax revenues solely for Medicaid purposes.

We express no opinion as to the constitutionality of the 1993 and 1994 amendments because no such opinion is required on the facts of this case. Any such opinion would be advisory in nature. This court does not anticipate future litigation and does not issue advisory opinions. Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).

Therefore, we hold that once a measure is referred to the people, regardless of whether it contains an emergency clause, any amendments made by the General Assembly during the referendum proceedings are held in abeyance. As the 1993 and 1994 amendments were passed by the General Assembly after the referendum proceedings began on March 2, 1993, we will not consider the 1993 and 1994 amendments when evaluating the sufficiency of the ballot title of the referred act.

B. Effect of Act 3 of Second Extraordinary Session of 1992

This court has stated that “acts passed upon the same subject must be taken and construed together.” Roachell v. Gates, 185 Ark. 350, 355, 47 S.W.2d 35, 37 (1932). This rule is especially applicable where the two acts were under consideration by the General Assembly at the same time. Id. Citing Roachell, petitioner contends we must look to Act 3 when determining her claim as to the ballot title of the referred act, since Acts 3 and 7 were passed in the same session. We agree we should consider Act 3 in our analysis.

The ballot title states the soft drink tax revenues will be deposited into the state’s general revenues. The referendum is on Act 7, which also states the soft drink tax revenues will be deposited in general revenues. Act 3 simply states that, for a specified and limited time, a specified and limited amount of the revenues generated from all taxes created in the Second Extraordinary Session of 1992 be transferred from general revenues to the Department of Human Services’s grants account for Medicaid. Act 3 related to numerous taxes in addition to the soft drink tax, whereas the soft drink tax alone is the subject of the referendum. Hence, there is nothing omitted from the ballot title that would give a voter serious ground for reflection when voting on the soft drink tax, nor are statements contained therein which have a tendency to mislead the voter on the issue presented — the Soft Drink Tax Act.

Petitioner’s request for relief is denied, as is intervenor’s motion to dismiss. The mandate is ordered issued immediately.

Brown, J., concurs.

ADDENDUM

The following is the complete text of the ballot title of Referred Act 1:

ARKANSAS SOFT DRINK TAX ACT
(Ballot title)
AN ACT LEVYING A TAX ON SOFT DRINKS AND POWDERED DRINKS COSTING TWO DOLLARS ($2.00) PER GALLON FOR EACH GALLON OF SOFT DRINK SYRUP OR SIMPLE SYRUP SOLD OR OFFERED FOR SALE IN THE STATE, TWENTY-ONE CENTS ($0.21) PER GALLON FOR EACH GALLON OF BOTTLED SOFT DRINKS SOLD OR OFFERED FOR SALE IN THE STATE, AND TWENTY-ONE CENTS ($0.21) FOR EACH GALLON OF SOFT DRINK WHICH MAY BE PRODUCED FROM POWDER OR OTHER BASE PRODUCT, OTHER THAN A SYRUP OR SIMPLE SYRUP, SOLD OR OFFERED FOR SALE IN THE STATE; REQUIRING DISTRIBUTORS, WHOLESALERS AND MANUFACTURERS WHO SELL OR OFFER SYRUPS, SIMPLE SYRUPS, POWDERS, BASE PRODUCTS OR SOFT DRINKS FOR SALE TO RETAIL DEALERS WITHIN THE STATE TO OBTAIN A LICENSE FROM THE DIRECTOR OF THE DEPARTMENT OF FINANCE AND ADMINISTRATION; AND REQUIRING LICENSURE OF RETAILERS WHO PURCHASE SYRUPS, SIMPLE SYRUPS, POWDERS, BASE PRODUCTS OR SOFT DRINKS FROM UNLICENSED MANUFACTURERS, WHOLESALERS OR DISTRIBUTORS; PROVIDING THAT THE TAX SHALL BE PAID BY THE DISTRIBUTOR, WHOLESALER, OR MANUFACTURER WHEN THE SYRUP, POWDER, BASE PRODUCT OR SOFT DRINK IS SOLD, AND BY A RETAILER WHO PURCHASES SYRUPS, POWDERS, BASE PRODUCTS OR SOFT DRINKS FROM AN UNLICENSED DISTRIBUTOR, WHOLESALER OR MANUFACTURER; DEFINING CERTAIN TERMS USED IN THE ACT; EXEMPTING CERTAIN LIQUID OR POWDER PRODUCTS FROM THE TAX; PROVIDING THAT THE ACT SHALL BE ADMINISTERED IN ACCORDANCE WITH THE ARKANSAS TAX PROCEDURE ACT UNLESS OTHERWISE PROVIDED; PROVIDING THAT THE PROCEEDS OF THE TAX SHALL BE DEPOSITED IN THE STATE TREASURY AS GENERAL REVENUES; THE SAME BEING ACT 7 OF THE SECOND EXTRAORDINARY SESSION OF 1992, ENACTED ON DECEMBER 21, 1992 AND EFFECTIVE ON AND AFTER MARCH 1, 1993.

Robert L. Brown, Justice,

concurring. I concur with the majority opinion that the original action petition should be denied and that this measure should stay on the ballot. There is no question that once a referendum petition is filed on a particular legislative act with an Emergency Clause (in this case Act 7 of 1992) that measure shall be law until the vote of the people occurs. Ark. Const, amend. 7. Amendments to that measure after the petition is filed (in this case Act 1073 of 1993 and Act 27 of 1994), however, do not affect the referendum on the measure in question. Petitioner Walker argues, hypothetically, that if a subsequent amendment goes to the lengths of repealing the act in question, that information should be given to the voting public in the ballot title. But surely under such circumstances, the issue would be moot and the proponents of the referendum would have no basis on which to proceed with it.

I agree that there is no requirement that Citizens Against Unfair Taxes begin the referendum process all over again, which would entail a renewed effort to gather signatures, simply because the General Assembly saw fit to amend Act 7 by Act 1073 of 1993 and Act 27 of the Second Extraordinary Session of 1994 after the referendum petition on Act 7 was filed. Indeed, had intervenor Citizens filed a new or even amended petition embracing those later Acts, it could well have run afoul of the mandate in Amendment 7 that the petition be filed within 90 days of the end of the session where the measure at issue was passed.

A more troublesome question is raised by Act 3 of the Second Extraordinary Session of 1992, which did become effective before Citizens’ referendum petition was filed. Act 3 authorized the State Treasurer to transfer a certain amount of “New Revenue” from general revenues to the Grant Fund Account of the Department of Human Services Fund to supplement funds available for the Medicaid program, ending June 30, 1993. Act 3 became effective December 18, 1992. Act 7, the Soft Drink Tax, became effective on March 1, 1993, by virtue of an Emergency Clause. The referendum petition on Act 7 was filed on March 2, 1993. Petitioner Walker contends that the “New Revenue” under Act 3 includes several new revenue sources as well as the Soft Drink Tax. According to Walker, the ballot title is misleading in stating that the tax revenue goes into general revenues and not into the Department of Human Services Fund for Medicaid.

Several things are wrong with Walker’s Act 3 argument. Were we to adopt this theory, it would require Citizens to hold a referendum on both Act 3 and Act 7, or at least part of Act 3, and the scope of Act 3 goes far beyond the Soft Drink Tax. For another, it is not altogether clear to what extent Act 3 would include Soft Drink Tax revenues. The Act mandates the State Treasurer to transfer $34,300,000 to the Department of Human Services Fund, but, as already mentioned, several revenue sources qualified as “New Revenue.” Indeed, all revenue derived from acts of the Second Extraordinary Session of the Seventy-Eighth General Assembly qualified. Also, Act 3 was operational until June 30, 1993, which means that it was effective for merely four months after Act 7 became effective on March 1, 1993. Finally, Act 3 does not change the fact that Soft Drink Tax revenues do go into general revenues, at least initially, as the ballot title reflects.

At this late hour, it is admittedly difficult to fathom fully the interplay between Act 3 and Act 7 based on what we have before us. Nonetheless, Amendment 7 reserves to the people the power to reject legislation by the referendum process. Intervenor Citizens is attempting to ask for a referendum on one particular act — Act 7 — and its specific terms. This it had a right to do. The fact that Act 3 may have affected the ultimate destination of Act 7 revenues for four months, although this is not altogether clear from the legislation itself, and the fact that acts after the petition was filed change Act 7 in certain respects, should not disparage the right of the intervenor to petition for the referendum on the one act as it did. The referendum right is one of the most important reserved to the people. We have said before that this right should be liberally construed and “not be thwarted by strict or technical construction.” Cochran v. Black, 240 Ark. 393, 398, 400 S.W.2d 280, 283 (1966); see also Reeves v. Smith, 190 Ark. 213, 78 S.W.2d 72 (1935).

In sum, the referendum is on Act 7. The ballot title describes Act 7 accurately. The issue should now go to the people for determination.


text:
    Senator Nick WILSON and Senator Vic Snyder v. Skip COOK
    94-1181
    886 S.W.2d 593
    Supreme Court of Arkansas
    Opinion delivered November 3, 1994

      Wright. Lindsey & Jennings, by: Mark L. Pryor, for intervenors-appellants.

      Mackey & Wills, by: Frank J. Wills III, for appellee.
   Per Curiam.

On October 19,1994, the appellee, Skip Cook, filed a complaint for injunctive relief against the Secretary of State in the Chancery Court of Pulaski County, contending that “Referred Amendment No. 1,” pertaining to succession in office and the powers of the Governor to fill certain vacancies in office, should be removed from the ballot, or, in the alternative, that the Secretary of State should be enjoined from counting or certifying any votes cast for the referred amendment. Senators Nick Wilson and Vic Snyder, individually and in their representative capacities on behalf of the members of the Legislative Council and of the Arkansas General Assembly, were allowed to intervene in the action and, on October 25, 1994, filed a motion to dismiss.

The Pulaski County Chancery Court denied the intervenors’ motion to dismiss on October 26, 1994, and entered an injunction ordering that the Arkansas Secretary of State be enjoined from placing Referred Amendment No. 1 on the general election ballot, or, in light of the proximity of the election, that he be enjoined from counting or certifying any votes cast for Referred Amendment No. 1.

On October 31, 1994, Senators Wilson and Snyder filed a notice of appeal, petitioning this court for “accelerated proceedings” and applying for temporary relief. The intervenors-appellants acknowledge that, because the general election is to be held on November 8, 1994, time limitations preclude observance of the court’s normal response time and briefing schedule.

There are only three working days between now and the date of the election. Although a partial record has been filed with the clerk of this court, we do not have a transcript of the trial proceedings. Moreover, the clerk of this court informs us that counsel for the intervenors-appellants has advised his office that the record of the trial proceedings cannot be completed or filed for another two or three weeks.

This matter is on appeal from a chancery court. Were we to entertain such an appeal without the benefit of a complete record of trial proceedings, we would be obliged to function in a vacuum. That, of course, we cannot and will not do. Therefore, the clerk is directed, upon the filing of a proper and complete transcript of trial, to set a briefing schedule for the respective parties.

The petition for accelerated proceedings and the application for a temporary stay of the chancellor’s order of October 26, 1994, are denied.

Hays, J., would grant.


author: Per Curiam. Steele Hays, Justice,

text:
    W.J. McCUEN, et al. v. Clarence HARRIS
    94-1196
    891 S.W.2d 350
    Supreme Court of Arkansas
    Opinion delivered November 4, 1994

      Williams & Anderson, by: Leon Holmes', and Winston Bryant, Att’y Gen., by: Timothy Humphries, Deputy Att’y Gen., for appellants.

      Winston Bryant, Att’y Gen., by: Angela Jegley, Asst. Att’y Gen., for Legislators-Intervenors.
    No response.
   Per Curiam.

The appellants, W.J. “Bill” McCuen, et al., seek an expedited hearing in conjunction with their appeal of a Pulaski Chancery Court decision enjoining Mr. McCuen, the Secretary of State, from canvasing the returns and counting the votes in the General Election to be held November 8, 1994, on proposed amendment 2. We were presented with the appellants’ motion, accompanied by an opening brief on November 3, 1994. The appellants ask us to hear the case prior to the election.

This case is not like the case of Walker v. McCuen (Case No. 94-1149) in which we granted expedited consideration on October 25, 1994. There, we were able to order a reasonable briefing schedule which would not be prejudicial to either party. Here, we are asked to require the appellee to present a brief in time to hold arguments on Monday, November 7, 1994, so that the case will be decided prior to the election. To do so would not only be unfair to the appellee, it would also not give this Court the time needed for deliberation of the issue or issues to be presented. We, therefore, must deny the motion for expedited consideration.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. It is regrettable that the Court declines to hear this case on an expedited basis to consider the merits of appellants’ arguments, which the chancellor characterized as “compelling.” Admittedly, it is the eleventh hour, but that is not the fault of the proponents of proposed Amendment 2. It is the appellee who waited until the eve of the election itself to challenge the proposal in court, leading to the issuance of an injunction on November 3, 1994, and effectively eliminating appellate review, to the incalculable loss of the proponents.

Unlike Wilson and Snyder v. Cook (94-1181), where there were neither briefs nor a complete record, nor any assurance the issues could be submitted expeditiously, here we have a complete record and the appellants’ brief is submitted simultaneously with its motion to expedite. There is reason to believe the appellee’s brief could be submitted forthwith.

Moreover, it appears there are differences between this case and Walmsley v. Bailey, (94-981, October 17, 1994), which could affect the result. If the case can be hurried through the trial court as it was, it can be expedited here. I would issue a stay and review the assignment of errors.