text:
    Johnny MILLS v. STATE of Arkansas
    CR 95-150
    910 S.W.2d 682
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The catalyst for this appeal was the conviction of the appellant, Johnny Lee Mills, for capital murder and his sentence of life imprisonment without parole. Mills appeals on seven grounds: (1) insufficient evidence for capital murder and the underlying felonies; (2) failure of the State to provide exculpatory information as part of discovery; (3) tainted photographic lineup and in-court identification; (4) failure to suppress illegally seized blood; (5) failure to allow into evidence a tape and transcript of a hypnotherapy session with a defense witness to refresh the witness’s recollection; (6) failure to exclude a photograph of a pickup truck without proper foundation; and (7) error by the trial court in overruling Mills’s objection to an allegedly racist remark made by the prosecutor in closing argument. We affirm the judgment.

On November 28, 1992, at approximately 9:41 p.m., Officer Pardoe Roberts, who was then with the Lawrence County Sheriff’s Department, found the body of Carrie “Tish” Galbreath in a car parked on Luther Bridge Road off State Highway 34 outside of Walnut Ridge. She had been shot six times and died of blood loss. One bullet wound was behind her left ear, and the gun had been fired at close range. She was also shoeless and her feet were covered with mud. Her underwear and pantyhose were found on the floor of the car, and they had a hole through them which was later identified as a bullet hole. What appeared to be blood was found on the outside passenger’s side of the car and on the car’s hood.

Mills was arrested in connection with the murder and charged with capital murder, rape, and kidnapping. He was later charged with robbery. At the ensuing trial which began on August 1, 1994, and following a motion for directed verdict by the defense, the trial judge dismissed the robbery charge. The jury then returned a guilty verdict for capital murder, and Mills was sentenced to life without parole.

I. INSUFFICIENT EVIDENCE

The State’s case against Mills consisted of these elements. The victim’s sister, Peggy Lomax Robbins, testified that she was with her sister until 6:50 p.m. on the evening of November 28, 1992, and loaned Galbreath her car — a Buick — to go to work. On that same day between 7:00 p.m. and 7:30 p.m., Brenda Whited and her husband, Randal Whited, testified that they were at Coleman’s Combo service station in Walnut Ridge buying gasoline for their car. Brenda Whited heard a lady screaming, “He’s going to shoot me. Help me, please, he’s going to shoot me.” She then heard gunshots. She looked back over her shoulder and saw a black male and white female. The woman was screaming and fighting with the man. At that point, the woman screamed, “He’s going to shoot me again.” She then added, “Oh, God, he’s shot me.” Brenda Whited saw the man and woman wrestle some more.

Randal Whited then came out of the building. The man yelled to him, “Go get him, across the street, go get him.” Randal Whited looked in the direction where the man pointed, but no one was there. The man next shoved the woman into the front seat of their car and down towards the floorboard. As he was driving away, he pulled his car over to where Brenda Whited was parked, pointed at her, and said something which she could not hear. After that, he drove away but Randal Whited took down the license plate of the car which later proved to be the car of Peggy Robbins. At trial, both Brenda Whited and Randal Whited identified Mills as the man with the woman at Coleman’s Combo.

It was stipulated at trial that the bullets which killed Carrie Galbreath came from a .38 caliber revolver that belonged to Mills. Lisa Calhoun, a forensic serologist with the State Crime Laboratory, testified at trial that semen was found in the victim’s mouth, but none was found in her vagina or rectum. Then Lawrence County Deputy Sheriff Pardoe Roberts testified that blood samples were taken from Mills. DNA testing was performed, and the DNA found in the blood matched the sperm samples taken from Galbreath’s mouth. According to Dr. Harold Deadman of the FBI, the probability of selecting someone at random from the black population with the same DNA profile would be one in ten million. When confronted with the DNA results on November 5, 1993, Mills admitted that he had had sex with the victim but said it was Larry White who used his gun to shoot her.

Mike Barter, who was in the Lawrence County jail because of a drug conviction and fifteen-year sentence, testified that he overheard Mills say that “they had killed this girl and raped her and everything in Walnut Ridge.” Robert White, who was incarcerated at the time of trial for burglary and theft, testified that Mills told him that he “and Home Boy raped her [a girl in Walnut Ridge] and killed her.” White added that Mills said “they took a gun and shot her five times.”

In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction. Id.

A. Rape

Mills contends that the State failed to prove an element of rape, namely forcible compulsion. See Ark. Code Ann. § 5-14-103 (Repl. 1993). He further contends that the evidence supports a finding that the sexual activity between the victim and him was consensual.

In viewing the evidence in the light most favorable to the State, as we must do, the proof of rape in this case is substantial. There is the testimony of Mike Barter and Robert White that they heard Mills admit to raping a girl in Walnut Ridge. There is the eyewitness testimony of the Whiteds, who saw Mills accosting a woman at Coleman’s Combo sometime after 7:00 p.m. on the night of Gal breath’s murder. There is the DNA profile matching Mills’s blood to the semen found in the victim’s mouth.

Mills counters this with the fact that according to Dr. Frank Peretti, who performed the autopsy, the victim’s facial makeup was intact at the time she was found and the paint on her fingernails was not cracked or chipped. Both of these factors, according to Mills, evidenced consensual sex with no force employed by an assailant. We disagree. Clearly, a pistol was involved which could have been used to coerce sex. “Forcible compulsion” is defined as “physical force, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl. 1993). The fact that Galbreath was shot before her underwear and pantyhose were removed circumstantially supports the use of force before sex. Moreover, the time span between the time that Peggy Robbins left her sister’s apartment at 6:50 p.m. the night of her murder and the time of her subsequent duress at Coleman’s Combo was roughly ten minutes to forty minutes. While not impossible, that abbreviated period undercuts the theory that consensual sex transpired during this window of opportunity. We conclude that the proof of rape was substantial.

B. Kidnapping.

Mills also argues that there was insufficient evidence presented of kidnapping. The heart of his argument is that Galbreath could well have been dead when she was driven from Coleman’s Combo; hence, there could be no kidnapping of a deceased person.

There is, first, the fact that the victim’s feet were covered with mud suggesting that she had tried to run away from the car later on and, thus, was manifestly alive after the conflict at Coleman’s Combo. In addition, although shot at that time according to what the Whiteds heard, there was no proof that Galbreath was dead.

Surely, the testimony of the Whiteds supports a conviction for substantial interference with Galbreath’s liberty. Ark. Code Ann. § 5-11-102(a) (Repl. 1993). Furthermore, the fact that Mills’s semen was found in the victim’s mouth supports a finding of sexual contact with the victim, at a minimum. This evidence in toto was also substantial.

C. Capital Murder

Mills next maintains that there was insufficient evidence of capital murder because, other than his uncorroborated confessions to Robert White and Mike Barter, there was no proof that he fired the fatal shot. Such corroborative proof, however, is not necessary. Ark. Code Ann. § 16-89-111(d) (1987) provides that:

A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.

This court has held that the statute requires only proof that the offense was committed by someone in order to corroborate a confession. See Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985); McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984). This requirement for other proof, called the corpus delicti requirement, mandates only that a showing be made that the offense occurred and nothing more. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994). The State need only prove that Mills confessed and the victim died as a result of a homicide, which the State did. The evidence was sufficient.

II. EXCULPATORY EVIDENCE

For his second point, Mills contends that the trial court erred in not granting his motion to declare a mistrial due to the State’s failure to reveal the identity of an exculpatory witness. For the first time at trial, Mills’s counsel was made aware of the existence of Robbie Batterton, who had seen a black man and white woman riding in a Buick behind a pickup truck on the night of the murder. According to Mills, this was exculpatory because it proved that other people were involved in the crime and supported his theory of the case that Larry White did the shooting.

Under Ark. R. Crim. P. 17.1 (d), the State is required to disclose to the defense any material or information within its knowledge, possession, or control which tends to negate the guilt of the defendant. Ark. R. Crim. P. 19.2 further imposes a continuing duty to disclose this information. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). Under Rule 19.7, if there has been a failure to comply, the trial court may order the undisclosed evidence excluded, grant a continuance, or enter such order as it deems proper under the circumstances. Id. In some situations, a recess granted to interview the witness is sufficient to cure the failure to comply with the Rules of Criminal Procedure. Id.; see Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980); Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978).

The State clearly violated the letter of Rules 17.1(d) and 19.2. However, in ameliorating the situation the trial court followed an appropriate course of action. The court granted time so that the defense could interview Robbie Batterton. Mills then called Batterton to testify as the sole witness in his defense. We fail to see how Mills was prejudiced under these circumstances. See Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994).

III. PHOTOGRAPHIC LINEUP

Prior to trial, Mills moved to suppress any identification testimony which might be introduced at trial. In his motion, he moved to suppress all testimony concerning both pretrial and in-court identification because the pretrial photographic lineup procedures were highly suggestive and prejudicial to him and any subsequent in-court identification was tainted by the dubious pretrial procedures.

At the ensuing hearing on the motion, Investigator Sam Spades of the Walnut Ridge Police Department testified that two photographic displays were shown to Brenda and Randal Whited. The first photo lineup was conducted on December 7, 1992. Seven pictures were included, but Mills was not one of them. The Whit-eds made no identification. Investigator Spades testified that eleven months later on November 9,1993, a second photo lineup was held and that this time there were eight photographs. The photographs of Mills and Larry White were added, and one photograph used in the previous lineup was removed. The remaining six photographs were the same as those used in the first display. Both of the Whiteds picked Mills from the second photo display.

Because of the duplication of six photographs in the first and second lineups, Mills contends that the integrity of the procedure was highly questionable. He further contends that this is buttressed by the fact that Brenda Whited testified at the hearing that there might have been “one or two” faces in the second photographic lineup which she recalled from the first one.

We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995); Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). In Hayes, we discussed the criteria for assessing whether an in-court identification is suspect or not:

In determining whether an in-court identification is admissible, the court looks first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). It is the appellant’s burden to show that the pretrial identification procedure was suspect. Id.
Reliability is the linchpin in determining the admissibility of identification testimony. Dixon v. State, supra. We do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). The following factors are considered in determining reliability: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Van Pelt v. State, supra; Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). Even if the technique is impermissibly suggestive, testimony concerning the identification is admissible if the identification is reliable. Bishop v. State, supra. Finally, the credibility of identification testimony is for the jury to decide. Dixon v. State, supra.

Hayes, 311 Ark. at 648-649, 846 S.W.2d at 183-184.

In applying the factors to the case at hand, Brenda and Randal Whited clearly had the opportunity to view Mills at Coleman’s Combo. There was no prior identification of another person by them. They were positive in their choice of Mills at the second photo lineup. And they have never failed to identify Mills in a prior lineup. Almost a full year did pass from the date of the murder to the date of the second lineup, but that factor in itself does not militate against a reliable identification. The one criterion that is not satisfied is the accuracy of the Whiteds’ description of Mills following the altercation at Coleman’s Combo. Brenda Whited described the suspect as 5' 10" to 6' tall, black, and possibly with a gold tooth. Randal Whited described him as 6' tall, black, heavy set with a stocky build. Mills is actually only 5' 6" tall and has no gold tooth. In partial answer to this discrepancy, Randal and Brenda Whited testified that they only were able to see Mills from the chest up because his car obstructed their view.

Viewing the totality of the circumstances surrounding the photographic lineup and the in-court identification, we cannot say that the trial court clearly erred in permitting the in-court identification to proceed. We have held that a judgment of conviction will only be set aside when the photographic lineup is so suggestive and unreliable as to create a substantial possibility of misidentification. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). The Whiteds never wavered in their certainty that Mills was the man they saw at Coleman’s Combo, and other than a mistaken estimate of four inches in height, there is nothing that diminishes the reliability of their identification. We affirm the trial court on this point.

IV. BLOOD TEST

Mills next contends that blood was improperly seized from him without a court order in violation of our Rules of Criminal Procedure, and that, as a consequence, the DNA results tying him to the sperm found in the victim’s mouth should have been suppressed. The basis for this argument is Ark. R. Crim. P. 18.1(a)(vii) which reads:

(a) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the defendant to:
(vii) permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof; ....

The taking of blood by a law enforcement officer does amount to a Fourth Amendment search and seizure. Schmerber v. California, 384 U.S. 757 (1965); see also, Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975); Walker v. State, 244 Ark. 1150, 429 S.W.2d 121 (1968). A consensual search, however, does not run afoul of the Fourth Amendment. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993); Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990). We further conclude that a consensual taking of blood also does not contravene Rule 18.1(a)(vii) because the rule does not require a court order when the drawing of blood is voluntary. The question then is whether Mills agreed to the taking of his blood.

This court reviews the evidence in the light most favorable to the State and considers the totality of the circumstances in determining whether the State proved that consent to a search was freely and voluntarily given without actual or implied coercion. Chism v. State, supra; Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991). We will affirm a finding of voluntariness unless that finding is clearly against the preponderance of the evidence. Chism v. State, supra.

Pardoe Roberts, a deputy sheriff at the time, testified that when he served Mills with the State’s petition to seek an order requiring a DNA test, Mills informed him that the petition was not necessary because he would voluntarily submit to the blood test. Deputy Sheriff Roberts then asked the prosecuting attorney what the proper procedure in this situation was, and he was told that if Mills wanted to voluntarily consent to the blood test, then he should be taken to the hospital to have one conducted. Roberts testified that, following that advice, he took Mills to the Lawrence County Memorial Hospital where the blood work was completed. Brenda Jones, the laboratory supervisor at the hospital, testified that she drew Mills’s blood for the DNA testing. She testified that he never objected to his blood being taken; nor did he refuse to have the blood drawn. She stated that had Mills refused the blood work, no blood would have been drawn. No consent form was executed.

Mills, on the other hand, testified that he had previously refused to submit to a blood test. He said that Deputy Sheriff Roberts approached him and asked if he wanted to give blood and that he told him “No.” He then testified that the deputy sheriff came back with a piece of paper and told him that he had a court order, requiring Mills to take the blood test.

Faced with the two versions of what transpired, the trial court made a credibility decision of which witness to believe. The credibility of the witnesses in this instance was for the trial court to weigh and assess. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). We cannot say that the trial court was in error in finding the rendition of Deputy Sheriff Roberts and Brenda Jones more believable than that of Mills.

V REFRESHING RECOLLECTION BY HYPNOSIS

During cross-examination, defense counsel sought to refresh the recollection of the victim’s sister, Peggy Lomax Robbins, by using her statements made under hypnosis. Defense counsel asked Robbins whether, while under hypnosis, she recalled telling the doctor “they shot her.” Robbins answered that she remembered nothing about that. Defense counsel then stated that he wanted to show her a transcript of the hypnotherapy session to which the prosecutor objected, and the trial court sustained the objection. Defense counsel next attempted to play a tape of the hypnotherapy session, an objection was again made by the State, and it too was sustained by the trial court. Defense counsel then proffered the tape for the record. Later on in the trial, there was some confusion between the trial court and defense counsel over whether defense counsel had attempted to refresh Robbins’s recollection with an actual transcript of the hypnotherapy session or police notes. Whatever the case, no transcript of the session was proffered for the record, and it is not available for our review.

This is an issue of first impression in this state. What defense counsel attempted to do with this witness was use her to introduce the transcript of her hypnosis where she allegedly said “they shot her” rather than “he shot her.” The psychologist for the hypnotherapy session, Dr. Gaylon Hurst, was not called to lay a foundation for admissibility. The tape or transcript would have been evidence of statements made by the witness while under hypnosis which she did not recall making. This situation is different from when a defendant or witness is called to give hypnotically refreshed testimony. See, e.g., Rock v. Arkansas, 483 U.S. 44 (1987); Partin v. State, 318 Ark. 312, 885 S.W.2d 21 (1994). Mills presents us with no authority for why statements of a witness made under hypnosis should be relevant, reliable, or otherwise admissible. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Moreover, defense counsel’s efforts in this regard do not resemble a typical attempt to refresh recollection under Ark. R. Evid. 612 by previous writing or other object. Here, the statements allegedly made by Robbins were not recalled by her and were presumably made while she was in a hypnotic trance.

Rulings on the admissibility of evidence are matters within the trial court’s sound discretion, and we will not reverse these evidentiary rulings absent an abuse of that discretion. Partin v. State, supra; Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Though the State is wrong in its brief in asserting that the tape of the session was not proffered, we view this of no great moment. We find no abuse of discretion in the trial court’s disallowing the use of Robbins’s statements made under hypnosis to expand her testimony.

VI. DEMONSTRATIVE EVIDENCE

The next issue surrounds the State’s use of demonstrative or illustrative evidence — a photograph of a Ford pickup truck — used for comparison purposes with the photograph of a Peacock company pickup truck previously introduced through a State witness. The witness on the stand was Robbie Batterton, who had been called as the sole defense witness to testify about seeing a black man and white woman in a light-colored Buick “tailgating” a pickup truck. Batterton testified that the pickup truck he saw did not look like the Peacock truck, which Larry White drove and which was depicted in a photograph shown to him by defense counsel. He did testify that the vehicle he saw looked like the photograph of the Ford pickup truck shown him by the State, although he believed the pickup truck he saw was actually a GMC or Chevrolet truck. The picture of the Ford pickup truck was introduced to show that it was significantly different from the Peacock truck. Defense counsel objected to the State’s photograph, but the trial court overruled the objection.

The admissibility of demonstrative evidence is a matter falling within the wide discretion of the trial court. Garrison v. State, 319 Ark. 617, 893 S.W.2d 763 (1995); Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). Here, there is no basis for a conclusion that the trial court abused that discretion.

VII. CLOSING ARGUMENT

Mills’s last point is that the trial court erred in overruling his objection to a remark made by the prosecutor in closing argument. The statements in question were made during the prosecutor’s rebuttal argument:

And you remember what the officers told you why we had some of the same folks in the lineup? Because we just don’t have that many black people here. And you know something else that you know as well as I do? Our black community, I’m talking about our local black families who’ve been here forever, are very law abiding people.

Defense counsel made the following objection: “I object, that’s a racist statement on behalf of the state and I object to it, to talk about we have good blacks here as opposed to bad blacks.” Defense counsel failed, however, to ask for any specific relief from the trial court. The State responded, “How is that racist? That’s why we don’t have them in the lineup.” The court overruled the objection, and the State continued its closing argument. Defense counsel requested no admonition or curative instruction from the court, and none was given.

We have held that the trial court is given broad discretion to control counsel in closing arguments, and this court does not interfere with that discretion absent a manifest abuse of it. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1995); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Indeed, remarks made during closing arguments that require reversal are rare and require an appeal to the jurors’ passions. Wetherington v. State, supra; Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). It does not appear that any such appeal for an emotional or passionate response was made in this case. Further, it is difficult to fathom how the prosecutor’s remarks in any way prejudiced Mills’s case. And, lastly, defense counsel made no request for relief following his objection. There was no error by the trial court in overruling the objection.

The record of the trial has been reviewed in this case pursuant to Supreme Court Rule 4-3(h), and no reversible error has been found.

Affirmed.

       Mills was charged with premeditated and deliberate capital murder and, alternatively, with capital felony murder. The jury was also instructed on both offenses. The verdict form does not indicate which crime resulted in the conviction. Mills, however, directs his sufficiency-of-the-evidence point at capital felony murder.

       Both Barter and White were in jail with Mills when they heard these statements. The prosecutor did not allow the fact that Mills was apparently in jail on another offense to come before the jury.


source: Caselaw Access Project

author: Andree Layton Roaf, Justice.

license: Public Domain

text:
    Brenda CARR v. GENERAL MOTORS CORPORATION
    95-600
    911 S.W.2d 575
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      The Cortinez Law Firm, P.A., by: Robert S. Cortinez and Robert S. Tschiemer, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, RA., by: G. Spence Fricke, and Derek J. Edwards, for appellees.
   Andree Layton Roaf, Justice.

This is a products liability case. Appellant Brenda Carr was injured when the automobile she was driving was struck from the rear while she was stopped at a traffic light. She filed suit against appellee General Motors Corporation (GMC) alleging that the front seat of her 1984 Buick Regal was defective in design and negligently constructed. She appeals from a jury verdict in favor of appellee and from the denial of her motion for a new trial. We affirm.

During the trial, appellant presented expert testimony that her injuries, including a broken neck, occurred when her seat yielded backward on impact, and she was propelled into the rear of the car, striking her head on the back of the rear seat. The appellee countered this evidence with expert testimony that the seat in fact performed as intended by giving or yielding in the accident. GMC’s expert further stated that the appellant’s head could have struck the roof of the car with even greater force and with the risk to appellant of paralysis, if the seat been designed to remain rigid in a collision.

On appeal, appellant asserts the trial court erred in making several evidentiary rulings. She raises six points on appeal; however, in her argument, these points are consolidated into three contentions: that the trial court erred in 1) allowing appellee’s expert to display to the jury certain diagrams not provided to appellant during discovery, 2) not allowing appellant to introduce into evidence or display to the jury certain documents, films and tests, or to cross-examine one of appellee’s experts using one of the excluded films and 3) not allowing appellant to introduce into evidence reports obtained from GMC of prior substantially similar seatback failures, or to examine appellant’s expert concerning his interview of a person who made one such report. We do not reach the merits of any of appellant’s arguments because she failed to abstract the appellee’s diagrams complained of in her first point, and failed to proffer during trial any of the documents, films and testimony she contends were erroneously excluded by the trial court.

Appellant first asserts it was an abuse of discretion for the trial court to allow the appellee to show to the jury “professionally prepared diagrams on enlarged poster board” which were provided to appellant a year after the discovery cut-off, and only a few days prior to trial. She contends that the resulting prejudice to her was severe. The diagrams were used during the testimony of appellee’s expert for illustration and were not introduced into evidence; they are not included in the abstract and we are precluded from reviewing the issue on appeal. J.B. Hunt Transport, Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995); Pennington v. City of Sherwood, 304 Ark. 362, 802 S.W.2d 456 (1991); see also Ark. Sup. Ct. R. 4-2(a)(6). As appellant correctly asserts, we will address the merits of such an argument if there is sufficient information in the abstract and briefs of the parties from which the contents of an unabstracted exhibit can be discerned. The appellant submits that “the exhibits were diagrams, blown-up to poster size, of occupant kinematics showing a belted and unbelted passenger.” However, there is simply not sufficient information here to determine whether prejudice occurred from the use of the diagrammed illustrations, see Roe v. State, 310 Ark. 490, 837 S.W. 2d 474 (1992), nor can we determine if other exhibits depicting the occupant of a vehicle belted and unbelted, which were introduced into evidence, were sufficiently similar to render any error harmless. See Williams v. Southwestern Bell Tel. Co., 319 Ark. 626, 893 S.W.2d 770 (1995).

Appellant next argues that the exclusion of certain “materials, exhibits and films” obtained shortly before trial from a previous lawsuit of a similar products liability claim against GMC was reversible error because she should have been allowed to use the materials for illustrative purposes or to introduce them into evidence. These materials were not proffered to the trial court and they are not in the abstract or record of this case. The appellant also sought to cross-examine one of the appellee’s experts about a videotape of a crash test from a 60 Minutes program. The trial court allowed appellant to ask the expert about the crash test but did not permit the 60 Minutes video to be shown to the expert. This videotape also was not proffered to the trial court.

We have said many times that the failure to proffer evidence so that we can see if prejudice results from its exclusion precludes review of the evidence on appeal. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); see also Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995); A.R.E. Rule 103(a)(2). Although appellant contends that it is clear from the proceedings that the 60 Minutes videotape contained crash tests showing that a dummy can ramp over a seat in a collision, the bare assertion that the video contained “crash tests” does not provide sufficient information to allow review of the trial court’s ruling. Further, appellant introduced into evidence two exhibits depicting crash tests involving a dummy and we have no means of determining whether the excluded crash tests were distinguishable from the evidence admitted. See Williams v. Southwestern Bell Tel. Co., supra.

The appellant finally asserts the trial court erred in excluding evidence of prior incidents of seatback failures reported to GMC and in refusing to allow her expert to testify concerning his interview of a person who had reported one such incident. The appellant sought to use the reports to establish that GMC had notice that its non-rigid seatback design was defective. The appellant did introduce through her expert a memo obtained from GMC which noted that the seatback was designed to yield under rear impact and such a condition had a potential for severe injury. The trial court further concluded that the reports could be admitted if a proper foundation was laid, and appellant’s expert testified that in his opinion GMC was aware of previous problems with the non-rigid seatback design because “there were a lot of reports of failures and sorts of things on seatbacks and what have you that were produced by GMC during the discovery period.”

The expert further testified from one of the reports that “there was a low speed rearend collision and the passenger seat broke ... name and address, Mary E. Pellegrine ... seating position, passenger side. Nature of injury, neck and back.” However, the trial court did not allow the expert to testify about his interview of Ms. Pellegrine after the appellee objected that her conversation was hearsay. Appellant then stated, “Your Honor, we will withdraw any further testimony regarding that report.” Appellant did not pursue the testimony regarding the report, and did not proffer the reports to the trial court. The expert’s testimony concerning his interview with Ms. Pellegrine also was not proffered. Again, the appellant’s failure to proffer the excluded evidence, including the substance of the witness’ testimony, precludes our reaching the merits of her argument. See Duncan v. State, supra; A.R.E. Rule 103(a)(2).

Appellant argues on appeal that an expert is entitled to rely on hearsay and her expert should therefore have been allowed to testify concerning his conversation with Ms. Pellegrine because it was information he obtained to form the basis of his opinion. This argument was not presented to the trial court and thus need not be considered on appeal. Jarboe v. Shelter Ins. Co., 317 Ark. 395, 877 S.W.2d 930 (1994).

Affirmed.


author: Per Curiam.

text:
    Richard AVERY, et al. v. Willie WARD, Jr.
    95-880
    911 S.W.2d 578
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      J.L. Wilson, for appellee.
   Per Curiam.

In response to appellee’s motion for disqualification, Justices Robert H. Dudley, Tom Glaze, and Donald Corbin recuse but not for any of the reasons set out in his motion. Appellee’s attorney, J. L. Wilson, was sanctioned in federal court as a result of a criminal conviction and is now the subject of disciplinary proceedings before the State Professional Conduct Committee and disbarment proceedings before the Phillips County Circuit Court which have been remanded to federal court. Because these named justices intend to seek Rule 11 sanctions to be imposed against attorney J. L. Wilson and his attorneys for filing a no-merit petition in federal court, we recuse.


text:
    Nathaniel THOMAS v. STATE of Arkansas
    CR 95-406
    911 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered December 4, 1995

      Wallace, Hamner & Adams, by: Phillip M. Hendry, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Per Curiam.

Nathaniel Thomas was convicted of one count of capital murder and two counts of first-degree murder. We affirmed. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). Mr. Thomas subsequently filed in the trial court a petition for post-conviction relief pursuant to Criminal Procedure Rule 37 which was denied. Appellant Thomas brings this appeal. We find one allegation which should be considered by the trial court and thus reverse and remand for further proceedings in keeping with this opinion.

The appellant claimed that his counsel was ineffective in that he failed to renew his motion for a directed verdict at the end of the evidence and by so doing caused appellant to waive his challenge to the sufficiency of the evidence. This court has held that an allegation of ineffective assistance of counsel based on counsel’s failure to move for a directed verdict was not cognizable under Rule 37. Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987). We have further held that an allegation of ineffective assistance of counsel based on a trial attorney’s failure to renew a directed verdict motion was not grounds for post-conviction relief. Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991).

We now overrule Philyaw, Mobbs and their progeny prospectively to the extent that those cases hold that an allegation of ineffective assistance of counsel for failure to raise the issue of the sufficiency of the evidence in accordance with the prevailing rules of procedure cannot be grounds for relief under Rule 37. Accordingly, we reverse and remand this matter so that the trial court may address all allegations of ineffective assistance of counsel raised by appellant in his petition for post-conviction relief. In doing so, we do not intend to suggest that the allegation made by appellant is necessarily meritorious; only that the trial court should consider it.

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable.

A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. 668 (1984).

Reversed and remanded.


author:
Donald L. Corbin, Justice.
      Tom Glaze, Justice, Robert H. Dudley, Justice,

text:
    Sharon PRIEST, Secretary of State, and Jimmie Lou Fisher, Treasurer; Marilyn M. Zornik, Natural Guardian and Next Friend of Anna Margaret Zornik, a Minor v. Jennifer POLK and Randall L. Bynum, On Behalf of Themselves and All Others Similarly Situated; Steve Clark
    95-1197
    912 S.W.2d 902
    Supreme Court of Arkansas
    Opinion delivered December 7, 1995

      Winston Bryant, Att’y Gen., by: Tim Humphries, Deputy Att’y Gen., for appellants/cross-appellees, and Ann Purvis, Gen. Counsel, Sec. of State’s Office, for separate appellant Sharon Priest, Sec. of State.

      Trotter Law Firm, P.A., by: Scott C. Trotter, Richard B. Adkisson, and Larry Page, for appellees/cross-appellants.

      DeLay Law Firm, by: R. Gunner DeLay, for appellees.

      Vincent C. Henderson II, amicus curiae.
   Donald L. Corbin, Justice.

Appellants, Secretary of State Sharon Priest and State Treasurer Jimmie Lou Fisher, appeal the order of the Pulaski County Chancery Court declaring void Acts 1 and 2 of the First Extraordinary Session of 1995, and enjoining the December 12, 1995 special election called by Governor Jim Guy Tucker pursuant to the Acts. Appellees, Jennifer Polk and Randall L. Bynum, and Intervenor Steve Clark, as citizens, residents, taxpayers, and qualified voters of this state, have cross-appealed. Jurisdiction of this appeal is properly in this court as the constitutionality of legislative acts is challenged. Ark. Sup. Ct. R. l-2(a)(3).

PROCEDURAL HISTORY

Act 1 of the First Extraordinary Session of 1995 established procedures for calling a constitutional convention subject to ratification by the people of the State of Arkansas, for drafting a new constitution, and for submitting a proposed new constitution to the voters. Act 2 of the First Extraordinary Session of 1995 appropriated $1,100,000.00 from the State Central Services Fund to finance the convention and pay expenses of delegates. Both acts contained emergency clauses stating they would be effective from the date of passage and approval. The acts were approved by the Governor on October 19, 1995.

Pursuant to Act 1, the Governor issued a proclamation providing a filing period from October 23, 1995, through November 2, 1995, for persons desiring to be elected delegates to the convention. The Governor’s proclamation also set December 12, 1995, as the date for the statewide special election for ratification of the call of the convention and election of thirty-five convention delegates from existing state Senate districts. Also pursuant to Act 1, the President Pro Tempore of the Arkansas Senate and the Speaker of the Arkansas House of Representatives nominated ten senators and sixteen representatives as delegates to the convention. According to the proposed ballot form in Section 4 of Act 1, the names of these twenty-six appointed delegates would appear on the ballot form for the voters to approve as a block of delegates along with the call of the convention.

Appellees filed a complaint in chancery court on October 24, 1995, seeking a declaration that Acts 1 and 2 were encroachments on the rights of the people in a manner prohibited by Article 2, §§ 1 and 29 of the Arkansas Constitution of 1874 (“the Arkansas Constitution”), challenging the emergency clauses of Acts 1 and 2, and challenging the ballot form proposed in section 4. The complaint alleged that, due to the foregoing violations, any public funds expended on the election or convention would result in an illegal exaction pursuant to Article 16, § 13 of the Arkansas Constitution. The complaint also sought injunctions to restrain appellant Priest from certifying the ballot title or the name of any delegate on the December 12, 1995 special election ballot, to restrain appellant Priest from certifying the results of the December 12, 1995 special election if it is held, and to restrain the expenditure of public funds for the special election on December 12, 1995, for the convention, and for the publication of any document proposed by the convention.

On November 13, 1995, the chancellor granted the motion to intervene of Intervenor Clark. Intervenor Clark’s motion sought intervention as a taxpayer and voter for the purpose of addressing an additional argument with respect to the constitutionality of the challenged legislation. Specifically, Intervenor Clark contends Act l’s procedure for selecting the twenty-six appointed delegates to the proposed convention violates the one-person, one-vote principle.

On November 16, 1995, the chancellor granted the motion to intervene of Intervenor Marilyn M. Zornik, as natural guardian and next friend of Anna Margaret Zornik, a minor. Anna Margaret Zornik is diagnosed with Down’s syndrome and receives health care services under this state’s federally-funded Medicaid program. Intervenor Zornik sought intervention for the purpose of developing the record as regards the effect of the chancellor’s order upon her ability to protect her daughter’s entitlement to continued Medicaid services, in light of the recent judicial invalidation of Amendment 68 to the Arkansas Constitution on supremacy clause grounds. Little Rock Family Planning Servs., P.A. v. Dalton, 860 F. Supp. 609 (E.D. Ark. 1994), aff’d, 60 F.3d 497 (8th Cir. 1995). Specifically, Intervenor Zornik contends the December 12 election should proceed.

On November 13, 1995, appellant Priest certified the ballot for the special election of December 12, 1995.

The parties and chancellor agreed to an expedited proceeding in the chancery court. They submitted the case to the chancellor on stipulated facts. The parties also stipulated that subject-matter jurisdiction existed in the chancery court. The chancellor held a hearing on November 14, 1995, and, in a ruling from the bench, found merit only in appellees’ allegation that the emergency clause was invalid for failure to state facts constituting an emergency. The chancellor found that, due to time limitations expressed in Act 1, the invalid emergency clause rendered the entire act void. The chancellor therefore determined an illegal exaction would result if funds were expended for the election on December 12, 1995, and enjoined the election by written order entered on November 17, 1995. This appeal and cross-appeal are from that order.

We granted the parties’ motions to expedite this appeal, and we allowed Vincent C. Henderson, II, a candidate for delegate to the proposed convention, to file a brief as amicus curiae in support of appellants. By per curiam order filed on November 28, 1995, we granted appellants’ motion to stay enforcement of the chancellor’s order pending this appeal.

SUBJECT-MATTER JURISDICTION

The parties stipulated that chancery court had subject-matter jurisdiction of this case pursuant to Article 7 of the Arkansas Constitution and Ark. Code Ann. § 16-13-304 (Repl. 1994). It is well-settled that subject-matter jurisdiction cannot be waived and cannot be invoked by consent of the parties. Arkansas Dep’t of Human Servs. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993). A court has a duty to determine if it has subject-matter jurisdiction of the case before it. Skelton v. City of Atkins, 317 Ark. 28, 875 S.W.2d 504 (1994). When the trial court lacked subject-matter jurisdiction, the appellate court also lacks jurisdiction. First Pyramid Life Ins. Co. v. Reed, 247 Ark. 1003, 449 S.W.2d 178 (1970). Accordingly, the question of subject-matter jurisdiction is one that this court is obligated to raise on its own. Id.

Our review of the case law on this issue leads us to conclude that the question of subject-matter jurisdiction is determined by the characterization of the case. When a case is characterized as one involving political rights, this court has held that jurisdiction lies exclusively in circuit court. Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967); see Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230 (1913) (quoting In re Sawyer, 124 U.S. 200 on the distinction between political rights, defined as those which involve the power to participate directly and indirectly in the establishment or management of government, and civil rights, defined as those which consist in the power to acquire and enjoy property). However, when a case is characterized as an illegal-exaction case, we have held that jurisdiction lies concurrently in chancery and circuit courts because the constitution does not assign jurisdiction of illegal-exaction

cases. Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809, supp. op. granting reh’g on other grounds, 321 Ark. 116-A, 901 S.W.2d 809 (1995). While the concurrence characterizes this case as one involving political rights solely cognizable in circuit court, such a view overlooks other allegations in the complaint, such as the challenge to the emergency clause and the challenge to the ballot title or ballot form. We have addressed challenges to emergency clauses, ballot titles, and ballot forms that were brought in chancery court. McCuen v. Harris, 321 Ark. 458. 902 S.W.2d 793 (1995) (addressing ballot-title challenge); Burroughs v. Ingram, 319 Ark. 530, 893 S.W.2d 319 (1995) (addressing emergency-clause challenge); Riviere v. Wells, 270 Ark. 206, 604 S.W.2d 560 (1980) (addressing challenge to ballot form for submission of proposed constitution of 1980).

It is well-settled that when a court of equity acquires jurisdiction for one purpose, it retains jurisdiction for all purposes, provided the original object of the suit is clearly within equity’s jurisdiction and there is no adequate remedy at law. Dugan v. Cureton, 1 Ark. 31 (1837). This is an expression of equity’s “clean-up” doctrine. However, this court has held that when a suit includes a request for an injunction to prevent an illegal exaction, the adequacy of the legal remedy is immaterial because Article 16, § 13 of the Arkansas Constitution itself confers the right to an injunction with respect to an illegal exaction. Townes v. McCollum, 221 Ark. 920, 256 S.W.2d 716 (1953). On that basis, this court held in Townes that equity jurisdiction existed to enjoin officers of the executive branch from expending public funds to hold an unauthorized election. Id.

Catlett was a suit to enjoin an election, but did not allege an illegal exaction. Moreover, Catlett only involved rights pertaining to political parties and their compliance with allegedly unconstitutional election laws and did not include any other type of issue, such as an emergency-clause or ballot-title issue. Similar to Catlett, Townes was a suit to enjoin an election. However, unlike Catlett, Townes also involved a claim that the election would result in an illegal exaction. Thus, the present case is factually more similar to Townes than Catlett.

The present case has multiple aspects and therefore cannot be characterized solely as an election-contest case or one involving only political rights. It is also an illegal-exaction case, an emergency-clause case, and a ballot-title case, each of which could properly be brought in chancery court. Therefore, we conclude, chancery court had subject-matter jurisdiction of this case.

DIRECT APPEAL

EMERGENCY CLAUSE — AMENDMENT 7

Appellants contend the chancellor erred in holding the emergency clauses in Acts 1 and 2 were invalid. The emergency clause of Act 1 states in its entirety:

SECTION 18. EMERGENCY. It is hereby found and determined by the General Assembly that there is an immediate and urgent need for constitutional revision in Arkansas. Since many parts of the Constitution of Arkansas are archaic, obsolete, and unrelated to the needs and demands of the citizens for good government in both the state and local governments; and since the number and types of changes needed are not suitable for piecemeal amendment of the present Constitution; an emergency is hereby declared to exist, and this Act is declared to be necessary for the immediate preservation of the public peace, health and safety and shall be in full force and effect from and after its passage and approval.

An emergency clause has a significant effect on the people’s reserved right of referendum and is therefore expressly controlled by Amendment 7 to the Arkansas Constitution. Burroughs, 319 Ark. 530, 893 S.W.2d 319. Amendment 7 establishes the right of referendum by stating that the legislative power of the people is vested in the General Assembly, but the people reserve the power “to approve or reject at the polls any entire act or any item of an appropriation bill.” Ark. Const, amend. 7. By operation of Amendment 7, the people have until ninety days after adjournment of the legislative session to file a referendum petition. Any measure referred to the people by referendum petition remains in abeyance until voted upon. Id. The General Assembly is authorized to make an act effective immediately “[i]f it shall be necessary for the preservation of the public peace, health and safety” by enacting an emergency clause. Id. However, it is necessary that the General Assembly “state the fact which constitutes such emergency.” Id. These requirements of Amendment 7 were observed by this court in Cunningham v. Walker, 198 Ark. 928, 132 S.W.2d 24 (1939).

Most recently we have held that:

[I]t is a matter of legislative determination whether an emergency exists that requires the enactment of an emergency clause, but pursuant to Amendment 7, it is a judicial determination whether facts constituting an emergency are stated.... [A]n emergency clause which does not state a fact that constitutes an emergency is invalid... . [T]here must be some statement of fact to show that a “real emergency existed.”

Burroughs, 319 Ark. 530, 533, 893 S.W.2d 319, 320-21 (quoting Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937) (citations omitted)). The test for determining if a real emergency has been stated is whether reasonable minds might disagree as to whether the enunciated facts state an emergency. Id. If so, the emergency clause is upheld; if not, then the emergency clause is invalid. Id. Emergency is defined as “some sudden or unexpected happening that creates a need for action.” Id. at 535, 893 S.W.2d at 321.

The chancellor applied the aforementioned test and concluded the emergency clause in Act 1 did not state facts demonstrating a real emergency and therefore was invalid. The chancellor ruled further that the emergency clause could not be severed from Act 1 while still giving full effect to its other provisions and therefore declared Act 1 void. The chancellor ruled that she need not reach the emergency clause in Act 2 because Act 2 must “suffer the same fate and is thus void.”

Appellants contend the emergency clause of Act 1 enunciates two statements of fact. First, appellants rely on the statement that “many parts of the Constitution of Arkansas are archaic, obsolete, and unrelated to the needs and demands of the citizens for good government in both the state and local governments.” Second, appellants rely on the statement that “there is an immediate and urgent need for constitutional revision in Arkansas.... since the number and types of changes needed are not suitable for piecemeal amendment of the present Constitution.” The chancellor concluded these two statements did not state an emergency because they did not describe a sudden or unexpected happening creating a need for action.

The emergency clause at issue in this case is very similar to the one upheld in Mann v. Lowry, 227 Ark. 1132, 303 S.W.2d 889 (1957), where the General Assembly passed an act to establish a new form of city government for all cities of the first and second class. The emergency clause at issue in Burroughs, relied upon by the chancellor, stated that a new procedure was needed for calling special meetings of the West Memphis City Council and was held invalid. Our decision today is a catalyst to understanding and reconciling the Burroughs and Mann cases, two cases that when read separately appear to be inconsistent, but are not upon further examination. The scope of the proposed governmental reform is what distinguishes those two cases, and aligns the instant case with Mann rather than with Burroughs. Mann and the instant case both call for an entirely new form of government, while Burroughs only called for a modification of the existing government proposed by outgoing members of the governing body for obvious political reasons.

Everyone may not agree that the need for a new constitution, as described in the emergency clause of Act 1, is a real emergency. However, that is not the test. The test is whether reasonable people might disagree as to whether an emergency is stated. Burroughs, 319 Ark. 530, 893 S.W.2d 319. In reviewing our recent case of Burroughs, we realize that it did not fully explore the methodology that this court has historically used to analyze emergency clauses, although it did apply the historical analysis in invalidating the emergency clause due to the obvious political motivation of the outgoing councilmen. In Jumper v. McCollum, 179 Ark. 837, 840, 18 S.W.2d 359, 361 (1929), this court stated that “[i]f the fact which constitutes the emergency is recited, and if fair-minded and intelligent men might reasonably differ as to the sufficiency and truth of the fact assigned for placing the act in effect immediately upon its passage, the courts are concluded by the finding.” (Emphasis added.) Thus, it is evident that this court’s more recent cases on emergency clauses have failed to mention that we examine them to determine whether reasonable minds might differ as to the truth of the factual data alleged by the legislative body. Therefore, the instant case presents us with an opportunity to reconcile Burroughs, Mann, and Jumper within the scope of the proposed reforms.

The fact that our current constitution is archaic and obsolete and cannot be updated without sweeping reform states an emergency. In so ruling, we observe that the General Assembly does not operate in a vacuum and that recent litigation in this court and federal courts has called wide-spread attention to at least four far-reaching problem areas in our state government caused by our existing constitution. E.g., Tucker v. Lake View Sch. Dist. No. 25, 323 Ark. 693,_S.W.2d_(1996) (public-school funding); Little Rock Family Planning Servs., P.A. v. Dalton, 860 F. Supp. 609 (E.D. Ark. 1994), aff’d 60 F.3d 497 (8th Cir. 1995) (Medicaid funding); Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809, supp. op. granting reh’g on other grounds, 321 Ark. 116-A, 901 S.W.2d 809 (1995) (county sales tax); Brown v. City of Stuttgart, 312 Ark. 97, 847 S.W.2d 710 (1993) (equipment purchases by local government). In addition, there is at least a fifth problem area in our state government caused by our constitution’s provisions for challenging initiated and referred measures and proposed constitutional amendments that was illustrated by the rash of expedited litigation in this court prior to the November 1994 general election. E.g., McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994) (per curiam) (sales tax); Wilson v. Cook, 318 Ark. 520, 886 S.W.2d 593 (1994) (per curiam) (succession and vacancies in office); Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994) (softdrink tax); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994) (casino gambling); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (worker’s compensation); Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994) (charitable bingo and raffles); Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (state lottery). With these reported cases in mind, and the statements of fact in Act l’s emergency clause, the legislature was clearly attempting to cure at least five deficiencies in our state government, while at the same time being expressly limited to referring only three constitutional amendments to the people. Ark. Const, art. 19, § 22. Therefore, we find truth to the statement in the emergency clause that piecemeal amendment to the constitution is not suitable.

Thus, we conclude, as this court concluded in Mann, that reasonable people might disagree that the facts stated in Act l’s emergency clause concerning the need for a new constitution did state an emergency. The chancellor’s ruling to the contrary is therefore reversed, as is her ancillary ruling enjoining the election as an illegal exaction.

The amicus curiae raises an argument that Amendment 7 does not apply to this case at all because Act 1 was not an exercise of the legislative power; rather it was an exercise of the people’s powers under Article 2, §§ 1 and 29 of the Arkansas Constitution. We do not consider this argument because the amicus curiae cannot enlarge the issues beyond those raised by the pleadings of the parties in the lower court. City of Little Rock v. AT&T Communications of the Southwest, Inc., 316 Ark. 94, 870 S.W.2d 217 (1994); Moorman v. Pulaski Co. Democratic Party, 271 Ark. 908, 611 S.W.2d 519 (1981).

CROSS-APPEAL

THE PEOPLE’S INHERENT POWER TO ABOLISH AND REFORM GOVERNMENT PURSUANT TO ARTICLE 2, §§ 1 & 29 AND

ARK. CODE ANN. §§ 7-9-301 TO -312 (REPL. 1993)

Appellees, as cross-appellants, challenge the chancellor’s ruling that, excluding the emergency clause, Act 1 is not an unlawful encroachment on the peoples’ rights in Article 2, §§ 1 and 29 of the Arkansas Constitution.

Article 2, sections 1 and 29 provide as follows:

1. Source of power.
All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same in such manner as they may think proper.
29. Enumeration of rights of people not exclusive of other rights — Protection against encroachment.
This enumeration of rights shall not be construed to deny or disparage others retained by the people and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government, and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.

Relying on these sections of the constitution, Article 19, § 22 of the Arkansas Constitution, Amendment 7 to the Arkansas Constitution, Pryor v. Lowe, 258 Ark. 188, 523 S.W.2d 199 (1975), and Harvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281 (1970), appellees essentially contend that the power to rewrite the constitution can only be exercised by the people, not by the legislature. The holding of Pryor was very narrow and has not been expanded to the degree argued by appellees. The holding that the proposed limitations on the constitutional convention at issue in that case were encroachments on the people’s rights in violation of Article 2, § 29, was expressly based on the lack of a provision for ratification by the people. See Pryor, 258 Ark. at 192, 523 S.W.2d at 202. In contrast, Act 1 does provide that both the call of the convention and the proposed document be ratified by the voters. Therefore Pryor does not control this case. Likewise, Harvey does not control this case. While Harvey does stand for the clear and correct proposition that it is the people’s right to reform their constitution and the people have not given that right to any branch of government, Harvey does not prohibit the legislature from calling a convention and submitting the call to the people. The chancellor’s ruling on this issue is affirmed.

In addition, appellees claim Acts 1 and 2 conflict with sections 7-9-301 to -312, which establish a procedure for calling a constitutional convention, selecting delegates, filling delegate vacancies, conducting the convention, and submitting the proposed constitution to the voters. Intervenor Clark also raises an argument that the appointment of convention delegates by the Speaker and President Pro-Tempore invade the inherent right of the people as expressed in Article 2, §§ 1 and 29. The chancellor did not rule on these issues, thus leaving them unresolved below and therefore not preserved for appeal. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995).

BALLOT TITLE / BALLOT FORM

Appellees, as cross-appellants, contend that the ballot title or ballot form of Section 4 of Act 1 is misleading because it does not include any of the terms of Act 1, such as the nomination of appointed delegates and the filing deadlines for elected delegates, among others. Appellees also contend the ballot form is misleading because it does not allow a voter to approve the calling of the convention, yet reject any or all of the twenty-six appointed delegates. The ballot form is stated in Section 4 of Act 1 and reads as follows:

(1) “For calling a Constitutional Convention to propose a new Constitution for the State of Arkansas, as provided in Act_of the Acts of the First Extraordinary session of the Eightieth (80th) General Assembly of 1995, and subject to the terms of that Act, and electing the nominated Convention delegates listed below:”
(Names of 26 nominated delegates from the General Assembly)
(2) “Against calling a Constitutional Convention.”

Relying on Riviere, 270 Ark. 206, 604 S.W.2d 560, the chancellor ruled that the people would be able to ratify the terms and restrictions of Act 1 at the December 12 special election even though the terms and restrictions are not expressly disclosed in the ballot form. The chancellor therefore concluded the ballot form was not misleading.

The form of the ballot proposed by a constitutional convention cannot be misleading. Riviere, 270 Ark. 206, 604 S.W.2d 560. Constitutional convention ballot forms must submit proposals “for approval or rejection” or “for adoption or rejection” as required by section 7-9-310, formerly Ark. Stat. Ann. § 2-112, Harvey, 248 Ark. 35, 450 S.W.2d 281, and Pryor, 258 Ark. 188, 523 S.W.2d 199. Riviere, 270 Ark. 206, 211, 604 S.W.2d 560, 562. Riviere holds that, when a vote is taken in the form of “For X” and “Against X,” any limitations associated with a convention’s proposal or any change from a general election to a special election is ratified in the vote. Id. Since the ballot form at issue here is in the for-against format, we cannot say the chancellor erred in interpreting Riviere and holding the ballot form at issue is not misleading.

As for appellees’ argument that the form is misleading because it does not allow voters to vote for the calling of the convention without also voting for all twenty-six appointed delegates, that issue was not ruled upon by the chancellor. It was appellees’ burden, as cross-appellants, to obtain a ruling on that issue. Brumley, 320 Ark. 310, 896 S.W.2d 860. Their failure to obtain the ruling left the matter unresolved, which operates as a waiver of the issue for purposes of appeal. Id.

SUBMISSION OF CALL FOR CONVENTION TO PEOPLE BY LEGISLATURE

Appellees, as cross-appellants, argue that Amendment 7 prohibits the legislature from referring to the people the calling of the convention, as provided for in Section 4 of Act 1. Appellees are absolutely correct in contending that the General Assembly is prohibited from referring to the people any “measure” except constitutional amendments as provided for in Article 19, § 22 of the Arkansas Constitution and other exceptions provided for in the constitution that are not applicable here. However, the General Assembly is not referring Act 1 to the people, and, as the chancellor ruled, Section 4 of Act 1 is not a “measure” the submission of which is prohibited by Amendment 7. Act 1 prescribes procedures for a constitutional convention to be ratified by the people. We cannot say the chancellor erred in this regard.

ONE PERSON, ONE VOTE

Intervenor Clark, as cross-appellant, challenges the chancellor’s ruling that the one-person, one-vote principle does not apply to constitutional conventions. Intervenor Clark cites no source for the one-person, one-vote principle other than Article 2, §§ 1 and 29. The chancellor observed that other jurisdictions have concluded that the principle does not apply to constitutional conventions because such conventions do not make laws but merely propose new ones to voters for approval or rejection. The chancellor also observed that the case upon which Intervenor Clark relied heavily, State of West Virginia v. Gore, 143 S.E.2d 791 (1965), was a well-reasoned case. However, because this is an issue of first impression in this state, the chancellor chose to follow the lead of other jurisdictions. See, e.g., Stander v. Kelley, 250 A.2d 474, cert. denied, 395 U.S. 827 (1969).

On appeal, Intervenor Clark again relies on Gore, 143 S.E.2d 791, and Forty-Second Legislative Assembly v. Lennon, 481 P.2d 330 (1971). Both cases are clearly distinguishable due to the differences in the West Virginia, Montana, and Arkansas Constitutions. West Virginia’s Constitution has an express provision that “[e]very citizen shall be entitled to equal representation in the government, and, in all apportionments of representation, equality of numbers of those entitled thereto, shall as far as practicable, be preserved.” W. Va. Const. art. 2, § 4. Montana’s Constitution requires that the number of delegates to a constitutional convention be the same as its state house of representatives and be elected in the same manner as state representatives. Mont. Const, art. 19, § 8. There are no analogous or similar provisions in the Arkansas Constitution. We observe that the United States Supreme Court has not held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution applies to state elections when the persons elected do not perform public functions. See Hadley v. Junior College Dist., 397 U.S. 50, 56 (1970). This court held in Riviere that a constitutional convention is not a coordinate branch of government. Riviere, 270 Ark. 206, 604 S.W.2d 560. Therefore, we conclude the one-person, one-vote principle does not apply to constitutional conventions in this state. The chancellor’s ruling is affirmed in this regard.

The order is reversed on direct appeal because the chancellor erred in enjoining the special election. The order is affirmed on cross-appeal. The case is remanded to the chancery court for entry of an order consistent with this opinion.

Chief Justice Jesson and Associate Justice Brown join in this opinion to reverse and remand on direct appeal. Associate Justice Glaze concurs, joining the decision to reverse the case on direct appeal, but contending the case should be dismissed. Associate Justices Dudley, Newbern, and Roaf dissent, voting to affirm on direct appeal. Thus, while this is a plurality opinion declaring the law in this case, there is indeed a majority decision to reverse the chancellor’s decision on direct appeal.

The mandate in this case shall issue immediately.

Glaze, J., concurs.

Dudley, Newbern, and Roaf, JJ., dissent.

Tom Glaze, Justice,

concurring.

I concur. Because I am of the opinion the chancellor had no jurisdiction to decide this case below, I would reverse with directions to dismiss this cause. Accordingly, I would not reach the merits of the appellees’ cross-appeal.

On July 17, 1995, less than four months ago, this court considered for the first time a subject matter jurisdiction question like the one before us now, and by a 4-3 vote, decided chancery court had jurisdiction to enjoin an election official — the Secretary of State — from canvassing election returns and counting votes from the November 8,1994 General Election on proposed Amendment 2, which was referred to the vote of the people pursuant to Ark. Const. art. 19, § 22. The four-member majority’s decision was wrong and should now be overturned. The dissenting opinions, citing this court’s landmark case of Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), pointed out that chancery court has no authority to decide election or political rights cases. In relevant part, the Catlett decision stated the following:

Nor can it [chancery court] be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules in pursuance of which, an election shall be held. Those matters involve in themselves no property right but pertain solely to the political administration of government.

The Catlett court also stated courts of equity have no authority or jurisdiction to interpose for the protection of rights which are purely political, and where no civil or property right is involved.

Here, the relief sought and obtained by the plaintiffs in this case was (1) for Acts 1 and 2 of 1995 to be declared invalid and (2) for the December 12, 1995 special election to be enjoined. Although Catlett holds chancery courts have no authority to decide political rights issues or to restrain the holding of elections, that is the very relief granted by the chancellor in this case. In allowing and arguing the invalidity of Act 1, plaintiffs claim the Act unlawfully and unconstitutionally encroaches upon the people’s bill of rights and the “political power inherent in the people” as set out in Ark. Const. art. 2, §§ 1 and 29.

This court’s controlling opinion herein suggests that a lower court’s jurisdiction is decided by however this court might characterize a given case. And plaintiffs argue that, under Liles v. Liles, 289 Ark. 159, 711 S.W.2d 442 (1986), if chancery court has jurisdiction for one purpose, it may decide all other issues. Plaintiffs specifically contend that, because chancery court has authority to decide illegal exaction and ballot title issues, the chancellor could further decide the political and election issues in the case as well. The plaintiff’s contention is faulty.

First, even under the Liles decision, chancery court cannot obtain jurisdiction of a case where a court of equity is “wholly incompetent” to consider the matter. In Catlett, this court unequivocally held chancery court had no authority to decide political rights issues or requests to enjoin an election. In sum, the chancellor was wholly incompetent to grant the relief it did in this case.

Second, this court stated in Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809 (1995), both circuit and chancery courts may exercise subject matter jurisdiction in illegal exaction cases, but a chancery court has no such jurisdiction when the underlying matter is conferred on the circuit court. Here, the clear underlying matter concerns the validity of Act 1 and plaintiffs’ contention that Act unlawfully encroaches upon the people’s inherent political power — a right cognizable only in circuit court.

Third, circuit and chancery courts both can decide ballot title issues and are subject to the same underlying matter test discussed in the foregoing illegal exaction analysis. However, plaintiffs cite Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433 (1960), and argue that decision requires that ballot title issues must be filed and decided in chancery court. That is not the holding in Berry. In Berry, this court merely held that it had only appellate, not original, jurisdiction in disputes arising under Ark. Const, art. 19, § 22. In dictum, the Berry decision mentioned, without citation of authority, that the parties there should have filed their case in chancery court, not the supreme court. To the contrary, no statutory or constitutional provision assigns chancery court authority to decide ballot title issues arising under art. 19, § 22. At most, chancery court can only share subject matter jurisdiction in such a case and then only when the underlying matter is not one solely cognizable in circuit court, as is the situation in the present case.

In decisional conference, most of the justices on this court expressly acknowledged the confusing precedent bearing on the subject matter jurisdiction issue in this case. Because of the confusion that continues to arise in these political rights, election, illegal exaction, and ballot title cases, there is a great reluctance to dismiss anyone’s case, giving subject matter jurisdiction as the reason. I sympathize with that view, but the fact remains, this court is the only one that can give clarity to its precedents, and it has a duty to do so. A bright line should be established so that the parties, attorneys and judges can know where the above-type cases must be filed in order to obtain a final decision without concern the decision will not later be set aside on jurisdictional grounds. As matters now stand, this court may or may not sustain jurisdiction if it chooses to “characterize” a lawsuit in a certain way.

To confuse matters further, this court has recently adopted another test previously unknown in its prior precedents, namely, unless chancery court has no tenable nexus whatever to the claim in question, this court will consider the matter of whether the claim should have been heard there to be one of propriety rather than one of subject matter jurisdiction. See Liles, 289 Ark. at 175 and 176; UHS of Ark., Inc. v. Charter Hosp. of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988). Apparently, if a case is characterized as one of propriety, this court will not raise the issue itself and will not permit a party to raise it on appeal. Id. The test ignores all case law, as I know it, that subject matter jurisdiction can be raised at any time, and in fact it is this court’s duty to do so. Arkansas State Employees Ins. Advisory Comm’n v. Estate of Manning, 316 Ark. 143, 870 S.W.2d 748 (1994). Unfortunately, I have no idea what this “propriety” test means and the opinions in Lile and UHS cite no authority supporting or explaining it. My point in mentioning this new test used in determining where or if jurisdiction exists in chancery court is not to be critical, but instead to emphasize how confusing this subject matter jurisdiction determination has gotten.

If the plaintiffs here had filed their action in circuit court, no subject matter jurisdiction issue would exist since a circuit court could have decided and granted all the relief sought by the plaintiffs. In sum, this court has an opportunity to establish in which court these constitutional matters should be filed in the future, but it refuses to offer any clarification or guidance. Future litigation in these constitutional matters (political rights, election, illegal exaction and ballot title cases) remains jurisdiction-ally in doubt.

For the above reasons, I would reverse and dismiss this cause.

Robert H. Dudley, Justice,

dissenting.

The legislative power of the people is vested in the General Assembly, but the people have the power of referendum, which is the power to reject at the polls any act or separate item of an appropriation bill. Ark. Const, amend. 7. To insure the right of referendum, the constitution provides that the people have ninety days after adjournment of a legislative session to file a referendum petition, and that a legislative act will not become effective during that period. Id.; Fulkerson v. Refunding Bd. of Arkansas, 201 Ark. 957, 147 S.W.2d 980 (1941). An act referred to the people remains in abeyance until approved by the people. Ark. Const. amend. 7. If, however, it is necessary for the “preservation of the public peace, health and safety that a measure shall become effective without delay, and such necessity shall be stated” in the act, the act becomes effective immediately and remains in effect until there is an adverse vote upon referral. Ark. Const. amend. 7 (emphasis added).

I.

Act 1 of the First Extraordinary Session of 1995 establishes procedures for calling a constitutional convention, for rewriting the current constitution, and for submitting the rewritten constitution to the people. It provides, among other things, that of the sixty-one delegates to the convention, thirty-five shall be elected by the people and twenty-six of the delegates will be nominated from among the members of the General Assembly, to be elected by popular vote as part of the decision of the people to call a convention. Act 2 of the same session appropriates $1,100,000 to finance the convention and pay the expenses of the delegates. Both acts were signed into law by the Governor on October 19, 1995. Under ordinary circumstances the people would have had ninety days, or until January 17,1996, to refer the acts. However, the General Assembly enacted emergency clauses as part of both acts. The Governor, under authority of Act 1, then issued a proclamation setting October 23, 1995, to November 2, 1995, as the filing period for election of delegates to the constitutional convention, and December 12, 1995, as the date for a statewide special election to select the thirty-five convention delegates and for ratification of the call of the convention.

The General Assembly, in enacting emergency clauses as part of both acts, defeated the people’s right to reject at the polls the expenditure of $1,100,000 and to reject the election of only a part of the delegates to the convention. Under the specific language of the constitution, the General Assembly could take this right from the people only if it was “necessary for the preservation of the public peace, health and safety,” and “such necessity” was “stated in” the act. Ark. Const, amend. 7. This provision means that it is “necessary for the General Assembly to state the fact that constitutes an emergency.” Burroughs v. Ingram, 319 Ark. 530, 533, 893 S.W.2d 319, 320 (1995). The issue, then, is whether the General Assembly stated facts that constitute an emergency, requiring the acts to go into immediate effect.

The emergency clause of Act 1 states that the present constitution is archaic, that there is an immediate need to revise the complete document, and that piecemeal amendment is not sufficient. The emergency clause of Act 2 states that it is essential for the proper administration and provision of essential governmental programs that the expenses of the Arkansas Constitutional Convention for the 21st Century be met. Neither statement expresses an emergency. The word “emergency,” in its most accepted usage, means some sudden or unexpected happening that creates a need for immediate action. Burroughs v. Ingram, 319 Ark. at 535, 893 S.W.2d at 320.

The current constitution was adopted in October 1874, and, without dispute, contains some archaic provisions. Over a number of years, there have been calls by members of this court for revision of some parts of the constitution. Clark v. Union Pac. R.R., 294 Ark. 586, 593, 745 S.W.2d 600, 604 (1988) (Hickman, J., dissenting) (referring to Amend. 59 as the “Godzilla” of constitutional amendments); Linder v. Howard, 296 Ark. 414, 418, 757 S.W.2d 549, 557 (1988) (Newbern, J., concurring) (stating that to end “gamesmanship,” we must amend our constitution and unify our court system). The obsolescence of parts of the constitution is not something new, nor is it something that has suddenly happened. Rather, its obsolescence in parts has been known for a number of years, so well known that a constitutional convention was held in accordance with Act 3 of the Extraordinary Session of 1977, as amended by Act 622 of 1979, and a new constitution was proposed. The proposed constitution was defeated at the general election held on November 4, 1980, by a vote of 464,210 to 276,257. See Ark. Const, pmbl. (Publisher’s Notes). The fact that the current constitution is archaic in part and needs revision for our entry into the 21st Century is not a sudden occurrence or an unexpected event which has created a true emergency. No fair-minded person could differ in concluding that the General Assembly did not state an emergency that should cause acts appropriating $1,100,000 and providing for election of only some of the delegates to go into immediate effect, thus denying the people the right of referendum.

The chancellor studied Amendment 7 and our cases construing it, and understandably determined that the issue was whether the emergency clauses in Acts 1 and 2 stated an emergency. The chancellor held that the acts did not state an emergency. The plurality opinion reverses the chancellor’s ruling, not by directly stating that the acts contain a recitation of facts that state an emergency, but rather by taking notice of litigation involving public school funding, medicaid funding, county sales taxes, equipment purchases by local governments, and challenges to initiated and referred measures. Contrary to our practice, the argument is allowed for the first time on appeal. From these judicially noticed facts, which were not mentioned in the emergency clauses, the plurality opinion finds “truth” in the statement that piecemeal amendment to the constitution is not suitable for these ills. However, the constitution explicitly states that the facts constituting an emergency must be set out in the enactment.

The plurality opinion disregards the express language of the constitution that provides that the fact constituting the emergency must be stated. The plurality opinion states that, under the authority of Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359 (1929), it can search for “truth” of the stated fact by looking outside the emergency clause. Neither the constitution nor the cited case so provide. The constitutional provision says the emergency “shall be stated” by the General Assembly in the enactment. These words should be given their accepted meaning. In addition, the cited case does not lend support to the plurality opinion; instead, it wholly supports this dissent. The material part of the cited opinion is quoted below so that the reader can decide for himself or herself which opinion is accurate:

In construing this constitutional amendment in the case of Hanson v. Hodges, 109 Ark. 479, 160 S.W. 392, it was held that all acts of the General Assembly are subject to the referendum except such laws as are necessary for the immediate preservation of the public peace, health and safety, but that it was a question exclusively for legislative determination whether a statute was necessary for the immediate preservation of the public peace, health or safety. It was also held in the case cited that, while the existence of an emergency must be declared by the Legislature so as to exclude the referendum, it was not essential that this declaration be made in the exact words of the amendment, as other words of similar import unmistakably showing the intention to declare that an emergency existed, were sufficient.
At the 1918 general election a new Initiative and Referendum Amendment was adopted. Brickhouse v. Hill, 167 Ark. 513, 268 S.W. 865. Section 4 of this amendment contains the following provisions in regard to emergency legislation:
“If it shall be necessary for the preservation of the public peace, health or safety, that a measure shall become effective without delay, such necessity shall be stated in one section, and if, upon a yea and nay vote, two-thirds of all the members elected to each house, or two-thirds of all the members elected to the city or town councils, shall vote upon separate roll-call in favor of the measure going into immediate operation, such emergency measure shall become effective without delay. It shall be necessary, however, to state the fact which constitutes such emergency. Provided, however, that an emergency shall not be declared on any franchise or special privilege or act creating any vested right or interest or alienating any property of the State. If a referendum is filed against any emergency measure, such measure shall be a law until it is voted upon by the people, and if it is then rejected by a majority of the electors voting thereon, it shall be thereby repealed. The provision of this subsection shall apply to city or town councils.”
It is not sufficient, under this last amendment, for the legislation merely to declare that an emergency exists, but it is necessary to state the fact which constitutes such emergency. If therefore an act is passed which does not contain an emergency clause in which the fact is stated constituting the emergency, the act does not become effective until ninety days after the adjournment of the session of the General Assembly at which it was enacted. Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 507, 248 S.W. 2. But does this last amendment change the rule announced in the Hanson case, supra, that the existence and sufficiency of the emergency to withdraw an act from the referendum clause of the Constitution is a legislative, and not a judicial, question? We think not.
It was, no doubt, the intention of the last amendment to terminate the practice, into which the General Assembly had fallen, of placing the emergency clause indiscriminately on much of the legislation, and, as a means to this end, two requirements were imposed to withdraw legislation from the operation of the referendum power of the people. One was that it was made necessary for the bill to state the fact which constituted the emergency. The other was to require a separate and two-thirds vote of all the members elected to each house of the General Assembly in favor of the measure becoming effective without delay. In this manner the members of the General Assembly were permitted and required to vote, first, whether the bill should become a law, and then to determine whether it should become effective without delay. Both these questions are, we think, legislative and not judicial.
It will not be denied that it is a legislative question solely to determine whether a bill shall become a law. If the Legislature has any function at all, it has this one; and, this being true, it must also be true that it is the province and function of the Legislature to determine when the legislation shall become effective.
If there is an emergency, the General Assembly must state the fact which constitutes it, and must evidence the fact that they have found there was an emergency by a vote taken separate and apart from that taken on the passage of the bill itself. In this manner there is insured, theoretically, at least, the finding by two-thirds of the General Assembly that the fact recited exists and is true, and that it constitutes a sufficient reason for making the act effective without delay.

Id. at 838-40, 18 S.W.2d at 360-61.

It is now well established that the constitutional provision means that there must be some statement of fact in the emergency clause to show that a real emergency existed. See, e.g., Burroughs v. Ingram, 319 Ark. 530, 893 S.W.2d 319 (1995); Mann v. Lowry, 227 Ark. 1132, 303 S.W.2d 889 (1957); Cunningham v. Walker, 198 Ark. 928, 132 S.W.2d 24 (1939); Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937); and Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359 (1929). Precedents that cannot be distinguished should be followed unless injury and injustice result. Independence Federal Bank v. Paine Webber, 302 Ark. 324, 789 S.W.2d 725 (1990).

The plurality opinion ignores the test that is explicitly set out in the constitution. The result is that, under the rationale of the plurality opinion, the General Assembly in the future might state “this is an emergency,” and the courts will then look for some basis to judicially notice “truth” in the statement.

The plurality opinion, in looking outside the acts for “truth,” takes judicial notice of ten lawsuits involving public school funding, medicaid funding, county sales tax, equipment purchases by governments, and proposed constitutional amendments, and concludes that piecemeal amendment to the current constitution is not suitable. Aside from the disregard of the constitutional mandate, there are other errors inherent in the approach. Rule 201 of the Arkansas Rules of Evidence provides that judicial notice can be taken only of adjudicative facts: Judicial notice cannot be taken of legislative facts. Advisory Committee’s Notes to the Federal Rules of Evidence. Under Rule 201 a high degree of indisputability is the essential prerequisite for judicial notice. See Ark. R. Evid. 201(b). Therefore, the only facts that can be judicially noted from these cases are the facts that the cited cases were filed and resulted in the published rulings, opinions, or holdings. Many of the cases are old, one being decided as long ago as 1981. Not a single one of the decisions establishes the judicial fact that some unexpected, sudden, “emergency” event occurred in October 1995. They state no emergency. The people’s right of referendum should not have been taken away.

Moreover, even if one accepts the plurality opinion’s use of judicial notice, and even if one overlooks the plurality opinion’s mistaken holding that the cited cases establish an emergency to avoid the piecemeal amendment of the constitution, one still must agree that an emergency was not stated in Act 2, because the piecemeal amendment recital simply is not contained in the emergency clause of Act 2. It is contained only in Act 1. Thus, even under the reasoning of the plurality opinion, the chancellor should be affirmed because Act 2 does not state an emergency.

In summary, the constitution provides that the General Assembly is authorized to make an act effective immediately “if it shall be necessary for the preservation of the public peace, health and safety” by enacting an emergency clause. “Such necessity shall be stated in one section” of the act. Ark. Const. amend. 7. This means that the General Assembly must “state the fact which constitutes such emergency.” Cunningham v. Walker, 198 Ark. 928, 132 S.W.2d 24 (1939). Neither Act 1 nor Act 2 states an emergency involving public peace, health, or safety. It might have been possible to have described a deficiency in some particular of the constitution affecting public peace, health, or safety as to the emergency status of which persons might differ. Had such a fact been stated and had a mere constitutional amendment been proposed to correct such a deficiency, an emergency clause might have been appropriate. The truth is, however, that it is not possible to state an emergency requiring a rush to establish the machinery for rewriting a constitution. It should be obvious that when the creation of so fundamental a document as the premier organ of state government is at hand, the only acceptable approach must be deliberate, studied, and considered. The people should have an opportunity to take such an approach. Neither act should go into effect until ninety days after the end of the session.

II.

The plurality opinion is made effective immediately, and understandably so because of the immediacy of the forthcoming election. As a result, the losing parties will not have a chance for rehearing and cannot further contest the outcome of this case. Because of these unusual circumstances, the following comment seems appropriate.

Six justices agree that chancery court has jurisdiction. Three, in the plurality opinion, vote to reverse the chancellor on the merits of the case and remand the case to chancery court, and three, in the dissenting opinion, vote to affirm the chancellor on the merits. The writer of the opinion labeled “concurring” does not accept the vote of the six justices that the chancery court had jurisdiction and understandably refuses to vote on the merits of the case. That justice votes to reverse and dismiss, rather than remand, on the ground that the chancery court had no jurisdiction. In sum, the vote on the merits is three to reverse and remand and three to affirm.

In cases involving the constitution “the concurrence of four judges shall be necessary to a decision.” Ark. Code Ann. § 16-11-104 (1987). A judgment of the lower court will be affirmed where the majority of the judges agree to it even though they differ as to the reasons to affirm. Pollock v. C. Hennicke Co., 64 Ark. 180, 46 S.W. 185 (1897). If there is a tie vote, three-to-three, and not four concurring votes to reverse, the lower court is affirmed. Barnard & Leas Mfg. Co. v. Smith, 77 Ark. 590, 92 S.W.2d 858 (1906).

This court requires “four votes, a majority of this court, to reverse a case.” Citizens Bank of Batesville v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1984).

The issue is whether the “concurring” opinion is, as a matter of law, a concurring opinion, and whether there are four concurring votes. However, it is an issue that will not be decided in this case because of the immediate mandate.

Newbern, J., joins in this dissent.

Roaf, J., joins in part I.