author: W.H. “Dub” ARNOLD, Chief Justice.

text:
    Louise MAXEY v. TYSON FOODS, INC., Tynet Corporation, and Second Injury Fund
    99-637
    18 S.W.3d 328
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000
    [Petition for rehearing denied June 15, 2000.]

      Stephen M. Sharum, for appellant.

      Bassett Law Firm, by: Earl Buddy Chadick, for appellee Tyson Foods, Inc./Tynet Corporation.

      David L. Pake, for appellee Second Injury Fund.
   W.H. “Dub” ARNOLD, Chief Justice.

Louise Maxey appealed stice. Compensation Commission holding that she was not. permanently and totally disabled, but that she was entitled to benefits for a 35 percent wage-loss disability. The Second Injury Fund cross-appealed, arguing that the Commission erred in awarding appellant wage-loss benefits on a scheduled injury. Appellee Tyson Foods took the position that the Commission did not err in finding that appellant failed to prove permanent and total disability, but did not address the Second Injury Fund’s argument.

The Court of Appeals disagreed with appellant on her claim of disability degree and affirmed the Commission. Maxey v. Tyson, Inc., 66 Ark. App. 301, 991 S.W.2d 624 (1999). Further, the court agreed with cross-appellant, the Second Injury Fund, that since Ark. Code Ann. § 11-9-521 (g) (Supp. 1997) exempts the employer from paying any wage-loss disability for a scheduled injury in the absence of permanent total disability, it also exempts the Second Injury Fund. In other words, a claimant who is not entitled to wage-loss disability benefits from his employer or its insurance carrier cannot be entitled to benefits from the Second Injury Fund. Id.

Appellant/cross-appellee, Louise Maxey, then petitioned this Court for review of the decision of the Court of Appeals that reversed on cross-appeal the decision of the Full Commission that she was entitled to wage-loss disability on a scheduled injury pursuant to Ark. Code Ann. § 11-9-525 (Supp. 1997). Ms. Maxey contends that this petition involves an issue of first impression in this State. We granted appellee’s petition for review pursuant to Ark. Sup. Ct. R. l-2(e).

During oral argument of this matter, appellant asked this court to consider the Commission’s entire decision, including its finding that she was not permanently and totally disabled. This court has the discretion to review an appeal decided by the Court of Appeals on application by a party. Ark. Sup. Ct. R. l-2(e). Moreover, the factors we consider in determining whether to grant a petition to review neither control nor fully measure our discretion. See id.; see also Dugal Logging, Inc. v. Arkansas Pulpwood Co., 336 Ark. 55, 984 S.W.2d 410 (1999). Accordingly, although Ms. Maxey initially requested reversal only in regard to the issue of the liability of the Second Injury Fund, we will consider the case on petition for review in its entirety.

Standard of Review

We have held that upon a petition for review, we consider a case as though it had been originally filed in this court. Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000); White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W.3d 98 (1999); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Id.; Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Pickett, 336 Ark. at 518, 988 S.W.2d at 5; ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

Pacts and Procedural History

At the time of the hearing in 1997, Ms. Maxey was sixty-eight years old, had a tenth-grade education, no vocational training, and her past work experience consisted of working on a farm, in a flower shop, as a sales clerk in a clothing store, and for appellee Tyson Foods. Ms. Maxey testified that she began working for Tyson in 1984 and performed various jobs. She had been on the “debone line pulling chicken tenders,” a floor person cleaning up, assisting on the production line, and keeping load records. On January 27, 1989, Ms. Maxey sustained a compensable injury to her lumbar spine, underwent two surgeries, and was left with a 12 percent physical impairment to the body as a whole.

When Ms. Maxey was released to return to work after her back injury, she was restricted from bending and lifting, and she was placed on the “shell line.” She said a maintenance man made a stool especially for her so she could sit or stand as she needed. She also wore a back brace and took pain medication as needed. She said, in general, she did quite well that way.

In 1995, while still employed with Tyson, Ms. Maxey developed bilateral carpal tunnel syndrome, and she has had two surgeries on each wrist. After the most recent surgery on her right wrist, Ms. Maxey developed an infection that has never completely healed. When she was released to return to work on May 14, 1997, with a 15 percent impairment to her hands, Ms. Maxey was told by the plant manager that there was no job available within her restrictions, and she was terminated as of May 30, 1997.

Ms. Maxey testified that she then attempted to work as a WalMart “greeter,” but being on her feet all day and having to pull baskets for customers caused her severe pain and she had to quit. She testified that she can no longer squeeze anything, open a jar, peel a potato, push a vacuum, lift any cookware, or clean her house. Her hands stay sore and hurt constantly. The administrative law judge found Ms. Maxey to be permanently and totally disabled.

The Commission reversed, and reduced Ms. Maxey’s disability from total to 35 percent, based upon her compensable injuries together with her age, education, and work experience, along with all other matters which may be considered in assessing wage loss. It found that she had skills transferable to the “service sector” of employment where she had experience, and that there were numerous jobs where her restrictions of sitting or standing as needed could be accommodated. The Commission dismissed Ms. Maxey’s unsuccessful attempt to work at Wal-Mart as insufficient to prove a total inability to earn meaningful wages.

Merits of the Case

On appeal, Ms. Maxey argues that the Commission’s analysis was flawed and that reasonable minds could not reach the decision that the Commission reached. We agree and hold that the Commission’s decision to reduce Ms. Maxey’s disability from permanent and total to 35 percent was in error and must be reversed.

The claimant, Ms. Maxey, is now a seventy-year-old woman, who possesses only a tenth-grade education and no vocational training. Ms. Maxey’s doctor, Dr. E.F. Still, opined that “obviously she is not going to be able to do anything as far as repetitive work is concerned and [doubts] seriously if she is going to be able to do anything that has anything of substance such as heavy lifting, etc.” Although Ms. Maxey did attempt to return to work at Tyson, she was told that there was no work available within her restrictions. As stated previously, she thereafter attempted to work for Wal-Mart as a “greeter,” but was unable to remain on the job for any appreciable length of time due to the problems with her back and hands.

Ms. Maxey testified that currently her days consist of watching television, eating at her cousin’s café, and driving around town. She is unable to perform housework and relies on her daughter to do it for her. She further testified that she occasionally uses prescription pain medication three to four times per day and uses over-the-counter sleep-aids in order to ease the pain she suffers.

In short, when taking into consideration the claimant’s limited education, employment skills, and her relatively advanced age, coupled with the effects of no less than six surgeries (two to the back, and four to the hands), which she underwent in an attempt to return to work, in addition to the testimony of her doctor, we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission, finding that Ms. Maxey was anything less than permanently and totally disabled. For these reasons, we hereby reverse the Full Commission’s decision to reduce Ms. Maxey’s disability status from permanent and total to 35 percent. Likewise, the Court of Appeals decision in Maxey v. Tyson, Inc., 66 Ark. App. 301, 991 S.W.2d 624 (1999), affirming the Full Commission, is hereby reversed. As such, the cross-appeal by the Second Injury Fund is, therefore, moot and need not be addressed, particularly since the attorney for the Second Injury Fund conceded, during oral argument of this case, that the Second Injury Fund would be fiable in the event this court determined that Ms. Maxey was permanently and totally disabled.

Reversed.


source: Caselaw Access Project

author: TOM Glaze, Justice.

license: Public Domain

text:
    Rodney PRICE, Kenneth Price, and Randy Price v. Virginia Sue PRICE
    99-470
    16 S.W.3d 248
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000

      Jim Gunter, Probate Judge;

      James E. Davis, for appellants.

      Clarke D. Arnold, for appellee.
   TOM Glaze, Justice.

This court accepted jurisdiction of the appeal tice. presents a significant issue needing clarification or development of the law and also requires our interpretation of an act of the General Assembly. Ark. Sup. Ct. R. 1-2 (b)(5), (6) (2000). Specifically, we are asked whether Ark. Code Ann. § 16-65-121 (Supp. 1999) or Ark. R. Civ. P. 58 controls the facts in this case.

The facts are undisputed. Charles and Sue Price were married and had three sons. In 1977, they divorced and remarried; they later filed again for divorce in 1997. The second divorce proceeding is in issue here. On July 23, 1997, the chancellor announced from the bench that Sue Price be awarded the divorce, and at the same proceeding, the parties’ stipulated agreement concerning property, debts, fees, and costs, was read into the record and acknowledged by both of them. On August 8, 1997, Charles was killed in a car accident before the parties’ divorce decree was entered. In fact, the parties’ decree was not filed of record until June 19, 1998. See Price v. Price, 337 Ark. 372, 990 S.W.2d 514 (1999) (per curiam). On August 8, 1998, Sue Price filed a petition in the Miller County Probate Court, seeking to be appointed administratrix of Charles’s estate and asserting she was entitled to the appointment because she was Charles’s surviving spouse. The Prices’ adult sons contested Sue’s appointment, stating she was not married to Charles at the time of his death. They claimed that Sue had been awarded a final divorce on July 23, 1997, and therefore was not Charles’s surviving spouse when he was killed on August 8, 1997. The probate judge ruled that, for the purpose of this proceeding, the Prices’ divorce was not final and in effect because Charles died before the Prices’ decree had been entered. As a consequence, the judge determined the Prices were still married when Charles was killed. Even so, the judge denied Sue’s request to be administratrix, and instead appointed one of the sons, Kenneth Price, as administrator. The Prices’ sons, Rodney, Kenneth, and Randy (“the sons”), appeal the judge’s ruling finding Sue to be Charles’s surviving spouse. They further claim that because she is not Charles’s surviving spouse, she is not entitled to share in his estate. Sue does not challenge or appeal Kenneth’s appointment as administrator.

In their appeal, the sons rely on Act 98, § 1 of 1989 (3rd Ex. Sess.), codified at Ark. Code Ann. § 16-65-121 (Supp. 1999), which, in relevant part, provides, “All judgments, orders, and decrees . . . are effective as to all parties of record from the date rendered and not from the date of entry of record.” (Emphasis added.) Act 98, § 2 of 1989 (3rd Ex. Sess.), codified at Ark. Code Ann. § 16-67-101 (Supp. 1999), provides that the “time for filing a notice of appeal shall commence upon the filing and entry of record of the judgment, order, or decree pursuant to Rule 4 of the Arkansas Rules of Appellate Procedure.” The sons reason that, under these 1989 statutory provisions, the chancellor’s oral pronouncement rendering Sue a divorce on July 23, 1997, was effective on that date.

Sue, on the other hand, relies on Ark. R. Civ. P. 58, which in pertinent part reads as follows: “Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Administrative Order No. 2.” (Emphasis added.) Administrative Order No. 2 provides that a judgment, decree, or order is entered when so stamped or marked by the clerk. Sue argues that, under Rule 58 and Administrative Order No. 2, the chancellor’s pronouncement awarding her a divorce on July 23, 1997, was not effective on that date, since no separate decree or order had been filed and entered before Charles’s death. Thus, Sue asserts she is entitled to share in Charles’s estate as his surviving spouse.

Although our court has never had the occasion to consider § 16-65-121, we have interpreted this court’s Rule 58 and Administrative Order No. 2 in a situation much like the one now before us. In Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), the chancellor heard a divorce proceeding on October 5, 1984, between Terry and Annie Thacker, and at the end of the hearing, the chancellor wrote in his docket book, “decree — a little unusual but it may work.” The chancellor’s concern apparently was that the father, Terry, was to have custody of the couple’s daughter and Annie was to have custody of their son. Two days later, and before the Thackers’s divorce decree was finally filed with the court clerk, Annie and Carroll Standridge married. After their marriage, Carroll was killed in a motorcycle accident. Annie, as Carroll’s surviving spouse, was appointed administratrix of Carroll’s estate. However, Carroll’s former wife, Sharon, contested Annie’s appointment, contending Annie’s marriage to Carroll was invalid because, at the time of the marriage, Annie’s divorce from Terry was not final, since a separate divorce decree had not been filed as required by Ark. R. Civ. P. 58. In a 4-3 decision, this court held in Sharon’s favor. The Standridge court held that a judgment or decree is not effective until it is entered as provided in Rule 58 and Administrative Order No. 2 and further concluded that an announcement of the divorce from the bench is insufficient to effect the divorce. The court explained that the purpose of Rule 58 was to provide a definite point at which a judgment, be it a decree of divorce or other final judicial act, becomes effective. This court’s interpretation of Rule 58 in Standridge has been followed repeatedly by our court and the court of appeals. Shackelford v. Ark. Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998); Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997); Clayton v. State, 321 Ark. 217, 900 S.W.2d 537 (1995); General Motors Acceptance Corp. v. Eubanks, 318 Ark. 640, 887 S.W.2d 292 (1994); Nance v. State, 318 Ark. 758, 318 S.W.2d 758 (1994); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); A-1 Bonding v. State, 64 Ark. App. 135, 984 S.W.2d 29 (1998); Morrell v. Morrell, 48 Ark. App. 54, 889 S.W.2d 772 (1994); Brown v. Imboden, 28 Ark. App. 127, 771 S.W.2d 312 (1989).

The sons are well aware of the Standridge decision and its progeny, and while they do not ask us to overturn those decisions, they submit the General Assembly essentially did so seven months after Standridge when it enacted § 16-65-121. Quoting richly from the dissenting opinion in Standridge, the sons submit that § 16-65-121 merely reaffirmed the original meaning of Rule 58 so as to assure any citizen that a decision made in open court by a judge would finally decide the merits of his claim without waiting for the filing and entering of a separate decree, judgment, or order. Unquestionably, this argument presents us with the conflict between this court’s Rule 58, as it was interpreted in Standridge, and the General Assembly’s enactment of § 16-65-121.

In State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), the court was confronted with a situation where a conflict arose between rules established by this court and legislation enacted by the General Assembly. The court set out the following analysis and approach as to how it would deal with such conflicts: “To protect what we hold inviolate we now declare that we will defer to the General Assembly, when conflicts arise, only to the extent that the conflicting court rule’s primary purpose and effectiveness are not compromised; otherwise, our rules remain supreme.”

An exception to the foregoing rule exists when the statutory rule is based upon a fixed public policy which has been legislatively or constitutionally adopted and has as its basis something other than court administration. See Citizens for a Safer Carroll County v. Epley, 338 Ark. 61, 991 S.W.2d 562 (1999) (where the General Assembly’s statute required a shorter appeal time than the court’s procedural rule, the court held the statute controlling because it was based on the strong public policy that local option election matters should be advanced).

As generally discussed above, this court has recognized that Rule 58 is a matter pertaining to court administration whereby it provides a definite point at which a judgment becomes effective. Establishing that point to be the moment at which the court’s written precedent is filed can eliminate or at least reduce disputes between litigants over what a trial court’s oral decision in open court entailed. Such disputes inevitably delay the filing of appeals, which is at odds with this court’s procedural objective of moving appeals expeditiously. Cf. Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982).

In conclusion, we hold that Rule 58, not § 16-65-121, controls the facts in this case and that the rule effectively supersedes that statute. Therefore, we affirm the lower court’s decision.

       Sue Price untimely filed an appeal from the divorce proceeding, but when she filed a motion for rule on the clerk, the court denied her request. Citing Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984), Sue posited that the death of a party nullifies the validity of a subsequent divorce decree. While we agreed, we further recognized that it is not necessary to appeal from a void order because it never became effective, and a void order is subject to collateral attack. This probate proceeding, of course, does collaterally attack the Prices’ July 23, 1997, divorce proceeding.

       Charles’s estate was established to pursue a wrongful death lawsuit and to administer his assets, debts, and financial affairs

       The record reflects “the son” was the appropriate person to be administrator, and since Kenneth Price was the only son to apply for appointment, we assume he was appointed administrator even though Rodney is the only Arkansas resident. No real issue is raised regarding the appointment of the administrator, and we assume the probate judge will clarify this point at some stage of the proceeding

       An apparent conflict between § 16-65-121 and Rule 58 was footnoted in McCarther v. Green, 49 Ark. App. 42, 895 S.W.2d 562 (1995), but the court of appeals did not address the issue because, while the trial court’s ruling was on-the record, it was not rendered in open court.


author: DONALD L. Corbin, Justice.

text:
    ARKANSAS TRANSIT HOMES, INC. v. AETNA LIFE & CASUALTY
    99-1123
    16 S.W.3d 545
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000
    [Petition for rehearing denied June 22, 2000.]

      John C. Ward, Judge;

      Kemp, Duckett, Spradley, Curry & Arnold, by: James M. Duckett, for appellant.

      Law Office of W. J. Walker, by: Steven R. Davis, for appellee.
   DONALD L. Corbin, Justice.

Appellant Arkansas Transit stice. carrier in the business of transporting mobile homes in interstate commerce. In February 1987, Appellant applied for workers’ compensation insurance coverage through the Arkansas Assigned Risk Pool. Appellee Aetna Life and Casualty was assigned to provide coverage to Appellant. Appellee issued a policy for the years February 7, 1991, to February 7, 1992, and March 13, 1992, to February 7, 1993. A subsequent audit of Appellant’s payroll records revealed that additional premiums were owed for those years. Appellant refused to pay the additional amounts, and Appellee filed suit in the Pulaski County Circuit Court. The issue was whether certain truck drivers retained by Appellant were employees or independent contractors. The trial court found that they were employees and ordered Appellant to pay insurance premiums in the amount of $108,223.21, plus costs and attorney’s fees. This case was certified to us from the Arkansas Court of Appeals, as presenting an issue of substantial public interest. Hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(4). We affirm.

For its sole point for reversal, Appellant argues that the trial court erred in ruling that the truck drivers were not independent contractors. Our standard of review on appeals from bench trials is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. See Ark. R. Civ. P 52(a); Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. We view the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. Id. Disputed facts and determinations of witness credibility are within the province of the factfinder. Id.

This court has long held that an independent contractor is one who contracts to do a job according to his own method and without being subject to the control of the other party, except as to the result of the work. See, e.g., Johnson Timber Corp. v. Sturdivant, 295 Ark. 622, 752 S.W.2d 241 (1988); Moore and Chicago Mill & Lbr. Co. v. Phillips, 197 Ark. 131, 120 S.W.2d 722 (1938); W. H. Moore Lbr. Co. v. Starrett, 170 Ark. 92, 279 S.W. 4 (1926). On the issue of control, this court has stated:

The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master and servant necessarily follows. But if control of the means be lacking, and the employer does not undertake to direct the manner in which the employee shall work in the discharge of his duties, then the relation of independent contractor exists.

Massey v. Poteau Trucking Co., 221 Ark. 589, 592, 254 S.W.2d 959, 961 (1953) (citing Moore and Chicago Mill & Lbr. Co., 197 Ark. 131, 120 S.W.2d 722). There is no fixed formula for determining whether a person is an employee or an independent contractor; thus, the determination must be made based on the particular facts of each case. Id.

The following factors are to be considered in determining whether one is an employee or independent contractor:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

Dickens v. Farm Bureau Mut. Ins. Co., 315 Ark. 514, 517, 868 S.W.2d 476, 477-78 (1994) (citing Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990) (citing Restatement (Second) of Agency § 220)). See also D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999). Of the foregoing, the right to control is the principle factor in determining whether one is an employee or an independent contractor. Id. It is the right to control, not the actual control, that determines the relationship. Taylor v. Gill, 326 Ark. 1040, 934 S.W.2d 919 (1996).

The factors pertaining to the nature of the worker’s occupation and whether it is a part of the regular business of the employer comprise the “relative nature of the work” test, recognized in Sandy v. Salter, 260 Ark. 486, 541 S.W.2d 929 (1976). There, this court adopted Professor Larson’s test for examining the relationship between the worker’s occupation and the regular business of the employer. This test requires consideration of two factors: (1) whether and how much the worker’s occupation is a separate calling or profession, and (2) what relationship it bears to the regular business of the employer. The more the worker’s occupation resembles the business of the employer, the more likely the worker is an employee.

In the present case, the evidence demonstrated that during the years in question, Appellant employed truck drivers on its payroll to transport mobile homes from the seller’s location to the buyer’s land. The employee drivers were subject to workers’ compensation coverage, and premiums were paid for them. Appellant also retained a number of truck drivers by contract to transport mobile homes using their own trucks. Appellant asserted that these contract drivers were independent contractors for whom workers’ compensation coverage was not required.

The trial court concluded that the drivers were employees based, in large part, on the degree of control that Appellant retained over them. Specifically, the trial court found that under the contracts, the drivers agreed to use their trucks exclusively in the business and service of Appellant, and that they could not use their trucks for a “trip lease” without Appellant’s express consent. A “trip lease” is when the driver has the opportunity to haul or deliver for someone else on his trip back to his place of origin. Meanwhile, Appellant had the right to sublease the drivers’ trucks. The trial court also found that: (1) the drivers had to paint their trucks in accordance with Appellant’s specifications and were required to affix Appellant’s insignia or other marks of identification on the trucks; (2) the trucks could only be driven by persons certified by Appellant as acceptable; (3) the drivers were authorized, as agents, to collect the monies due to Appellant for the shipping charges; (4) compensation was contingent upon the drivers providing bills of lading, log books, all tickets, permits, and copies of flagging tickets; (5) the drivers were required to pay all fuel use taxes, but Appellant would receive all credits and refunds on such taxes; and (6) the drivers were responsible for up to $350.00 for damage to the cargo.

Appellant argues that the trial court erred in relying on these contract provisions as bearing on the issue of the right to control. It claims that its contracts provided no more control than that mandated by the Interstate Commerce Commission’s (ICC) regulations. Appellant particularly relies on 49 C.F.R. § 1057.12(c)(1) (1992), which provides in part that equipment leases “shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease.” Appellant asserts that the ICC has never viewed this exclusive-use requirement as having any bearing on the relationship of the parties. See section 1057.12(c)(4). Appellant relies on this court’s holding in Julian Martin, Inc. v. Indiana Refrig. Lines, Inc., 262 Ark. 671, 560 S.W.2d 228 (1978). While we agree that compliance with the ICC’s regulations does not, as a matter of law, determine the relationship between the parties, we believe that Appellant’s reliance on Julian Martin is misplaced.

There, a truck driver was injured while driving a truck owned by White County Ready Mix, leased to Julian Martin, and then subleased for one trip to Indiana Refrigeration Lines. The dispute was between the lessee and the sub-lessee as to which one was the driver’s employer and thus responsible for compensation of his injuries. The lessee argued that the sub-lessee was responsible, in part, because the sub-lessee controlled the driver’s activities under the ICC’s regulations. This court disagreed: “Control of the leased equipment does not operate as such complete control of the driver, as to make the driver the employee of the lessee as a matter oJlaw[.]” Id. at 678, 560 S.W.2d at 231 (emphasis added). The issue of the right to control the method and manner of the work is not a question of law to be determined by ICC regulations. Rather, when there is a “lease of fully operated equipment for the transportation of cargo on the public highways,” the question of the driver’s status is one of fact. Id., 560 S.W.2d at 231-32. Thus, the existence of ICC regulations governing control of the equipment under the lease does not necessarily mandate a finding that the operator is an employee or an independent contractor. The question remains one of fact dependent upon the particular circumstances of each case.

Here, in addition to the facts set out above, the evidence showed that the contract drivers performed the same work as the employee drivers, with the only difference being that the employee drivers were given specific times and dates for pick up and delivery, and they did not have the option of declining particular moves. The contracts were initially for a term of thirty days, but were automatically renewed and continued thereafter unless terminated. Either party could terminate the contract by giving at least ten days’ written notice. The trial court found significant the length of time that these drivers worked for Appellant, with the majority having done so for at least two years. The trial court also found significant the factor that the drivers were not engaged in a distinct occupation or business, as the greater weight of the evidence showed that these drivers did not engage in work other than hauling mobile homes for Appellant. The trial court also found that the work performed by the contract drivers was such an integral part of Appellant’s business, that it could not operate without the contract drivers. The trial court relied on the fact that Appellant is in the business of transporting mobile homes, and that the truck drivers are in the identical business. Thus, the trial court found that the truck drivers’ work bears a significant relationship to Appellant’s business under the “relative nature of the work” test.

Furthermore, contrary to Appellant’s argument, the contracts here exceeded the amount of control specified in the ICC’s regulations. For example, the exclusive-use provision found in section 1057.12(c)(1) does not specifically prohibit use of the trucks by the lessor-owners for trip leases. Indeed, the reason offered by Appellant in support of this provision was not that it was mandated by the regulations, but that Appellant likes to know where the drivers are in case they are needed for another move. Similarly, there does not appear to be any regulation requiring the lessor-owners to act as trustees or agents of the carrier for the purpose of collecting monies due for shipping charges. Thus, viewing the foregoing facts in a light most favorable to Appellee, we cannot say that the trial court was clearly erroneous in finding that the contract drivers were employees.

We find additional support for our holding in the trial court’s determination that Appellant should be estopped from' denying payment of the additional premiums regardless of the drivers’ status. The evidence revealed that workers’ compensation claims were made by five of the contract drivers during the period in question, and those claims were paid by Appellee. In one of those five cases, the trial court found that the claim was signed by Appellant’s vice-president, Winston Chandler, and that Chandler never raised the issue of the driver’s employment status until approximately two years after the claim was made and compensation had been paid. On another claim, the trial court found that Chandler had informed Appellee’s claims adjuster that the company had withheld funds from the claimant’s pay to pay for workers’ compensation insurance. Furthermore, the trial court found that all of the drivers were treated in the same way, as it related to the assignment of jobs, the rate of pay, and the method and manner in which they performed each job. Accordingly, the trial court found that Appellant intended and elected to have the contract drivers, as a group, covered by its policy. Again, we cannot say that the trial court’s ruling was clearly erroneous, and we affirm the judgment.

We do not reduce the judgment, as Appellant requests, by the premium amounts for those drivers working in Alabama, Georgia, Tennessee, and Virginia. It is not apparent that Appellant made this argument below. To the contrary, the abstract reflects that Appellant informed the trial court that it was not controverting the calculations of the premiums and that the only issue was the coverage itself. Accordingly, the issue is not preserved for appeal. See Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999). Likewise, we do not address the additional points raised by the Amicus Curiae. The Amicus Curiae must take the case as it finds it and cannot raise issues not raised by the parties or introduce new issues at the appellate level. See Ferguson v. Brick, 279 Ark. 168, 649 S.W.2d 397 (1983) (per curiam); Mears v. Little Rock School Dist., 268 Ark. 30, 593 S.W.2d 42 (1980); Equilease Corp. v. United States Fidelity & Guar. Co., 262 Ark. 689, 565 S.W.2d 125 (1978). These additional issues were not raised by either party, so they are not preserved for this court’s review.

Lastly, because we affirm the trial court’s determination that the drivers were employees, it is not necessary to review the alternative finding that the drivers were subcontractors. We do find it necessary, however, to point out that even if the drivers were subcontractors, Appellant, as the prime contractor, would not be responsible for payment of workers’ compensation premiums for the subcontractors themselves, but only for those employees of the subcontractors, if any, for whom no compensation coverage was provided. See Ark. Code Ann. § ll-9-402(a) (Repl. 1996); Hollingsworth & Rockwood Ins. Co. v. Evans, 255 Ark. 387, 500 S.W.2d 382 (1973).

Affirmed.

       This regulation is now codified as 49 C.F.R. § 376.12(c)(1) (1999).


author: ROBERT L. Brown, Justice.

text:
    IN RE ADOPTION of D.J.L., A Minor; C.L. and L.L., Appellants

    99-1134
    16 S.W.3d 263
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000

      Jerry Mazzanti, Judge;

      The Harper Law Office, P.L.L.C., by: Greg Fallon, for appellants.
    One brief only.
   ROBERT L. Brown, Justice.

This is a one-brief appeal brought icby e. appellants, C.L. and L.L. Their sole point on appeal is that the trial court erred in holding that L.L. could not be a petitioner for the adoption of D.J.L. unless she relinquished all of her rights and responsibilities as a natural parent of the child. We affirm the trial court but do so on the basis that the appellants have failed to abstract material parts of the record and further have failed to develop the legal issue raised.

The appellants’ abstract of the record in this adoption matter consists of one and a half pages. All that is presented to this court in the way of pleadings and proof is the following abstract of the adoption petition: “C.L. and L.L. wish to adopt D.J.L., an infant. L.L. is the natural mother of said child.” There is then a citation in the abstract of the brief in support of the petition to Ark. Code Ann. § 9-9-204 (Repl. 1998). The Addendum to appellants’ brief contains a letter opinion from the trial court and the order denying the petition. In its letter opinion, the trial court bases its denial on Ark. Code Ann. § 9-9-215(a)(l) (Repl. 1998), and the failure of the natural mother to relinquish her rights in the child prior to petitioning for adoption.

As an initial matter, we are provided no information concerning the natural father and his consent to the adoption. Under certain circumstances, the natural father must consent. Ark. Code Ann. § 9-9-206(a)(2) (Repl. 1998). However, if the natural father has deserted or abandoned the child or relinquished his consent, consent is not required. Ark. Code Ann. § 9-9-207 (a) (Repl. 1998). There is also nothing in the abstract to indicate whether notice of a hearing on the adoption was given to the natural father or whether a hearing was ever held.

Nor do we know from the abstract the age of the person to be adopted or whether the trial court dispensed with the child’s consent. Ark. Code Ann. § 9-9-206(a)(5) (Repl. 1998). We further are not provided information relating to the marital status of L.L. and C.L. or their genders or their county of residence.

Our rules are clear that the appellants’ abstract must provide an impartial condensation of material parts of the record in order to give this court an understanding of the case so that it can make a decision. Ark. Sup. Ct. R. 4-2(a)(6). Our Supreme Court Rules are also clear that if this court finds the appellants’ abstract to be flagrantly deficient, we may affirm the trial court for failure to comply with our rules. Ark. Sup. Ct. R. 4-2(b)(3). Because there are seven justices on the court, we rely on the abstract and will not examine a single record to ascertain the material facts in a case. Winters v Elders, 324 Ark. 246, 920 S.W.2d 833 (1996). There is no doubt that the abstract in this case is flagrantly deficient, and we affirm on that basis.

In addition to the abstract deficiency, the appellants have asserted in their three-page brief that because our statutes provide that an unmarried adult may adopt a child under Ark. Code Ann. § 9-9-204(2) (Repl. 1998), it stands to reason that two unmarried adults should also have the ability to adopt. However, they cite us to no authority in support of their theory of the case. Absent citation to authority or the rendition of convincing argument, we do not reverse. Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Failure to develop the legal issue presents a second reason to affirm.

Affirmed.

       The appellants argue in their brief that an adoption by two unmarried adults is permissible, but nothing in their abstract denotes their marital status.


text:
    Oscar STILLEY, Petitioner v. Sharon PRIEST, In Her Official Capacity as Secretary of State of the State of Arkansas, Respondent; Arkansas Casino Corporation, Intervenor

    00-135
    16 S.W.3d 251
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000

      Petitioner, pro se.

      Mark Pryor, Att’y Gen., by: Dennis R. Hansen, Ass’t Att’y Gen.; Tim Humphries, Counsel, for respondent.

      Buchholz & Sassin, P.L.L.C., by: Robert W. Buchholz, for intervenor.

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray and Robert S. Shafer, for amicus curiae Bobby Roberts, Individually and On Behalf of Arkansans to Protect Police, Libraries, Education & Services (APPLES).
   ROBERT L. Brown, Justice.

This case involves an original tipetition ce. by petitioner Oscar Stilley pursuant to Amendment 7 of the Arkansas Constitution and Act 877 of 1999. The petition deals with a proposed amendment to the Arkansas Constitution to authorize lotteries, raffles, and bingo throughout the state as well as casino gambling at six sites in the state (hereinafter the “Gaming Amendment”). On August 30, 1999, the Attorney General issued an opinion approving, with minor corrections, the text of the popular name and ballot title for the amendment submitted by intervenor Arkansas Casino Corporation. On August 31, 1999, respondent Sharon Priest, as Secretary of State also approved and certified as sufficient the popular name and ballot title for the ballot.

On November 29, 1999, petitioner Oscar Stilley filed an original action petition in this court and requested a declaratory judgment on the legal sufficiency of the popular name and ballot title of the Gaming Amendment under Amendment 7 to the Arkansas Constitution and Act 877 of 1999, now codified at Ark. Code Ann. § 7-9-501 through 506 (Repl. 2000). This court dismissed Stilley’s action in Stilley v. Priest, 340 Ark. 259, 12 S.W.3d 189 (2000) (per curiam), on the basis that Stilley did not follow the correct procedure as set out in Act 877. We pointed out that Stilley had never filed a petition with the Secretary of State, questioning the legal sufficiency of the initiative petition. We noted that under Act 877, only after the Secretary of State has made her determination following a petition questioning an initiative’s legal sufficiency, can this court review that decision. In our per curiam opinion, we also pointed out that an issue exists concerning the constitutionality of Act 877 in light of Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990).

Following our dismissal of his petition, Stilley petitioned the Secretary of State and questioned the legal sufficiency of the initiative petition. On January 26, 2000, the Secretary of State issued a Declaration stating that she believed the popular name and ballot title were fair and accurate and that the measure, if subsequendy approved by the electorate, would be facially valid. Stilley then filed his original action petition in this court pursuant to Amendment 7 and Act 877 for a review of the decision by the Secretary of State.

I. Constitutionality of Act 877

For his first point, Stilley asks this court to uphold the validity of Act 877 of 1999. Act 877 provides that any taxpayer and voter can petition the Secretary of State for a determination of the legal sufficiency of a proposed initiative. Ark. Code Ann. § 7-9-503(a)(1) (Repl. 2000). The Secretary of State shall then declare, after consulting with the Attorney General, whether the popular name or ballot title are fair and complete and the proposed measure is valid under the state and federal constitutions and state law. Ark. Code Ann. § 7-9-503 (b) (Repl. 2000). If the Secretary of State declares the initiative to be legally insufficient, a time for curing by the sponsors is allowed. Ark. Code Ann. § 7-9-504 (Repl. 2000). A right of review of the Secretary of State’s decision by this court is provided. Ark. Code Ann. § 7-9-505 (Repl. 2000).

Stilley initially asks this court to distinguish the instant case from the case of Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), where this court held that portions of Act 280 of 1989 were unconstitutional under Amendment 7. In Finn, an original action had been filed in this court to determine whether a proposed lottery initiative was insufficient due to misleading text in the ballot title and invalid signatures. The action was filed after certification of the initiative petition by the Secretary of State but more than forty-five days after publication of the proposed amendment. At issue in that case was Act 280 of 1989, which required in part that petitions contesting the terms of a ballot title must be filed within forty-five days of publication of the proposed amendment or they would be untimely. This court struck down the forty-five-day requirement in Act 280 as a limit on the provisions of Amendment 7 and as an expansion of this court’s jurisdiction to review proposed initiatives.

Stilley in his brief distinguishes the issues surrounding Act 280 in Finn from the issues of Act 877 in the case at hand. He maintains that Act 280 cut off the rights of challengers after a certain time period, where Act 877 does not. In the alternative, Stilley argues that the Finn case was wrongly decided and should be overruled.

The respondent, Sharon Priest as Secretary of State, and the intervenor, Arkansas Casino Corporation, weigh in on this latter point and urge this court to overrule the Finn decision. Priest argues that Act 877 merely permits a challenge to the text of an initiative petition at an earlier stage, but that it does not curtail the right of a challenger to contest the initiative’s signatures at a later date. Amendment 7 does not prohibit an early review, says Priest. She argues that instead Amendment 7 specifically contemplates laws by the General Assembly to facilitate its operation.

The Casino Corporation agrees with Priest and claims that the decision in Finn that an initiative petition must have signatures is based on one case — Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986). The Casino Corporation points out that in Scott, we wrote: “Our jurisdiction attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures.” 289 Ark. at 45, 709 S.W.2d at 79 (emphasis added). No case authority accompanied this statement in Scott, according to the Casino Corporation. Furthermore, the constitutionality of a state statute was not at issue in that case.

We begin by looking at Scott v. McCuen, supra, upon which Finn was based. In Scott, the Secretary of State had certified the text of a ballot title before an initiative petition had been submitted to him and prior to the collection of signatures. He had done so without specific legislative authority from the General Assembly. We held that this was contrary to Amendment 7 and that in the past certification by the Secretary of State had only occurred following submission of the initiative petition with signatures. We held that only after an initiative petition had been certified both as to title and signatures did this court have jurisdiction to review it under Amendment 7.

Priest contends that the statement in Scott concerning jurisdiction is mere dictum, but we disagree. Rather, the statement goes to the heart of this court’s jurisdiction in original actions on initiative petitions and limits that jurisdiction prior to the time that signatures have been collected. Furthermore, in Finn we concluded that our review before certification by the Secretary of State as to popular name, ballot title, and signatures constituted an unlawful and unconstitutional expansion of this court’s jurisdiction. This blanket statement relating to the necessity for signatures before this court has jurisdiction to review an initiative petition places both Scott and Finn directly at odds with Act 877.

We have come to the conclusion that both Scott v. McCuen, supra and Finn v. McCuen, supra, were wrongly decided with respect to the jurisdiction of this court. We first observe that while Amendment 7 does contemplate filing the initiative petition with the requisite signatures with the Secretary of State for a sufficiency determination, at no point does it preclude an earlier review of the text of the popular name and ballot title or the validity of the proposed amendment. On the contrary, Amendment 7 specifically provides that “laws may be enacted to facilitate its operation.” An early resolution of a contest to the content of a popular name and ballot title and the validity of the initiative would certainly facilitate the process for legislative enactments by the people.

In this regard, there is clear precedent for approving the constitutionality of a legislative act requiring early review of the text of an initiative petition prior to the collection of signatures. See Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956). In Washburn, the issue was whether this court should compel the Secretary of State to certify an initiative petition when the sponsors had failed to obtain the prior approval of the Attorney General of the text of the popular name, ballot title, and amendment. Amendment 7 does not provide for prior approval by the Attorney General. Act 195 of 1943, now codified at Ark. Code Ann. § 7-9-107(a) through (e) (Repl. 2000), however, provided for the submission of a draft of an initiative petition to the Attorney General for his review, approval, or amendment prior to collecting signatures. Act 195 further provided that should the Attorney General fail to act and if the sponsors felt aggrieved by his actions, they could petition this court for proper relief. See Ark. Code Ann. § 7-9-107(d) (Repl. 2000). We refused to compel certification and said:

Act No. 195 of 1943, Ark. Stats. 2-208, is no unwarranted restriction on Amendment No. 7. Obviously, the Legislature considered that in signing a referendum or initiative petition the signer should have the benefit of a popular name and ballot title that would give as much information about the proposed act as is possible to give by such means. It is apparent that the Legislature considered that the safer method would be to first submit the proposed popular name and ballot title to the Attorney General of the State for his approval and, if he did not approve that which was submitted, he should substitute and certify more suitable ones. This statute in no way curtails the operation of Amendment No. 7 but is in aid of the amendment and insures the giving to the signer of the petition as much information as is possible and practicable with regard to what he is being asked to sign. Here, the Attorney General was not asked to approve a popular name or a ballot title. Nothing was pointed out to him as a popular name or ballot title which the circulators of the petition intended to use as such.

Washburn, 225 Ark. at 871-872, 286 S.W.2d at 497.

It is true that our decision in Washburn v. Hall, supra, was not couched in terms of the jurisdiction of this court to review. Yet, the decision unmistakably stands for the proposition that early review of the petition’s text by the Attorney General and by this court did not impede the Amendment 7 process. Indeed, it facilitated it. Similarly, we do not believe that an earlier review of the text of the initiative by the Secretary of State and this court pursuant to Act 877 impedes a later certification of a petition with signatures by the Secretary of State. On the contrary, an early determination of the initiative’s text would have the salutary effect of facilitating a smoother operation of Amendment 7. That amendment, after all, has as its ultimate purpose the establishment of a procedure by which the people can adopt legislative measures. Any impediment to that process caused by a late review of the initiative’s text certainly works against that laudable goal.

We are mindful that in the past ten years at least seven measures have been stricken from the ballot at the eleventh hour before the November general election owing to a deficiency in the text of the ballot title. See Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (October 21,1996) (struck ballot title to amendment that would allow casino gambling and legalize a lottery, charitable raffles, and bingo games); Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (October 21, 1996) (struck ballot title to amendment that would authorize lottery ticket games, charitable bingo, raffles, and video terminal games); Parker v. Priest, 326 Ark. 386, 931 S.W.2d 108 (October 21, 1996) (struck ballot title to amendment that would authorize a state lottery and legalize bingo, raffles, and casino gambling); Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (October 14, 1994) (struck ballot title to amendment that would authorize a state lottery, nonprofit bingo, nonprofit raffles, and casino-style gambling); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (October 14, 1994) (struck ballot title to amendment that would restructure the workers’ compensation commission and revise workers’ compensation law); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (October 20, 1994) (struck ballot title to amendment that would authorize casino gambling).

As a result, this court urged the enactment of a procedure that would ameliorate the situation and provide some mechanism for an earlier review. See Page v. McCuen, supra. In Page, we said:

We commend the General Assembly’s past effort in attempting to establish reasonable statutory timetables to implement initiative and referendum measures under Amendment 7. We respectfully ask its further consideration and action and encourage the General Assembly to make another attempt to establish an initiative and referendum procedure that will permit early resolution of such issues. Until appropriate action is taken to correct the problems attendant to proposals submitted under Amendment 7, citizens can continue to expect measures to be removed from the ballot immediately prior to the election. This court does not enjoy being in the “last-minute” position of review. The people of Arkansas deserve an initiative and referendum procedure which allows them the confidence that measures, after having been adequately reviewed, will not be removed from the ballot. The sponsors of initiative proposals should also be assured their ballot titles and proposed measures meet required guidelines and rules before they spend their time, energy and monies in getting their proposal before the voters.

318 Ark. at 347-348, 884 S.W.2d at 954-955. See also Scott v. Priest, supra (same language recited by this court).

It may well be that our decision today will result in two reviews of some petitions, the first dealing with the text of the popular name and ballot title and the validity of the proposed amendment, and the second occurring after certification of the petition’s signatures. Having two sufficiency determinations on those two matters has not been that unusual in recent years. Under current procedures, we often have scheduled a master to hear the issue of signature deficiencies, while we simultaneously reviewed textual problems. See, e.g., Roberts v. Priest, 334 Ark. 503, 975 S.W.2d 850 (October 15, 1998) (challenge to both the sufficiency of the signatures and the ballot title text); Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996) (ballot title held insufficient); Scott v. Priest, 326 Ark. 466, 932 S.W.2d 751 (1996) (challenge to sufficiency of signatures held moot in light of decision on ballot tide).

The dissent argues that Amendment 7 mandates only one review of the legal sufficiency of the initiative petition by the Secretary of State and by this court and that this review occurs only after the collection of signatures. The dissent further argues that “petition” as used in Amendment 7 refers only to a document that contains the proposed initiative and the required signatures. We disagree for the reasons already stated in this opinion. Amendment 7 does provide for a determination of the legal sufficiency of the signatures by the Secretary of State subject to this court’s review but at no point does it foreclose a prior review of the legal sufficiency of the proposed initiative’s text, including the popular name and ballot tide. Moreover, Amendment 7 clearly uses the term “petition” at one point to refer to the proposed initiative prior to filing when it states that a “petition” may be circulated in “parts” for the gathering of signatures. The dissent acknowledges this sentence in Amendment 7 in seeming contradiction to the dissent’s claim that “petition” as used in the amendment always refers to the document at time of filing with the collected signatures. Amendment 7 simply is not at odds with Act 877.

In summary, we conclude that Act 877 of 1999 does not run afoul of the provisions of Amendment 7 to the Arkansas Constitution. We overrule Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), and Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986), to the extent that they prevent a review of the text of a popular name and ballot title and the validity of the proposed measure prefatory to the gathering of signatures.

II. Sufficiency of the Ballot Title

We turn then to the issue of whether the popular name and ballot title for the proposed amendment are sufficient. We conclude that they are.

Stilley only argues for one change in the ballot title in his brief. That change concerns the Arkansas Educational Trust Fund, which will receive money from gaming revenues under the proposed amendment to be used as grants to finance a college education for students who qualify. That requested change is best illustrated by the following:

ESTABLISHING THE ARKANSAS EDUCATIONAL TRUST FUND, REGULATED AND ADMINISTERED BY THE DEPARTMENT OF HIGHER EDUCATION, TO PROVIDE GRANTS TO QUALIFIED HIGH SCHOOL GRADUATES OF ACCREDITED HIGH SCHOOLS FOR POST-SECONDARY EDUCATION;

The marked through language should be replaced by the underlined language, according to Stilley. This, he maintains, is needed because the ballot title misleads by not stating that under the Gaming Amendment some of the least fortunate Arkansas students who do not attend accredited high schools will be excluded from trust fund grants.

We disagree that a specific, reference to accredited high schools is required. We have held that a ballot title must be free from a misleading tendency. Bailey v. McCuen, supra; Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). We have further held that a ballot tide must be intelligible, honest, and impartial so as to inform voters with such clarity that they can cast their ballots with a fair understanding of the issues presented. Parker v. Priest, supra; Bailey v. McCuen, supra. If information is omitted from the ballot tide which is an essential fact which would give the voter serious ground for reflection, it must be disclosed. Parker v. Priest, supra; Bailey v. McCuen, supra. Finally, we have held that we are liberal in construing Amendment 7 and in determining the sufficiency of a ballot tide. Bailey v. McCuen, supra; Porter v. McCuen, 310 Ark. 562, 839 S.W.2d 512 (1992).

Under these standards, we do not agree that Stilley’s challenge is of such significance for us to deem the ballot title insufficient. Certainly, “qualified high school graduate” tells the voter that certain qualifications must be met. Thus, the voter is put on notice that there may be one or more factors for determining eligibility. In short, the ballot title is sufficient to give the voter an intelligible idea of what is involved. See Plugge v. McCuen, supra; Bailey v. McCuen, supra. Because Stilley apparently has abandoned two other grounds for insufficiency raised in his petition — funding for the Arkansas Gaming Commission and the tendency for a monopoly — we need not consider them.

A challenge to the sufficiency of the text of a proposed amendment under Act 877 is obviously a matter of first impression for this court. At oral argument, questions were asked concerning whether Act 877 might lead to “friendly” actions to garner this court’s approval of the text of proposed amendments and whether subsequent petitions concerning sufficiency of the text could be filed on other grounds, perhaps after certification of the signatures by the Secretary of State. Those are not issues raised by the parties in the instant case, and we decline to address them. Suffice it to say that Stilley, in his petition, has mounted a bonafide challenge to the text of the Gaming Amendment under Act 877, and we find no merit to his challenge.

III. Miscellaneous Points

Because we do not conclude that a change in the ballot title is required, we need not address Stilley’s arguments on curing the ballot title and the Casino Corporation’s concern about previously collected signatures. Both matters are moot.

Nor should we consider Stilley’s points concerning the extent of fraud necessary to void a ballot title and the elimination of length as a criterion in deciding ballot title sufficiency. Neither issue is raised in connection with the ballot title in the instant case, and this court has been constant in its resolve against issuing advisory opinions. Central Emergency Medical Services, Inc. v. State, 332 Ark. 592, 966 S.W.2d 257 (1998). Under this reasoning, we also decline to give “guidance” to Stilley on a time line for reviewing initiative petitions.

Petition denied.

Imber and Thornton, JJ„ dissent.

ADDENDUM

Popular Name

AN AMENDMENT TO ESTABLISH A STATE LOTTERY; TO PERMIT CHARITABLE BINGO GAMES AND RAFFLES; TO ALLOW ARKANSAS CASINO CORPORATION TO OWN AND OPERATE SIX CASINO GAMBLING ESTABLISHMENTS ONE EACH IN SEBASTIAN, PULASKI, GARLAND, MILLER, CRITTENDEN AND BOONE COUNTIES; AND TO ESTABLISH THE ARKANSAS EDUCATIONAL TRUST FUND AND THE ARKANSAS GAMING COMMISSION.

BALLOT TITLE

AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO: 1) ESTABLISH A STATE-RUN LOTTERY, TO BE OPERATED AND REGULATED BY THE ARKANSAS GAMING COMMISSION; 2) AUTHORIZE CHARITABLE BINGO AND RAFFLES IN ARKANSAS AS REGULATED BY THE ARKANSAS GAMING COMMISSION; AND 3) IMMEDIATELY AUTHORIZE SIX CASINO GAMBLING ESTABLISHMENTS, TO BE OWNED AND OPERATED BY “ARKANSAS CASINO CORPORATION” (A PRIVATE FOR-PROFIT CORPORATION), ONE EACH TO BE LOCATED IN SEBASTIAN, PULASKI, GARLAND, MILLER, CRITTENDEN AND BOONE COUNTIES, THE OPERATIONS OF WHICH SHALL BE AUDITED BY THE ARKANSAS GAMING COMMISSION FOR THE SOLE PURPOSE OF INSURING THAT CASINO TAXES DUE TO THE STATE ARE PAID, BUT WHICH SHALL NOT OTHERWISE BE REGULATED BY THE GAMING COMMISSION; REQUIRING THE GENERAL ASSEMBLY TO ENACT LEGISLATION SO THAT THE STATE LOTTERY AND CHARITABLE BINGO AND RAFFLES MAY BEGIN AT THE EARLIEST POSSIBLE TIME, BUT PROHIBITING THE GENERAL ASSEMBLY FROM ENACTING ANY LEGISLATION REGARDING CASINO GAMING; PROHIBITING CASINO GAMING IN ANY OTHER COUNTY OR AT ANY OTHER THAN THE LOCATIONS OPERATED BY ARKANSAS CASINO CORPORATION; PROHIBITING PERSONS UNDER THE AGE OF 21 FROM PURCHASING LOTTERY TICKETS OR PARTICIPATING IN BINGO, RAFFLES OR CASINO GAMING; REQUIRING AT LEAST 50% OF STATE LOTTERY REVENUE TO BE DISTRIBUTED AS PRIZES, AT LEAST 45% OF LOTTERY REVENUE TO BE PAID TO THE ARKANSAS EDUCATIONAL TRUST FUND AND NO MORE THAN 5% FOR THE EXPENSES OF THE LOTTERY; REQUIRING PAYMENT OF A 15% TAX ON THE “NET GAMING REVENUE” (AS DEFINED) OF ANY CASINO, TO BE ALLOCATED AS FOLLOWS: 80% TO THE STATE’S GENERAL FUND FOR THE PURPOSE OF REDUCING OR ELIMINATING THE GROSS RECEIPTS TAX ON FOOD PURCHASED IN A RETAIL FOOD STORE, WITH ANY EXCESS RETURNED TO THE GENERAL FUND, 10% TO THE ARKANSAS EDUCATIONAL TRUST FUND; 5% OF THE TAX OF ONE CASINO TO THE COUNTY IN WHICH THAT CASINO IS LOCATED (IF THE CASINO IS IN A CITY LIMITS THEN THIS REVENUE SHALL BE DIVIDED EQUALLY BETWEEN THE COUNTY AND THE CITY), 1% TO THE ARKANSAS COMPULSIVE GAMBLING FOUNDATION FOR THE TREATMENT AND PREVENTION OF GAMBLING ADDICTION; 4% TO THE STATE’S GENERAL FUND FOR THE OPERATIONAL COSTS OF THE ARKANSAS GAMING COMMISSION; PROHIBITING THE GENERAL ASSEMBLY FROM REDUCING LOCAL OR STATE FUNDING BECAUSE OF CASINO TAX REVENUE; PROHIBITING ANY OTHER STATE OR LOCAL TAXES, FEES OR ASSESSMENTS ON THE FURNITURE, FIXTURES, EQUIPMENT, PROPERTY, BUSINESS OPERATIONS, GROSS REVENUES, NET GAMING REVENUES OR INCOME OF ARKANSAS CASINO CORPORATION FROM OR USED IN CASINO GAMING; ESTABLISHING THE ARKANSAS EDUCATIONAL TRUST FUND, ALLOCATED AND ADMINISTERED BY THE DEPARTMENT OF EDUCATION, TO PROVIDE GRANTS TO QUALIFIED HIGH SCHOOL GRADUATES FOR POST-SECONDARY EDUCATION; DEFINING POST-SECONDARY EDUCATION AS THE PURSUIT OF AN UNDERGRADUATE DEGREE AT A PUBLIC OR PRIVATE UNIVERSITY, COLLEGE, COMMUNITY COLLEGE OR A DEGREE FROM A VOCATIONAL-TECHNICAL SCHOOL; REQUIRING NOT LESS THAN 24% OF THE EDUCATIONAL TRUST FUND TO BE USED TO EXPAND PREKINDERGARTEN EDUCATIONAL PROGRAMS AND TUTORIAL PROGRAMS FOR PRIMARY AND SECONDARY STUDENTS; CREATING THE ARKANSAS GAMING COMMISSION, WHOSE MEMBERS SHALL BE APPOINTED BY THE GOVERNOR WITH THE ADVICE AND CONSENT OF THE SENATE, WHO SHALL: 1) ESTABLISH AND OPERATE THE STATE LOTTERY; 2) LICENSE AND REGULATE CHARITABLE BINGO AND RAFFLES; AND 3) AUDIT THE OPERATIONS OF THE CASINOS FOR THE SOLE PURPOSE OF INSURING THAT ALL CASINO TAXES DUE TO THE STATE ARE PAID; PROVIDING FOR JUDICIAL REVIEW OF THE COMMISSION’S DECISIONS OR ACTIONS; ALLOWING A CASINO TO OPERATE ANY DAY FOR ANY PORTION OF THE DAY; ALLOWING THE SELLING OR FREE FURNISHING OF ALCOHOLIC BEVERAGES IN CASINOS DURING ALL HOURS THEY OPERATE BUT OTHERWISE REQUIRING ADHERENCE TO ALL ALCOHOLIC BEVERAGE CONTROL BOARD REGULATIONS; PERMITTING THE SHIPMENT OF GAMBLING DEVICES INTO AUTHORIZED COUNTIES FOR PURPOSES OF FEDERAL LAW; RENDERING THE PROVISIONS OF THE AMENDMENT SEVERABLE; DECLARING INAPPLICABLE ALL CONSTITUTIONAL PROVISIONS AND LAWS TO THE EXTENT THEY CONFLICT WITH THE AMENDMENT; AND DECLARING THE AMENDMENT OPERATIVE UPON PASSAGE.

ANNABELLE Clinton Imber, Justice, dissenting. The majority correctly concludes that our decisions in Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), and Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986), are directly at odds with Act 877 of 1999, now codified at Ark. Code Ann. §§ 7-9-501 — 506 (Repl. 2000). Act 877 of 1999 provides for this court to review a “legal sufficiency” declaration by the secretary of state with respect to a proposed petition which has not been certified by the secretary of state as having a sufficient number of signatures to be placed on the ballot. We clearly held in Finn v. McCuen, supra, that “any statute which purports to confer on us the power to review an initiative petition which has not been certified as to the popular name, ballot title, and signatures constitutes an unlawful and unconstitutional expansion of our jurisdiction.” Id. at 424, 798 S.W.2d at 37. (Emphasis added). The majority overcomes precedent by summarily overruling Finn v. McCuen, supra, and Scott v. McCuen, supra, and then declares that Act 877 of 1999 “does not run afoul of the provisions of Amendment 7 to the Arkansas Constitution.” In so doing, the majority makes only one slight reference to the actual provisions of Amendment 7.

This court’s original jurisdiction must be invoked pursuant to Amendment 7. See Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433 (1960); Hargis v. Hall, 196 Ark. 878, 120 S.W.2d 335 (1938); Rambo v. Hall, 195 Ark. 502, 112 S.W.2d 951 (1938). Our jurisdiction to entertain such original actions cannot be enlarged by the legislature. American Party of Arkansas v. Brandon, 253 Ark. 123, 484 S.W.2d 881 (1972). Amendment 7 to the Arkansas Constitution provides in pertinent part:

State Wide Petitions
Initiative — The first power reserved by the people is the initiative. Eight per cent of the legal voters may propose any law and ten per cent may propose a Constitutional Amendment by initiative petition, and every such petition shall include the text of the measure so proposed. Initiative petitions for State-wide measures shall be filed with the Secretary of Statenot less than four months before the election at which they are to be voted upon . . .
* * * *
The Petition
Title — At the time of filing petitions the exact title to be used on the ballot shall by the petitioner be submitted with the petition and on State-wide measures, shall be submitted to the State Board of Election Commissioners, who shall certify such tide to the Secretary of State, to be placed upon the ballot . . .
* * *
Verification —• Only legal votes shall be counted upon petitions. Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto, the affidavit of the persons circulating the same, that all signatures thereon were made in the presence of the affiant, and that to the best of the affiant’s knowledge and behef each signature is genuine, and that the person signing is a legal voter ...
* * 4= *
Sufficiency — The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes . . .
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Self-Executing — This section shall be self-executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation.

Ark. Const, amend. 7 (emphasis added).

The majority opinion acknowledges that Amendment 7 “does contemplate filing the initiative petition with the requisite signatures with the Secretary of State for a sufficiency determination,” but then it proceeds to suggest that Amendment 7 does not preclude “an earlier review of the text of the popular name and ballot title or the validity of the proposed amendment.” This suggestion is, however, not borne out by the provisions of Amendment 7. The secretary of state’s authority to act under Amendment 7 is not triggered until a statewide initiative petition is “filed with the Secretary of State not less that four months before the election at which [it is] to be voted upon . . . .” Ark. Const, amend. 7. Moreover, “at the time of fifing” the ballot tide must be submitted with the petition. Id. Our jurisdiction to entertain an original action under Amendment 7 does not arise until the secretary of state decides on “[t]he sufficiency of all State-wide petitions.” Id.

In upholding this court’s jurisdiction to review the secretary of state’s declaration on the “legal sufficiency” of a measure pursuant to Act 877 of 1999, the majority assumes that the word “petition” as used in Amendment 7 may be interpreted to mean merely the text of the proposed measure, and the proposed popular name and ballot title. Such an interpretation makes absolutely no sense because it would mean that “petitions” without the required number of signatures could be filed within four months of an election. Consequently, during the four months leading up to the election, the secretary of state might be required to decide, and this court might be asked to review, the “legal sufficiency” of measures that would probably not be on the ballot for that election. Such decisions would be purely advisory unless they were deemed binding beyond the election. In that event, the time fixed by Amendment 7 for filing initiative petitions would be rendered meaningless; that is, the gathering and filing of the required number of signatures for a “petition” already determined to be “legally sufficient” by the secretary of state and this court could extend over the course of several years. In short, the majority’s assumption regarding what is meant by the word “petition” in Amendment 7 is totally at odds with the amendment’s fundamental framework.

The word “petition” as used in Amendment 7 should be interpreted consistently throughout the amendment, whether it be in the context of the amendment’s filing requirements or in the context of sufficiency decisions by the secretary of state and this court. Such a consistent interpretation can only be achieved when a “petition” includes the text of the proposed measure and the proposed popular name and ballot title, and the required number of signatures. Our case law supports this view. In Dixon v. Hall, 210 Ark. 891, 198 S.W.2d 1002 (1946), we stated:

Our view is that, under any rational construction, it was intended that a petition be filed within the time fixed by Amendment No. 7. To be a petition it must, prima facie, contain at the time of filing the required number of signatures. Correction and amendment go to form and error, rather than complete failure.

Id. at 894, 198 S.W.2d at 1003 (emphasis added). See Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994); Casteel v. McCuen, 310 Ark. 568, 838 S.W.2d 364 (1992); Czech v. Munson, 280 Ark. 219, 656 S.W.2d 696 (1983); Ellis v. Hall, 219 Ark. 869, 245 S.W.2d 223 (1952) (per curiam) (Secretary of State authorized to allow a thirty-day extension for securing additional signatures where the petition as originally filed contained the required number of signatures, but investigation showed that 268 signatures were not valid). Furthermore, Amendment 7 provides that a petition may be circulated in “parts” to gather the number of signatures required. We have held that these “parts,” which are sometimes loosely referred to as “petitions,” are considered to be only one petition. Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984). Likewise, in Scott v. McCuen, supra, we stated:

Our jurisdiction attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures.

Scott v. McCuen, 289 Ark. 41, 45, 709 S.W.2d 77, 79 (1986). This explicit statement of the limits of our jurisdiction under Amendment 7, which we followed four years later in Finn u McCuen, supra, clearly supports the view that a “petition” as that term is used in the amendment must contain at the time of filing the required number of signatures.

The majority attempts to support its holding on the constitutionality of Act 877 by citing our decision in Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956), for the proposition that “early review of the petition’s text by the attorney and by this court did not impede the Amendment 7 process.” It nonetheless acknowledges that our decision in that case “was not couched in terms of the jurisdiction of this court to review.” In fact, the Washburn case presents no more help in the resolution of this case than it did when this court decided Finn v. McCuen, supra:

The issue in the Washburn case was whether the refusal of the secretary of state to certify a referendum was proper in view of the fact that it had no popular name or ballot title. We were not concerned with the provisions in Act 195 for relief in this court in the event the attorney general refused to act. We only held that the secretary of state’s refusal to certify the petition was proper and that the provisions of Act 195 for involving the attorney general in the secretary of state’s decision as to the sufficiency of the petition was not a violation of Amendment 7. The case presents no help in the resolution of the case before us now. It certainly does not run contrary to our strong language and holding in the Scott case.

Finn v. McCuen, 303 Ark. 418, 425, 798 S.W.2d 34, 37 (1990).

All of the parties in this original action urge this court to approve Act 877’s mechanism for an early judicial review of the text of a popular name and ballot title and the validity, of the proposed measure before the secretary of state has certified the sufficiency of the signatures required by Amendment 7. Just as the parties did in Scott v. McCuen, supra, the parties here want an early ruling on the “legal sufficiency” of the proposed measure and the proposed popular name and ballot title before they spend time and money securing thousands of signatures and publicizing the proposition. The majority correctly points out that in 1994 we encouraged the General Assembly “to make another attempt to establish an initiative and referendum procedure that will permit early resolution of [ballot title] issues.” Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994). The General Assembly responded in 1995 when it “tried to remedy this ballot title/popular name problem by a proposed Constitutional Amendment 3, but that proposed amendment was defeated at the November 5, 1996, General Election.” Stilley v. Priest, 340 Ark. 259, 12 S.W.3d 189 (2000) (per curiam).

In my view, the General Assembly’s action in 1995 reflects a recognition that the real impediment to an early review of ballot titles and proposed measures prior to the collection of signatures is in the actual language and framework of Amendment 7. Our authority to review an initiative petition cannot be invoked until a “petition” containing the required number of signatures is filed with the secretary of state and she declares it to be sufficient or insufficient according to the power vested in her by Amendment 7:

[T]he only authority given this court by Amendment 7 is the authority to review the secretary of state’s certification of a “petition” which includes both the ballot title and the signatures.

Finn v. McCuen, 303 Ark. 418, 425, 798 S.W.2d 34, 37 (1990).

While Amendment 7 provides that “laws may be enacted to facilitate its operation,” our original jurisdiction cannot be enlarged by the legislature. American Party v. Brandon, 253 Ark. 123, 484 S.W.2d 881 (1972). That is exacdy what section 4 of Act 877 of 1999 attempts to do. It purports to permit this court to review a “legal sufficiency” decision of the secretary of state with respect to a proposed measure and the ballot title portion of a petition. Pursuant to our holdings in Scott v. McCuen, supra, and Finn v. McCuen, supra, which should not be overturned, and the language of Amendment 7, I must conclude that section 4 of Act 877 constitutes nothing less than an unlawful and unconstitutional expansion of our jurisdiction.

The majority court’s decision, under the rubric of “facilitating a smoother operation of Amendment 7,” sanctions a legislative expansion of the court’s authority granted by Amendment 7 for the express purpose of allowing this court to review the secretary of state’s certification of something short of a “petition” containing both the ballot title and the signatures. As far as I can tell, this is the first time this court has ever reviewed a ballot title for a proposed measure before it has become a “petition” under Amendment 7 by the filing with the secretary of state of the required number of signatures.

For these reasons, I respectfully dissent.

THORNTON, J., joins in this dissent.

       Other thorny questions may surface as a result of the majority’s sub silentio assumption about the meaning of the word “petition” as used in the amendment. For example, would the people’s right of referendum begin when the “petition” is filed or when the signatures are filed? See Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994). In determining the required number of signatures under Amendment 7, will the “last preceding general election” for the office of governor be the election before the filing of the “petition” or the election before the signatures are filed?

       It should be noted that the Washburn petition filed with the secretary of state contained a sufficient number of signatures. Washburn v. Hall, supra.

       Mr. Stilley notes that proposed Constitutional Amendment 3 also sought to increase the number of constitutional amendments that could be proposed or submitted at the same time by the General Assembly under Article 19, Section 22 of the Arkansas Constitution.