author: JIM HANNAH, Justice.

text:
    Linda CHAPMAN v. Elnora BEVILACQUA, et al.

    00-1318
    42 S.W.3d 378
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001

      Oscar Stilley, for appellant.

      Daily & Woods, P.L.L.C., by: Jerry L. Canfield, for appellee/ intervenor.
   JIM HANNAH, Justice.

Appellant Linda Chapman appeals the trial court’s grant of summary judgment to Appellees Elnora Bevilacqua and thirty-one other defendants and the Intervenor City of Fort Smith (“the City”) regarding whether the City’s disbursement of funds through a housing rehabilitation program violates the Arkansas Constitution as an illegal exaction of the City’s general fund. We affirm.

Facts

In the fiscal years 1997 and 1998, the City received from the federal government Community Development Block Grants and Home funds for the rehabilitation of urban dwellings owned by qualifying individuals who applied for the grants. The City, as the implementing agency, carried out the housing rehabilitation programs pursuant to federal and state laws allowing municipalities, counties, or established housing authorities to redevelop urban or rural areas suffering from unsafe, unsanitary, or blighted conditions, as determined by federal guidelines. Under the program, when grant money was used, the property was subject to a recorded guarantee that the rehabilitated housing unit would be used for income-eligible occupants for five years.

Under the plan, the City conducted the disbursement of federal funds so that none of the money involved would be paid directly to the homeowner or to the repair contractor, whose names were both included on the grant checks, so that the beneficiary of the funds would be the dwelling itself and, thus, the community, guaranteeing that the repairs and renovations were made. The procedure for payment required the bid-chosen repair contractor to submit a claim for repayment to the program supervisor with the City, who was paid by federal money to administer the plan. The program supervisor would then process the payment request through the City’s finance department, whose employees were paid by the City. The finance department would then request a draw-down of funds from the United States Department of Housing and Urban Development. The money was then wired to the dedicated accounts, and checks were issued to the repair contractor and homeowner jointly.

On November 5, 1999, Chapman filed suit against thirty-two private property owners in the City, seeking to recover from these defendants the value of repairs or rehabilitations of their private property, which had been accomplished in 1997 and 1998 through these federally funded housing programs. Specifically, Chapman alleged that she, as a taxpayer, sought to recover for the City the monies paid to the defendants for rehabilitation of their homes because the money had been unlawfully expended from the Sebastian County Treasury and the City’s general fund. Furthermore, Chapman alleged that the defendants were required to replenish the City’s general fund when it was exhausted by misappropriation under Arkansas Constitution Art. 12, § 5. Finally, Chapman alleged that “The acts and omissions set forth in this complaint constitute an illegal exaction in the amount of the grants received by each of the Defendants, for which the named Defendants should be required to repay all money which they have received as grants from the City of Fort Smith, Arkansas.” Chapman also alleged that the grants constituted an unjust enrichment to each defendant.

The separate defendants filed answers to the complaint within the required time. Some defendants joined together to hire attorneys, while others proceeded individually. On November 15, 1999, the City moved to intervene and, without objection, the court granted the motion on November 22, 1999. The City then filed its answer to Chapman’s complaint on December 1, 1999. Over the next several months, the parties exchanged interrogatories and requests for production of documents, with the City spearheading the bulk of discovery. On April 7, 2000, the City filed a motion for summary judgment, attaching as exhibits the testimony from a deposition and three affidavits of City employees who were familiar with the City’s implementation of the housing rehabilitation programs. The separate defendants each adopted and joined in the City’s motion for summary judgment.

On June 8, 2000, Chapman took the depositions of city employees Garland Bray, Cheryl Turrentine, Matt Jennings, Jackie Joyce, and Jack Baldwin regarding the administration by the City of the housing rehabilitation project. Chapman then responded to the City’s motion for summary judgment and filed a cross-motion for summary judgment on June 20, 2000. Thereafter, the City filed a response to Chapman’s cross-motion for summary judgment on July 14, 2000, and several of the other defendants either filed additional responses or joined in the City’s response.

In its motion for summary judgment, the City first argued that Chapman did not have standing to challenge the administration by the City of the housing rehabilitation project and the distribution of the federal money because she has not personally suffered injury, nor did she belong to a class of people, who had suffered injury or been prejudiced by the distribution of the federal money. The City noted that Chapman had never applied for any rehabilitation funds, nor did she personally know of anyone who had applied who had been turned down. The City argues that Chapman mistakenly believed that the city general funds were being paid to the rehabilitation recipients and that the city general funds were funding the administration of the program. The City averred that at times some City-paid employees performed de minimis work on the project, but the salaries of the administration staff was actually paid by the federal funds. Under this allegation of an illegal exaction, the City also noted that for Chapman to have standing, the money expended would have to be state or municipal money. However, because it is federal money, Chapman’s lawsuit rightfully belonged in federal court. On its second argument, the City argued that in 1997 and 1998 (the challenged years), the housing rehabilitation program was not operated in violation of Article 12, § 5, of the Arkansas Constitution, thus making any expenditure legal. The City argued that federal statutes provide for such rehabilitation programs, and that the City’s compliance with these statutes renders the program legal.

In response and on cross-motion for summary judgment, Chapman argued that because the City pays out certain monies from a dedicated account, which is later reimbursed dollar-for-dollar with federal money, such is an expenditure in violation of Article 12, § 5, of the Arkansas Constitution and an illegal exaction. Therefore, because taxpayer money is being used to fund these projects, Chapman has standing in state court. Chapman next argued that the City’s housing program violated the Arkansas Constitution because the expended funds actually go to benefit the homeowners, and general funds were used to pay the salaries of those who work for the housing project. In addition, all housing program employees were paid out of the general fund, although that money is reimbursed by the federal government to fund the administration of the project. Overall, Chapman argued that while the purported beneficiaries under these federal and state housing programs are the citizens, because such improvements remedy urban blight, the actual beneficiaries were the homeowners who benefited from the federal grants from taxpayer dollars.

On August 7, 2000, the court filed its opinion and order dismissing Chapman’s complaint with prejudice, finding that Chapman had no standing to challenge the housing program because federal money paid the cost of the program, and the lawsuit should have been filed in federal court. The court further found that the City and the separate defendants did not violate Article 12, § 5, of the Arkansas Constitution because the City did not “obtain or appropriate money for any individual.” Chapman filed her notice of appeal on August 21, 2000.

Standard of Review

This appeal is before the court pursuant to Ark. Sup. Ct. R. 1-2(a)(1) as an appeal involving the interpretation or construction of the Constitution of Arkansas. The parties filed opposing motions for summary judgment and thus, in essence, agreed that there are no material facts remaining. McCutchen v. Patton, 340 Ark. 371, 10 S.W.3d 439 (2000). Summary judgment, therefore, was an entirely appropriate means for resolution of this case. As we have often stated, summary judgment is to be granted by a trial court if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (1999); Mashburn v. Meeker Sharkey Financial Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). Once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the motion’s opponent cannot rely on a bare denial or contrary allegation but must meet proof with proof and demonstrate the existence of a material issue of fact. Flentje v. First National Bank Of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000); Rankin v. City, 337 Ark. 599, 990 S.W.2d 535 (1999); George v. Jefferson Hospital Assoc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997).

The City and Chapman filed opposing motions for summary judgment, and while Chapman apparendy argues in her appeal that there may actually have been a genuine issue of material fact remaining, her representation that no issues remained is binding. McCutchen, supra. Certainly, had Chapman believed that there were genuine issues of material fact remaining, she could have merely opposed the City’s motion for summary judgment, arguing that there was a genuine issue of material fact, instead of filing a cross-motion for summary judgment.

Chapman’s Standing to Sue

In its first finding on summary judgment, the trial court determined that Chapman did not have standing to bring this lawsuit because her position as a federal taxpayer does not give her the ability to challenge the City’s housing program, and the affidavits and deposition testimony only indicated that a de minimis amount of the City’s general funds were spent on salaries for city employees who were administering the program. Chapman argues on appeal that the trial court erred in ruling that an expenditure of federal funds is not subject to challenge in state court, and that the testimony from employee Jackie Joyce, in particular, reveals that the City’s general fund money was being used to some extent to help administer the housing program. The City counters by arguing that this is a challenge to the constitutionality of a statute, as opposed to an illegal-exaction lawsuit, which means that the standing requirements to challenge constitutional provisions are at issue instead of the standing requirements for an illegal-exaction lawsuit. As such, because Chapman was not harmed by the expenditures of federal funds, she has no standing. Furthermore, the City argues that this lawsuit is proper only in federal court because it deals with federal expenditures.

Chapman challenges both the expenditure of federal funds processed through the City’s general fund, as well as the use of the City’s general fund money to pay a de minimis portion of some city employees’ salaries to administer the program. Therefore, this court must consider the threshold issue of standing under both allegations before reaching the merits.

This court discussed the threshold issue of standing in Ghegan v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999), where the court stated:

Article 16, Section 13, of the Arkansas Constitution provides that:
Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.
This constitutional provision is self-executing and requires no enabling act or supplemental legislation to make its provisions effective. Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989).
When construing a provision of the Arkansas Constitution, we have said that when the language of the provision is plain and unambiguous, each word must be given its obvious and common meaning, and neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). The plain and unambiguous language of Ark. Const. art. 16, § 13, provides that “any” “interested” “citizen” has standing to bring an illegal-exaction case.
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In numerous cases, we have held that a litigant has standing- to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994); Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991). The general rule is that one must have suffered injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a law. Morrison, supra; Medlock, supra. Stated differently, plaintiffs must show that the questioned act has a prejudicial impact on them. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995).
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The question then becomes whether Article 16, Section 13, has somehow altered or increased these traditional standing requirements. We have previously distinguished two types of illegal-exaction cases that can arise under Article 16, Section 13. See, e.g., Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997); Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992). The first type of an illegal-exaction case is the “public-funds” case where the plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent. See, e.g., Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987) (claiming that tax dollars were spent impermissibly to pay a municipal judge who had usurped his office); Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989) (alleging that public funds were impermissibly being spent on a bond issued for a different purpose).
We have explained that citizens have standing to bring a public-funds case because they have a vested interest in ensuring that the tax money they have contributed to the state treasury is lawfully spent. Nelson v. Berry Petroleum, Co., 242 Ark. 273, 413 S.W.2d 46 (1967); Green v. Jones, 164 Ark. 118, 261 S.W. 43 (1924). Thus, the only standing requirements we have imposed in public-funds cases is that the plaintiff be a citizen and that he or she have contributed tax money to the general treasury. See Nelson, supra-, Green, supra. We have not required the plaintiff to trace his or her individual tax contribution to the tax money that is allegedly being spent in an illegal manner, nor have we required the plaintiff to establish a significant tax contribution to the state treasury. Hence, in public-funds cases we have given the word “interested” as used in Article 16, Section 13, a very broad construction.

A. Chapman’s Standing to Sue for Disbursement of Federal Housing and CDBG Funds through the City’s General Fund

Chapman’s first argument is that the City unlawfully disbursed federal funds through the City’s general fund in violation of Article 12, § 5, of the Arkansas Constitution. However, as the City argued and the trial court found, Chapman does not have standing to sue for the disbursement of strictly federal funds by the City. Chapman attempts to argue that this court in the case of Mackey v. McDonald, 255 Ark. 978, 501 S.W.2d 726 (1974), ruled that an Arkansas citizen has standing to sue in state court when the state, county, or municipality disburses federal funds under a federal program. In Mackey, this court found that the plaintiff had standing to bring an illegal-exaction claim for the expenditure of federal revenue sharing funds disbursed to Pulaski County through the Federal Revenue Sharing Act because the county would be liable to repay any improper expenditures from the county treasury, which is funded by the taxpayers. The funds in Mackey were placed in the County’s general fund, and a federal statute provided for reimbursement by the general fund for a misapplication of those funds.

In this case, however, Chapman fails to indicate under what authority she asserts that the City and taxpayers would be liable to repay any misapplied funds. Furthermore, the funds used to finance the City’s redevelopment program were funds strictly derived from federal taxes instead of state taxes. As the City’s supporting affidavits and employees’ deposition testimony indicated, the CDBG and Home fund money was processed through two dedicated funds established by the City and administered by its employees. These funds were never commingled with the City’s general fund. As this court noted in Gipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595 (1949), a governmental subdivision use of funds not derived from state taxpayer monies is not subject to a challenge for unlawful disbursement. Therefore, Chapman does not have standing to sue for ilegal exaction for the disbursement of federal taxpayer funds paid into dedicated accounts and not commingled with the City’s general fund.

B. Chapman’s Standing to Sue for the Payment of City Employee’s Salaries Out of the General Fund

Chapman’s second alegation on appeal is that the City unlawfuly paid several administrative employees’ salaries from the City’s general fund. Chapman’s chalenge is not to the payment of city employees whose salaries are directly paid by the CDBG and Housing fund accounts, but instead to the city employees who write checks transferring federal monies through the CDBG and Home funds and the City’s general fund while being paid by the City alone. According to Jackie Joyce, the City’s assistant director of finance, she and others spend approximately thirty minutes to two hours a week processing the CDBG and Home fund requests. These employees are paid, however, only from the City’s general fund, funded by taxpayer money, and that cost is not reimbursed by the federal programs. While the trial court attempted to dismiss this as a de minimis expenditure and find that Chapman did not have standing to chalenge the City’s use of general fund money to finance, even in smal part, the federal housing program, the theory of ilegal exaction does not have a “de minimis” exception. As such, Chapman has standing to challenge the City’s expenditure of general fund monies to pay for the salaries of city employees who spend a minimal amount of time writing checks for the federal program.

II. Constitutionality of the Expenditure of General Fund Money

Although Chapman does, have standing to challenge the expenditure of money from the City’s general fund, that does not end the inquiry. Chapman must also prove that the expenditure of the money was an illegal exaction under the Arkansas Constitution.

Chapman challenges the expenditure of the City’s general fund money as an illegal exaction, and bases the violation on Article 12, § 5, of the Arkansas Constitution, which states:

§ 5. Political subdivisions not to become stockholders in or lend credit to private corporations.
No county, city, town or other municipal corporation shall become a stockholder in any company, association or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.

The language challenged by Chapman in this constitutional provision is the second clause, which states, “No county, city, town or other municipal corporation shall ... obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.”

This court, in Hogue v. Housing Auth. of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940), Kerr v. East Cent. Ark. Reg’l Housing Auth., 208 Ark. 625, 187 S.W.2d 189 (1945), and Rowe v. Housing Auth. of the City of Little Rock, 220 Ark. 698, 249 S.W.2d 551 (1952), faced constitutional challenges to our urban and rural redevelopment laws. In Hogue, this court addressed various constitutional challenges to the urban redevelopment statutes, and the court actually quoted the above language in what is now Ark. Code Ann. § 14-169-202, finding that the General Assembly intended that such housing and urban redevelopment plans be designated as public purposes for which public funds may be expended. The court stated in part:

It is also contended that the act is unconstitutional because it proposes to make donations from general revenues of the city to pay the estimated administrative expenses of the authority for its first year. We think there is nothing in this contention because the Housing Authority serves a public purpose and use and on that account and for that reason may appropriate funds from its general revenues if it has such revenues and such an appropriation becomes necessary in the interest of the public welfare.

Hogue, 201 Ark. at 271-272. In Kerr, this court addressed the extension of the redevelopment act into rural areas and, citing Hogue, again determined that the act was for a public purpose and, thus, constitutional. Finally, in Rowe, the plaintiff specifically challenged the use of public funds for redevelopment purposes under Article 12, § 5, of the Arkansas Constitution, the provision at issue in this case. In Rowe, this court relied on Hogue and Kerr and again noted that the housing redevelopment statutes are constitutional on every challenged basis, including that a County or City has the “constitutional power to donate money for a public purpose in those instances where the General Assembly has designated the activity that is to be benefitted.” Rowe, 220 Ark. at 702 (quoting Hogue, 201 Ark. at 271). Since these cases, the federal and state statutes have been supplemented, but have not changed in relevant form or application.

On appeal, Chapman’s sole remaining argument is that the City unlawfully paid some employees to write checks for the federal housing programs, although the employees were paid from the City’s general fund rather than from the federal funds. Chapman attempts to argue that the violation of the Arkansas Constitution occurred when paying these employees, but this court has already determined in Kerr, Hogue, and Rowe that using public funds for urban and rural redevelopment projects is a public purpose for which the government body, whether it be a city, county, the state, or a housing authority, has the sole ability to control. Therefore, while Chapman has standing to challenge the expenditure of funds to pay City employees, it does not mean that the challenge has merit. Our statutes allow the City to do exactly what it did in furtherance of this legitimate public purpose, and this court has specifically determined that such expenditures are not unconstitutional under Article 12, § 5, of the Arkansas Constitution. Therefore, there is no illegal exaction under-Art. 16, § 13, of the Arkansas Constitution.

We affirm.


source: Caselaw Access Project

author: JIM Hannah, Justice. TOM Glaze, Justice,

license: Public Domain

text:
    The Honorable Donald R. HUFFMAN v. ARKANSAS JUDICIAL DISIPLINE and DISABILITY COMMISSION
    00-1018
    42 S.W.3d 386
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: Colette D. Honorable, Ass’t Att’y Gen., for appeEee.
   JIM Hannah, Justice.

Judge Donald R. Huffman petitions for a writ of certiorari seeking to have this court review the record of the action taken against him by the Arkansas Judicial Discipline and Disability Commission (“the Commission”) in admonishing him for violating Canons 2A and 3E(1) of the Arkansas Code of Judicial Conduct. Judge Huffman also alleges that the presence of the executive director of the Commission, as well as an attorney and investigator for the Commission, in the deliberations of the Commission following the probable-cause meeting denied him an impartial tribunal.

We hold that the conduct of Judge Huffman in this case violates Canons 2A and 3E(1). As to the allegations of an impartial tribunal, although the presence of the executive director of the Commission, as well as an attorney and investigator for the Commission, in the Commissioners’ deliberations is improper when the Commission is considering the disposition of the pending complaint, the record does not reflect that the non-Commission members were present during the Commissioners’ deliberations, and this alleged misconduct can not be reviewed by this court on a petition for a writ of certiorari. We deny the petition.

Facts

On September 15, 1999, attorneys for Wal-Mart Stores, Inc., filed a petition in Benton County Chancery Court for a temporary restraining order (“TRO”) prohibiting the United Food & Commercial Workers International Union (“the Union”) from trespassing in Wal-Mart stores nationwide. The case was assigned to Judge Oliver Adams. However, Judge Adams was El and not in the courthouse. Judge Huffman was present, and the petition was presented to him for his consideration. Upon seeing that the petition involved Wal-Mart, Judge Huffman tried to find another judge to review the petition because he and his wife held a significant amount of Wal-Mart stock. He had recused in two previous Wal-Mart cases when the parties did not waive his disqualification. Judge Huffman contacted Judge Jay Finch’s chambers because he was the only other chancellor present in the courthouse. Judge Finch was on the bench hearing juvenile matters at the time, and the person who answered the phone was unwilling to disturb Judge Finch. Being unable to locate an immediately available chancellor, and because the matter requested a TRO, which is a matter Judge Huffman believed required immediate attention, he reviewed the pleadings and granted the TRO on exchange.

Subsequently, the Union filed a motion in federal district court to transfer the case to that jurisdiction. The motion was denied by the federal court and upon its return to Benton County Chancery Court, it came to Judge Huffman's attention that the Union’s attorneys in the federal pleadings asserted Wal-Mart had sought a TRO from “a state judge they knew to be infected with massive, fatal, and disqualifying prejudice in favor of Wal-Mart and against Defendants....” The Union filed a motion requesting that Judge Huffman recuse. Judge Huffman sent a letter to his fellow trial judges requesting they refer any request for an order in the case to him. This was apparently done to insure the appearance of the Union attorneys before him before he recused. Judge Huffman recused when the defendant made its first appearance at a hearing on defendant’s motion to recuse on November 23, 1999. The order of recusal was dated December 7, 1999.

This matter came to the attention of the Commission when its executive director, James A. Badami, saw a September 24, 1999, article in the Arkansas Times indicating Judge Huffman had issued the order. The article quoted Judge Huffman who, when asked if an objection was raised about his Wal-Mart stock ownership, stated, “I would recuse like I did last time.” Based upon this article, Director Badami opened a complaint file on the matter himself and commenced an investigation. Based upon his initial investigation, Director Badami decided there was sufficient cause to proceed to a probable-cause determination under Rule 9 of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission. Judge Huffman was given an opportunity to respond, and a probable-cause determination meeting was held on July 21, 2000. Based on the evidence, the Commission concluded Judge Huffman violated Judicial Canons 2A and 3E(1), and he was admonished by the Commission pursuant to Rule 9E(2).

Writ of Certiorari

Certiorari is an original writ issuing from a superior to an inferior tribunal requiring the inferior tribunal to forward the record of a proceeding to the superior tribunal for consideration there. Auditor v. Davies, 2 Ark. 494 (1840). In 1940, this court stated:

Certiorari may be defined as follows: “Certiorari, except in so far as it has been enlarged and extended by statute, is a common-law prerogative writ issued from a superior court directed to one of inferior jurisdiction, commanding the latter to certify and return to the former the record in the particular case.” 11 Corpus Juris 87-88.

McAllister v. McAllister, 200 Ark. 171, 138 S.W.2d 1040 (1940); see also, Auditor v. Davies, 2 Ark. 494 (1840). The review available under certiorari is thus limited to errors appearing on the face of the record. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998); Hardin v. Norsworthy, 204 Ark. 943, 165 S.W.2d 609 (1942). Matters not contained in the record are simply not subject to appellate review. Smith v Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). Further, a writ of certiorari is not a writ of right but a writ of discretion. Ricci v. Poole, 253 Ark. 324, 485 S.W.2d 728 (1972); Hill v. Taylor, 199 Ark. 695, 135 S.W.2d 825 (1940).

Because the writ of certiorari is a common-law writ, the right to it exists without being provided for by statute. The writ, however, may be modified by statute. McAllister, supra. Rule 12F specifically provides for review of any action taken by the Commission by a petition for a writ of certiorari. Because the writ is provided by rule, and would have been available in its common-law form without such provision, the issue of whether - the writ is modified thereby must be considered.

Courts construe their own rules using the same means as are used to construe statutes. Gannett River Pub. v. Arkansas Dis. & Disab., 304 Ark. 244, 801 S.W.2d 292 (1990). The fundamental principle used in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning. Boston v. State, 331 Ark. 99, 952 S.W.2d 671 (1997); Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996); Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998).

The phrase “review of any action taken” could be argued to be broader than the typical common-law writ, which is restricted to errors appearing on the face of the record. However, by definition, a petition for a writ of certiorari only brings the record up for review, and thus review is restricted to the record. The subject phrase then means that any action taken which appears on the record may be reviewed.

This petition for a writ of certiorari is the proper procedure in this case. In Duty v. Arkansas Judicial Discipline & Disability Comm’n, 304 Ark. 294, 801 S.W.2d 46 (1990), this court, after referring to Rule 12F, stated, “[T]here is no provision in the rules for appeal other than by a judge who was made a respondent before the commission.” Appeal in Duty, supra, applies to Rule 12 A-E review by this court following a Rule 11 Formal Disciplinary Hearing. Review otherwise is by petition for a writ of certiorari under Rule 12F. Because the disposition of Judge Huffman's case was under Rule 9 after a probable-cause meeting, he has properly sought relief in this matter by a petition for a writ of certiorari pursuant to Rule 12F.

Presence of Non-Commission Members in Deliberations

The record in this matter makes no mention whatever of the presence of the executive director of the Commission, as well as an attorney and investigator for the Commission, in the Commission deliberations. As discussed above, only matters appearing on the record may be reviewed by this court. In Smith, supra, this court noted that even though in a custody proceeding both parties identified the father in oral argument, it amounted to no more than a stipulation or consent to the court’s jurisdiction and, as such, did not rise to evidence that could be considered by this court. So it is in this case where both parties in their briefs appear to agree that the executive director of the Commission, as well as an attorney and investigator for the Commission, were present in Commission deliberations. The presence of non-Commission individuals who exercise quasi-prosecutorial duties before the Commission in Commission deliberations after a probable-cause meeting where the Commission is deciding the disposition of the complaint and the case is improper. However, based upon the record in this case, the issue can not be reached. Had Judge Huffman sought relief from the Commission when he discovered this had occurred, that would likely be reflected in the record, and could then be considered by this court.

Impartiality of the Judiciary

Judge Huffman’s main argument in his petition is that his and his wife’s economic interest in Wal-Mart was de minimis as it relates to the total outstanding shares of stock of Wal-Mart, and the Huffmans’ de minimis economic interest could not be substantially affected by this proceeding. Thus, Judge Huffman argues that he was not required to recuse pursuant to Canon 3E(l)(c).

Canon 3E(l)(c) and Canon 3E(l)(d)(iii) provides:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
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(c) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;
(d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
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(iii) is known by the judge to have a more than a de minimis interest that could be substantially affected by the proceeding....

Economic interest and de minimis are defined in the terminology section of the Canons:

“De minimis” denotes an insignificant interest that could not raise reasonable question as to a judge’s impartiality. See Sections 3E(l)(c) and 3E(l)(d).
“Economic interest” denotes ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that:
(i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;
(ii) service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judge’s spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization;
(iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest;
(iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.

See Sections 3E(l)(c) and 3E(2).

Judge Huffman and his wife hold approximately 12,000 shares of Wal-Mart stock worth about $700,000. None of the exceptions in subparagraphs (i) through (iv) apply to this interest. Therefore this stock ownership constitutes an economic interest in a party to the proceeding. Additionally, Judge Huffman’s wife’s ownership of the stock constitutes an additional reason he might need to disqualify himself. Under Canon 3E(1)(d)(iii), a judge must consider any economic interest his or her spouse may have in the subject matter of the proceeding or in a party to the proceeding. Judge Huffman acknowledges the economic interest in this case, but asserts it fails to meet the definition of de minimis and, therefore, he need not have disqualified on this basis.

While there is little doubt that the action taken by Judge Huffman was unlikely to fundamentally affect the value of his and his wife’s stock, which comprises but a minuscule percent of the total stock existing in Wal-Mart, this analysis on the de minimis value of an economic interest mentioned in Canon 3E(l)(c) ignores the more basic issue of appearance of impropriety and impartiality raised by Canon 2A and 3E(1), and this issue must be addressed first. Canon 2A states as follows:

Canon 2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Canon 3E(1) states as follows:

Canon 3. A judge shall perform the duties of judicial office impartially and diligently.
* * *
E. Disqualification
(1) A judge shall disqualify himself or herself in a proceeding in wlrch the judge’s impartiality might reasonably be questioned....

Both Canons 2A and 3E(1) require a judge to protect the integrity and impartiality of the judiciary. In Canon 2A, a judge must consider whether any act he or she takes promotes public confidence in the integrity and impartiality of the judiciary. Similarly, Canon 3E(1) requires a judge to recuse when his or her impartiality might reasonably be questioned.

An independent judiciary is essential for our society. The judiciary cannot function without the trust and confidence of the public in the integrity and independence of its judges. Violations of the Arkansas Code of Judicial Conduct cause the public to lose confidence and trust in the judiciary.

The commentary to a statute is not controlling over the statute’s clear language, but is a highly persuasive aid to construing that statute. McGrew v. State, 338 Ark. 30, 991 S.W.2d 588 (1999). The same is true with respect to the judicial canons. The commentary to Canon 2A provides in part as follows:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
* * *
The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

The commentary to Canon 3E(1) provides:

Under this rule a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in section 3E(1) apply....
A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.

In a case where a judge and his or her spouse have an economic interest in a party litigant, the first question the judge should consider is whether that economic interest would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired. The judge should disclose on the record the judge’s and his or her spouse’s economic interest in the party litigant. If the answer to the question is “yes,” the judge should recuse, and one need not consider whether the economic interest in the party litigant was de minimis or not.

Here the question is whether agreeing to preside over a case, at least to the extent of reviewing and granting a restraining order in favor of Wal-Mart while holding approximately 12,000 shares of Wal-Mart stock worth about $700,000 in that company, would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired. It must be noted and considered as well that Judge Huffman sent out a letter asking the other judges in the judicial district not to sign an order in the case, but to have the parties contact him as he felt he needed to have a hearing in the case. Also, Judge Huffman recused twice before in cases involving Wal-Mart when he was requested to recuse. The commentary to Rule 3E(1) provides what a judge should do when he or she has an economic interest in one of the parties. “A judge should disclose on he record information that the judge believes the parties or their .awyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” If Judge Huffman's economic interest in Wal-Mart would create in reasonable minds a preception that the judge’s ability to carry out the judicial responsibilities in a case involving Wal-Mart with integrity, impartiality, and competence is impaired, then it does not matter that Judge Huffman’s economic interest in Wal-Mart is de minimis to the extent that his economic interest could not be substantially affected by this proceeding. In the present case, Judge Huffman recognized his stock ownership posed such a possible concern, as is indicated by his attempt to have Judge Finch review the petition. His concern should have been heightened under these facts because in seeking the TRO, only counsel for Wal-Mart was present.

Judge Huffman cites the commentary to Canon 3E(1), which provides that the rule of necessity might override the rule of disqualification. An example given is when a judge is the only judge available and there is a matter requiring immediate attention such as a temporary restraining order. While the facts of this case are somewhat similar, there is no showing of necessity. As Judge Huffman states, Judge Finch was in the courthouse. Judge Finch was on the bench, but no reason is given why the litigants could not be sent to his chambers to wait for him to take a recess or otherwise become available. Further, even assuming Judge Finch was unavailable, no reason is shown as to why the petition could not wait until another judge could be found.

Judge Huffman cites Rule 9B of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, which he asserts provides that no action should be taken by the Commission in the absence of fraud, corrupt motive, or bad faith. Although no such allegations were made, Judge Huffman misreads Rule 9B. It simply provides that no action is to be taken by the Commission for good-faith decisions on findings of fact and conclusions or applications of law because such matters are reviewed by appeal of the case before the judge. Thus, Rule 9B is not relevant here.

Judge Huffman also cites as support Canon 3F, which provides:

A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

Judge Huffman has followed this procedure in the past. The problem with this procedure in this case is that an ex parte temporary order that substantially affects the rights of the defendant has already been issued. The procedure set out in Canon 3F was not followed when he issued the ex parte order. If Judge Huffman violated the Arkansas Code of Judicial Conduct in entering the ex parte TRO, that violation cannot be corrected by having a subsequent hearing pursuant to Canon 3F.

We hold this conduct would create in reasonable minds the perception that Judge Huffman’s ability to carry out judicial responsibilities with integrity, impartiality, and competence was impaired. Although Judge Huffman argues his interest was de minimis and his involvement could not impact the value of the stock, which may be true, it does nothing to counter the court’s holding. The proceedings before the Arkansas Judicial Discipline and Disability Commission are not erroneous on the face of the record.

Petition denied.

ARNOLD, C.J., not participating.

Glaze, J., dissents.

TOM Glaze, Justice,

dissenting in part. I write to point out OM the judicial canons this court has adopted regarding disqualification by a judge when he or she possesses a financial interest in the subject matter in controversy are confusing. The 1990 Judicial Code provided in relevant part, under Canon 3C (1) and (2), the following:

C. DISQUALIFICATION

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to, instances where:
* * *
(d) he or his spouse . . .
(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
* * *
(2) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. (Emphasis added.)

Under Canon 3C(3)(c), the 1990 Judicial Code defined "financial interest” as meaning ownership of a legal or equitable interest, however small. (Emphasis added.) When using language such as that found in Canon 3C(3.)(c), other jurisdictions have held that a judge’s ownership of even a single share of stock, worth only a few dollars, would disqualify the judge, even if the litigation would have no effect on the stock’s value. See Marvin Comisky & Phillip C. Patterson, The Judiciary Selection, Compensation, Ethics, and Discipline § 4.2 (1987); In re Cement Antitrust Litigation, 688 F.2d 1297 (9th Cir. 1982) (judge required to disqualify by reason of wife’s $29.20 stock interest in 7 out of 200,000 class members in antitrust litigation).

By per curiam order issued on July 5, 1993, In the matter of the Arkansas Code of Judicial Conduct, 313 Ark. 735, 753-754 (1993), this court removed the “however small” language found in the 1990 Code. The 1993 Amended Code added a “Terminology” section which defined “economic interest” as denoting, in pertinent part, [the] ownership of a more than de minimis legal or equitable interest . . . except that:

(i) ownership of an interest in a mutual or common investment that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;

Id. at 739. The 1993 Code defined “de minimis” as an insignificant interest that could not raise reasonable question as to a judge’s impartiality under Sections 3E(1)(c) and 3E(1)(d) (previously 3C(1)(c) and (d) in the 1990 Judicial Code).

In sum, by the amended 1993 Code, our court vacated the “however small” language as well as the idea that a judge must disqualify if he or she owned even one share of stock regardless of how small its value. Instead, this court’s amended version places the emphasis on whether the judge knows he or she has more than a de minimus interest that could be substantially affected by the proceeding. Courts using this test have declined to require disqualification when the judge’s financial interest will not be affected by the outcome of the proceeding. See Marvin Comisky & Phillip C. Patterson, The Judiciary Selection, Compensation, Ethics, and Discipline § 4.2 (1987) (citing In re Virginia Electric & Power Co., 539 F.2d 357 (4th Cir. 1976)); ff. New Mexico Natural Gas Antitrust Litigation, 620 F.2d 794 (10th Cir. 1980). See also Jeffrey M. Shaman et al., Judicial Conduct and Ethics § 4.20 (3d ed. 2000).

In the instant case, the majority court concludes that there is little doubt that Judge Donald R. Huffman’s action in the WalMart Stores, Inc. case against the United Ford & Commercial Workers International Union would not affect the value of his and his wife’s Wal-Mart stock. This being so, Code section E (1) (d) (iii) would seem to read in Judge Huffman’s favor and not require his recusal. Nonetheless, the majority court looks to another section of the Code, Canon 2A, which generally requires a judge to be impartial and diligent when performing his or her judicial duties. While Canon 2A is certainly a rule all judges should know and comply with as they perform all judicial duties, Canon 2A offers no specific language which addresses the disqualification issue that confronted Judge Huffman. The canons are simply confusing when dealing with the financial interest issue a judge must consider and weigh when deciding whether to disqualify. Although Canon 3E(1)’s wording is unclear, the commentary to it is helpful and the majority opinion seizes upon those comments to uphold the decision of the Arkansas Judicial Discipline and Disability Commission. That commentary reads as follows:

Under this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply.
* * *
A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. (Emphasis added.)

After reciting the foregoing provisions, the majority opinion fashions the following rule:

In a case where a judge and his or her spouse have an economic interest in a party litigant, the first question the judge should consider is whether that interest would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired. The judge should disclose on the record the judge’s and his or her spouse’s economic interest in the party litigant. If the answer to the question is “yes,” the judge should recuse, and one need not consider whether the economic interest in the party was de minimis or not.

Again, what makes this case troublesome to me is the majority court’s conclusion that Judge Huffman’s and his wife’s financial interests in Wal-Mart were not fundamentally affected by his judicial action; yet the Canons, as discussed above, establish the standard that a judge should disqualify if his or her interest could be substantially affected by the proceeding conducted by the judge. The majority court’s decision seems to make the “substantially affected” language in Canon 3E(1)(d)(iii) of no import.

To add to the confusion, the Judicial Ethics Advisory Committee issued an advisory opinion, No. 94-08, which dealt with whether a justice was required to recuse where AT&T Corporation or its subsidiary had an appeal pending before the supreme court. The justice had an interest in about 1,000 shares of an equity income fund, 18% of which was invested in AT&T. The advisory opinion said that AT&T had outstanding shares of over one billion, three hundred million shares, and found:

Your relatively small share of this fund’s relatively small investment in AT&T Corporation clearly meets the “de minimis” test. It would take quite a stretch of the imagination to think that your decision concerning the franchise tax or fee in an Arkansas city could affect the value of the stock of AT&T and consequently the value of this fund. (Emphasis added.)

The advisory opinion ended, stating:

The issue is whether your impartiality might reasonably be questioned because you have an economic interest in the subject matter in controversy or in a party to the proceeding or have any other interest more than de minimis that could be affected by the proceeding. Judges need to consider seriously the issues concerning' disqualification but they also have an obligation to be available to handle the caseload before them. In this instance, the facts as outlined should not require your disqualification. (Emphasis added.)

In conclusion, I agree with the majority’s opinion wherein this court holds for the first time that a judge in Judge Huffman's circumstances should disclose on the record, his or her financial interest in a party litigant when that litigant is a party before the judge. Moreover, I would add- that, if an opposing party presents a reasonable objection, concerning that financial interest, to the judge’s further participation and the judge rules adversely, an appeal from that adverse ruling should be subject to appeal. See Ark. R. Sup. Ct. 1-2 (a) (6); cf. Ark. R. App. P. — Civ. 2(a)(8).

Until today’s decision, the Judicial Code required a judge’s financial interest in a party litigant would have to be substantially affected to require recusal. Thus, I would hold Judge Huffman’s action in this cause was not misconduct, since this court is of the opinion that his action was not shown to have substantially affected his financial interest in Wal-Mart.

       Such an appeal must comply with the terms set out in Rule 11 of the Rules of Appellate Procedure — Civil.


author: PER CURIAM.

text:
    Bryant FLORES v. STATE of Arkansas
    CR 01-239
    39 S.W.3d 774
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001

      Daniel D. Becker, for appellant.
    No response.
   PER CURIAM.

Appellant Bryant Flores, by and through his attorney, has filed a motion for rule on clerk. His attorney, Daniel D. Becker, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: PER Curiam.

text:
    Brian GOODEN v. STATE of Arkansas
    CR 00-845
    40 S.W.3d 271
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001

      Petitioner, pro se.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for respondent.
   PER Curiam.

On October 24, 1995, judgment was entered reflecting that Brian Gooden’s term of probation had been revoked and he had been sentenced on four felony offenses to six years’ imprisonment. Gooden’s retained attorney, Gene McKissic, filed a timely notice of appeal from the judgment on October 26, 1995, and an order was entered releasing Gooden on appeal bond. An order was subsequently entered on January 9, 1996, extending the time to lodge the appeal record to May 24, 1996. The appeal was not perfected, and Gooden sought leave from this court by pro se motion to proceed with a belated appeal of the judgment.

The partial record lodged with the motion reflected that McKissic filed a motion in the trial court on May 3, 1996, to withdraw the appeal on the ground that Gooden had been charged with an additional offense and had worked out a plea agreement “disposing of all pending charges,” rendering the appeal moot, but the partial record did not contain an order dismissing the appeal. The partial record also contained an amended judgment entered August 29, 1996, the effect of which was unclear.

As noted in our initial review of the motion, Rule 16 of the Rules of Appellate Procedure — Criminal provides that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or this court to withdraw in the interest of justice or for other sufficient cause. Ordinarily, the fact that McKissic did not perfect the appeal would have clearly indicated that he had failed in his duty to the defendant, but the partial record lodged with the motion for belated appeal was so patently unclear that we found it necessary to remand the matter to the trial court for an evidentiary hearing on the questions of whether there was an order entered dismissing the appeal of the 1995 revocation judgment, the effect of the 1996 amended judgment, and whether the 1995 judgment had been executed when the 1996 amended judgment was entered. Gooden v. State, CR 00-845 (November 30, 2000). The record of the evidentiary hearing is now before us.

Mr. McKissic conceded at the evidentiary hearing that no order dismissing the appeal had been entered. It was also determined that the amended judgment entered in 1996 pertained to a separate offense that Gooden had committed in 1996, not the 1995 revocation of probation with which the instant motion is concerned. As to the question of whether the original revocation judgment was executed, Gooden was not committed to the Arkansas Department of Correction as a result of the revocation judgment entered in 1995. Instead, he was committed to the department as a result of his subsequent conviction for another offense.

After reviewing the hearing record, it may be concluded that, as there was no order dismissing the appeal or otherwise relieving attorney McKissic from his obligation to perfect the appeal of the 1995 revocation of probation, he was obligated to lodge the record in the appellate court and continue in his representation of Gooden until such time as the appellate court relieved him pursuant to Ark. Sup. Ct. R. 4-3(j)(1). This obligation was not affected by negotiated plea agreements in other cases even if those agreements were predicated at least in part on Gooden’s agreement to drop the appeal because the appeal was never dismissed. It is well settled that under no circumstances may an attorney who has not been relieved by the court abandon an appeal. Johnson, supra; Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000); Ragsdale v. State, 341 Ark. 744, 19 S.W.3d 622 (2000); Mallett v. State, 330 Ark. 428, 954 S.W.2d 247 (1997); Muhammed, supra; James v. State, 329 Ark. 58, 945 S.W.2d 941 (1997); Jackson v. State, 325 Ark. 27, 923 S.W.2d 280 (1996).

It must be concluded that Mr. McKissic remains responsible for representing appellant Gooden. See Atkins v. State, 308 Ark. 675, 827 S.W.2d 636 (1992). Our clerk is directed to lodge the partial record. Mr. McKissic is directed to file a petition for writ of certiorari within thirty days to call up the entire record, or that portion of it, necessary for an appeal to this court.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Motion for belated appeal treated as motion for rule on clerk and granted.

       As the notice of appeal was timely filed, we treated the motion as a motion for rule on clerk rather than a motion for belated appeal. See Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 (2000); see also Muhammed v. State, 330 Ark. 759, 957 S.W.2d 692 (1997).

       Appellant Gooden has not asserted in this court a right to proceed informa pauperis on appeal. He is therefore responsible for the costs of the appeal. Whether appellant has paid or still owes counsel a fee for the appeal was not at issue in this proceeding.


text:
    IN RE: Kelli S. CASHION (Arkansas Bar ID #96006)
    01-17
    38 S.W.3d 898
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001

      Kelli S. Cashion, pro se.

      Stark Ligon, for Supreme Court Committee on Professional Conduct.
   PER CURIAM.

On February 22, 2001, we issued an order for Kelli S. Cashion to appear before this court at 9:00 a.m., Thursday, March 8, 2001. The purpose of our order was for Ms. Cashion to show cause why she should not be held in contempt of court for willfully disobeying the Findings and Consent to- Discipline Order entered by this court’s Committee on Professional Conduct on July 17, 2000.

Ms. Cashion appeared on March 8, 2001. At that time, she entered a plea of not guilty and requested that a master be appointed to determine the facts. We appoint the Honorable Jack Lessenberry as a master to conduct the hearing. After the hearing, we direct the master to make findings of fact and file them with the court. Upon receiving the master’s findings, we will decide whether Ms. Cashion should be held in contempt.


text:
    Sedric Maurice SIMPSON v. STATE of Arkansas
    CR 01-141
    40 S.W.3d 293
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001

      David W. Talley, for appellant.
    No response.
   PER CURIAM.

David W Talley, a state-salaried, part-time public defender for the Thirteenth Judicial District was appointed by the trial court to represent appellant Sedric Simpson, an indigent defendant, in this criminal case. Simpson was convicted of capital murder and sentenced to the death penalty. A notice of appeal from the judgment of conviction was timely filed, and the record has been lodged with our clerk.

Mr. Talley now asks this court to relieve him as counsel for Simpson and to appoint new counsel for Simpson in this criminal appeal. In support of his motion to be relieved, Mr. Talley asserts that he will not be compensated by the Arkansas Public Defender Commission for work performed in the appeal of this matter. He further asserts that he is ineligible for compensation by this court pursuant to our recent opinion in Rushing v State, 340 Ark. 84, 8 S.W.3d 489 (2000). Under these circumstances, we grant Mr. Talley’s motion to be relieved for good cause shown. See Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam). Lea Ellen Fowler, will be substituted as attorney for appellant Sedric Simpson.

Granted.


author: DONALD L. Corbin, Justice. ANNABEity Clinton Imber Justice,

text:
    Mary (Noelker) FREEMAN v. CON-AGRA FROZEN FOODS
    00-1221
    40 S.W.3d 760
    Supreme Court of Arkansas
    Opinion delivered March 29, 2001
    [Petition for rehearing denied May 3, 2001.]

      Mark E. Ford, for appellant.

      William F. Smith, for appellee.
   DONALD L. Corbin, Justice.

Appellant Mary Noelker Freeman appeals the decision of the Arkansas Workers’ Compensation Commission denying her claim for benefits for carpal tunnel syndrome and bilateral epicondylitis (“tennis elbow”), which she alleged arose out of and in the course of her employment with Appellee Con-Agra Frozen Foods. The Commission found that Appellant failed to prove that her injuries were work related. The Arkansas Court of Appeals originally reversed the Commission’s decision, but pursuant to a petition for rehearing, issued a substituted opinion affirming the Commission. See Freeman v. Con-Agra Frozen Foods, 70 Ark. App. 306, 19 S.W.3d 43 (2000). We granted Appellant’s petition for review pursuant to Ark. Sup. Ct. R. 1 -2 (e) (iii). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). We reverse.

The record reflects that before reporting to work on November 21, 1997, Appellant experienced shooting pain in her wrists while wiping up some spilled tea from a kitchen counter in her home. According to Appellant, she had been experiencing pain and numbness in her hands and elbows, accompanied by a loss of grip strength, for several months prior to this incident. Appellant admitted that she did not initially report her problems to anyone other than her coworkers because she believed that the pain was simply a “part of the job.”

Appellant’s job duties consisted of working on a moving production Hne, placing the correct portion of food into the triangular compartments of a frozen dinner tray. Sometimes Appellant was responsible for adjusting the portion of meat or potatoes in the frozen dinners. When a greater portion was needed, Appellant was required to dig into a box of frozen chicken pieces or frozen potatoes to find an adequate portion. Other times, Appellant was responsible for distributing rice into the trays, by using an ice cream scoop. Appellant was also responsible for inspecting the frozen dinners and pressing the food down into the trays before they were sealed. Appellant testified that she was responsible for filling approximately sixty-five trays per minute. Appellant worked eight-hour-a-day shifts on the production line, usually working forty hours per week. She had been employed with Appellee since November 27, 1995.

When Appellant arrived at work on November 21, she went to the company’s medical office and asked the nurse, Sharon Reed, to wrap her wrists. She told Ms. Reed that she had experienced an onset of pain while at home. At this time, Appellant did not tell the nurse that she believed that her pain was work related. Appellant was only able to complete about an hour of her shift that day due to the pain in her wrists. She went back to the nurse’s office, but the nurse told her that she must make an appointment with her own physician, because she had not sustained an injury at work.

Appellant saw her family physician, Dr. Charles Jones, on November 24, 1997. According to Dr. Jones’s report, Appellant told him that she had been experiencing problems with her hands and wrists for two to three months, but that those problems had worsened during the last one to two weeks. Dr. Jones scheduled Appellant for a nerve conduction study for the following day at Coulter Physical Therapy. After reviewing the Coulter report, Dr. Jones diagnosed Appellant as suffering from bilateral carpal tunnel syndrome with bilateral epicondylitis or “tennis elbow.” Fie specifically opined that “[t]his overuse syndrome type picture is consistent with the job description that she gives.” Dr. Jones restricted Appellant from using the ice cream scoop at work until she was able to undergo treatment for her injuries.

When Appellant initially returned to work with Dr. Jones’s restriction, she was not allowed to work and was instead placed on medical leave. At this time, Appellant also reported to Ms. Reed that she had been diagnosed with carpal tunnel syndrome and tennis elbow, and that her injuries were work related. In response, Ms. Reed told Appellant that her condition was not work related because she had failed to report it. Appellant was then instructed to go see Bertha Oliver, in Appellee’s insurance office, to find out about collecting medical leave pay. According to Appellant, Ms. Oliver informed her that if she claimed that her injury was work related, she would not receive any medical leave benefits. Despite this information, Appellant completed the required forms and stated that she had suffered a work-related injury. Appellant received no medical leave benefits, but she did use her Blue Cross/Blue Shield medical insurance to cover the costs of her doctors’ bills. Blue Cross later requested Appellant’s doctors to return the monies paid to them because Appellant had sustained a work-related injury

In the interim, Dr. Jones referred Appellant to Dr. Richard Nix, an orthopedic specialist. While Dr. Nix concurred with Dr. Jones’s diagnosis, he was unwilling to say with absolute certainty that Appellant’s job duties caused her medical condition. In a letter to Appellant’s attorney, dated June 3, 1998, Dr. Nix stated:

The injuries for which I have seen the patient are usage related type injuries, often associated with repetitive motion and are more commonly seen in women. Whether this particular usage is associated with production line work or other outside activities, I cannot comment with a reasonable degree of medical certainty. I expect your investigation could help clarify this.

He initially prescribed a course of conservative treatment to relieve Appellant’s symptoms. After this treatment failed, Dr. Nix performed carpal-tunnel release, with neurolysis on both of Appellant’s wrists on January 2, 1998. After Appellant continued to experience problems with her right thumb, Dr. Nix performed a release of the A-1 pulley on April 21, 1998. Appellant also underwent physical therapy to restore the use of her hands and elbows. Appellant was released to return to work on May 21, 1998, and continued in her job until October 12, 1998, when she found other employment.

Appellee denied Appellant’s request for temporary total disability for the period from November 21, 1997, through May 21, 1998, and Appellant filed a claim with the Commission. A hearing was conducted before an administrative law judge (ALJ) on January 29, 1999. Appellee contended that Appellant could not establish the requirements necessary to prove a compensable injury. Specifically, Appellee argued that Appellant did not report her condition as being work related. They also asserted that Appellant took non-work related leave, and that she filed her medical expenses on her group Blue Cross/Blue Shield policy as non-work related.

The evidence before the ALJ consisted of the testimony of Appellant and her medical records. The ALJ found that Appellant had failed to prove by a preponderance of the evidence that her carpal tunnel syndrome and tennis elbow were causally related to her employment. In so finding, the ALJ gave more credence to the opinion of Dr. Nix that he could not state with reasonable certainty that Appellant’s injuries resulted from her job duties. At the same time, the ALJ discounted the opinion of Dr. Jones that the injuries were indeed the result of Appellant’s job, because Dr. Jones’s patient history lacked any notation about the pain increasing while Appellant was wiping up the spilled tea.

The ALJ’s findings and conclusions were subsequently adopted by the Commission, which affirmed the denial of benefits. Appellant appealed the Commission’s decision to the court of appeals, who initially reversed the matter and remanded it for a determination of benefits. Following a petition for rehearing, the court of appeals issued a substituted opinion, denying benefits on the basis that Appellant had failed to produce sufficient medical evidence proving that her injury was work related. The court of appeals based their decision on two recent cases handed down by this court: Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000), and Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Appellant now petitions this court for review, arguing that the evidence at issue here is distinguishable from that in Frances and Crudup. Appellant further argues that Frances and Crudup are in direct conflict with this court’s prior decision in Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). We now take the opportunity to harmonize those decisions.

In VanWagner, this court interpreted what is meant by Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999), when it says that a compensable injury must be established by medical evidence supported by “objective findings.” “[O]bjective findings” are defined in part as medical opinions stated within a reasonable degree of medical certainty. See Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1999). This court held that objective medical evidence was not essential to establish a causal relationship between the injury and the work-related accident in all cases. This court went on to say that in some circumstances, medical evidence will be necessary to establish a causal connection, but not in every case.

The cases of Frances and Crudup involved situations where the appellants chose to rely on medical evidence to establish causation, but such medical evidence failed to satisfy the statutory requirement that medical opinions be stated within a reasonable degree of medical certainty. See Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1999). In Frances, the appellant was injured at work when a scanner struck him on the left side of his body. Following the accident, the appellant continued to work and did not seek medical treatment until almost two months after the accident. The appellant, who was diagnosed with a possible herniation, initially reported to his treating physician that the injury was not work related. Fie also denied that it was work related when he applied for group health benefits. The appellant also told a coworkef that he believed that his back problems were simply caused by old age. A doctor ultimately opined that the accident with the scanner could have caused the appellant’s injury. The appellant presented no further evidence to establish the fact that the incident with the scanner was in fact the cause of his back problems. This court interpreted what is meant in section 11-9 — 102(16) (B), when it says that medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. This court then held that the doctor’s opinion that the injury could produce a lumbar disc injury was insufficient to meet the standard of within a reasonable degree of medical certainty.

Similarly, this court held in Crudup that a medical opinion based on the theoretical possibility of a causal connection did not meet the standard. There, the appellant, who had previously suffered a compensable injury to his wrist, attempted to prove that his carpal tunnel syndrome arose out of and in the course of his employment. While the appellant did testify about the repetitive nature of his job duties, the only other evidence offered in support of the appellant’s claim was a letter from his doctor declining to definitively state that his injury was caused by his job. The appellant’s doctor did state, however, that if he had a chance to review the appellant’s work requirements, it would be easier to determine if there was in fact a causal link between his injury and his job. The record was silent, however, as to whether the appellant ever forwarded the requested information or attempted to follow up on his doctor’s request. Therefore, the only evidence presented by the appellant amounted to nothing more than mere speculation. To summarize, this court has held that medical evidence supported by objective findings is not essential in every case, but if medical opinions are offered, they must do more than state that the causal relationship between work and the injury is merely a possibility.

This court has never required that a doctor be absolute in an opinion or that the magic words “within a reasonable degree of medical certainty” even be used by the doctor. Rather, this court has simply held that the medical opinion be more than speculation. For example, in Howell v. Scroll Technologies, 343 Ark. 297, 35 S.W.3d 800 (2001), the opining doctor stated that his patient’s exposure at work to a coolant mist was at least fifty-one percent the cause of her respiratory problems. We held that that opinion fell within the standard of a reasonable degree of medical certainty. Accordingly, if the doctor renders an opinion about causation with language that goes beyond possibilities and establishes that work was the reasonable cause of the injury, this should pass muster.

Turning now to the merits of the present appeal, Appellant argues that the Commission erred in finding that she failed to prove by a preponderance of the evidence that she suffered a compensable injury. Specifically, Appellant points to the medical opinions of Dr. Jones and Dr. Nix in support of her claim. She also asserts that there was no evidence, such as outside activities or a prior injury, before the commission regarding any other repetitive activity that could be responsible for her injury. Appellee asserts, on the other hand, that Appellant failed to produce sufficient medical evidence to prove that her injuries arose out of and in the course of her employment. We disagree with Appellee’s assertion.

In appeals involving claims for workers’ compensation, we view the evidence in a light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Matthews v. Jefferson Hosp. Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972). 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. White, 339 Ark. 474, 6 S.W.3d 98.

This court has recognized that carpal tunnel syndrome is a gradual-onset injury; hence, it is not necessary that Appellant prove that her injury was caused by rapid repetitive motion. See Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). A claimant seeking workers’ compensation benefits for a gradual-onset injury must prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of his or her employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and (3) the injury was a major cause of the disability or need for treatment. Ark. Code Ann. § 11-9— 102(4) (A) (ii) & (E)(ii) (Supp. 1999). Furthermore, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999). With regard to the claim for tennis elbow, however, Appellant must additionally prove by a preponderance of the evidence that her upper extremity problems were caused by rapid repetitive motion, because such a condition is not recognized as a per se rapid repetitive injury. Ark. Code Ann. § 11-9-102(4)(A)(ii)(a) (Supp. 1999).

Here, there is no dispute that Appellant suffered a physical injury that was the sole cause of her disability or need for treatment. The issue to be resolved is whether Appellant’s injuries were work related. Appellant testified in detail about her job duties that required extensive use of her hands and wrists. She also testified that she had no prior injury that could be related to her current problems and denied engaging in any outside activities that could have caused carpal tunnel syndrome or tennis elbow. In addition to her own testimony, Appellant submitted her medical records, which included the medical opinions of two of her treating physicians. First, Dr. Jones stated in his letter that Appellant’s injuries were overuse-type injuries consistent with her job duties. Dr. Nix concurred with Dr. Jones that Appellant’s injuries were usage-related type injuries often associated with repetitive motions. Dr. Nix declined, however, to state definitively whether Appellant’s job, or some outside activities, were the cause of her injuries.

It is well settled that the ALJ’s findings are irrelevant for purposes of appeal, as this court is required by precedent to review only the findings of the Commission and ignore those of the ALJ. See, e.g., Matthews, 341 Ark. 5, 14 S.W.3d 482; Scarbrough v. Cherokee Enters., 306 Ark. 641, 816 S.W.2d 876 (1991). In the instant matter, however, this court must review the findings of the ALJ because the Commission made absolutely no independent findings of its own; rather, it simply adopted each of the findings made by the ALJ. In reviewing the evidence in this matter, the ALJ chose to discount the opinion of Dr. Jones, over the less-certain opinion of Dr. Nix, on the basis that Dr. Jones’s report, “does not indicate that the claimant related the history of experiencing the onset of a ‘shooting pain’ while washing her cabinet at home.” This finding adopted by the Commission ignores pertinent information found in the nerve conduction report compiled by Coulter Physical Therapy in connection with tests ordered by Dr. Jones and used by him to support his diagnosis of Appellant’s condition. The Coulter report specifically states that Appellant reported experiencing “an increase in pain Friday w[ith] pain extending from her hand to her elbow.” In addition, when asked by Appellee’s counsel if she had reported the tea incident to Dr. Jones, Appellant stated that she had reported the incident to him. Moreover, the choice to discount Dr. Jones’s opinion on this basis is questionable in light of the fact that Dr. Nix’s medical records contain no mention of Appellant reporting any increased pain on a particular date. Furthermore, we are at a loss to see that one single incident would attain such a level of significance in the Commissioners’ minds, given that carpal tunnel syndrome is, by definition, a gradual-onset injury.

It is true that appellate courts defer to the Commission on issues involving the weight of the evidence and the credibility of witnesses. Crudup, 341 Ark. 804, 20 S.W.3d 900. We agree with the court of appeals, however, that while the Commission may be insulated to a certain degree, it is not so insulated as to render appellate review meaningless. Jordan v. J.C. Penney Co., 57 Ark. App. 174, 944 S.W.2d 547 (1997). Moreover, we have held that the Commission may not arbitrarily disregard the testimony of any witness. Hapney v. Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 111 (2000). Likewise, the Commission may not arbitrarily disregard other evidence submitted in support of a claim. The opinion of Dr. Jones that Appellant’s injuries were caused by her job duties was disregarded in an arbitrary manner, and thus, the failure of the Commission to give credence to Dr. Jones’s opinion was error. We do not believe that fair-minded persons with the same facts before them could have reached the conclusion arrived at by the Commission. We, therefore, reverse and remand this matter to the Commission for a determination of benefits resulting from Appellant’s carpal tunnel syndrome.

Also upon remand, the Commission must review the evidence in order to determine if Appellant has proven by a preponderance of the evidence the additional requirement that her tennis elbow was caused by rapid repetitive motion and, thus, is compensable.

ÍMBER, J., dissents.

ANNABEity Clinton Imber Justice,

dissenting. The majority correctly points out that our recent decisions do not construe the Workers’ Compensation Act to mean that medical opinions addressing compensability are the only evidence that can establish a causal connection between an injury and work conditions. See Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000); Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000); Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). However, whenever a medical opinion does address the causation component of compensability, such medical evidence must still satisfy the statutory requirement that medical opinions be stated within a reasonable degree of medical certainty. See Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1999).

In this case, Appellant’s family physician, Dr. Jones, gave his medical opinion that her injuries were overuse-type injuries consistent with her job duties; whereas, Dr. Nix, an orthopedic surgeon, declined to state definitively whether Appellant’s job, or other outside activities, were the cause of her injuries. The majority opinion appears to give weight to Dr. Jones’s opinion without deciding whether his opinion is stated with a reasonable degree of medical certainty.

While I am also at a loss to understand why Appellant’s alleged failure to report a single incident to Dr. Jones should be a reason for discounting Dr. Jones’s opinion as to a gradual-onset injury, the fact remains that appellate courts defer to the Commission on issues involving the weight of the evidence and the credibility of witnesses. Crudup, 341 Ark. 804, 20 S.W.3d 900. In reviewing the evidence in this matter, the Commission was entided to compare and weigh the opinion of Dr. Jones against the opinion of Dr. Nix. Furthermore, Appellant admitted that she had been experiencing pain and numbness in her hands and elbows, accompanied by a loss of grip strength, for several months before the “spilled tea” incident,” but never reported her problems as being work-related to her employer until after she learned from Dr. Jones that she suffered from a condition — carpal tunnel syndrome and tennis elbow — that would require treatment by a specialist and possibly surgical intervention. When asked why she did not notify anyone at Con-Agra immediately about her problems, Appellant testified that she thought it was “just part of the job.” And yet, when she filled out the forms at Dr. Jones’s office, she “did put on there Blue Cross/ Blue Shield, not work related.” Based upon the record in this case, and after giving deference to the Commission on issues involving the weight of the evidence and the credibility of witnesses, I cannot say that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission.

For the above-stated reasons, I must respectfully dissent.