author: W.H. “Dub” Arnold, Chief Justice. Tom Glaze, Justice,

text:
    Bobby ROBERTS, et al., Petitioners v. Sharon PRIEST, Secretary of State, Respondent v. John Hoyle, et al., Intervenors
    98-1052
    975 S.W.2d 850
    Supreme Court of Arkansas
    Opinion delivered October 15, 1998
    [Petition for rehearing denied October 22, 1998.]

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray; Robert S. Shafer, and Ellen M. Owens, for petitioner.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Senior Ass’t Att’y Gen.; and Ann Purvis, Gen. Counsel, Sec. of State, for respondent.

      Oscar Stilley, for intervenors.
   W.H. “Dub” Arnold, Chief Justice.

Arkansas Supreme Court Rules 6-5(a) and l-2(a)(8) (1998) authorize us to exercise jurisdiction over this original-action petition, filed by Bobby Roberts, an Arkansas resident, taxpayer, and registered voter, individually, and on behalf of Arkansans to Protect Police, Libraries, Education & Services (APPLES). Specifically, the petitioner challenges the sufficiency of a statewide initiative petition, originated pursuant to Ark. Const, amend. 7, and the inclusion of proposed constitutional Amendment 4 on the November 3, 1998, general-election ballot. In support of removing the proposed measure from the ballot, the petitioner raises two arguments contesting (1) the validity of the signatures appearing on the initiative petition; and (2) the adequacy of disclosure of the proposed measure’s ballot title. We find merit in petitioner’s first point, grant the petition, and enjoin the Secretary of State from placing the proposed measure on the November 3, 1998, ballot. Alternatively, we direct that any votes cast on the proposed amendment not be counted or certified. Consequently, the petitioner’s second point is moot, and we need not consider the merits of the ballot title.

On July 2, 1998, proposed constitutional Amendment 4 was filed with the respondent, Secretary of State. The popular name of the proposed measure reads:

An Amendment To Abolish Ad Valorem Property Taxes; Authorize the Increase of Sales and Use Tax, Require Voter Approval of New Taxes and Tax Rates, Require Periodic Voter Approval for Certain Local Sales, Use, and Occupation Taxes, Limit State and Local Regulation, And For Other Purposes (“Amendment 4”).

During the certification process, the Secretary of State determined that the measure’s sponsor submitted 72,810 valid legal-voter signatures, representing a margin of 855 signatures over and above the minimum threshold requirement of 71,955 qualified signatures. Amendment 7 to the Arkansas Constitution defines the number of qualified signatures required to initiate a constitutional amendment as equal to ten percent of the votes cast in the gubernatorial race in the preceding general election, here, 71,955 signatures. Accordingly, on July 28, 1998, the respondent stated that Amendment 4 satisfied the signature requirements of Ark. Const, amend. 7 and certified the measure for inclusion on the November 3, 1998, ballot.

Subsequently, on August 26, 1998, the petitioner filed its complaint contesting the sufficiency of the certified signatures and the adequacy of the ballot title. Count I of the original action complaint alleges that in excess of 855 signatures on the initiative petition (i.e., the margin of sufficiency as determined by the Secretary of State), were forged or unlawfully obtained, or are found on petition parts that were illegally or improperly executed by the canvassers or purported canvassers, or were improperly notarized, in violation of constitutional and statutory requirements.

On September 11, 1998, John Hoyle, the initiative’s sponsor, intervened in this action, individually and on behalf of Arkansas Taxpayers’ Rights Association. In response to the complaint, the intervenors asserted that the petition was not deficient due to invalid signatures. Alternatively, they argued that even if some signatures were invalid, sufficient valid signatures remained to withstand the challenge. The intervenors also filed a counterclaim, seeking thirty additional days to submit proof that previously rejected signatures were valid and to cure defects through continued solicitation of signatures. Finally, the intervenors raised general constitutional objections to the complaint, namely, that a decision adverse to the intervenors would violate their fundamental rights to petition the government for redress of grievances.

In response to the intervenors’ counterclaim, the petitioner conceded that the intervenors should be permitted to submit proof that the Secretary of State should have counted previously rejected signatures but denied that the intervenors have suffered any unconstitutional denial of a right to petition the government for redress of grievances. In our per curiam opinion dated September 11, 1998, we addressed the applicability of the intervenors’ request for a “thirty-day cure period,” pursuant to Ark. Code Ann. § 7-9-111 (Repl. 1993). We held that the “thirty-day cure period” applies only in the case of an adverse action on the part of the Secretary of State and has no application to original actions in this court. Roberts v. Priest, 334 Ark. 244, 973 S.W.2d 797 (1998); see Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936).

I. Arkansas Constitution, Amendment 1

Turning to the merits of the petitioner’s remaining arguments, we first consider the context of Amendment 7. The relevant portion of Ark. Const, amend. 7 provides that:

The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly [.]

Furthermore, through Amendment 7, the “voters of this state essentially have, within constitutional limits, a right to change any law or any provision of our Constitution they deem appropriate.” Donovan v. Priest, 326 Ark. at 357-58 (citing Dust v. Riviere, 277 Ark. 1, 4, 638 S.W.2d 663, 665 (1982)) (emphasis added). According to Amendment 7, the sufficiency of statewide petitions for initiatives shall be decided in the first instance by the Secretary of State subject to the review of this court, which has original and exclusive jurisdiction over such matters. Id. at 357. Initially, the Secretary of State must ascertain and declare the sufficiency of each initiative and referendum within thirty days of filing. However, when a proposed initiative is challenged, Amendment 7 places the burden of proof “upon the person or persons attacking the validity of the petition.” Id.

II. The Master’s report and findings

We granted expedited consideration of this matter and, pursuant to Ark. Sup. Ct. R. 6-5(a) (1998) and Ark. R. Civ. P. 53, appointed the Honorable Jack Lessenberry as master to conduct proceedings and hearings relating to the signature challenge and to report his factual findings to this court. After hearing testimony for three days and reviewing evidence and exhibits offered by the parties, the master filed his report on September 28, 1998. Significandy, he found that 1,830 signatures counted by the Secretary of State should have been excluded, leaving a deficiency of 975 signatures after subtracting the margin of 855 signatures. Generally, the signatures were excluded due to (1) the absence, insufficiency, or falsity of the canvasser’s affidavit; (2) a forgery; or (3) evidence that the petitioner was not a registered voter. In light of these findings, the petitioner submits that Amendment 4 lacks sufficient signatures to appear on the ballot.

Pursuant to Ark. R. Civ. P. 53 (1998), we will accept the master’s findings of fact unless they are clearly erroneous. See also Porter v. McCuen, 310 Ark. 674, 839 S.W.2d 521 (1992). A finding of fact is clearly erroneous, even if there is evidence to support it, when, based on the entire evidence, the court is left with the definite and firm conviction that the master has made a mistake. Casteel v. McCuen, 310 Ark. 568, 569, 838 S.W.2d 364 (1992). In short, the petitioner asks this court to adopt the master’s findings of fact and either to enjoin the Secretary of State from placing Amendment 4 on the ballot or to order that any votes cast for the proposed measure not be counted. Petitioner also suggests that the evidence presented to the master clearly indicates that the intervenors ignored and abused the simple requirements of Ark. Const, amend. 7. We agree. Generally, we adopt and affirm the master’s findings of fact. However, we do note, as indicated below, minor discrepancies with individual findings that we hold to be clearly erroneous. Notably, these errors are harmless and insufficient to restore the measure to the ballot.

First, we consider 450 signatures excluded by the master and associated with Ms. Cyndi Jarvis. Ms. Jarvis became involved in the petition drive in the fall of 1997 and continued to collect signatures until July 1998, although she testified that she never read the instructions and statement to canvassers printed on each and every petition. Although an initiative and referendum measure must be liberally construed, and only substantial compliance with Ark. Const, amend. 7 is required, the “affidavit of the persons circulating” the petition must be attached to the petition. See Porter, 310 Ark. at 678. Each petition in the instant case contained an affidavit to be signed by the canvasser that states in part:

I,_, having first duly made oath, state that I personally circulated the above Petition and that each of the above persons signed said Petition in my presence. I further state that to the best of my knowledge.and belief each person correctly stated his or her name, residence or town of residence correctly, and that each is a voter of the State of Arkansas.

When an affidavit is demonstrated to be false, a petition loses its prima facie validity. See Porter, 310 Ark. at 677. Piowever, the challenger must also prove that the falsity was conscious and more than inadvertence. Id. at 678 (citing Pafford v. State, 217 Ark. 734, 233 S.W.2d 72 (1950)). Ms. Jarvis testified that she failed to require petitioners to sign in her presence. Moreover, she left blank petitions at businesses and arranged to pick them up later or to receive them through the mail. If a petition was returned with signature blanks, she merely solicited additional signatures to complete the petition, even by soliciting signatures from other counties. Most disturbingly, Ms. Jarvis whited-out the names of canvassers on petitions she received and replaced the canvassers’ names with her own in order to have the petitions notarized. The master also heard testimony from petition signers Lois Williams, Fred Blasscock, Kim Marsh, and Chas Stak, that, although Ms. Jarvis’s name appeared on the petition as the canvasser, neither Jarvis nor any other person actually witnessed them signing the petition. Clearly, the master properly excluded those signatures where Jarvis falsely signed petitions as the canvasser.

However, the master erred by twice excluding sixteen signatures collected by Ms. Jarvis on petition 2004 and introduced as exhibit 34. Although the sixteen signatures were properly excluded once, the master itemized the same exclusion at pages 5 and 11 of his report. Also, the master erred by not counting nine signatures of witnesses who testified that they did sign the Jarvis petition and twenty-one additional signatures of witnesses who, by stipulation of the parties, would have testified to signing the petition. Therefore, we agree with the intervenors’ argument that these signatures were rehabilitated, and we hold that the master erred by not counting these thirty signatures. In light of Ms. Jarvis’s conscious disregard of the petition instructions, demonstrated by her testimony that she failed to collect signatures personally, received petitions through the mail, and whited-out canvassers’ signatures, replacing them with her own, we cannot say that the master was clearly erroneous in excluding 404 of the 450 disputed signatures.

Second, the master excluded 241 signatures that he found to be forgeries. We have long held that the express purpose of Ark. Const, amend. 7 is that petition signatures must be genuine. Hargis v. Hall, 196 Ark. 878, 887, 120 S.W.2d 335 (1938). In furtherance of that purpose, Amendment 7 conspicuously contemplates that laws may be enacted “prohibiting and penalizing pequry, forgery, and all other felonies or other fraudulent practices in the securing of signatures or filing of petitions.” Id. Here, Ms. Linda Taylor, an undisputed expert witness, experienced in the field of identifying handwriting, signatures, and forgeries and trained with the Federal Bureau of Investigation and the Arkansas State Crime Lab, testified that, after reviewing the copies of the petitions filed with the Secretary of State, she found four to five hundred suspicious signatures. After comparing those signatures with available current, known signatures, she concluded, under the legal standard of a high degree of certainty, that 241 signatures were “highly probable forgeries.” In light of Ms. Taylor’s testimony and the rationale underlying Amendment 7, we cannot say that the master was clearly erroneous by excluding these 241 signatures as forgeries.

Third, pursuant to the parties’ stipulation, the master excluded 221 signatures located on petitions that Mr. Fred Jarvis did not circulate but falsely signed as canvasser. In light of the requirements of Ark. Const, amend. 7 discussed above, we cannot say that the master was clearly erroneous in excluding these signatures.

Fourth, the master considered Mr. Bill Turner’s admission that he falsely signed his name as the canvasser on six petitions. In light of this testimony and Amendment 7’s requirements, we cannot say that the master was clearly erroneous in excluding twenty-three signatures associated with these petitions.

Given the 404 signatures properly excluded because of Ms. Cyndi Jarvis’s conscious disregard of Amendment 7’s requirements, the 241 signatures properly excluded as forgeries, the 221 signatures excluded because of Mr. Fred Jarvis’s false affidavit, and the twenty-three signatures excluded because of Mr. Bill Turner’s false affidavit, the master properly excluded a total of 889 signatures. As noted, the margin of sufficiency as determined by the Secretary of State was 855 signatures. Based on the foregoing, the measure lacks sufficient signatures to be certified for placement on the ballot. Flowever, in the interest of completeness, we address the validity of the remaining, disputed signatures.

Next, we consider sixty-six signatures that were excluded for lack of a notary signature. The intervenors contend that the master erred by excluding twenty of these signatures that had been stamped with Mr. Bill Pugh’s facsimile signature. However, the intervenors offer no convincing argument or authority in support of their position. We do not consider assertions of error that are unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well-taken. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W.2d 788 (1998) (citing Porter v. Harshfield, 329 Ark. 130, 139, 948 S.W.2d 83 (1997); J&J Bonding, Inc. v. State, 330 Ark. 599, 602, 955 S.W.2d 516 (1997)). In the absence of such argument and authority, we adopt the master’s findings excluding these sixty-six signatures.

We also adopt the master’s findings excluding the following 792 signatures: 302 signatures with inconsistent signatures of canvassers; forty-five signatures where two canvassers were listed and only one signed or where no signature was found; eighty-seven signatures attributable to Mr. T.J. Glasgow because he testified that he was not present when the petition was signed and was not present when the petition was notarized; nineteen signatures attributed to Ms. Ruth E. Burnett because she testified that she signed as canvasser at her employer’s direction although she did not collect the signatures; 198 signatures where the canvasser was absent, did not collect the signatures, or did not sign his affidavit before a notary; and 141 signatures where the canvasser failed to sign his affidavit before a notary. The master heard testimony that petitions were notarized outside the presence of the canvasser and even when the notary had no personal knowledge of canvassers’ identities. We have held that the affidavit requires concurrent action on the part of the canvasser and the notary. See Porter, 310 Ark. at 678. In light of the foregoing, we cannot say that the master was clearly erroneous in excluding these signatures for absent or deficient affidavits.

The intervenors also argue that the master erred by not counting 682 signatures excluded by the Secretary of State because of irregularities in the petition. The master found that the Secretary of State’s prima facie review of each page revealed petitions without complete text, petitions with two canvassers indicated but only one signature, the complete absence of a notary, or a failure of the notary to sign. We have held that the full text of a measure must be on the petition in order for the signer to have the opportunity to read it and to inform himself prior to signing the measure. See Leigh v. Hall, 232 Ark. 558, 566, 339 S.W.2d 104 (1960). We cannot say that the master was clearly erroneous by not counting these signatures.

Additionally, the intervenors contest the exclusion of 1,127 signatures found on petitions that were never tendered to the Secretary of State. Mr. John Hoyle, the intervenor and a leader in the petition drive, testified that he and others delivered petitions to the Secretary of State on Thursday, July 2, 1998. Upon his return home, he received several additional petitions in that day’s mail and via a Federal Express delivery. Notably, the master’s report indicates that these 1,127 signatures were not timely tendered to the Secretary of State but, in fact, were disclosed by the intervenors only after the inception of this case. Accordingly, we decline to say that the master was clearly erroneous by not counting these signatures.

Finally, the intervenors contend that the Secretary of State improperly excluded 765 signatures of nonregistered voters. Both the respondent and the petitioner justify the exclusion on the basis that these petitioners were not registered voters at the time the petition was notarized. We agree that these signatures were properly excluded, but we note that the petition signer must have been a registered voter at the time he signed the petition. Pursuant to Ark. Code Ann. § 7-9-101(8) (Supp. 1997), a “legal voter” is a person who is registered at the time of signing the petition pursuant to Ark. Const, amend. 51, which provides that voter registration is not final until the permanent registrar receives and acknowledges acceptance of a voter-registration application. Accordingly, the Secretary of State properly excluded the signatures of 765 individuals who were not registered by the date of notarization, a date even later than the signing of the petition. We cannot say that the master was clearly erroneous in not counting these signatures.

We have long observed that we do not enjoy being in the “last minute” of review. See Scott v. Priest, 326 Ark. 328, 334, 932 S.W.2d 746 (1996) (citing Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994)). We also acknowledge that the people of Arkansas deserve an initiative and referendum procedure that “allows them the confidence that measures, after having been adequately reviewed, will not be removed from the ballot.” Id. at 334-35. Recognizing that the “sponsors of proposals should also be assured [that] 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,” id. at 334, we again exercise our jurisdiction and strongly advise sponsors of initiated constitutional amendments that the onus of complying with the simple and straightforward procedural requirements of Ark. Const. amend. 7 lies solely with the sponsor of the proposed constitutional amendment, regardless of the substantive nature of the measure. Where, as here, the sponsor fails to comply with and ignores and abuses these simple procedural requirements, established by our Constitution to protect all the residents and taxpayers of Arkansas, neither the Secretary of State nor this court can cure such a deficiency resulting solely from the sponsor’s conscious disregard of the Constitution’s requirements.

Accordingly, we hold that proposed Amendment 4 lacks sufficient signatures to satisfy the requirements of Ark. Const, amend. 7, and we grant the instant petition to enjoin its placement on the November 3, 1998, ballot. Alternatively, we hold that any votes cast on proposed Amendment 4 not be counted or certified. We also shorten the time for issuance of mandate and direct that any petition for rehearing must be filed on or before October 20, 1998.

Glaze and Corbin, JJ., concur.

Tom Glaze, Justice,

concurring. I concur and write on points not mentioned in the majority opinion. First, it is well settled that the states have an interest in protecting the integrity, fairness, and efficiency of their ballots and election processes. See Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997); Bullock v. Carter, 405 U.S. 134 (1972); but see Meyer v. Grant, 486 U.S. 414 (1988) (where Colorado law prohibiting paid circulators of initiative petitions held to have abridged petitioners’ right to engage in violation of the First and Fourteenth Amendments because, among other things, the state failed to demonstrate placing the statutory burden on the petitioners to hire circulators would protect the integrity of its initiative process). In the present case, the Arkansas statutes with which the Hoyle petitioners were required to comply in gathering voters’ signatures are entirely reasonable so as to ensure the State’s initiative process will not be abused. That being said, the majority court quite properly excluded signatures which resulted from canvassers and notaries who consciously disregarded Arkansas law. Consequently, those signatures were falsely obtained and justifiably excluded by this court’s master.

On a second point, Hoyle suggests the Secretary of State erred when she excluded 765 signatures of persons who were not registered to vote when they signed the initiative petition. He claims that while Amendment 7 to the Arkansas Constitution requires the signer of an initiative petition to be a “legal voter,” the signer need only be a “qualified elector.” Hoyle contends a qualified voter is a person eighteen years old or older, who resides in the State, and has committed no felony. Mr. Hoyle is wrong. Act 963 of 1995, compiled as Ark. Code Ann. 7-1-101(10) (Supp. 1997), defines “qualified elector” as a person who holds the qualifications of an elector and who is registered pursuant to the Arkansas Constitution Amendment 51 (Arkansas’s Voter Registration Amendment). Quite obviously, if initiative-petition signers were not required to be registered voters, the Secretary of State would have no fist of voters to verify petitions circulated pursuant to Amendment 7.

Finally, the majority opinion cites Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994), and Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996), wherein we noted the court’s displeasure in being placed in the position of reviewing initiative petitions and proposals at the last minute. In Scott, we noted that the General Assembly had acted responsibly to correct this last-minute review problem by referring to the voters at the November 5, 1996 General Election a measure that would have provided a procedure that would assure voters that the petitions they signed would actually place the measure on the General Election ballot, if the sponsors obtained the necessary number of signatures. The voters defeated that proposed measure at the polls in the 1996 election by a vote of 368,460 against and 317,970 for. Exactly why the voters rejected this referendum measure in 1996 is unclear.

What is clear is that Arkansas’s laws dealing with initiative and referendum measures remain restrictive, at least to the extent that no early review can be made by this court so a proposed measure can be assured placement on the General Election ballot for a vote of the people. As the court forecast in Page, until appropriate action is taken to correct the problems attendant to proposals submitted under Amendment 7, Arkansas citizens can continue to expect measures to be removed from the ballot immediately prior to the election.

The options available to correct this continuing problem are few. One, this court, which admittedly added its restrictive interpretation to Amendment 7 by a 4-3 decision in Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), could be asked to revisit that decision. In Finn, this court considered the validity of Act 280 of 1989 which provided a reasonable time table for all questions concerning a ballot tide or popular name be resolved. Our court interpreted Act 280 to be in conflict with Amendment 7 and held the Act unconstitutional, but there were three written dissents seeing the Act differendy. Eventually, the General Assembly referred a proposed measure, which was almost identical to Act 280, in an effort to provide a short constitutional time table to correct the late-review aspect of Arkansas’s initiative process, as interpreted by our court, but the voters rejected that measure. Thus, a second option is that the General Assembly might again refer another proposed measure to the Arkansas voters so the voters can have a second chance to consider the restrictive-initiative process problem. A third avenue, of course, is that a First and Fourteenth Amendment challenge may be brought against Amendment 7 itself, to determine whether Arkansas’s initiative measure process is presently so burdensome that it fails to meet constitutional muster under the United States Constitution.

Whatever option is eventually taken to obtain a fair initiative process under Arkansas law, I renew my remarks that the signature-gathering aspects of Arkansas’s election laws are reasonable and are properly designed to ensure that sponsors of initiative proposal measures are honestly and fairly placed on the General Election ballot. Because those Arkansas laws were consciously ignored in this case, I have no hesitancy in joining the majority court in holding the Hoyle petition to be insufficient.

Corbin, J., joins this opinion.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Larry STEPHENSON v. STATE of Arkansas
    CR 98-120
    975 S.W.2d 830
    Supreme Court of Arkansas
    Opinion delivered October 15, 1998

      Lori A. Mosby, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   David Newbern, Justice.

On June 24, 1996, Larry Stephenson allegedly sold cocaine to a police officer accompanied by a confidential informant. On July 31, 1996, Mr. Stephenson was allegedly seen in possession of cocaine and drug paraphernalia. He was convicted and sentenced as an habitual offender to life imprisonment for delivery of a controlled substance and to thirty years’ imprisonment for possession of a controlled substance. Ark. Code Ann. § 5-64-401 (Repl. 1997). He was also sentenced to thirty years’ imprisonment for possession of drug paraphernalia. Ark. Code Ann. § 5-64-403 (Repl. 1997). The sentences are to be served concurrently. Mr. Stephenson argues that the evidence was insufficient to support a finding of guilt as to any of the three counts. We hold that the evidence was sufficient to support the judgment.

Detective Randy Howard of the Pulaski County Sheriffs Office testified that on June 24, 1996, he and a confidential informant had information that a man nicknamed “Pops” was selling crack cocaine out of an abandoned house just off of Roosevelt Road. Detective Howard stated that when he and the confidential informant pulled up to a house on Center Street, they were approached by Mr. Stephenson. The informant told Mr. Stephenson that he wanted $100 worth of crack cocaine and gave $100 to Mr. Stephenson. According to Detective Howard, Mr. Stephenson then rode away in a Cadillac and returned shortly thereafter and handed over a piece of paper containing what Detective Howard believed was crack cocaine.

Detective Howard testified further that on July 31, 1996, he and Detective Sims went to the same Center Street house to serve Mr. Stephenson with an arrest warrant. When they arrived, Mr. Stephenson walked toward their vehicle and dropped something out of his left hand. Detective Howard retrieved from the ground a matchbox containing suspected crack cocaine and a ceramic smoking device.

Kathy Shanks, a chemical analyst, testified that the substance that Mr. Stephenson sold to the confidential informant and Detective Howard was “cocaine base and benzococaine” weighing .6876 grams. She testified that the matchbox contained “cocaine base” weighing .3276 grams. She stated that the pipe contained burnt residue and cocaine and benzococaine.

Mr. Stephenson moved for a directed verdict as to charge of delivery of a controlled substance. He argued that because (1) the police reports had two different addresses listed for Mr. Stephenson and one report did not include a description of him, (2) the police did not check the Cadillac license to see if it belonged to Mr. Stephenson, and (3) the officers did not transcribe the tape recordings of the drug buy, the evidence was not sufficient.

Mr. Stephenson also moved for a directed verdict as to the charge of possession of cocaine and drug paraphernalia. His contention was that police reports in the case had been prepared by Keith Martin, a former sheriff s department officer who had been in charge of the case who had relied on reports by Officer Howard that were inconsistent with respect to the address of the house on Center Street. The directed-verdict motions were denied.

When we review a challenge to the sufficiency of the evidence, we affirm if there is substantial evidence to support the judgment viewed in the light most favorable to the State. See Freeman v. State, 331 Ark. 130, 131-32, 959 S.W.2d 400 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.

Detective Howard’s eyewitness accounts of the events of June 24 and July 31, 1996, constitute evidence sufficient to sustain the convictions. Mr. Stephenson argues that, prior to June 24, 1996, the only description the officers had was a black man known as “Pops.” He questions Detective Howard’s ability to identify him on July 31, 1996, as the result of the detective having seen Mr. Stephenson only on June 24, 1996. Detective Howard’s identification of Mr. Stephenson at the trial was emphatic, and one eyewitness’s testimony is sufficient to sustain a conviction. Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997). The evidence of the passage of time between the two incidents goes to the officer’s credibility, and that is solely within the province of the jury to determine. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996).

Mr. Stephenson characterizes the evidence of his possession of the matchbox containing the controlled substance and the pipe as “circumstantial.” He argues that the neighborhood where he was apprehended on July 31, 1996, is “drug infested,” thus suggesting that the items might have been dropped on the ground by some other person. The evidence was not circumstantial. Officer Howard testified he saw Mr. Stephenson drop the matchbox and the pipe.

The record has been reviewed in accordance with Ark. Sup. Ct. Rule 4-3 (h), and no erroneous rulings prejudicial to Mr. Stephenson have been discovered.

Affirmed.


author: Tom Glaze, Justice.

text:
    Stephen V. HENDERSON v. Sandra K. HENDERSON
    97-699
    975 S.W.2d 831
    Supreme Court of Arkansas
    Opinion delivered October 15, 1998

      Callis L. Childs, for appellant.

      Helen Rice Grinder, for appellee.
   Tom Glaze, Justice.

This case is a sequel to Henderson v. Henderson, 330 Ark. 847, 955 S.W.2d 914 (1997), wherein we dismissed appellant Stephen V. Henderson’s appeals from a November 25, 1996 decree, a January 31, 1997 order, and a February 25, 1997 supplemental order to the November 25 decree. We held Stephen’s appeal from an October 3, 1997 order was timely, but appellee Sandra K. Henderson now claims Stephen is using his timely appeal to raise issues he failed to preserve in his earlier appeal attempts. We agree.

This litigation emanates from appellee Sandra K. Henderson’s August 22, 1995 petition seeking the change of custody of the parties’ two minor children. Upon the conclusion of the parties’ trial, Chancery Judge Karen Baker changed custody, awarding Sandra the children and granting visitation rights to Stephen. During the proceeding, Stephen had asked Judge Baker to recuse, which the judge denied. However, Baker did agree that a special chancellor should be assigned to hear and decide Sandra’s motions filed against Stephen’s counsel, seeking Rule 11 and contempt sanctions. Judge Baker entered an order granting the foregoing relief on November 25, 1996, and Stephen appealed that decision on December 26, 1996. The judge, at Stephen’s request, entered a Rule 54(b) order finding the November 25, 1996 order to be a final appealable order and specifically determining the Rule 11 and contempt matters were collateral issues that provided no just reason to delay Stephen’s appeal of the custody decision.

On January 29, 1997, Judge Baker notified Chief Justice W. H. “Dub” Arnold that the four trial judges in the 20th Judicial Circuit had recused from hearing the pending proceeding against Stephen’s counsel and, pursuant to Act 496 of 1965, as amended, requested that an out-of-district judge be assigned the case. On February 5, 1997, the chiefjustice appointed Judge Richard Gardner to try the case and all ancillary proceedings involving Stephen’s counsel. Meanwhile, on February 25, 1997, Judge Baker proceeded in the Henderson’s custody case by entering a supplemental order to the November 25, 1996 decree. In that February 25 order, Judge Baker found that she had failed to provide for child support in the November 25 decree, and ordered child support to be paid by Stephen in the amount of $60.00 per week. The February 25 order provided that its directive was entered only for the purpose of supplementing the November 25 decree, and did not otherwise modify the decree. While Judge Baker’s order was filed on February 25, 1997, she “entered [it] nunc pro tunc 11-25-96.” On March 12, 1997, Stephen filed a second notice of appeal from the November 25, 1996 order.

On September 25, 1997, Sandra filed a motion with this court to dismiss Stephen’s appeal of the November 25, 1996 decree for filing an untimely transcript, which we granted. But after Judge Gardner held a hearing on the collateral issues pertaining to Stephen’s counsel, and entered an order on October 3, 1997, disposing of those issues, Stephen filed yet a third notice of appeal —; this time he appealed not only Judge Gardner’s order, but, once again, designated Judge Baker’s November 25, 1996 decree and February 25, 1997 supplemental order. Sandra moved to dismiss Stephen’s second and third notices of appeal, and we granted her motion, holding those notices of appeal were filed outside the time for appealing the November 25 decree and its supplemental February 25 order. However,, we concluded that Stephen’s third notice was timely as to Judge Gardner’s October 3 order. Henderson, 330 Ark. 847, 955 S.W.2d 914.

In this appeal, Stephen disagrees with Judge Gardner’s order finding that Judge Baker, after her recusal, had continued authority over the parties’ custody and visitation issues, and Gardner was restricted only to the contempt and Rule 11 issues. Stephen contends that after Judge Baker recused, she had no jurisdiction to make the finding that her November 25, 1996 order was appealable or to enter the February 25 order establishing child-support payments.

Stephen is wrong for two reasons. As discussed above, Stephen failed to challenge Judge Baker’s authority to enter her decree and subsequent orders by perfecting a timely appeal. Consequently, Stephen is barred from raising those issues now. See Simmons v. Estate of Wilkinson, 318 Ark. 371, 885 S.W.2d 673 (1994). Even if Stephen had timely appealed Judge Baker’s orders, he is otherwise mistaken that Judge Gardner erred in restricting his assignment to the collateral issues and in refusing to vacate Judge Baker’s decisions on the custody, visitation, and child-support matters.

This court has generally held that when a judge recuses, the judge loses jurisdiction of the case and is without authority to act further in any judicial capacity, except to make the proper transfer of the case or take the appropriate steps for the selection of another judge. See Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978); Hobson v. Cummings, 259 Ark. 717, 536 S.W.2d 132 (1976). However, we further explained in Matthews v. State, 313 Ark. 340, 854 S.W.2d 343 (1993), that in some circumstances, a judge may recuse himself from only a part of a case. For example, the Matthews court held that when a judge recused from hearing a motion for attorney’s fees, he was not disqualified from hearing the merits of the case, because the fee issue was severable. Id.

In the present case, Judge Baker, in her November 25, 1996 decree, specifically denied Stephen’s request for her to recuse, and Baker clearly asked for a new judge to be assigned to hear and decide only the pending motions for contempt and Rule 11 sanctions against Stephen’s counsel. The chief justice’s assignment also very clearly reflected that Stephen’s counsel, not the Hendersons, were the respondents in Judge Gardner’s assignment, and Judge Gardner expressly mentioned that fact in his October 3, 1997 order. There is no doubt that the matters assigned Judge Gardner were collateral and therefore easily severable issues that could be heard and decided separately from the underlying custody action. See Crockett & Brown, P.A. v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995) (a Rule 11 motion raises a collateral and independent claim, not a matter integral to the merits of the action); Spring Creek Living Ctr. v. Sarrett, 318 Ark. 173, 883 S.W.2d 820 (1994); Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995) (an award of attorney’s fees is collateral). In sum, Judge Gardner correctly determined he had no authority to disturb Judge Baker’s earlier decree and supplemental order that involved the merits of the Hendersons’ case. If Stephen intended to question the propriety of Judge Baker’s orders, his remedy was to perfect a timely appeal from them, not from Judge Gardner’s order regarding the collateral matters involving Stephen’s counsel.

For the reasons stated above, we hold that Stephen’s appeal from and claims involving Judge Baker’s orders are procedurally barred and dismissed. In all other respects, we affirm Judge Gardner’s October 3, 1997 order.


author: Donald L. Corbin, Justice.

text:
    William Keith WEBBER and Jackie Webber v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
    97-1085
    975 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered October 15, 1998

      Thomas G. Montgomery, for appellant William Keith Webber.

      Kay West Forest, for appellee.
   Donald L. Corbin, Justice.

Thomas G. Montgomery moves this court to grant him attorney’s fees for his appellate representation of William Keith Webber in a termination-of-parental-rights case. The Arkansas Court of Appeals affirmed the judgment terminating Webber’s parental rights in an unpublished opinion. See Webber v. Ark. Dep’t of Human Servs., CA 97-1085 (Ark. App. May 13, 1998). On April 3, 1998, Mr. Montgomery filed a motion in the court of appeals requesting attorney’s fees for his appellate work. The court of appeals certified the motion to us as an issue of first impression, and we ordered that the issue be briefed for our consideration. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(d). We deny the motion.

Mr. Montgomery states in his motion that he was appointed to represent Webber by the Crittenden County Chancery Court on June 12, 1995. He states that as Webber’s court-appointed attorney, he assisted Webber in the preparation of his abstract and brief on appeal, and that he has expended approximately forty hours of work on Webber’s appeal. He prays that he be awarded reasonable attorney’s fees for his services in researching, abstracting, and briefing Webber’s case on appeal.

We deny the motion because Mr. Montgomery has not offered any authority or convincing argument in support of his contention that this court is the proper forum to grant him attorney’s fees for his court-appointed representation of an indigent parent in an appeal of an action to terminate parental rights. We have repeatedly stated that we will not consider arguments that are unsupported by convincing legal authority or argument unless it is apparent without further research that the argument is well taken. See, e.g., Country Corner Food & Drug, Inc. v. First State Bank, 332 Ark. 645, 966 S.W.2d 894 (1998); Arkansas Oklahoma Gas Corp. v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998); Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). Without a cogent reason supported by convincing authority for taking this step, we decline to make such an award of fees. See County Corner Food & Drug, Inc., 332 Ark. 645, 966 S.W.2d 894.

Motion denied.


author: Robert L. Brown, Justice. Leon Holmes, Special Justice, Ray Thornton, Justice,

text:
    Joe HOYLE, Randy Stewart, Geneva Kelly, Denver Clement, and Shelly Bruce v. Dianna FAUCHER, Jerry Williams, Farrell Johnson, and Freda McMaster, in their official capacities as Assessor, County Judge, Collector, and Treasurer for Crawford County, Arkansas; County of Crawford, Arkansas; and Jimmie Lou Fisher, Arkansas State Treasurer
    97-1510
    975 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered October 15, 1998

      Oscar Stilley, for appellants.

      Winston Bryant, Att’y Gen., by: Shirley E. Guntharp, Deputy Att’y Gen.; and Mike Medlock, Prosee. Att’y, for appellees.

      The Nixon Law Firm, by: David G. Nixon and Michael D. Holland, for amici curiae Richard M. Mayes, Leland S. Matlock, Frances J. Matlock, Joseph M. Hart, and Cheryl L. Hart.

      Cypert, Crouch, Clark & Harwell, by Charles L. Harwell and Marcus Van Pelt; Matthews, Campbell, Rhoads, McClure & Thompson, by: David R. Matthews; Rudy Moore, Jr., P.A.; George Spence; and Laser, Wilson, Bufford & Watts, P.A., by: Dan F. Bufford, for amici curiae Various Arkansas School Districts.
   Robert L. Brown, Justice.

Joe Hoyle and the other appellants (Hoyle) are taxpayers in Crawford County. The appellees, Dianna Faucher and the other officials (County), are the Crawford County Assessor, County Judge, Collector, and Treasurer as well as the State Treasurer, Jimmie Lou Fisher. Hoyle raises two points on appeal: that the trial court erred in upholding Act 758 of 1995, which excludes certain reappraisals from the rollback provisions of Amendment 59, and that the trial court further was in error in dismissing Hoyle’s complaint with prejudice and while discovery was pending. We conclude that it was error for the trial court to find that Act 758 was constitutional and to dismiss Hoyle’s complaint, and we reverse the dismissal and remand for further proceedings.

The Hoyle complaint alleged that the collection of ad valorem taxes for reappraisals and reassessments during the roughly two-year period when Act 758 of 1995 was in effect was not made in compliance with Amendment 59 of the Arkansas Constitution. Amendment 59 was adopted by a vote of the people in 1980 and was designed to apply when a countywide reappraisal of real property resulted in an increase in tax revenue from each tax source within the county of more than ten percent. Act 758 was repealed by Act 836 of 1997. Hoyle contends in his complaint that Act 758 is unconstitutional, because under the Act, the General Assembly exempted those reappraisals that took two or more years to be finalized from the rollback provisions of Amendment 59. The trial court dismissed Hoyle’s complaint with prejudice, finding that Hoyle had improperly pled an illegal exaction, that both Act 758 and Act 836 were constitutional on their face and as applied, that a comprehensive reassessment had not occurred in Crawford County so as to trigger Amendment 59, and that taxes voluntarily paid by Hoyle and the other appellants could not be recovered.

I. Exclusion from Amendment 59

a. Jurisdiction

Subject-matter jurisdiction is an issue which we are required to raise on our own, even when the parties do hot contest jurisdiction. Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995). Accordingly, we address this matter first.

The Arkansas Constitution provides that the county courts have exclusive jurisdiction in all matters relating to county taxes. Ark. Const. art. 7, § 28. But the Arkansas Constitution further provides that illegal exactions can be enjoined by a court of equity. Ark. Const. art. 16, § 13. This court has held that circuit courts have concurrent jurisdiction to declare illegal exactions. See, e.g., Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997). Though a county ad valorem tax is clearly involved in the instant case, a complaint asserting an illegal exaction may be filed directly in either chancery or circuit court. Foster v. Jefferson Co. Quorum Ct., 321 Ark. 105, 110, 901 S.W.2d 809, 811 (1995) (Foster I), supp. op. granting reh’g, 321 Ark. 116-A, 901 S.W.2d 809 (1995) (Foster II) (rehearing granted on other grounds). We said in Foster I:

A suit to prevent the collection of an illegal or unauthorized tax is an illegal exaction suit, and subject-matter jurisdiction is concurrently in circuit and chancery court. A suit to prevent the collection of a lawful or authorized county tax that is erroneously assessed or erroneously collected is the kind of suit that belongs exclusively in county court.

Foster I, 321 Ark. at 110, 901 S.W.2d at 812. See also Barker v. Frank, supra. If an illegal tax has properly been challenged, as opposed to a challenge to assessment or collection procedures, jurisdiction of this matter is appropriate in chancery court.

b. Illegal Exaction.

Hoyle’s primary argument in this appeal is that the reliance of Crawford County officials on Act 758 and their failure to apply the rollback provisions of Amendment 59 resulted in an illegal exaction. The illegal tax alleged is that portion of the ad valorem taxes collected pursuant to Act 758 which exceeded ten percent and which should have been subject to an Amendment 59 rollback. The County, on the other hand, urges that Hoyle is in actuality contesting a method of assessing or collecting a valid tax and directs our attention to Pockrus v. Bella Vista Property Owners Ass’n, 316 Ark. 468, 872 S.W.2d 416 (1994), where we held that the County Court had exclusive jurisdiction over a challenge to assessment procedures.

Contrary to the County’s assertion, we conclude that Hoyle adequately pled a claim for illegal exaction. This is so even though he may have proposed alternative theories of relief in his complaint. The pleading of alternative legal theories does not negate the viability of each theory pled. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993). The County also emphasizes, however, that at one point in his complaint, Hoyle alleged that “wholly void assessments” constituted an illegal exaction. That assertion was in error, as Hoyle’s counsel admitted at oral argument. But that error does not undermine the validity of the illegal-exaction claim made which is based on the conflict between Act 758 and Amendment 59. The illegal-exaction issue that we conclude is legitimate regards that part of the ad valorem property tax paid which would not have been due and payable had Amendment 59 been applied.

This same issue came before this court in Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997). In Barker, a public school millage increase was at issue, and we held that that portion of the tax which exceeded constitutional limits because an Amendment 59 rollback had not been implemented constituted an illegal exaction. We said in Barker:

Barker, 327 Ark. at 600, 939 S.W.2d at 842. Though in the instant case, a countywide increase as opposed to a school district millage is contested, the issue is the same — the illegality of the portion of the tax which exceeds the constitutionally mandated rollback.

Unlike the Pockrus case where the issue was the constitutionality of a five-year reassessment plan, here the issue is the tax itself, which allegedly exceeds constitutional limits, because a rollback has not been accomplished by the school district. See Greedup v. Franklin County, supra. See also Foster v. Jefferson County Quorum Court, supra. We conclude that a valid claim for an illegal exaction has been raised.

c. Exemption under Act 758.

Act 758, which was effective July 1, 1995, states in part:

Section 3. If the review cycle of a county’s cyclical review program is two or more years, then normal carrying out of such physical review program and adjustments to valuations thereunder shall not constitute a comprehensive countywide reappraisal for purposes of triggering the provisions of Arkansas Constitution, Amendment 59.

Ark. Code Ann. § 26-26-305 (e) (Repealed by Act 836 of 1997). Hoyle argues that under the terms of Act 758, any county could simply conduct its reappraisal over a two-year period of time and avoid triggering Amendment 59. Further, he urges that nothing in the language of Amendment 59 gives the General Assembly the authority to exempt a class of countywide reappraisals from the amendment.

The County, on the other hand, claims that although Amendment 59 does not define what is a “countywide reappraisal or reassessment,” it gives the General Assembly the authority to determine a legitimate countywide reappraisal or reassessment. This is so, according to the County, because under the terms of Amendment 59 a countywide reappraisal or reassessment must be made in accordance “with procedures established by the General Assembly.” Ark. Const, art. 16, § 14. Taking it a step further, the County maintains that because the General Assembly can establish “procedures,” it can also determine what procedures render a countywide reappraisal inoperable for purposes of Amendment 59.

In interpreting a provision of the Arkansas Constitution, this court has said that when the language of a 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. Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). A “procedure” has been defined as “[t]he mode of proceeding by which a legal right is enforced . . . .” Black’s Law Dictionary 1204 (6th Ed. 1990). Applying the plain-meaning canon of construction and the definition of “procedure” to Amendment 59, it is apparent that by enacting Act 758 the General Assembly went beyond establishing a mere procedure but, in reality, enacted an exemption from the rollback dictates of the constitutional amendment.

In support of its position that Act 758 is merely an exercise of the General Assembly’s procedural power, the County cites this court to Gazaway v. Greene County Equalization Bd., 314 Ark. 569, 864 S.W.2d 233 (1993). In Gazaway, we recognized that Ark. Code Ann. § 26-26-401 (Repl. 1994), properly sets out which reappraisals qualify for a rollback of the millage levied. Qualifying reappraisals are ones where the reappraisal is effected pursuant to a court order or a directive of the General Assembly or where it is initiated by certain county officials or by one or more taxing units under a certification or directive from the Assessment Coordination Division.

We do not agree with the County that the Gazaway decision controls the instant case. True, section 26-26-401 describes the correct procedure for initiating a bona fide reappraisal. But that is a far cry from exempting county reappraisals from the millage rollback when it takes two or more years to complete them. Yet, that is precisely what Section 3 of Act 758 does, and that is why the Act directly contravenes Amendment 59. We have no hesitancy in holding that Section 3 of Act 758 was unconstitutional while in effect, and we reverse the trial court on this point.

II. Dismissal and Discovery

There are other points that need to be discussed. The County emphasizes that Hoyle’s proposed class cannot recover taxes which were voluntarily paid, even where an illegal exaction is involved, and the trial court so held. That is certainly the settled law on this point. See City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). In the case at hand, however, Hoyle claims rehef only for illegal real property taxes due and payable on or before October 10, 1997, which is after the date his first complaint was filed, which was March 8, 1997, though it was subsequently amended on two occasions. To the extent that taxes were paid before October 10, 1997, we held in Cash that taxes paid after the filing of the complaint are considered to be taxes paid under protest and, thus, not voluntary. That holding in Cash decides the issue in the instant case.

The trial court also concluded that Amendment 59 was not activated because personal property had not been reassessed along with real property. We question the validity of this point. Personal property is assessed every year by law. Ark. Code Ann. § 26-26-1408 (Repl. 1997). Moreover, the rollback formula set out in Amendment 59 pertains to taxes derived from taxable real property. See Ark. Const. art. 16, § 14(a)(i) & (ii). See also Barker v. Frank, supra. The trial court clearly erred in finding there was no countywide comprehensive reappraisal that would trigger Amendment 59.

Nor do we view this as an Equal Protection case, as the County would have it, where Act 758 can be sustained if the resulting classification is supported by a rational basis. This is an illegal-exaction case where we hold that that portion of the tax levied without the Amendment 59 rollback is unlawful.

Finally, we are cognizant of the fact that the General Assembly subsequently became well aware of its mistake in enacting Act 758. In the Emergency Clause to Act 836 of 1997, which repealed Act 758 and was effective March 26, 1997, the General Assembly observed “that Act 758 of 1995 has placed an unfair burden on the taxpayers of the State of Arkansas by directing countywide reappraisals of property in a manner which circumvents the rollback provisions of Amendment 59 . . . While this statement surely does not decide the constitutional issue before us, it is indicative of the General Assembly’s recognition of the abiding conflict between Act 758 and Amendment 59.

We reverse the trial court’s order dismissing Hoyle’s complaint for failure to state a claim upon which relief can be granted, and we remand the matter for further proceedings. Because we are reversing the dismissal order and remanding, Hoyle’s issues concerning dismissal with prejudice and additional discovery are moot.

Reversed and remanded.

Chuck Banks and Richard Proctor, Sp. JJ., join in this opinion.

Leon Holmes, Sp. J., concurs.

Thornton, J., dissents.

Glaze, Corbin, and Imber, JJ., not participating.

Leon Holmes, Special Justice,

concurring. I join in the opinion written by Mr. Justice Brown for the Court. I write separately to say that I would overrule Pockrus v. Bella Vista Village Property Owners Association, 316 Ark. 468, 872 S.W.2d416 (1994), which is inconsistent with the decision in this case and with the decision in Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997).

We hold today that the levy of a tax in excess of the millage rate allowed by Amendment 59 is an illegal exaction that may be enjoined in chancery court pursuant to Ark. Const. art. 16, § 13. At least since Greedup v. Franklin County, 30 Ark. 101 (1875), this Court has held that the levy of a tax in excess of the millage rate allowed by the Constitution is an illegal exaction, and that taxpayers are entitled to sue in chancery court to enjoin the illegal exaction “to prevent a multiplicity of suits.” 30 Ark. at 110. A complaint to enjoin the levy of a tax on the ground that the millage rate exceeds a constitution limit alleges an illegal exaction and may be brought either in circuit court or in chancery court. Barker v. Frank, supra.

In Pockrus, this Court followed a line of cases holding that a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, does not make the exaction itself illegal. So far as I can determine, that language originated in Schuman v. Ouachita County, 218 Ark. 46, 234 S.W.2d 42 (1950). Schuman involved mineral taxes that were admittedly due and owing; they were not in any way, shape, form or fashion illegal. The complaint in Schuman was that the procedure for recording the assessments on the mineral taxes did not conform to the statutory procedure and, as a result, “these taxes were so extended on the taxbooks that the property owners would encounter difficulty in attempting in good faith to discharge their debt to the State and county.” In a nutshell, the Schuman complaint was that the manner of recording the taxes on the tax books was unduly confusing. In that context, this Court stated, “But the debt nevertheless exists, and our decisions do not support the theory that a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, makes the exaction itself illegal.” 218 Ark. at 48-49. This statement in Schuman was supported by citations to Missouri Pacific Railroad Company v. Fish, 181 Ark. 863, 28 S.W.2d 333 (1930), and Beard v. Wilcockson, 184 Ark. 349, 42 S.W.2d 557 (1931). Missouri Pacfic Railroad Company v. Fish, so far as I can tell, has nothing to do with a flaw in an assessment or collection procedure. Beard v. Wilcockson held that an overstatement in the assessed value does not create an illegal exaction, and that a taxpayer whose property is over-valued must follow the statutory remedies. Neither Schuman nor Beard, nor the cases descending from Schuman, support the holding in Pockrus that an Amendment 59 case is not an illegal-exaction case.

Amendment 59 created the opportunity for confusion between the line of cases descending from Greedup v. Franklin County and the line of cases descending from Schuman v. Ouachita County. Greedup held that the levy of a tax in excess of the millage rate allowed by the constitutional limit is an illegal exaction, while Schuman v. Ouachita County held that a flaw in the assessment or collection procedure is not an illegal exaction. Confusion has arisen because Amendment 59 creates a constitutional limit on the millage rate that a local taxing unit may impose, and defines this limit on the millage rate in terms of a formula that is tied to assessment procedures. However, the substance of a claim under Amendment 59 is that a taxing unit has levied a tax in excess of the allowed millage rate. Pleading the facts as to what the taxing unit has done sometimes will necessitate allegations regarding the assessment procedures (as here and in Pockrus), but the relief sought ultimately is to obtain compliance with the millage rate limitation. Thus, a complaint alleging a violation of Amendment 59 falls within the rule of Greedup v. Franklin County; it is a complaint alleging that a taxing unit is levying taxes based on a millage rate that exceeds the constitutional limit, which is an illegal exaction. Such a case may be brought either in chancery court or in circuit court. Such a case is not within the Schuman rule because the taxpayer denies that “the debt nevertheless exists” [Schuman, 218 Ark. at 48] to the extent the millage rate exceeds the Amendment 59 limitation.

In Pockrus, the court quoted from the chancellor’s opinion stating that Amendment 59 provided for a safeguard that under the circumstances specified in the Amendment would require each taxing unit to roll back the millage levied against the property within its taxing jurisdiction. See 316 Ark. at 471. The court then summarized the chancellor’s holding by saying that he had concluded that the reassessment plan “violated Amendment 59 because it prevented Bella Vista Village taxpayers from receiving the benefits of equalization of taxes (roll back in taxes) provided for and allowed under the Amendment.” Id. Thus, in Pockrus the chancellor held that Bella Vista taxpayers were being taxed in excess of the limit provided in Amendment 59 because the local taxing units had not rolled back the millage rate in accordance with that Amendment. Even though the taxpayers in Pockrus complained that the effect of reassessment plan was to avoid the impact of Amendment 59, as the taxpayers do in this case, the gist of the complaint was that the millage rate exceeded the limit imposed by Amendment 59. Such a case is an illegal-exaction case. Pockrus is the only decision that has ever relegated an Amendment 59 case to county court.

Justice Hickman’s Godzilla is enough of a terror to litigants, their lawyers, and trial judges without the confusion created by irreconcilable opinions from this Court as the court of original jurisdiction for Godzilla’s cases. I doubt the county judges want Godzilla in their courts; I am certain he does not belong there.

Ray Thornton, Justice,

dissenting. Amendment 59 states, in pertinent part:

Whenever a countywide reappraisal or reassessment of property subject to ad valorem taxes made in accordance with procedures established by the General Assembly shall result in an increase in the aggregate value of taxable real and personal property in any taxing unit in this state of ten percent (10%) or more over the previous year the rate of city or town, county, school district, and community college district taxes levied against the taxable real and personal property of such taxing unit shall, upon completion of such reappraisal or reassessment, be adjusted or rolled back, by the governing body of the taxing unit, for the year for which levied as provided below.

Ark. Const. art. 16, § 14(a) (emphasis added). The clear language of Amendment 59 provides that the rollback provision is triggered by a countywide reappraisal of real and personal property, which increases the assessed value of all property in the county by more than ten percent above the assessed value for the base year. I cannot agree that a reassessment of less than twenty-five percent of the taxable real property in the county, having the effect of an unknown percentage increase in the assessed value of all real and personal property, transforms a properly voted and completely legal ad valorem tax into an “illegal exaction.” Perhaps that result reflects the spirit of Amendment 59, but the determination that a legal tax has been converted into an illegal exaction should rest on words and principles articulated in Amendment 59, rather than on an interpretation of a legislative act that erroneously sought to establish procedures for implementation of Amendment 59.

The flaws that the majority recognizes in Act 758 of 1995, which attempted to spread the process of reappraisal over a five-year period, certainly should require that a trial court adjust tax rates so as not to violate the terms of Amendment 59. However, that conclusion does not require us to stretch the language of our constitution to invalidate legislative efforts aimed at equalizing and making fair the valuation of real and personal property within a county or on a statewide reappraisal.

On the merits, I agree with the majority that Act 758 was inartfully drawn, and that it could not be given effect as a limitation upon the required rollback of taxes under Amendment 59. What is missing from the majority’s opinion is an analysis as to whether the rollback provisions of Amendment 59 are self-executing, and what theory of construction do they apply to a partial reassessment of less than twenty-five percent of the real property in a governmental unit. I would remand the case to the trial court for such a review and for such relief as may be appropriate, but I cannot join in a declaration that a legal ad valorem tax may be transformed, by flaws in a legislative attempt to establish reassessment procedures, into an illegal exaction.

I respectfully dissent.

       While effective, Act 758 of 1995 was codified at Ark. Code Ann. § 26-26-305 (Supp. 1995).

       Most of Amendment 59 is now incorporated into the Arkansas Constitution as Article 16, § 14 but will be referred to as Amendment 59 throughout.

       We note that at oral argument Hoyle’s counsel stated that he was asking for a rollback of the tax millage for all taxing units in Crawford County. Hoyle, however, did not sue other taxing units such as school district boards but limited himself to Crawford County. As a result, the other taxing units in Crawford County are not before this court at this time, and we make no decision as to whether taxes paid to those taxing units since the filing of the Hoyle complaint were paid voluntarily.

        See Clark v. Union Pacific R. Co., 294 Ark. 586, 745 S.W.2d 600 (1988) (Hickman, J. concurring) (“Amendment 59 is the ‘Godzilla' of constitutional amendments. Nobody knows what it means.")


author: Ray Thornton, Justice.

text:
    Brian McGHEE v. STATE of Arkansas
    CR 98-561
    975 S.W.2d 834
    Supreme Court of Arkansas
    Opinion delivered October 15, 1998

      Montgomery, Adams, & Wyatt, PLLC, by: Dale E. Adams, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

This case involves the second revocation of probation of appellant, Brian McGhee, who was charged with two counts each of breaking or entering and theft of property. Appellant entered guilty pleas and was placed on thirty-six months’ probation and ordered to pay a fine of $250.00, court costs of $113.25, restitution of $400.00, and a monthly fee of $20.00 to the adult probation program. Appellant’s probation was revoked on March 7, 1996, and appellant was sentenced to sixty days’ imprisonment in the Department of Community Punishment with probation to follow incarceration. After serving his imprisonment, the State filed a second petition for revocation based on new allegations on June 9, 1997. After appellant’s motion to dismiss was denied, the trial court sentenced him to twenty-four months in prison for the two original counts of breaking or entering and twelve months in jail for the two theft of property charges. The State concedes that if we adhere to precedent, the trial court was without jurisdiction to revoke appellant’s probation the second time; but they urge this court to overrule Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), which holds that a plea of guilty, coupled with a fine and a suspended imposition of sentence, constitutes a conviction, thus depriving the trial court of jurisdiction to amend or modify a sentence which has been executed. We reverse the trial court and decline to overrule Harmon.

In Harmon, the appellant pleaded guilty to a reduced, class-A misdemeanor charge of first-degree assault against her husband. The circuit court noted that imposition of the sentence was suspended for one year conditioned upon certain factors, which included payment of a $500 fine and $107.75 court costs. After violating the terms of her suspended sentence, the circuit court ruled that her suspended sentence would remain in effect, but that it would be modified by an additional $500 fine and a sentence of two weeks in the county detention center.

In Harmon, the State argued that the defendant’s suspended sentence was not revoked, but rather that it was modified pursuant to Ark. Code Ann. § 5-4-306(b) (Repl. 1993), which states: “During the period of suspension or probation, the court, on motion of a probation officer or the defendant, or on its own motion, may modify the conditions imposed on the defendant or impose additional conditions authorized by § 5-4-303.” Section 5-4-303 (c) does not explicitly include a period of incarceration or a fine, but the State argued that it was comprehended by subsection (c)(10), which provides for “conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.”

Although the State fails to make the same argument today, section 5-4-303 (c) is not applicable because, as we noted in Harmon, Ark. Code Ann. § 5-4-304 (Repl. 1994), explicitly provides for incarceration as an additional condition of an order, but may be used only when the suspension of imposition of sentence is given effect. We have previously held that a trial court loses jurisdiction to amend or modify the original sentence once a valid execution is put into place. DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989) As we stated in Jones, a plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment constitutes a conviction. Id. at 487, 763 S.W.2d at 82. Therefore, the court loses the power to modify the original order.

Precedent, it is said, should not implicitly govern, but discreetly guide. Roane v. Hinton, 6 Ark. (1 Eng.) 525, 527 (1846). The policy of adhering to precedent, or the doctrine of stare decisis, is fundamental to the common law. Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968). The court in Parish, setting out the test for determining whether a case should be overruled, stated the following:

Having determined as we have here that a rale established by precedent no longer gives a just result it must then be determined whether the rights of those who have justifiably relied upon the established precedents are of greater weight in this case than that the rule be corrected. The test is whether it is more important that the matter remain settled than that it be settled correctly. Brickhouse v. Hill, 167 Ark. 513, 522, 268 S.W. 865 (1925).

Id. at 1253.

In more recent decisions, this court has stated that there is a strong presumption of the validity of prior decisions. Thompson v. Sanford, 381 Ark. 365, 663 S.W.2d 932 (1984)(citing Walt Bennet Ford, Inc. v. Pulaski County Special Sch. Dist., 274 Ark. 208, 624 S.W.2d 426 (1981)). The court in Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996), stated:

While we do have the power to overrule a previous decision, it is necessary, as a matter of public policy, to uphold prior decisions unless a great injury or injustice would result. Independence Fed. Bank p. Payne Webber, 302 Ark. 324, 789 S.W.2d 725 (1990); Thompson p. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984). The United States Supreme Court has recognized that adherence to precedent promotes stability, predictability, and respect for judicial authority. Hilton p. S.C. Pub. Rys. Comm’n, 502 U.S. 197 (1991), citing Vasquez p. Hiller, 474 U.S. 254, 265-66 (1986).

Id. at 435- 436.

Thus, in the case before the court, the State has the burden of showing that our refusal to overrule Harmon would result in injustice or great injury. Id. The State has not met its burden. It makes the argument that because the broad power to revoke probation remains possible when a fine is imposed, it is not unreasonable to extend that power and conclude that a modification of probation should also be available. However, the State gives no compelling reason nor citation to authority for support of this change, but merely asserts that Harmon is inconsistent with our earlier decision in Diffee v. State, 290 Ark. 194, 198-99, 718 S.W.2d 94, 96-97 (1986), insofar as Diffee stands for the proposition that a fine is a disposition apart from the probated prison sentence. The State’s argument is misplaced as Diffee holds that a court may both impose a fine and place the defendant on probation or suspend imposition of the sentence as to imprisonment.

We do not consider arguments unsupported by convincing authority, unless it is apparent without further research that they are well taken. McClendon v. State, 316 Ark. 688, 693, 875 S.W.2d 55, 58 (1994).

Based on the above reasons, we decline to overrule Harmon v. State.

Reversed.


author: Ray Thornton, Justice. Robert L. Brown, Justice,

text:
    RATLIFF ENTERPRISES, INC. v. AMERICAN EMPLOYERS INSURANCE COMPANY
    97-1471
    975 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered October 15, 1998

      Bridges, Young, Matthews, & Drake, by: Terry F. Wynne, and anderson, Murphy, & Hopkins, L.L.P., by: Mariam T. Hopkins, for appellant.

      Bailey, Trimble, Capps, Lowe, Sellars, & Thomas, by: Paul D. Capps and Thompson, Hine, & Flory LLP, by: Christopher M. Bechold and Jack F. Fuchs, for appellee.
   Ray Thornton, Justice.

Appellant Ratbff Enterprises, an ice-manufacturing plant in Pine Bluff, was damaged by an explosion and fire ensuing from an ammonia leak following a rupture of an ammonia filter in one of its icemakers. Appellee American Employers Insurance Company insured appellant under both property coverage and boiler and machinery coverage policies. When appellant filed a claim for its damages, appeEee paid the pohcy Emits for the property damage claim to appeEant’s real and personal property, but denied appeEant’s boiler and machinery claim and business-interruption claim on the grounds that the policy language excluded coverage for damage resulting from fire or explosion ensuing from an accident to a covered piece of equipment. AppeEant brought suit against appeEee and the trial court found in favor of the insurance company on both points of coverage. The court of appeals affirmed, and we granted appeEant’s petition for review of that decision. We conduct our review pursuant to Ark. Sup. Ct. R. 1-2(f) as though the case had originaEy been appealed to this court, and finding no error on the part of the trial court, we affirm its decision.

AppeEant’s plant was damaged by fire on May 13, 1994, when an ammonia filter ruptured on an icemaker, leading to the escape of Equid ammonia that vaporized and entered the control panel of one of the ice machines. The ammonia exploded, and the entire plant was heavily damaged in the ensuing fire. The plant ceased operations for several months, and appeEant submitted a claim for these damages. However, appeEee denied appellant’s boEer and machinery claim on the ground that the loss from the ensuing fire was not covered under the boEer and machinery coverage, given the manner of the loss, and that appeEant could not, under these circumstances, recover under both the property coverage and the boEer and machinery coverage of the policy issued by appeEee.

AppeEant filed an action against appeEee in the chancery court of Jefferson County, aEeging breach of contract for faEure to pay appeEant’s claim pursuant to the terms of the boEer and machinery coverage of the policy, as weE as other claims not at issue in this appeal. AppeEant aEeged damages in the amount of $2,619,942.75, and sought attorneys’ fees, interest, and a twelve-percent penalty for appeEee’s failure to pay in accordance with the terms of the pohcy.

Appellee moved for summary judgment on the grounds that appellant’s construction of the boiler and machinery coverage endorsement was incorrect. According to appellee, the endorsement specifically excluded damage resulting from fire or explosion. Appellant cross-moved for partial summary judgment with regard to the boiler and machinery coverage as a matter of law, as no genuine issue of material fact existed. A summary judgment hearing was held on June 26, 1996, on the pleadings and exhibits that had been submitted to the court. In a memorandum opinion, the trial court denied appellee’s motion for summary judgment on the issues of business interruption and extra expense coverage, and reserved ruling on the cross-motions for summary judgment on the boiler and machinery coverage issue.

The case proceeded to trial on August 20 and 21, 1996, and the chancery court found that appellee provided appellant with commercial property, general liability, inland marine, and boiler and machinery coverages, with real-property coverage limits for the ice plant of $330,000.00 and personal-property coverage limits of $500,000.00. Additional findings of fact were that on the afternoon of May 13, 1994, a fire completely destroyed the ice plant’s manufacturing facility. The fire resulted from a leak of liquid ammonia from an accidental rupture of an inlet filter on the ice machine. The ammonia vapors were ignited when exposed to a normal, properly operating electrical circuit, and as a result of the ensuing explosion and fire, appellant sustained real-property damage in the amount of $997,202.07 and personal-property damage in the amount of $1,622,740.68, for a total of $2,619,942.75, of which $816,085.00 was paid under the claim for damages to appellant’s real and personal property.

The trial court found appellant’s claim for damages to its plant was not covered under the boiler and machinery coverage policy issued, because the policy specifically excludes coverage for fire or explosion outside the equipment that occurs at the same time as, or ensues from, a sudden and accidental breakdown of the equipment, and further found that there was no overlapping of coverage between the boiler and machinery policy and the budding and personal-property policy. The chancellor also found that since no coverage exists for damage by fire or explosion outside the object that occurs at the same time as, or ensues from, an accident under the boiler and machinery policy, there is no covered loss under the business-interruption portion of the boiler and machinery coverage policy. Appellant’s complaint was dismissed with prejudice.

Appellant appealed the trial court’s decision concerning its findings that the loss was excluded under the boiler and machinery coverage of the policy, that there was no overlap coverage between the boiler and machinery coverage and the building and personal-property coverage, that there was no covered loss under the business-interruption portion of the boiler and machinery coverage, and the denial of appellant’s claims for attorneys’ fees and a penalty against appellee for failure to pay the claim. The court of appeals affirmed, and we granted appellant’s petition for review. Appellant’s petition for review alleged that the court of appeals had applied an incorrect standard of review to the lower court’s proceedings and that the correct standard of review should be whether appellee was entitled to judgment as a matter of law. On review we have determined as a matter of law that the insurance contract for boiler and machinery coverage specifically excluded coverage for damage caused by fire or explosion that ensued from the accident to the ammonia filter. Finding no error in the trial court’s decision, we affirm.

Appellant argues that it should be entitled to recover for the damage to its plant as a result of the fire under the boiler and machinery coverage provisions of the policy.

The policy language at issue reads:

A. Coverage. We will pay for direct damage to Covered Property caused by a Covered Cause of Loss.
1. Covered Property
Covered property, as used in this Coverage Part, means any property that:
a. You own; or
b. Is in your care, custody, or control and for which you are legally hable.
* * *
2. Covered Cause of Loss
A covered cause of loss is an “accident” to an “object” shown in the Declarations. An “object” must be in use or connected ready for use at the location specified for it at the time of the “accident.”
B. Exclusions
We will not pay for:
4. Other exclusions
Loss caused by or resulting from:
a. An explosion. However, we will pay for loss caused by or resulting from an explosion of an “object” of a kind described below and only to “objects” covered by this insurance and as described on an Object Definitions endorsement . . .
b. Fire or explosion that occurs at the same time as an . “accident” or that ensues from an “accident.” With respect to any electrical equipment forming a part of an “object,” this exclusion is changed to read:
Fire or explosion outside the “object” that occurs at the same time as an “accident” or ensues from an “accident”. . .
We will not pay for any loss excluded above even though any other cause or event contributes concurrently or in any sequence to the loss.

“Accident” is defined as a sudden and accidental breakdown of the “object” or a part of the “object.” At the time the breakdown occurs, it must manifest itself by physical damage to the “object” that necessitates repair or replacement. From our reading of the policy, it is clear that the rupture of the ammonia filter was an “accident” to an “object.”

When reviewing insurance policies, we adhere to the long-standing rule that, where the terms of the policy are clear and unambiguous, the policy language controls; absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms. Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 210, 937 S.W.2d 180, 181 (1997). In construing the meaning of insurance policies:

It is unnecessary to resort to rules of construction in order to ascertain the meaning of an insurance policy when no ambiguity exists. McKinnon, Admx. v. Southern Farm Bureau Casualty Ins. Co., 232 Ark. 282, 335 S.W.2d 709 (1960). The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid.

State Farm Fire & Casualty Co. v. Midgett, 319 Ark. 435, 439, 892 S.W.2d 469, 471 (1995) (quoting Southern Farm Bur. Cas. Ins. Co. v. Williams, 260 Ark. 659, 664, 543 S.W.2d 467, 470 (1976)).

Appellant’s argument that it was entitled to recover damages under its boiler and machinery coverage for damages to its plant ensuing from an accident to the ammonia filter is without merit, as the policy language specifically excludes coverage for fire or explosion outside the equipment that occurs at the same time as, or ensues from, a sudden and accidental breakdown of the equipment. The exclusionary clause of the policy makes clear that the policy does not cover loss caused by fire or explosion ensuing from the accidental rupture of the ammonia filter. Here, the fire and explosion that caused the significant damage ensued from the ignition of ammonia vapors by a properly functioning electrical panel. This ensuing damage is excluded from coverage.

Case law from other jurisdictions that have interpreted similar policy exclusions supports this reading of the language. A significant case was decided on the same policy language at issue in this case, concerning a fire that broke out in the boiler room of a condominium. Preferred Mut. Ins. Co. v. Travelers Companies, 955 F. Supp. 9 (D. Mass. 1997), aff'd 123 F.3d 136 (1st Cir. 1997). The plaintiff, Preferred Mutual, insured the building under an “all risk” policy and paid for the entire loss; the defendant, Travelers, provided insurance for the building under a “boiler and machinery” policy. Preferred brought suit against Travelers- for reimbursement of monies paid for the loss. The district court found, and the First Circuit Court of Appeals affirmed, that the exclusionary language of the boiler and machinery policy excluded the loss by fire. The language of the policy quoted in Preferred Mutual concerning exclusions reads:

Loss caused by or resulting from:
c. Fire or combustion explosion that occurs at the same time as an “accident” or that ensues from an “accident.” With respect to any electrical equipment forming a part of an “object,” this exclusion is changed to read:
Fire of explosion outside the “object” that occurs at the same time as an “accident” or ensues from an “accident.”

The key section in the Traveler’s policy regarding “Exclusions” states that “Travelers will not pay for any loss or damage caused ‘direcdy or indirectly’ for any of the reasons specified ‘regardless of any other cause or event that contributes concurrently or in any sequence to the loss.’” Preferred Mutual, 955 F. Supp. at 12. The district court wrote:

The clear intent of these two paragraphs is to distinguish between exclusions related to fire in two different circumstances. First, damage caused by a fire that occurs at the same time as, or ensues from, an “accident” will not be covered. An “accident” is defined in the policy as “a sudden and accidental breakdown of the ‘object’ or a part of the ‘object.’ ” “Object” is defined as “any boiler, including its piping and accessory equipment.”
Combining this language makes the policy’s intent reasonably clear: damage caused by a fire that occurs at the same time as, or ensues from, a sudden and accidental breakdown of any boiler or part of the boiler (including its piping and accessory-equipment) is excluded from coverage under the policy.
Second, with respect to any electrical equipment forming part of an “object,” coverage will be excluded for any fire or explosion that occurs outside the “object.” That is to say, Travelers is not required to pay for any damage outside the boiler, its piping or accessory parts, caused by a fire that occurs as a result of a sudden or accidental breakdown of any electrical equipment forming part of the boiler, its piping, or accessory parts.

Id. See also St. Paul Fire & Marine Ins. v. Protection Mut. Ins., 664 F. Supp. 328 (N.D. Ill. 1987)(holding that where electrical short-circuiting at plant resulted in fire that led to PCB contamination, insurer covering fire was liable for costs associated with PCB cleanup because such costs were directly attributable to the fire, rather than the insurer covering damages due to short-circuiting of machinery); Associated Elec. v. Mut. Boiler & Machinery, 492 F. Supp. 410 (W.D. Mo. 1980)(holding that where loss was caused by electrical current accompanied by ensuing fire, equipment and machinery policy that excluded accidents caused by fire or loss or damage caused by fire or explosion did not cover the loss).

Appellant argues that where an ambiguity exists, the language used in an exclusionary clause should be construed in favor of the insured. That is a correct statement of the law; however, an ambiguity exists only when a provision is susceptible to more than one reasonable interpretation. State Farm Fire & Cas. Co. v. Midgett, 319 Ark. 435, 438, 892 S.W.2d 469, 471 (1995). In the case at hand, we agree with the chancery court’s finding that the language of the policy is neither ambiguous nor susceptible to more than one reasonable interpretation. Therefore, we must rule that the trial court correctly found that the loss incurred by appellant was excluded under the boiler and machinery coverage of the policy issued by appellee.

As a matter of law, we have determined that the insurance contract specifically excludes from coverage damage by fire or explosion ensuing from an accident to a covered object. Having made that determination, we note that it is not necessary to address appellant’s second point on appeal, that the trial court erred in ruling that there was no overlap of coverage between the boiler and machinery coverage and building and personal-property coverage of the policy issued by appellee. Appellant contends that the trial court erred in finding no covered loss under the business-interruption provision of the boiler and machinery coverage. We note that appellant asserted at oral argument that appellant does not contend that the loss is severable between damage attributable solely to the loss of the ice maker and the loss as a result of the fire to the plant as a whole. Because we have determined that the damage to the plant as a whole resulting from the fire and explosion ensuing from the accidental rupture of the ammonia filter was excluded from the boiler and machinery coverage, it follows that there was no error in the trial court’s determination that business losses were also excluded from coverage.

Finally, we note appellant’s assertion in its petition for review that the court of appeals utilized an incorrect standard of review. Our review is of the action of the trial court, and our determination that damage from the ensuing fire and explosion was excluded from coverage under the boiler and machinery coverage policy resolves the question as a, matter of law. Appellant further contends that the trial court erred in failing to award attorneys’ fees and a twelve-percent penalty for failure to pay the claim. Our decision on the merits resolves this issue, and the trial court is affirmed.

Affirmed.

Glaze and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. The exclusionary language at issue in this case is the following:

4. Other exclusions
Loss caused by or resulting from:
b. Fire or explosion that occurs at the same time as an “accident” or that ensues from an “accident.” With respect to any electrical equipment forming a part of an “object,” this exclusion is changed to read:
Fire or explosion outside the “object” that occurs at the same time as an “accident” or ensues from an “accident” . . .

At Ratliff Enterprises, electrical equipment was involved in the explosion inside the object, which was the ice machine, so the more limited exclusion controls.

The confusion in this matter comes from the failure of the insurance company to clarify in its exclusion whether the fire or explosion must originate outside the “object” for the exclusion to apply, or merely occur outside the “object.” The exclusion is silent on this point. American Employers reads the exclusion to mean:

Fire or explosion [occurring] outside the “object” that occurs at the same time as “accident” or ensues from an “accident” . . .

Ratliff Enterprises, on the other hand, reads the exclusion as:

Fire or explosion [originating] outside the “object” that occurs at the same time as an “accident” or ensues from an “accident” . . .

The majority opts for the insurance company’s interpretation and quotes from a federal district court case, which, in dictum, read the language the same way. See Preferred Mut. Ins. Co. v. Travelers Co., 955 F. Supp. 9 (D. Mass. 1997) aff'd 127 F.3d 136 (1st Cir. 1997). The dictum in the federal district court opinion reads: “[W]ith respect to any electrical equipment forming part of an ‘object,’ coverage will be excluded for any fire or explosion that occurs outside the ‘object.’” Preferred Mut. Ins. Co., 955 F. Supp. at 12 (emphasis added). On appeal, the First Circuit Court of Appeals did not consider this point worthy of comment.

In interpreting the insurance policy the way it did, the federal district court sloughed over the ambiguity question and made no statement regarding it. It is equally plausible, however, to read the exclusionary language in dispute in that case as well as in the instant case as denying coverage only for explosions or fires that originate outside of the “object.” Here, it is undisputed that the explosion and fire originated inside the ice machine. For that reason, Ratliff Enterprises reasonably believed that the exclusion from coverage did not apply.

By our decision today, we put the court’s imprimatur on one interpretation of this highly questionable exclusionary language. In doing so, we do a disservice to insureds generally because we perpetuate the use of this dubious language. As a result, insurance companies can now foist this confusing and muddled exclusion on insureds with the full weight of precedent behind them.

Our law in the area of unclear provisions in insurance policies is well settled:

It is also established law in our state that provisions contained in a pohcy of insurance must be construed most strongly against the insurance company which prepared it, and if a reasonable construction may be given to the contract which would justify recovery, it is the duty of the court to do so. See Drummond Citizens Ins. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979). Further, this court has held that if there is doubt or uncertainty as to the pohcy’s meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. Id.

Home Indem. Co. v. City of Marianna, 297 Ark. 268, 272, 761 S.W.2d 171, 173 (1988). It is difficult to maintain seriously that doubt does not pervade the wording in question. I would admit the doubt and construe the policy in favor of the insured.

For these reasons, I respectfully dissent.

Glaze, J., joins in this dissent.


author: Per Curiam.

text:
    LEAGUE OF WOMEN VOTERS of Arkansas, Petitioner v. Sharon PRIEST, in her official capacity as Secretary of State of the State of Arkansas, Respondent; John Hoyle, Individually, and on behalf of Arkansas Taxpayers’ Rights Association, Intervenor
    98-1093
    975 S.W.2d 828
    Supreme Court of Arkansas
    Opinion delivered October 15, 1998

      Wright, Lindsey & Jennings LLP, by: John G. Lile and Stephen R. Lancaster, for petitioner.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Senior Ass’t Att’y Gen., for respondent.

      Oscar Stilley, for intervenor.
   Per Curiam.

The petitioner, League of Women Voters of Arkansas, filed this original-action petition asking us to declare insufficient the ballot title for proposed Amendment 4 and to enjoin the respondent, Sharon Priest, the Secretary of the State, from placing proposed Amendment 4 on the ballot for the November 3, 1998 general election. The intervenor, John Hoyle, individually, and on behalf of the Arkansas Taxpayers’ Rights Association, ask us to reject the League’s petition. The issues presented by the League’s petition are rendered moot in light of our holding on this date in Roberts v. Priest, 334 Ark. 503, 975 S.W.2d 850 (1998). Accordingly, this petition is dismissed.


author: Per. Curiam.

text:
    Clarence WILLIAMS v. STATE of Arkansas
    CR 98-597
    975 S.W.2d 828
    Supreme Court of Arkansas
    Opinion delivered October 15, 1998

      Dana R. Davis, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Per. Curiam.

The State of Arkansas, as appellee, moves this court to dismiss the appeal of appellant Clarence Williams. The State shows this court that Williams’s brief was due on August 29, 1998, and Williams tendered his brief to the Clerk of the Supreme Court on August 19, 1998. The brief, however, was rejected for failure to have it in the right format. No corrected appellant’s brief has been filed, and that is the catalyst for the State’s motion. The response of Williams’s counsel, Dana R. Davis, is that travel and a full criminal practice have caused the delay in correcting the brief.

Dana R. Davis, on behalf of Williams, also moves the court to allow the filing of a belated brief. Counsel maintains that no opportunity has been afforded to file a belated brief, and a “reasonable time” to do so is requested.

We begin with the observation that it strikes us as implausible that counsel would not immediately file a corrected brief irrespective of whether he or she was told he could do so. The State’s motion to dismiss is denied. Williams’s motion to file a belated brief is granted. That brief must be filed within fifteen days from the date of this order. A copy of this per curiam order shall be sent to the Committee on Professional Conduct.