text:
    Joey MILLER v. STATE of Arkansas
    99-277
    994 S.W.2d 476
    Supreme Court of Arkansas
    Opinion delivered July 15, 1999

      Melissa Dorn, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

This is a juvenile case. The appellant, Joey Miller, was adjudicated delinquent for capital-felony murder and was committed to the Department of Youth Services until his twenty-first birthday. On appeal, Miller contends that the trial court should have suppressed his inculpatory statement because: 1) the police failed to inform him of his statutory right, under Ark. Code Ann. § 9-27-317(g)(2)(A)(ii) (Repl. 1998), to speak to a parent or guardian or to have one present during questioning; 2) the statement was not voluntarily made; and 3) he did not knowingly and intelligently waive his rights. We affirm on all three points.

On September 1, 1998, Joey Miller and his cousin, Tyrone Duncan, were stopped for speeding. The police soon discovered that the car they were driving had been reported as stolen and that they were suspects in the kidnapping of an eighty-four-year-old man from Little Rock. The police arrested the boys and transported them to the Jackson County Detention Center in Newport.

Detectives J.C. White and Ronnie Smith questioned Miller around 6:45 p.m. or 7:00 p.m. that evening. Miller was just four days away from his fourteenth birthday. After explaining that he was a suspect in the crimes of kidnapping, capital murder, theft of property, and theft by receiving, Detective Smith asked Miller if he could read and write. Miller responded in the affirmative and said that he had completed the sixth grade. This information was recorded on the Miranda waiver form, which Miller initialed. Detective Smith then read the Miranda waiver form to Miller, who indicated that he understood each of his rights, that he wanted to waive those rights, and then signed the form. The detectives, however, did not inform Miller of his statutory right to speak to a parent or guardian or to have one present during questioning.

After completing the Miranda waiver form, the detectives questioned Miller about the crimes. At first, Miller denied any involvement, but later he admitted to participating in the crimes. After taking a short break, the detectives started a tape recorder and read Miller his Miranda rights for a second time. Again, Miller indicated that he understood his rights and that he wished to waive them. Miller than gave a tape-recorded statement implicating himself in the kidnapping and murder of the victim.

During the suppression hearing, the detectives testified that Miller was coherent and did not appear to be under the influence of drugs or alcohol. They also testified that they did not use threats, promises, or coercion to obtain the statement, and that Miller did not invoke his rights to remain silent, to speak to an attorney, to talk to a parent or guardian or to have one present during questioning. Miller does not contest these assertions. Finally, the entire questioning lasted approximately two hours.

Miller’s father, Floyd Prunty, testified that his son was slow to mature, that he was “a quiet, humble little boy,” that he was a “follower,” and that he did not understand “the big concepts of fife.” Mr. Prunty also testified that he notified the police on August 31 that his son was missing, but the police did not tell him that his son was in custody until 2:30 a.m. on September 2, which was after his son had waived his rights and had given an inculpatory statement. Mr. Prunty declared that if the police had contacted him, he would have been present during questioning, and, more importantly, that he would not have allowed the police to question his son until he obtained an attorney.

At the conclusion of the suppression hearing, the trial court ruled that the taped statement was voluntarily, intelligently, and knowingly made because:

the child was close[er] to 14 than 13. He was not threatened; he was not coerced; he was not promised anything. He gave a full and deliberate statement of an account of the events that transpired.

After questioning the wisdom of the law, the trial court ruled that:

It’s clear: The law enforcement officials are not legally bound and required to tell a juvenile of his or her right to request a parent to be present or a guardian to be present, which then automatically stops the proceeding. But that’s what the law is.
But you’ve got the other law, and you’ve got the other legal rights that are attached through Miranda, the right to remain silent, which he did not invoke; the right to request an attorney and have one appointed free if he so desired, which he did not invoke. After ruling that the State had “more than met its burden by a preponderance of the evidence,” the court denied Miller’s motion to suppress.

I. Ark. Code Ann. § 9-27-317(g)(2)(A) (Repl. 1998)

Arkansas Code Annotated § 9-27-317 (g)(2) (A) (Repl. 1998), provides that:

No law enforcement officer shall question a juvenile who has been taken into custody for a delinquent act or criminal offense if the juvenile has indicated in any manner that he:
(i) Does not wish to be questioned;
(ii) Wishes to speak with a parent or guardian or to have a parent or guardian present; or
(iii) Wishes to consult counsel before submitting to any questioning.

In several cases, we have explained that juveniles, and not their parents, must invoke their right, under section 9-27-317(g)(2)(A)(ii), to speak to a parent or guardian or to have one present during questioning. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996). In Isbell, we recognized that this was a somewhat onerous burden to place on the shoulders of a juvenile, but we recognized that this was the precise intention of the statute. Isbell, supra. Significantly, the legislature did not amend section 9-27-317(g)(2)(A)(ii) in response to Isbell, nor did it do so in this year’s legislative session when it substantially revised the Juvenile Code. See The Extended Juvenile Jurisdiction Act of 1999, 1999 Ark. Acts 1192.

The novel issue presented by this case is whether officers are required to inform juveniles of their right, under section 9-27-317(g)(2)(A)(ii), to speak to their parent or guardian or to have one present during questioning. The trial court ruled that officers are not required to do so, and we agree.

In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that during a custodial interrogation officers must inform the accused of certain constitutional rights, including the privilege against self-incrimination and the right to an attorney. These rights were extended to juveniles in In re Gault, 387 U.S. 1 (1967). There is not, however, a constitutional right for a juvenile to speak to a parent or guardian or to have one present during questioning. In fact, in Fare v. Michael C., 442 U.S. 707 (1979), the United States Supreme Court held that a juvenile did not have a constitutional right to speak to his probation officer even though the juvenile trusted the probation officer who had a statutory duty to act in the juvenile’s best interest. In reaching this result, the Court explained that the Constitution gives juveniles, as well as adults, only the right to speak to an attorney. Id.

Although it is not required by the Constitution, the Arkansas General Assembly has given juveniles the statutory ri^ht to speak to a parent or guardian or to have one present during questioning. Ark. Code Ann. § 9-27-317(g)(2)(A)(ii). We emphasize that without this statutory provision, the police would not be required to allow a juvenile to speak to his parent or guardian even if the juvenile repeatedly made such a request. Because the right is statutory instead of constitutional, Miranda does not require the police to inform juveniles of that right. Hence, we must turn to the plain language of the act to determine if the legislature intended to impose such an obligation on the police. After a thorough review, we can find no such requirement in the clear language of the statute.

In sum, the legislature has given a juvenile the statutory right to speak to a parent or guardian or to have one present upon the condition that the juvenile makes such a request. The legislature has not, however, imposed upon the police the duty to inform the juvenile of that right, and we cannot do so where the statute is silent. Hence, this case is very similar to K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998), where we recently held that a juvenile does not have a right to assert the insanity defense in the adjudication phase of a delinquency proceeding because no such right could be found in the constitution or the juvenile statute. Although we may question the prudence of giving a juvenile a right without imposing a corresponding duty on the police to inform the juvenile of that right, that is a policy decision properly left to the legislature, and not this court. See Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999); McDonald v. Pettus, 337 Ark. 265, 989 S.W.2d 9 (1999) (holding that the determination of public policy lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error).

For these reasons, we affirm the trial court’s ruling that the detectives were not required to inform Miller of his statutory right under Ark. Code Ann. § 9-27-317(g) (2) (A) (ii) to speak to a parent or guardian or to have one present during questioning.

II. Voluntary Statement

Next, Miller contends that his statement should be suppressed because it was not voluntarily made. In Conner, supra, we recently explained that:

A statement is voluntary if it is “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998); Sanford, supra. In making this determination, we review the totality of the circumstances, and reverse the trial court only if its decision is clearly erroneous. Id. Relevant factors include the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of mental or physical punishment. Id. Two other pertinent factors are the statements made by the interrogating officers and the vulnerability of the defendant. Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996); Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995).

Whether a juvenile’s statutory rights have been violated is also a factor to be considered when applying the totality test. Isbell, supra; Rouw v. State, 265 Ark. 797, 581 S.W.2d 313 (1979). However, for the reasons explained above, we find no statutory violation in this case.

Miller was four days away from his fourteenth birthday when he was questioned. He had completed the sixth grade, he could read and write, and there was no evidence that he had a below average I.Q. Furthermore, the detectives properly informed Miller of his Miranda rights, the detention was not long, and there was no evidence of coercion, threats, or violence. Finally, distinguishable from Conner, supra, which we affirmed, the police did not use false statements, psychological tactics, promises, or any other devices to obtain Miller’s confession. Accordingly, we cannot say that trial court was clearly erroneous when it found that Miller’s statement was voluntarily given.

III. Knowing and Intelligent Waiver

Finally, Miller contends that he did not knowingly and intelligently waive his Miranda rights. As we have explained in the past, the relevant inquiry here is whether Miller waived his rights with “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Conner, supra; Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). We make this determination by reviewing the totality of the circumstances surrounding the waiver including the age, experience, education, background, and intelligence of the defendant, and we will reverse a trial court’s ruling only if it was clearly erroneous. Conner, supra; Sanford, supra.

At the time Miller waived his Miranda rights, he was four days shy of his fourteenth birthday and in the seventh grade. The detectives read Miller his Miranda rights twice, and Miller executed a waiver form. There is also no indication from the record that Miller is unintelligent. Finally, there was no evidence that Miller was under the influence of drugs or alcohol at the time he decided to waive his rights. Based on the totality of these circumstances, we hold that the trial court did not err when it ruled that Miller knowingly and intelligently waived his Miranda rights.

Finally, the appellant contends that as a matter of law a juvenile does not have the mental capacity or maturity to knowingly and intelligently waive his or her constitutional rights. In support of this argument, Miller cites several statutes where the legislature has determined that a juvenile does not have the maturity or capacity to undertake certain activities. See, e.g., Ark. Code Ann. § 3-3-203 (Supp. 1997) (a person must be twenty-one years old to purchase or possess alcoholic beverages); Ark. Code Ann. § 27-16-604 (Supp. 1997) (a person must be sixteen years old to obtain an unrestricted driver’s license). As mentioned previously, the constitutional analysis of whether a juvenile or adult has knowingly and intelligently waived his or her rights depends upon the totality of the circumstances, including the individual’s age and maturity. See, Conner supra; Isbell, supra. Neither this court nor the legislature has developed a bright-line rule based on the accused’s age or maturity alone, and we refrain from doing so in this case.

Affirmed.

       Act 1192 of 1999 did not go into effect until July 30, 1999, and thus does not apply to the case at hand. Op. Att’y Gen. #99-120.

       After K.M. v. State, supra, was decided, the General Assembly gave juveniles the statutory right to assert the insanity defense in certain situations. See 1999 Ark. Acts 1192.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Carol J. HODGES v. Governor Mike HUCKABEE and Kurt Knickrehm, Director of the Arkansas Department of Human Services, Appellees; Dr. Curtis Stover and Little Rock Family Planning Services, Intervenors
    99-295
    995 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered July 15, 1999
    [Petition for rehearing denied September 9, 1999.]

      J. Fred Hart Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Tim Humphries, Senior Ass’t Att’y Gen.; and Breck G. Hopkins, Office of Chief Counsel, for appellees.

      Wright, Lindsey & Jennings, by: Bettina E. Broumstein; and The Center for Reproductive Law & Policy, by: Priscilla J. Smith, for intervenor-appellees.

       Imber and Smith, JJ., not participating.

   Ray Thornton, Justice.

Appellant Carol J. Hodges appeals the decision of the Pulaski County Chancery Court granting appellees their motion for summary judgment and declining to enter an injunction directing the removal of the State of Arkansas from the federal and state Medicaid program. Federal law, including the Hyde Amendment, prohibits the use of public Medicaid funds for abortions except where necessary to save the life of the mother, or in cases of rape or incest, while Amendment 68 to the Arkansas Constitution prohibits the use of public funds except to save the mother’s life. This is the second time these issues have been presented to us, and some issues have been resolved by the federal judiciary, including a decision by the United States Supreme Court. Because we find that the trial court did not err in its decision granting summary judgment and declining to order the removal of Arkansas from the Medicaid program, we affirm.

On July 25, 1994, the United States District Court for the Eastern District of Arkansas held that under the Supremacy Clause, the Hyde Amendment preempted Amendment 68. Little Rock Family Planning Servs., P.A. v. Dalton, 860 F. Supp. 609 (E.D. Ark. 1994). The district court reasoned that it was powerless to rewrite Amendment 68, and thus concluded that “the Amendment must be stricken in its entirety, to enable the people or their elected representatives to decide how Arkansas will cover abortion in the state Medicaid program so that it will not conflict with federal law.” Id. The district court enjoined the enforcement of Amendment 68 in its entirety for so long as the state accepted federal funds pursuant to the Medicaid Act.

Appellant brought an illegal-exaction suit in Pulaski County Chancery Court against then governor Jim Guy Tucker and Tom Dalton, who was then director of the Arkansas Department of Human Services, alleging that by virtue of the district court’s order in Little Rock Family Planning Services v. Dalton, the State was compelled to spend state funds for abortions other than for the purpose of saving the life of the mother for Medicaid-eligible recipients, in contravention of Amendment 68. She further prayed for a mandatory injunction directing appellees to terminate the state’s participation in the Medicaid program. In the meantime the district court’s decision in Little Rock Family Plan ning Services was appealed to the Eighth Circuit and then the United States Supreme Court. By the agreement of the parties in this case, no further action was taken on the pending motions before the final disposition of the federal suit. Dr. Curtis Stover and Little Rock Family Planning Services, P.A., the plaintiffs in the corresponding federal suit, were granted their motion to intervene in this action.

On July 25, 1995, the Court of Appeals for the Eighth Circuit affirmed the district court. Little Rock Family Planning Servs., P.A. v. Dalton, 60 F.3d 497 (8th Cir. 1995). The United States Supreme Court granted certiorari and held that the district court’s order striking Amendment 68 in its entirety was overbroad. Dalton v. Little Rock Family Planning Servs., P.A., 516 U.S. 474 (1996) (per curiam). Because the challenge to Amendment 68 only involved its conflict with Title XIX, “it was improper to enjoin its application to funding that does not involve the Medicaid program.” Id. Furthermore, the Court emphasized that the Hyde Amendment was not permanent legislation, but instead part of the appropriation statute for certain executive departments in a given fiscal year. Because there had been different versions of the Hyde Amendment in the past, the temporal scope of the district court’s order was overbroad, given that a different version of the Hyde Amendment might be enacted in the future. Additionally, to the extent that Section 1 of Amendment 68 had application allowed under the Supremacy Clause, Sections 2 and 3 of the amendment were viable as well. The Supreme Court reversed the Eighth Circuit decision affirming the injunction, and remanded for the entry of an order enjoining Section 1 of Amendment 68 only to the extent that it was in conflict with federal law. Id.

On August 9, 1996, the district court entered an order providing that “Arkansas Amendment 68 is . . . null and void, and its enforcement enjoined, to the extent it prohibits the use of state funds to pay for abortions for Medicaid eligible victims of rape or incest, for so long as the federal law mandates Medicaid funding for abortions for Medicaid eligible victims of rape or incest.” This order is final and has not been challenged on appeal. Appellees and the intervenors then filed motions in this case for summary judgment, arguing that Amendment 68 was “preempted” by federal law and that the creation of the Medicaid Saving Trust Fund by a private individual for the purpose of providing funds for abortions for women in Arkansas pregnant as a result of rape or incest ensured that no public monies would be used to pay for such abortions, thereby rendering the suit meritless.

Chancellor Robin Mays, relying upon the United States Supreme Court’s per curiam order in Dalton v. Little Rock Family Planning Services, et al., 516 U.S. 474 (1996), the Eighth Circuit Court of Appeals’ order, and the August 9, 1996, order of the United States District Court, found that the issue of federal preemption was determined by those decisions and further found that Amendment 68 was preempted by the Hyde Amendment with respect to Medicaid expenditures in cases of rape or incest. The Pulaski County Chancery Court also found that no issue of material fact existed with regard to the question whether public money was being placed in the Medicaid Saving Trust or to what extent the executive branch of Arkansas’s government was involved in the creation and maintenance of the trust, and granted appellees’ summary judgment motion on that issue as well, and accordingly, entered judgment for appellees as a matter of law.

Appellant argues three points on appeal. First, that the chancery court erred in finding that the federal district court order in Dalton, supra, preempted Amendment 68. As an additional argument under this point, appellant urges that Amendment 68 forces the state to terminate its participation in Medicaid. As her second point, appellant contends that the chancery court erred in finding no genuine issue of material fact relating to the origin of funds in the Medicaid Saving Trust or the extent of the Governor’s involvement in its creation and operation. Appellant’s third point is that the chancery court erred in refusing to grant appellant’s motion to compel the deposition of Governor Huckabee.

Appellant’s first point on appeal raises questions of statutory and constitutional interpretation. On appeal, our task is to read the laws as they are written, and interpret them in accordance with established principles of statutory and constitutional construction, including the application of the Supremacy Clause of the United States Constitution. The fundamental rule is that the words of the constitution or statute should ordinarily be given their obvious and natural meaning. Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994). We review issues of statutory construction de novo; it is for this court to decide what a statute means. Arkansas Dept. of Health v. Westark Christian Action, 322 Ark. 440, 910 S.W.2d 199 (1995). We are not bound by the decision of the trial court; however, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998).

We have concluded that the trial court did not err in relying upon the decision of the United States Supreme Court in Dalton v. Little Rock Family Planning Services, et al., 516 U.S. 474 (1996), leaving intact those portions of an earlier injunction which prohibited “the enforcement of Amendment 68 . . . to the extent that the Amendment imposes obligations inconsistent with federal law,” id., as well as the August 19, 1996, decision of the federal district court, pursuant to remand from the Supreme Court, which stated:

Arkansas Amendment 68 is inconsistent with the Hyde Amendment and therefore is not permitted by Article 6, Section 2, of the United States Constitution, commonly referred to as the Supremacy Clause, to the extent that Amendment 68 prohibits the use of state funds to pay for abortions for Medicaid eligible victims of rape or incest. Arkansas Amendment 68 is therefore null and void, and its enforcement enjoined, to the extent it prohibits the use of state funds to pay for abortions for Medicaid eligible victims of rape or incest, for so long as the federal law mandates Medicaid funding for abortions for Medicaid eligible victims of rape or incest.

Little Rock Family Planning Services v. Dalton, No. LR-C-93-803 (E.D. Ark. Aug. 9, 1996).

Appellant contends that the order of the district court conflicts with the Supreme Court decision in Dalton, supra. We disagree. Both provide that Amendment 68 is null and void with regard to Medicaid payments for abortions for Medicaid-eligible victims of rape and incest so long as the Hyde Amendment provides for such payments. We have recently addressed this matter in our decision in Unborn Child Amendment Comm. v. Ward, 328 Ark. 454, 943 S.W.2d 591 (1997), where we stated:

Whatever construction we now give to Amendment 68, with regard to Medicaid patients in situations involving rape or incest, the amendment must give way to the Hyde Amendment to Title XIX so long as Arkansas participates in the Medicaid program, and the current version of the Hyde Amendment remains in effect. ■ ' ■

Id., {citing Dalton, supra).

It is clear that the Chancellor did not err in finding that the Hyde Amendment and Amendment 68 cannot stand together, and that pursuant to the Supremacy Clause of the United States Constitution, provisions of Amendment 68 are preempted by federal law. We note further that while none of the parties cited us to a series of decisions from other states and circuits addressing this issue, our own research has revealed that states participating in Medicaid may not single out a particular service and restrict coverage to those instances where the patient’s life is at stake, notwithstanding the enactment of a state law or amendment that purports to limit a state’s funding for abortions other than to save the life of the mother. Rather, Title XIX of the Social Security Act of 1964 imposes a general obligation on states to fund mandatory coverage services and a state law or state constitutional amendment that categorically denied Medicaid coverage for such a procedure is not a reasonable standard consistent with the objectives of, the Social Security Act. See e.g., Harris v. McRae, 448 U.S. 297 (1980); Planned Parenthood Affiliates of Mich. v. Engler, 73 F.3d 634 (6th Cir. 1996); Hope Medical Group for Women v. Edwards, 63 F.3d 418 (5th Cir. 1995), cert. denied 517 U.S. 1104 (1996); Hern v. Beye, 57 F.3d 906 (10th Cir.), cert. denied, Weil v. Hern, 517 U.S. 1011 (1995); Elizabeth Blackwell Health Center for Women v. Knoll, 61 F.3d 171 (3rd Cir.), cert. denied 516 U.S. 1093 (1995).

However, without citation to any authority, appellant urges that the participation of the State of Arkansas in Medicaid must be terminated in order to resolve the conflict. The Medicaid program was created in 1965, when Congress added Title XIX to the Social Security Act, 79 Stat. 343, as amended, 42 U.S.C. § 1396 et seq., with the goal of providing federal financial assistance to states that chose to reimburse certain costs of medical treatment for needy persons. “Although participation in the Medicaid program is entirely optional, once a state elects to participate, it must comply with the requirements of Title XIX.” Harris v. McRae, 448 U.S. 297 (1980). In order to be eligible to collect federal Medicaid funds, Title XIX requires participating states, like Arkansas, to submit medical assistance plans which must be approved by the Secretary of Health and Human Services. 42 U.S.C. § 1396 (1992 & Supp. 1994). The medical assistance plan must “include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which ... are consistent with the objectives of [Title XIX].” 42 U.S.C. § 1396a(a)(17); Beal v. Doe, 432 U.S. 438 (1977).

For more than sixty-five years this state has clearly expressed the public policy to “accept the benefits of any acts now passed or hereafter to be passed by the Senate and the House of Representatives of the United States of America, to provide for cooperation with the states in the protection of mothers and infants and promotion of a public health program.” 1931 Arkansas Acts 235; Ark. Code Ann. § 20-7-lll(a) (Repl. 1991). When President Lyndon Johnson introduced the Medicaid package, Arkansas chose to adopt a Medicaid plan. Appellant does not contend that Arkansas has adopted legislation withdrawing from Medicaid. The sole question raised by appellant’s argument is whether Amendment 68 contained self-executing language withdrawing the state from participation in Medicaid rather than accepting federal limitations upon the scope of Medicaid coverage. The provisions of Amendment 68 are brief:

§ 1. Public funding.
No public funding will be used to pay for any abortion, except to save the mother’s life.
§ 2. Public policy.
The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.
§ 3. Effect of Amendment.
This amendment will not affect contraceptives or require an appropriation of public funds.

Id. (emphasis added).

Applying the fundamental rule that the words of the constitution or statute should ordinarily be given their obvious and natural meaning, Knowlton, supra, we first note that the public policy stated in Section 2 of the Amendment provides that the public policy of Arkansas is to protect the life of an unborn child “to the extent permitted by the federal Constitution.” The plain language of Amendment 68 shows that it was intended to be effective only to the extent possible under the limitations of the Supremacy Clause of the United States Constitution. It is understandable why appellant has offered no citations of authority or persuasive reasoning why this court should accept and approve her request that the participation of Arkansas in the Medicaid program be terminated.

The chancellor found that Section 1 of Amendment 68 has been preempted by the Hyde Amendment with respect to Medicaid expenditures in cases of rape and incest, and further found that appellant has not cited any operative provision of law which would make the expenditure of public Medicaid funds for such abortions an illegal exaction. We agree with the Chancellor’s findings with regard to appellant’s first point on appeal.

With regard to appellant’s second point on appeal, appellees suggest that we need only resolve this issue if we determine that Amendment 68 presently limits the use of state Medicaid funds for Medicaid payments. We disagree with this proposition. While we have already held that Section one of Amendment 68 cannot stand as a bar to the payment of Medicaid funds for abortions necessary as the result of rape or incest so long as the Hyde Amendment as written remains in effect, the United States Supreme Court held that it was improper to enjoin the application of Amendment 68 to funding that does not involve the Medicaid program. Dalton v. Little Rock Family Planning Servs., supra. Because Amendment 68 is still effective insofar as it applies to the use of public funds other than those provided by the Medicaid program, it is necessary for us to address this point on appeal.

The Arkansas Medicaid Saving Trust was initiated on August 19, 1996, by a private individual; its stated purpose is to pay for Medicaid abortions performed as a result of rape or incest. The trust assumed legal liability to pay the Medicaid allowable costs of abortions for Medicaid eligible women whose pregnancies resulted from rape or incest. The trust’s assumption of legal liability triggers the provisions of 43 C.F.R. §§ 135-140 (1998), which requires DHS to identify abortions for which the trust is liable and to return medical-provider bills for such abortions to those providers with instructions to submit the bills to the trust. Appellees submitted affidavits from previous defendant Tom Dalton and Ray Handley, the director of the Division of Medical Services, asserting that no public funds have been used or will be used to pay for an abortion so long as the trust remains in effect. The court also considered Handley’s deposition. His uncontradicted testimony established that no entity at DHS has been involved in providing public funds to the trust and that no public funds have been paid to the trust. The chancery court granted appellees’ motion for summary judgment, finding that no disputed issue of material fact existed with regard to the question whether public funds were placed in the trust. Specifically, the chancellor found that appellant’s response to appellees’ motion for summary judgment did not allege that these facts were in dispute or are unanswered by the supporting evidence. Appellant, relying solely upon the depositions of Dalton and Handley, readily admitted that she had no idea what funds were contained in the trust and could not identify any passage in those depositions tending to establish that public money had ever been placed in the trust or that executive branch officials were involved in the creation and maintenance of the trust.

The affidavits and depositions of Dalton and Handley established a prima facie entitlement to summary judgment on the issue of public funds in the trust. At that point, appellant was obliged to meet proof with proof and demonstrate the existence of a material issue of fact. Appellant failed to meet that burden, submitting no other affidavits or proof. Appellant readily conceded that she had “no knowledge of what’s in the trust fund whatsoever.” She provided the court with no documents suggesting that any public monies had been placed in the trust fund, and could assert nothing beyond “motive” for her suggestion that public funds had been diverted to the trust. Appellant’s suspicions about motive do not give rise to a genuine issue of material fact. A mere suspicion in the mind of the party against whom summary judgment is sought will not create a genuine issue of fact, nor does it suffice as good cause for further discovery. BWH, Inc. v. Metropolitan National Bank, 267 Ark. 182, 590 S.W.2d 247 (1979). When, as here, the movant makes a. prima facie case for a summary judgment, the other party must discard the cloak of formal allegations and meet proof with proof by showing that an issue of fact exists. Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982). Appellant did not meet proof with proof. Accordingly, the chancery court did not commit error in finding that appellees were entitled to judgment as a matter of law.

Appellant also contends that a genuine issue of material fact exists as to whether there was any involvement of the executive branch of the state in the creation and operation of the Medicaid Saving Trust. Specifically, appellant argues that Governor Huckabee is responsible for the creation of the trust, and urges that the purpose of Amendment 68 is not merely to prevent the use of tax dollars to fund abortions, but rather to create a “wall of separation” between the practice of abortion and public entities in Arkansas. Appellant cites no persuasive authority for this proposition, arguing that the Amendment itself and its ballot title lead to this inescapable conclusion; we, however, fad to see the connection.

The Pulaski County Chancery Court found that even if appellant’s premise — that officials of the executive branch asked the trustee to create the trust — is true, it would not affect the outcome of appellees’ motion for summary judgment because appellant’s allegation does not present a material fact. The chancellor found that “Amendment 68 does not prohibit publicly funded activities which may ‘further or advance the performance of abortions.’ Rather, Amendment 68 only prohibits public payment for abortions . . . [Appellant’s] premise does not concern public payments for abortions and thus is not material.” We agree with the chancery court’s finding that appellees were entitled to judgment as a matter of law, and affirm on this point as well.

Appellant’s third and final point on appeal concerns her motion before the chancery court asking that the deposition of Governor Mike Huckabee be compelled. Appellant concedes in the first sentence of her argument on this point that the chancery court declined to rule on this motion. There is, therefore, no need for this court to read further. This court will not review a matter on which the trial court did not rule, and a party seeking to raise the point on appeal concerning a ruling has the burden to obtain a ruling. Matters left unresolved simply may not be raised on appeal. Alexander v. State, 335 Ark. 131, 983 S.W.2d (1998).

For the above and foregoing reasons, we affirm the decision of the chancery court.

Affirmed.

Imber and Smith, JJ., not participating.

       The 1994 Hyde Amendment, named for its sponsor, Representative Henry Hyde of Illinois, was enacted as § 509 of the Department ofLabor Appropriations Act, 1994, 107 Stat. 1082. In its entirety, the amendment provides that “[n]one of the funds appropriated under this Act shall be expended for any abortion except when it is made known to the Federal entity or official to which funds are appropriated under this Act that such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest.” 107 Stat. 1113.

         A previous appeal in this case, Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998), was dismissed by this court for lack of subject-matter jurisdiction, as the lower court’s order failed to address the claims against separate defendant Governor Mike Huckabee and thus was not a final, appealable order. Id.

       The Pulaski County Chancery Court on its own motion and in recognition of the fact that both Jim Guy Tucker and Tom Dalton were sued solely in their official capacities as Governor and Director of the Department of Human Services, respectively, substituted Mike Huckabee as defendant in his official capacity as Governor. Kurt Knickrehm has since replaced Dalton as director of DHS.


author: Per Curiam.

text:
    Alan WILLETT v. STATE of Arkansas
    CR 97-341
    993 S.W.2d 929
    Supreme Court of Arkansas
    Opinion delivered July 15, 1999

      William M. Pearson, for respondent.

      Mark Pryor, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., for petitioner.
   Per Curiam.

Alan Willett was convicted of two counts of capital murder, and we affirmed those convictions in Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995), but remanded the case for resentencing. Upon resentencing, Mr. Willet was again sentenced to death, and we affirmed that sentence in Willet v. State, 335 Ark. 427, 983 S.W.2d 409 (1998). By per curiam order entered May 6, 1999, we remanded the matter to the trial court for a competency examination and a judicial determination of whether Mr. Willett is competent to elect execution and waive his right to postconviction remedies under Rule 37, including his right to an attorney under Rule 37.5. Willett v. State, 337 Ark. 457, 989 S.W.2d 508 (1999).

During the hearing held on June 18, 1999, the psychiatrist who examined Mr. Willett testified that Mr. Willet was competent to elect between life and death and to knowingly and intelligently waive his right to a postconviction review. The psychiatrist’s report, which was introduced into evidence, also established that Mr. Willett was competent to waive his right to appointment of an attorney. Finally, Mr. Willett testified that he wanted to waive his right to postconviction review and his right to appointment of an attorney. Based on this testimony, the trial court found that Mr. Willett had the capacity to understand the choice between life and death and to knowingly and intelligently waive his rights to any further appeal or postconviction relief, including his right to an attorney under Rule 37.5, and that Mr. Willett did freely and voluntarily make a knowing and intelligent waiver of those rights.

The trial court’s findings are supported by the transcript. Accordingly, we grant the State’s motion for final review and affirm the trial court’s findings.


author: W. H.“Dub” Arnold, Chief Justice. Ray Thornton, Justice,

text:
    Diana JACKSON v. Dr. J.K. BUCHMAN and J.K. Buchman, M.D., P.A.
    98-1445
    996 S.W.2d 30
    Supreme Court of Arkansas
    Opinion delivered July 22, 1999

      McMath, Vehik, Drummond, Harrison & Ledbetter, P.A., by: Phillip H. McMath, for appellant.

      Friday, Eldredge & Clark, by: William M. Griffin III and Clifford W. Plunkett, for appellees.
   W. H.“Dub” Arnold, Chief Justice.

This is a medical-malpractice action. Appellant Diana Jackson filed a complaint in the Grant County Circuit Court alleging that Appellee Dr. Joseph K. Buchman negligently injured her during surgery to remove her gallbladder. The jury found in favor of Dr. Buchman, and Jackson now appeals. For reversal, Jackson argues that the trial court erred in refusing to allow her to present evidence that Dr. Buchman failed to pass an examination to become a board-certified surgeon, and that he misrepresented his credentials to gain listing as a board-certified surgeon in a physicians’ directory. Because this case presents issues of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l). We affirm.

The record reflects that on or about November 2, 1994, Diana Jackson was hospitalized at St. Vincent’s Infirmary in Little Rock for surgery to remove her gallbladder. Dr. Buchman performed the surgery, which is called a laparoscopic cholecystectomy. During the course of the surgery, Dr. Buchman severed Jackson’s bile ducts. As a result, Jackson had to have numerous corrective surgeries; the first surgery was performed by Dr. Buchman on November 10, 1994. Subsequently, Jackson had surgery at Baylor University in Texas and at Johns Hopkins University in Maryland. At trial, the evidence showed that one of the known risks associated with this type of surgery is that the patient’s bile ducts could be damaged or cut during the procedure. Additionally, there was evidence that Jackson had an abnormal anatomy in the area of her gallbladder.

Prior to the trial, Dr. Buchman filed a motion in hmine to prohibit Jackson from eliciting testimony that he has not become board certified by the American College of Surgeons, a voluntary organization. Dr. Buchman passed the written examination on his second or third try, but failed the oral part of the test three times and was thus no longer eligible to take the test without further training. Dr. Buchman argued that such a certification was not required to practice surgery in the Little Rock hospitals in which he practiced, and that such evidence would be prejudicial because Jackson would likely use that information to insinuate that he failed to meet the standard of care in this instance. Jackson contended that the evidence was relevant to show that Dr. Buchman lacked the level of skill and learning possessed by the members of his profession, pursuant to AMI 1501, and that it went to the issue of his reputation as a surgeon. The trial court granted the motion, finding that the evidence would only convolute the issues before the jury, and ordered Jackson not to refer to, mention, cross-examine, or discuss in any way the fact that Dr. Buchman is not board certified or that he has failed the oral portion of his examination.

During the course of the trial, after Dr. Buchman had testified, Jackson’s attorneys moved to admit evidence of his failure to obtain board certification on the ground that the defense had opened the door with their questions about his qualifications and reputation as a competent surgeon in the community. Jackson’s attorneys also asserted that the evidence was admissible to impeach Dr. Buchman’s credibility as an expert. Initially, the trial court indicated that it would allow Jackson’s attorneys to ask Dr. Buchman if he is board certified, but that they could not inquire as to how many times he had taken the examination and what part of the test he failed. After hearing further argument, however, the trial court went back to its original position, ruling that the evidence was not admissible. The trial court also rejected Jackson’s argument that Dr. Buchman had misrepresented that he was board certified in a physicians’ directory. The jury returned a unanimous verdict in favor of Dr. Buchman, and this appeal followed.

I. Evidence of Failure to Attain Board Certification

For her first point for reversal, Jackson argues that the trial court erred in refusing to allow her to present evidence that Dr. Buchman was not a board-certified surgeon. Specifically, Jackson wished to present evidence that Dr. Buchman was not board certified, that he had failed to pass the certification examination after repeated attempts, and that, as a result of those past failures, he was no longer eligible to take the examination. Jackson argues that this evidence was relevant for three reasons: (1) to show Dr. Buchman’s lack of competence as a surgeon; (2) to rebut testimony that Dr. Buchman was a reputable surgeon in Little Rock; and (3) to impeach Dr. Buchman’s credibility as his own expert witness.

Although we have never addressed the admissibility, in a malpractice case, of a physician’s failure to become board certified in his or her chosen field of practice, we have consistently held that trial courts are accorded wide discretion in evidentiary rulings, and we will not reverse such rulings absent a manifest abuse of discretion. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Lovell v. Beavers, 336 Ark. 551, 987 S.W.2d 660 (1999). Nor will we reverse a trial court’s ruling on evidentiary matters absent a showing of prejudice. Grummer v. Cummings, 336 Ark. 447, 986 S.W.2d 91 (1999); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). Moreover, the balancing of probative value against prejudice, pursuant to A.R.E. Rule 403, is a matter left to the sound discretion of the trial judge, and that riding will not be reversed absent a manifest abuse of discretion. Grummer, 336 Ark. 447, 986 S.W.2d 91. Similarly, a trial court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of the issues or interrogation that is only marginally relevant. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). It is within this standard of review that we address Jackson’s assertion that the trial court erred by refusing to admit evidence of Dr. Buchman’s failure to obtain board certification.

Because this is an issue of first impression in this state, we turn to other jurisdictions for guidance. The vast majority of appellate courts that have considered this issue have analyzed it under an abuse-of-discretion standard. See Campbell v. Vinjamuri, 19 F.3d 1274 (8th Cir. 1994); Gipson v. Younes, 724 So.2d 530 (Ala. Civ. App. 1998); Williams v. Memorial Medical Ctr., 460 S.E.2d 558 (Ga. Ct. App. 1995); Gossard v. Kalra, 684 N.E.2d 410 (Ill. App. 4 Dist. 1997); Beis v. Dias, 859 S.W.2d 835 (Mo. Ct. App. S.D. 1993); Ward v. Epting, 351 S.E.2d 867 (S.C. Ct. App. 1986); Sommers v. Friedman, 493 N.W.2d 393 (Wis. Ct. App. 1992). Generally, evidence of a physician’s lack of board certification is admissible. See, e.g., Campbell, 19 F.3d 1274; Gipson, 724 So.2d 530; Williams, 460 S.E.2d 558; McCray v. Shams, 587 N.E.2d 66 (Ill. App. 2 Dist. 1992); Beis, 859 S.W.2d 835; Ward, 351 S.E.2d 867; Sommers, 493 N.W.2d 393. On the other hand, evidence that the physician failed the board examination is generally not admissible, regardless of whether it is offered (1) to show that the physician was negligent or (2) to impeach the physician’s expert testimony. We discuss first the relevance of such evidence on the issue of negligence.

In Campbell, 19 F.3d 1274, Dr. Vinjamuri admitted in his deposition that he was not a board-certified anesthesiologist and that he had failed the certification examination on three or four occasions. He moved to exclude the evidence of his past examination failures, and the trial court granted the motion. The plaintiff was permitted, however, to elicit from Dr. Vinjamuri the fact that he was not board certified. The Eighth Circuit affirmed the district court’s conclusion that the evidence of Dr. Vinjamuri’s failure to pass his board-certification examination was irrelevant to the issue of his professional competence and his actions on the date in question. The court explained:

For the evidence of Vinjamuri’s test failures to be relevant, his failure to pass the anesthesiology examination must make it more likely than not that, during this particular surgery, Vinjamuri would be negligent in his duties of properly positioning Campbell or in properly supervising the nurse anesthetist. See Fed. R. Evid. 401. We agree with Vinjamuri that the evidence was not relevant to this issue as a person’s performance on a written or oral examination is not determinative of one’s ability to meet the standard of care required on a specific occasion.
Performance on a board certifying examination might speak to an individual’s overall knowledge of a particular medical specialty, but would not necessarily reflect knowledge of the specific activity being scrutinized for negligence. Further, it would be improper for the jury to use the evidence in the manner suggested by Campbell, that is for the jury to conclude that because a physician was unable to pass his board exams, he was negligent on a specific occasion. Beis v. Dias, 859 S.W.2d 835 (Mo. App. 1993) (ability to pass a board examination only goes to a physician’s test taking abilities and does not make his or her negligence on one particular day more likely than not).

Id. at 1276-77 (emphasis added). See also Gipson, 724 So.2d 530 (holding that a physician’s failure of a certification test is irrelevant to the issue of his or her negligence in a malpractice case); Williams, 460 S.E.2d 558 (explaining that such evidence has little, if any, relevance to the issue of whether the physician complied with the standard of care required in his or her treatment of a patient).

We thus reject Jackson’s assertion that evidence of Dr. Buchman’s failed attempts to pass the board examination was relevant, pursuant to AMI 1501, to show that he lacked the level of skill and learning possessed by the members of his profession and was not competent as a surgeon. We agree with the Eighth Circuit’s reasoning that the ability or inability to pass examinations has no bearing on the issue of one’s ability to meet the appropriate standard of care on a specific occasion. Moreover, it is undisputed that board certification is not required by law to practice surgery in Arkansas. Accordingly, the legal standard of care set out in AMI 1501 is in no way affected by board certification. Having thus determined that the evidence of Dr. Buchman’s examination failures was not admissible to show that he was negligent in performing surgery on Jackson, we now consider the argument that the evidence should have been admitted to impeach his credibility as an expert witness.

Rule 702 of the Arkansas Rules of Evidence provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Whether a witness may give expert testimony rests largely within the sound discretion of the trial court, and that determination will not be reversed absent an abuse of discretion. New Prospect Drilling Co. v. First Commercial Trust Co., 332 Ark. 466, 966 S.W.2d 233 (1998) (citing Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995)). “Once an expert witness is qualified, the weakness in the factual underpinning of the expert’s opinion may be developed upon cross-examination and such weakness goes to the weight and credibility of the expert’s testimony.” Suggs v. State, 322 Ark. 40, 43, 907 S.W.2d 124, 126 (1995) (citing Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907 (1976)).

In O’Brien v. Meyer, 554 N.E.2d 257 (Ill. App. 1 Dist. 1989), the Illinois Court of Appeals reversed the trial court’s decision to allow the defendants to cross-examine the plaintiffs expert witness, who was a licensed physician in the state of Florida, regarding the fact that she had failed the Illinois licensing examination four times. The court explained:

We believe that once the qualifying threshold has been met, attempts to impeach the expert’s opinion should have a clear link to facts and assumptions underlying the opinion, the methodology or testing used, the knowledge and experience of the expert in the matters to which he testifies, personal bias (such as the fact he or she is paid to testify), and so forth. Matters going to schooling and licensing are in a different category, we believe, because of their atten uated relevance to the medical opinion in issue. Also, there is a practical consideration of where to draw the line. Should juries be allowed to consider the school rank of a witness, or the fact that he or she failed a course? Few would argue that the answer to that question should be no.

Id. at 261 (emphasis added). The court went on to state that if the jury were allowed to consider such evidence, “the jury might well decide that the witness is not credible based on the past examination failures alone.” Id. at 262. See also Gipson, 724 So.2d 530 (holding that it was not error to exclude evidence of the defendant-physician’s failed examinations where the trial court concluded that the evidence was unfairly prejudicial because the jury might use the evidence not only to assess the physician’s credibility as an expert, but also to resolve the issue of his or her negligence).

Similarly, in Campbell, 19 F.3d 1274, the Eighth Circuit rejected the argument that evidence of past examination failures was admissible to impeach the physician’s expert testimony. The court concluded:

His test failures have no clear connection to his knowledge and experience of the matter of which he was testifying (whether or not he met the standard of care in his treatment of Campbell). It is sufficient that the jury was given the information that Vinjamuri was not board certified in his speciality. The reason for his lack of certification is of limited significance. To hold otherwise we would have to conclude that admission of Vinjamuri’s test failures would probably have led to a verdict for the plaintiff. Fiowever, the jury could legitimately only use the information to impeach Vinjamuri’s statement where he asserts he met the appropriate standard of care. Given the additional expert testimony presented by other defense witnesses on whether Vinjamuri met [the] standard of care, we cannot conclude that a jury would be significantly swayed by casting doubt on Vinjamuri’s statement.

Id. at 1277 (citations omitted) (emphasis added).

In light of the foregoing precedents, we conclude that the trial court did not abuse its discretion in excluding the evidence that Dr. Buchman had failed the certification examination on a number of occasions. Evidence of a physician’s lack of board certification may be used to impeach the physician’s credibility as an expert witness; however, the trial court must still properly weigh the interests under Rule 403, which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the possibility of unfair prejudice or confusion of the issues. See Arthur, 337 Ark. 125, 992 S.W.2d 67; Lovell, 336 Ark. 551, 987 S.W.2d 660. “This weighing is left to the trial court’s sound discretion and will not be reversed absent a showing of manifest abuse.” Id. at 554, 987 S.W.2d at 662 (quoting Bohanan v. State, 324 Ark. 158, 166, 919 S.W.2d 198, 203 (1996)). Given the potential harm that may result from such testimony, i.e., that the jury may improperly consider it as evidence of negligence, we cannot say that the trial court erred in excluding the evidence.

We conclude, however, that it was error for the trial court to refuse to permit Jackson to ask Dr. Buchman if he is a board-certified surgeon. The evidence of whether he was board certified was relevant to rebut his credibility as an expert witness. As Jackson correctly asserts, Dr. Buchman was not required to give expert testimony on his own behalf, and if he had not, he could not have been forced to testify against himself regarding the issue of whether he met the standard of care in this instance. See Ark. Code Ann. § 16-114-207(3) (1987). Notwithstanding our conclusion that it was error to exclude this evidence, we do not reverse because Jackson has failed to demonstrate that she was prejudiced by the trial court’s ruling. Error may not be predicated upon an evidentiary ruling unless a substantial right is affected, and we will not reverse in the absence of prejudice. See A.R.E. Rule 103(a); Larimore, 317 Ark. 111, 877 S.W.2d 570. It is the appellant’s burden to indicate to this court what prejudice was caused by the erroneous ruling. Webb v. Thomas, 310 Ark. 553, 837 S.W.2d 875 (1992).

The record reflects that several physicians, one of whom was called by Jackson, gave expert testimony that Dr. Buchman met the standard of care in his treatment of Jackson. Indeed, even Jackson’s key expert witness, Dr. John K. Wright, testified that the fact that Dr. Buchman was not board certified had no bearing on his opinion. Dr. Wright indicated that the mere fact that Dr. Buchman is not board certified does not mean that he is not qualified to perform the particular surgery involved here. Dr. Wright explained that fifteen to twenty percent of physicians fail to become board certified, for whatever reason. He stated further that the fact that Dr. Buchman is not board certified was not a basis for his opinion that he was negligent or that his actions fell below the standard of care. Given such testimony from Jackson’s expert witness, Dr. Buchman’s lack of board certification was not a material issue to the cause before the jury. See McCray, 587 N.E.2d 66 (holding that because the plaintiff s expert testified that the standard of care was the same for a board-certified physician as for a physician who was not board-certified, the lack of certification was not a material issue). Thus, no prejudice resulted from the trial court’s exclusion of the evidence.

II. Evidence of Misrepresentation of Board Certification

For her second point for reversal, Jackson argues that the trial court erred in refusing to allow her to present evidence of Dr. Buchman’s listing in a Healthsource HMO Directory, which showed that he was a board-certified physician. The directory noted board-certified physicians with an asterisk by their names. In the 1994 directory, Dr. Buchman’s name appeared without an asterisk, but in the 1995 directory, an asterisk was beside his name. Jackson argues that such evidence demonstrates that Dr. Buchman clearly misrepresented his credentials to the HMO and the public. We disagree.

During the proffer, Dr. Buchman stated that he did not know why he was shown as being board certified in the 1995 directory, but he suspected that it must have been a clerical error. Dr. Buchman also testified that if Healthsource had sent him a new application form for the 1995 directory, his office would have completed the form. Based on this testimony, Jackson asserts that Dr. Buchman misrepresented his credentials on the application so that he could be listed as board certified in the directory. The trial court disagreed, finding that there was no proof that Dr. Buchman had anything to do with the publication or distribution of the directory or that he had provided them with fraudulent or inappropriate information. We cannot say that the trial court manifestly abused its discretion in refusing to admit the evidence, given

the scant, if any, probative value and the obvious prejudicial effect. See Lovell, 336 Ark. 551, 987 S.W.2d 660; Grummer, 336 Ark. 447, 986 S.W.2d 91. We thus affirm the judgment of the trial court.

Thornton, J., dissents.

Ray Thornton, Justice,

dissenting. I agree with the majority’s conclusion that the trial court did not abuse its discretion in ruling that evidence that Dr. Buchman had failed the board exams on numerous occasions and was no longer eligible to take the exam was inadmissible to show negligence. I also agree that once the doctor had made his credentials an issue by listing some of them in order to become qualified as an expert, it was error to refuse to allow the question of board certification to be asked on cross-examination as to his credentials as an expert. Evidence that an expert is or is not board certified in a particular specialty bears on the expert’s professional expertise, as does the person’s education, training, licensing, and experience, and such evidence should be admissible. See Kinser v. Elkadi, 674 S.W.2d 226 (Mo.App. S.D. 1984). See also Ward v. Epting, 290 S.C. 547, 351 S.E.2d 867 (App. 1986)(citing 61 Am. Jur. 2d Physicians, Surgeons, & Other Healers § 346 (1981)).

However, I respectfully dissent from the majority’s conclusion that this error in denying appellant the opportunity to challenge Dr. Buchman’s credentials as an expert witness was not prejudicial to appellant’s case, specifically because Dr. Buchman’s testimony as an expert formed the foundation for the defense that appellant’s injuries were caused by an abnormal anatomy in the area of her gallbladder.

Dissent.

       AMI 1501 provides in pertinent part that a surgeon “must possess and apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the same specialty in the locality in which he practices, or in a similar locality.”

       The only case that we have found that allowed such evidence is Ward, 351 S.E.2d 867 (holding that the trial court did not abuse its discretion in permitting the plaintiff to cross-examine the defendant-physician on the fact that she had twice failed to pass the certification examination).


author: Tom Glaze, Justice.

text:
    IN RE: Timothy D. WILLIAMS (Arkansas Bar ID # 75140)
    99-426
    995 S.W.2d 349
    Supreme Court of Arkansas
    Opinion delivered July 22, 1999

      James A. Neal, by: Lynn Williams, for petitioner.

      Respondent, pro se.
   Tom Glaze, Justice.

On April 15, 1999, the Arkansas Supreme Court Committee on Professional Conduct initiated this action by filing its petition requesting an order requiring Timothy D. Williams to show cause why he should not be held in contempt for violating Sections 7G(1), 7G(4), and 7G(6) of the Procedures of the Arkansas Supreme Court Regulating Conduct of Attorneys at Law. The Committee subsequently filed amended petitions on April 21 and June 29, 1999.

In response to the Committee’s initial petition, we issued a per curiam on May 20, 1999, ordering Mr. Williams to appear and show cause why he should not be held in contempt as requested by the Committee. He appeared before us on June 24, 1999, and entered a plea of not guilty. We appointed attorney Scott Stafford as the court’s master, who was directed to conduct a hearing to permit the Committee and Mr. Williams the opportunity to present their respective cases, which was done on July 7, 1999. After hearing the Committee’s and Mr. Williams’s stipulations, witnesses, and arguments, the master filed his report with our court on July 13, 1999.

This contempt action emanated from the Committee’s earlier proceedings, wherein it considered the complaint of Mrs. Bertha Henry that Mr. Williams had violated Rules 1.16(d), 3.4(d), and 8.4(d) of the Model Rules of Professional Conduct. Mrs. Henry employed Mr. Williams to establish a guardianship of a relative of Henry’s. However, Mrs. Henry terminated Mr. Williams’s services within less than one month, but when she requested a refund, Mr. Williams failed to give her one; nor did he give her an accounting of the fee he was paid. As a result, Mrs. Henry filed a lawsuit against Mr. Williams for the fee, and she also filed a complaint with the Committee. Mrs. Henry obtained a default judgment against Mr. Williams, which he never challenged, appealed, or satisfied. The Committee determined Mr. Williams violated the above Model Rules by failing (1) to return the unearned portion of Mrs. Henry’s fee; (2) to respond to the Committee’s and trial court’s orders seeking and directing discovery requests; (3) to provide an accounting to Mrs. Henry; or (4) to satisfy Mrs. Henry’s judgment against Mr. Williams. These violations resulted in the Committee entering its findings and order on February 3, 1999, whereby it suspended Mr. Williams’s license for six months, fined him $250.00, and ordered him to make restitution of Mrs. Henry’s fee, both fine and fee to be remitted within twenty days —■ February 23, 1999.

Within twenty days of his suspension, Mr. Williams was obligated to perform the following procedures:

(1) Notify all of his clients in writing and any counsel of record in pending matters, that he had been suspended;

(2) In the absence of co-counsel, notify all clients to make arrangements for other representation, calling attention to any urgency in seeking the substitution of another attorney;

(3) Deliver to all clients being represented in pending matters any papers or property to which they are entitled, or notify them or co-counsel of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers and other property;

(4) Refund any part of the fees paid in advance that had not been earned;

(5) File with the Court, agency, or tribunal before which any litigation is pending a copy of the notice to the opposing counsel, or adverse parties if no opposing counsel;

(6) Keep and maintain a record of the steps taken to accomplish the foregoing;

(7) File with the Supreme Court Clerk and Committee a list of all other state, federal, and administrative jurisdictions to which he is licensed or admitted to practice. Upon such filing, the Clerk shall notify those entitled of the suspension; and

(8) File an affidavit within thirty days of the suspension that he had complied with the provisions of the order and completely performed the foregoing or provide a full explanation of the reasons for his noncompliance. See Section 71(1)—(8) of the Procedures Regulating Professional Conduct (1999).

Mr. Williams’s failure to comply with the foregoing procedures subjected him to contempt of this court. Id. at 71(9). Contempt under the Procedures Regulating Professional Conduct includes the following:

(1) Willful disobedience of any Committee order, summons, or subpoena;
(2) The refusal to testify on matters not privileged by law;
(3) Knowingly to testify falsely before the Committee;
(4) Engaging in the practice of law during a period of suspension;
(5) Engaging in the practice of law after a disbarment or surrender of license; or
(6) Violation of the procedures by any person.

See Section 7G(l)-(6) (1999) (emphasis added). At the July 7 show-cause hearing, the master heard testimony and argument bearing on the Committee’s charges that, after suspension, Mr. Williams (1) wilfully disobeyed a Committee order, (2) engaged in the practice of law, and (3) failed to comply with the Committee’s procedures in violation of Section 7G(1), (4), and (6).

We appointed the master in this matter under Ark. Sup. Ct. R. 6(1), 6-5(a) (1999) and Ark. R. Civ. P. 53 (1999), and will accept the master’s findings of fact unless they are clearly erroneous. See Roberts v. Priest, 334 Ark. 503, 975 S.W.2d 850 (1998). 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. Id.

In considering the Committee’s charges, the master first heard and decided whether Williams had practiced law after he had been suspended, and the master found that he had. The Committee presented the testimony of Mrs. Lanelta Walker who averred that her initial meeting with Williams was on February 16, 1999, when she engaged him to obtain a divorce for her against her husband, James Walker. This February 16 meeting date would have been thirteen days after Williams had been suspended on February 3, 1999, and eight days after Williams received written notice of his suspension. While Mr. Williams questions Mrs. Walker’s accuracy as to the exact time when they first met, the master determined from Mrs. Walker’s and James Walker’s testimonies that a later, second meeting was held at which time Mrs. Walker brought Mr. Williams papers that Williams needed in order to prepare a property settlement agreement. In addition, the master, based on evidence before him, found Mrs. Walker had called Mr. Williams several times to determine if her divorce action had been filed. She said that he assured her the divorce suit would be filed “by the end of the week.” The master further found that Mr. Williams prepared the parties’ agreement and dated it March 4, 1999. James Walker testified he went to Mr. Williams’s office on March 4, which was the date he signed the agreement. Although Mr. Williams contended that he had told Mrs. Walker that he would not file her divorce until he was paid and that he denied ever scheduling a meeting to have James Walker sign the parties’ settlement agreement, the master obviously discounted Mr. Williams’s testimony, finding instead that Mr. Williams had continued his representation of Mrs. Walker after Mr. Williams’s suspension. The master concluded, and the record supports the finding, that Mrs. Walker first learned of Mr. Williams’s suspension from an article which appeared in the March 11, 1999 newspaper issue of the Log Cabin Democrat. In sum, we hold the evidence fairly supports the master’s finding on this point, and in so holding, conclude it is contemptuous conduct which falls within Section 7G(4) as set out hereinabove.

We next turn to the master’s finding that, at the time of Mr. Williams’s suspension, Mr. Williams was representing clients in three other pending cases, one in Pulaski County Chancery Court, and one each in Faulkner County Chancery Court and Circuit Court. The master found the Committee proved that Mr. Walker had violated Procedures Section 71(1) by failing to notify opposing counsel of Williams’s suspension in the Pulaski County action and showed Mr. Williams had violated Procedures Section 71(5) by failing to file with the two Faulkner County courts a copy of a written notice advising opposing counsel of his suspension. Again, from our review of the evidence, including Mr. Williams’s stipulations and failure to show he filed required notices, we accept the master’s findings that Mr. Williams violated Procedures Sections 71(1) and (5). Having been fully aware of these procedures, but faffing to comply with them, we must hold Mr. Williams in contempt. Procedures Section 71(9).

The master found other procedural violations which we hold are supported by the record, which includes stipulations made by the Committee and Mr. Williams. Those violations are as follows:

*He failed to file with the Supreme Court Clerk and the Committee a list of all other state, federal, and administrative jurisdictions to which he is licensed or admitted to practice as required by Procedures Section 71(7).

*He failed to file an affidavit with the Committee that he has fully complied with the provisions of his order of suspension and completely performed the requirements of Procedures Section 71, or provide a full explanation of the reasons for his noncompliance, as required by Procedures Section 71(8).

*He failed to keep and maintain a record of the steps taken to accomplish the Procedures Sections 7I(l)-(5), as required by Procedures Section 71(6).

*He willfully failed to pay any portion of the fine or restitution the Committee ordered.

Upon a careful review of the evidence, stipulations, arguments, and the master’s report, we hold that, because he practiced law and willfully disobeyed Committee procedures and orders after his suspension, Mr. Williams is in contempt of court. In reaching this decision, we are mindful of Mr. Williams’s references to his earlier bankruptcy proceeding and purported financial troubles, but we think the master’s remarks are especially insightful on this point. In this respect, the master emphasized that Williams had established a pattern of ignoring procedures and orders, including his having made no effort to notify the Committee that he was in bankruptcy. Moreover, the Committee notes that Mr. Williams listed neither the restitution nor fine as a part of his debts in bankruptcy; nor did Williams pay one dollar towards discharging these amounts.

In holding Mr. Williams in contempt, we note that he may be punished by incarceration, imposition of fine, or both. Section 2(C)(6) (1999); Cf. Street v. State, 331 Ark. 443, 959 S.W.2d 747 (1998). While we hold Mr. Williams in contempt, we do not immediately impose a penalty, but instead withhold its imposition until the Committee completes its actions and proceedings regarding sanctions. In this respect, we mention that Mr. Williams’s suspension went into effect on February 3, 1999, which would ordinarily reflect Mr. Williams’s eligibility to apply for reinstatement commencing August 3, 1999. As already determined by the Committee and the master, Mr. Williams has failed to comply with the required duties under Section 71 of the Professional Conduct Procedures so as to permit his reinstatement under Section 7K. Thus, the suspension remains in effect pending further review by the Committee.

At this time, we reinvest the Committee with jurisdiction to conduct any further hearings it deems are needed and to reconsider the imposition of sanctions as may be necessary, particularly under Section 7 of the Procedures Regulating Professional Conduct. Upon filing its final petition, the Committee shall file its accompanying findings and order with this court so the court can consider and decide the proper penalty to be imposed in this contempt proceeding. The Committee is directed to complete and return this matter for submission on or before October 14, 1999. Of course, Mr. Williams retains his right to appeal from any new and adverse sanction or issues which already had not, or could not have, been raised in prior proceedings.

       Mr. 'Williams strenuously argues the suspension notice was received by him two days after his initial meeting with Mrs. Walker. He also claims Mrs. Walker should have been informed by Williams’s secretary that Mrs. Walker should hire another attorney. Again, the master resolved this conflict in evidence against Mr. Williams. Besides, Mr. Williams cannot place his Model Rule responsibilities onto his secretary. In addition, as relied on by the master, evidence exists showing Mr. Williams continued representing Mrs. Walker after his initial meeting with her.

       We do not address the Committee’s suggestion that our court also has the “inherent authority” to suspend or disbar an attorney in these circumstances. See Hurst v. Bar Rules Committee of the State of Arkansas, 202 ark. 1101, 155 S.W.2d 697 (1941); In Re Buffalo, 390 U.S. 544 (1968); In the Matter of Gwen G. Cavanchini, 160 F.3d 42 (8th Cir. 1998). However, we need not decide the issue now, since we ultimately conclude the Committee may first opt to take further action. Our reinvesting the Committee with jurisdiction, too, avoids any due process or procedural arguments since the Committee has never asked this court to increase Mr. Williams’s suspension or disbar him until the Committee filed its written brief herein.

       K. Reinstatement.
      (1) Following any period of suspension from the practice of law, an attorney desiring reinstatement shall file with the Executive Director a verified petition requesting reinstatement.
      (2) The petition for reinstatement shall be accompanied by proof of payment of an application fee of $100.00 to the Clerk.
      (3) The petition for reinstatement shall set out the following:
      (a) That the attorney has fully and promptly complied with the requirements of subsection I of this Section.
      (b) That the attorney has refrained from practicing law during the period of suspension;
      (c) That the attorney’s license fee is current or has been tendered to the Clerk; and
      (d) That the attorney has fully complied with any requirements imposed by the Committee as conditions for reinstatement.
      (4) Any knowing misstatement of fact may constitute grounds for contempt, denial, or revocation of reinstatement.
      (5) Failure to comply with the provisions of subsections 1(7) and (8) of this Section shall preclude consideration for reinstatement.
      (6) No attorney shall be reinstated to the practice of law in ths State until the Arkansas Supreme Court has received an affirmative vote by a majority of the Committee.

       Mr. Williams via his brief in this proceeding has attached copies of seven letters and an affidavit that purport to be the missing notices and an affidavit needed to comply with the procedures violated or discussed in this opinion. In its hearing of this matter, the Committee may consider these items, their relevance, and value.