author: Robert L. Brown, Justice. Tom Glaze, Justice,

text:
    R. Robert BAILEY, and Ed H. Smith, Individually, and on Behalf of the Committee to Save Arkansas Jobs, Inc., and All Others Similarly Situated v. W.J. “Bill” McCUEN, Secretary of State Committee for a Safe Workplace, Intervenor

    94-951
    884 S.W.2d 938
    Supreme Court of Arkansas
    Opinion delivered October 14, 1994

      Friday, Eldredge & Clark, by; Elizabeth J. Robben, Harry A. Light, and Joann E. Roosevelt, for petitioners.

      Winston Bryant, Att’y Gen., by: Ann Purvis and Melissa K. Rust, Asst. Att’ys Gen., for respondent.

      Youngdahl, Sadin & McGowan, by: James E. Youngdahl and Thomas H. McGowan, for intervenor Committee for a Safe Workplace.
   Robert L. Brown, Justice.

This is an original action by the petitioners, R. Robert Bailey and Ed H. Smith, individually, and on behalf of The Committee to Save Arkansas Jobs, to remove the proposed Workers’ Compensation Amendment from the ballot. The petitioners seek a declaration that the initiative petition filed under Amendment 7 to the Arkansas Constitution is insufficient. They further seek removal of the proposed amendment from the November 8, 1994 ballot and a direction that any votes cast on the issue not be counted. The petitioners have moved on two fronts. First, they have alleged that in excess of 979 signatures supporting the initiative petition were forged or are otherwise invalid which renders the number of required signatures of legal voters insufficient. They further contend that the ballot title is misleading due to various omissions and misstatements in its terms.

Respondent WJ. “Bill” McCuen, Secretary of State, denies the claims but does assert that allegations of misleading tendencies in the ballot title are questions of law for this court to decide. Intervenor Committee for a Safe Workplace, which sponsored the initiative petition, also denies the claims for relief and contends that the verification of signatures used by the Secretary of State substantially complied with Amendment 7.

The popular name and ballot title of the proposed amendment, as certified, read:

(Popular Name)
AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO RESTRUCTURE THE WORKERS’ COMPENSATION COMMISSION AND REVISE WORKERS’ COMPENSATION LAW
(Ballot Title)
AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO PROVIDE THAT THE ARKANSAS WORKERS’ COMPENSATION COMMISSION (WHICH UNDER THIS AMENDMENT WILL BE AN INDEPENDENT CONSTITUTIONAL BODY) SHALL BE MADE UP OF THREE COMMISSIONERS (TWO COMMISSIONERS AND A CHAIRMAN), TO BE ELECTED AT LARGE ON A PARTISAN BASIS BY THE ELECTORS OF THE STATE BEGINNING WITH THE GENERAL ELECTION OF 1996; PROVIDING FOR FOUR YEAR TERMS OF COMMISSIONERS; PROVIDING THAT COMMISSIONERS MAY ONLY BE REMOVED FROM OFFICE BY THE IMPEACHMENT PROCEDURES OF THE ARKANSAS CONSTITUTION; REQUIRING THE GOVERNOR TO FILL VACANCIES OCCURRING ON THE COMMISSION; PROHIBITING ANY COMMISSIONER SO APPOINTED FROM BEING A CANDIDATE FOR COMMISSIONER AT THE NEXT GENERAL ELECTION; PROHIBITING ANY COMMISSIONER IN OFFICE AT ANY TIME FROM PASSAGE OF THE AMENDMENT UNTIL JANUARY 15, 1997 FROM BEING A CANDIDATE FOR COMMISSIONER AT THE GENERAL ELECTION OF 1996; REQUIRING APPOINTED COMMISSIONERS TO BE APPROVED BY THE SENATE DURING REGULAR SESSIONS; SETTING THE QUALIFICATIONS OF COMMISSIONERS AND THE CHAIRMAN; PROVIDING THAT NO CANDIDATE FOR COMMISSIONER SHALL BE CONSIDERED A CANDIDATE FOR JUDICIAL OFFICE; AUTHORIZING THE GENERAL ASSEMBLY TO SET THE SALARY, EXPENSES, AND BENEFITS OF THE COMMISSIONERS, TO BE PAYABLE FROM THE WORKERS’ COMPENSATION FUND; REQUIRING THE SALARIES OF COMMISSIONERS TO BE AT LEAST EQUAL TO THE SALARY OF JUDGES ON THE ARKANSAS COURT OF APPEALS; PROVIDING THAT ANY PERSON WHO KNOWINGLY MAINTAINS AN UNSAFE WORK ENVIRONMENT SHALL NOT BE IMMUNE FROM SUIT FOR DAMAGES FOR RESULTING INJURY OR DEATH OF A WORKER; AUTHORIZING AN INJURED EMPLOYEE TO CHANGE PHYSICIANS ONE TIME IF THE EMPLOYER OR INSURANCE CARRIER HAS SELECTED A PHYSICIAN; AUTHORIZING CHANGE OF PHYSICIAN IF THE EMPLOYEE HAS SELECTED THE PHYSICIAN ONLY UPON A SHOWING OF A VALID REASON FOR THE CHANGE; PROVIDING THAT DISABILITY BENEFITS FOR INJURED EMPLOYEES SHALL NOT EXCEED 66 2/3% OF THE EMPLOYEE’S AVERAGE WEEKLY WAGE IF THE EMPLOYEE HAS NO DEPENDENTS AND 75% IF THE INJURED EMPLOYEE HAS A DEPENDENT, SUBJECT TO A MAXIMUM BENEFIT SET BY THE GENERAL ASSEMBLY; PROVIDING HOWEVER THAT THE MAXIMUM WEEKLY DISABILITY BENEFIT SHALL NOT BE LOWER THAN THE STATE AVERAGE WEEKLY WAGE FOR THE YEAR PRECEDING THE YEAR IN WHICH THE INJURY OR DEATH OCCURS; REQUIRING THE COMMISSION TO CONSIDER WAGE EARNING LOSS IN ADDITION TO FUNCTIONAL LOSS IN ASSESSING PERMANENT DISABILITY AND TO CONSIDER THE INJURED EMPLOYEE’S OPPORTUNITIES FOR EMPLOYMENT IN LIGHT OF HIS OR HER INJURY, AGE, EDUCATION AND WORK HISTORY; PROVIDING THAT IF AN EMPLOYER DOES NOT PROVIDE COMPENSATION WITHIN 15 DAYS OF AN INJURY AND CONTINUE PAYMENT WHEN DUE, THE CLAIM SHALL BE DEEMED CONTROVERTED; REQUIRING EMPLOYERS TO COVER EMPLOYMENT INJURIES WITHOUT REGARD TO FAULT, INCLUDING OCCUPATIONAL DISEASES, MENTAL CONDITIONS AND INFECTIONS ARISING OUT OF EMPLOYMENT; PROHIBITING THE ENACTMENT OF SPECIAL EXCEPTIONS FOR EMPLOYMENT INJURIES EXCEPT THOSE CAUSED BY ALCOHOL, ILLEGAL DRUGS OR MISUSED PRESCRIPTION DRUGS; PROVIDING THAT WHEN AN EMPLOYMENT INJURY AGGRAVATES A PREEXISTING CONDITION, THE ENTIRE RESULTING CONDITION SHALL BE COMPENSABLE; RENDERING COMPENSABLE A DISABILITY OR INFIRMITY RESULTING FROM THE REASONABLE CONSEQUENCES OF AN EMPLOYMENT INJURY; REQUIRING EVIDENCE OF PERMANENT PHYSICAL IMPAIRMENTS TO BE BASED UPON COMMONLY USED MEDICAL STANDARDS; PROHIBITING SPECIAL RESTRICTIONS REGARDING EVIDENCE OR SYMPTOMS THAT MAY BE CONSIDERED; REQUIRING APPROVAL BY THE COMMISSION OF CLAIMANT LEGAL FEES; RESTRICTING LEGAL FEES FOR THE REPRESENTATION OF INJURED EMPLOYEES TO 25% OF ALL SUMS PAID IN RESPECT TO A CLAIM; REQUIRING LEGAL FEES IN CASES IN WHICH THE EMPLOYEE PREVAILS TO BE PAID BY THE EMPLOYER, INSURANCE COMPANY, OR OTHER RESPONDENT; PROVIDING THAT THE INJURED EMPLOYEE SHALL NOT PAY THE RESPONDENT’S LEGAL FEES UNLESS BAD FAITH IS FOUND; AUTHORIZING A CIVIL CAUSE OF ACTION AGAINST ANY EMPLOYER WHO DISCRIMINATES IN REGARD TO HIRING OR WORK CONDITIONS ON ACCOUNT OF CLAIMS MADE FOR BENEFITS, OR WHO OBSTRUCTS OR IMPEDES CLAIMS FOR BENEFITS; PROHIBITING ANY RECOVERY OR OFFSET BY AN EMPLOYER AGAINST BENEFITS RECEIVED BY AN EMPLOYEE FROM THIRD PARTIES, EXCEPT PURSUANT TO STATUTE; PROHIBITING ANY REDUCTION IN BENEFITS ON ACCOUNT OF SUCH RECEIPT; PROVIDING THAT THE AMENDMENT IS SEVER-ABLE; PROVIDING THAT THE EFFECTIVE DATE OF THE AMENDMENT IS JANUARY 1, 1995, EXCEPT FOR SECTION 2 (WHICH CALLS FOR THE FIRST ELECTION OF COMMISSIONERS TO BE HELD AT THE GENERAL ELECTION OF 1996); PROVIDING THAT THE AMENDMENT SHALL APPLY ONLY TO INJURIES OCCURRING AFTER JANUARY 1, 1995, AND FOR OTHER PURPOSES.

We begin by observing that this case has been severed into two parts, the factual component which relates to defective signatures and is petitioners’ Count I, and the nonfactual component which deals with allegations that the ballot title is misleading and incomplete and which is petitioners’ Count II. To assist us in resolving the factual aspects of Count I, we appointed a master, The Honorable Darrell Hickman, by per curiam orders dated September 20 and 27, 1994. The master’s charge was to collect evidence and make findings of fact relating to petitioners’ arguments that there are defects in the required number of signatures. Judge Hickman filed his findings on October 11, 1994. Briefs were filed by the parties on October 13 and 14, 1994, and the case was set for submission on October 24, 1994.

The nonfactual component concerns sufficiency of the ballot title. Petitioners Bailey and Smith raise several points in support of their argument that the ballot title has misleading tendencies or is incomplete: (1) the ballot title speaks of “restricting legal fees” when in fact authorized legal fees under the proposed amendment exceed what statutory law currently authorizes; (2) the ballot title omits mention of the fact that legal fees for appeals are not restricted and that the proposed amendment changes statutory law which provides for caps on such fees; (3) the ballot title omits mentioning that the proposed amendment requires a liberal construction of workers’ compensation laws to accomplish its remedial purposes which repeals existing statutory law on that point; (4) the ballot title fails to explain that tort actions for knowingly maintaining an unsafe workplace henceforth will be permitted which abolishes the exclusivity of the workers’ compensation remedy; and (5) the ballot title fails to explain sufficiently that the General Assembly is limited in what offsets for collateral benefits it can provide against workers’ compensation benefits.

The intervenor Committee both in its brief and in oral argument placed much store in the fact that the Attorney General had first modified and then certified the ballot title. The intervenor Committee directs our attention to Plugge v. McCuen, 310 Ark. 654, 657, 841 S.W.2d 139, 140 (1992) where we said: “The Attorney General’s approval of a ballot title raises a presumption as to its sufficiency and only in a clear case should such an approval be held insufficient.” The genesis for that language is found in Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 698 (1968). We quoted language from decisions in Colorado and California to the effect that a legitimate presumption should arise in favor of the Attorney General’s actions and only in a clear case should a ballot title be held insufficient. See Say v. Baker, 137 Colo. 155, 322 P.2d 317 (1958); Epperson v. Jordan, 12 Cal.2d 61, 82 P.2d 445 (1938). In Mason & Lamb v. Jernigan, 260 Ark. 385, 388, 540 S.W.2d 851, 853 (1976), we referred to the Fletcher case and stated that “some significance must be given to the fact that the Arkansas Attorney General approved the ballot title .. . .” Id. at 388, 540 S.W.2d at 853. We then cited Say v. Baker, supra, and Epperson v. Jordan, supra, in a footnote for the proposition that following an Attorney General’s approval “only in a clear case” should a ballot title be held to be insufficient. Jernigan, 260 Ark. at 388, 540 S.W.2d at 853.

Seemingly at odds with this precedent is the case of Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988). In that case, the Attorney General had also modified the ballot title and then certified it. We concluded with the following statement of the law:

The respondents contend that the Attorney General’s determination of sufficiency mandates deference, pointing to our statement “that only in a clear case, should a title so prepared be held insufficient.” The quoted language is from Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976). We have made other similar statements but they are somewhat illusory. Whether the Attorney General has correctly determined the sufficiency of the name and title is a matter of law to be decided by this Court. It is not at all comparable to a finding of fact by a trial court, which we will set aside only if it is clearly erroneous. ARCP Rule 52(a).

296 Ark. at 519, 758 S.W.2d at 406.

Because of our statements, particularly in Plugge v. McCuen, supra, and Gaines v. McCuen, supra, we find it necessary to clarify our standard of review in the aftermath of an Attorney General’s modification and certification of a ballot title. We will consider the fact of Attorney General certification and attach some significance to it. However, we will not defer to the Attorney General’s opinion or give it presumptive effect. To the extent that language in Plugge v. McCuen, supra, is at odds with this conclusion, we retreat from that language. In sum, sufficiency of a ballot title is a matter of law to be decided by this Court. Our conclusion is underscored by Amendment 7 to the Arkansas Constitution which grants “original and exclusive” jurisdiction over the sufficiency of statewide petitions to this Court.

We turn then to the ballot title itself. Our standards for reviewing a ballot title for an Amendment 7 initiative have often been stated by this Court. A ballot title 'must be free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring. Plugge v. McCuen, supra; Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988); Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). In addition, a ballot title must be intelligible, honest, and impartial so that it informs the voters with such clarity that they can cast their ballots with a fair understanding of the issues presented. Ferstl v. McCuen, supra; Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960). This Court is liberal in construing Amendment 7 and in determining the sufficiency of a ballot title under that amendment. Porter v. McCuen, 310 Ark. 562, 839 S.W.2d 512 (1992); Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990); Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982). But if information omitted from the ballot title is an essential fact which would give the voter serious ground for reflection, it must be disclosed. Finn v. McCuen, supra; Gaines v. McCuen, supra; Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958); Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936). It is not required that the ballot title contain a synopsis of the proposed amendment, but it should be complete enough to convey an intelligible idea of the scope and import of the proposal. Plugge v. McCuen, supra; Bradley v. Hall, supra; Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931).

A fair summary of these cases is that we have slightly different standards of review, depending on whether the allegation made is that information is omitted from the ballot title or that statements in the title are misleading. If we conclude that omitted information would, if included, give the voter serious ground for reflection on how to vote, this is a material omission and the ballot title is fatally deficient. On the other hand, if we conclude that statements contained in the ballot title have a tendency to mislead the voter so as to thwart a fair understanding of the issues presented, the ballot title is likewise insufficient.

Bearing these principles in mind, we address first the issue of attorney fees. The ballot title reads:

requiring approval by the Commission of claimant legal fees; restricting legal fees for the representation of injured employees to 25% of all sums paid in respect to a claim; requiring legal fees in cases in which the employee prevails to be paid by the employer, insurance company, or other respondent; providing that the injured employee shall not pay the respondent’s legal fees unless bad faith is found.

On the same subject, Section 12 of the proposed amendment states in pertinent part:

Legal fees for attorneys representing injured employees shall not exceed 25% of all sums paid in respect to a claim.
In addition to the fees provided above, if the claimant prevails on appeal, the attorney for the claimant shall be entitled to an additional fee at the full Commission and appellate court levels, the additional fee to be paid by the employer, insurance carrier, or respondent as set respectively by the Commission or appellate court.

Petitioners Bailey and Smith urge that the ballot title is misleading in essentially two respects. Far from being restricted by the 25% cap, the petitioners maintain that 25% of the amount recovered actually increases allowable attorney fees from what the statute presently allows. That statute reads:

The fees shall not exceed thirty percent (30%) of the first one thousand dollars ($1,000) of compensation, or part thereof, twenty percent (20%) of all sums in excess of one thousand dollars ($1,000), but less than three thousand dollars ($3,000) of compensation, and ten percent (10%) of all sums in excess of three thousand dollars ($3,000) of compensation.

Ark. Code Ann. § 11-9-715(a)(1) (1987). Hence, according to the petitioners, 25% of any amount recovered represents a significant increase in authorized fees.

For the second prong of their argument, petitioners point out that the ballot title is silent on attorney fees available on appeal to the Workers’ Compensation Commission or appellate courts. Existing law provides:

(2) The maximum fees allowable pursuant to this subsection shall be the sum of two hundred fifty dollars ($250) on appeals to the full commission from a decision of the administrative law judge, and the sum of five hundred dollars ($500) on appeals to the Arkansas Court of Appeals or Supreme Court from a decision of the commission.

Ark. Code Ann. § 11.-9-715 (b)(2) (1987). The proposed amendment would remove these fee caps altogether, and the ballot title does not touch on this important change.

We are not persuaded that using the words “restricting legal fees for the representation of injured employees to 25% of all sums paid” is sufficiently misleading in connection with general workers’ compensation claims to warrant removal of the issue from the ballot, even though this language would raise most limits currently prescribed by statute. However, the ballot title’s failure to reveal the fact that the caps are completely removed on legal fees connected with appeals is a different matter. We have no doubt that this is a material point in that knowledge of this exception to the restriction on fees would give some voters serious ground for reflection on how to cast their ballots. Finn v. McCuen, supra. And that is the standard we go by in assessing the impact of omitted information.

The clear message sent by the ballot title language restricting legal fees to 25% is that all legal fees, including legal fees on appeal, will be so limited. In point of fact, just the opposite is the case. The limits are being totally removed on legal fees collectible for appeals. Thus, a second standard comes into play on whether the language has a tendency to mislead. In this regard, the case bears some similarity to Bradley v. Hall, supra. In that case, we noted that the ballot title stated that the amendment would empower the General Assembly to “limit charges” in addition to interest, when nearly the exact opposite was the case. That proposal in fact would have authorized the General Assembly to legalize service charges and credit price differentials previously regarded as usurious. We concluded that the .ballot title had a tendency to mislead and ordered it removed from the ballot. Just as in Bradley v. Hall, supra, we are convinced that the • “restriction” language here has a tendency to mislead with respect to legal fees on appeal.

Petitioners Bailey and Smith point to a second material omission in the ballot title. In the draft submitted by the intervenor Committee to the Attorney General for certification, this clause was included:

that the Workers’ Compensation laws shall be liberally construed in accordance with the remedial purposes of a Workers’ Compensation system;

The Attorney General, nevertheless, removed it, and the ballot title as certified does not include this language. The proposed amendment, however, does contain a section on the liberal construction of workers’ compensation laws:

Section 8. Remedial Purpose: All workers’ compensation laws, whether established by constitution or statute, shall be liberally construed by any adjudicator in accordance with the remedial purpose of a workers’ compensation system.

Petitioners correctly contend that the effect of the language in the proposal would be to repeal that part of Act 796 of 1993, now codified at Ark. Code Ann. § 1 l-9-704(c)(3) (Supp. 1993), which provides that administrative law judges, the Workers’ Compensation Commission, and reviewing courts must construe the statutes strictly. Petitioners further contend that this feature is material and essential for a clear understanding of what would be adopted.

Again, our test for gauging materiality and the impact of omitted language in a ballot title is whether knowledge of that language would give the voters a serious basis for reflection on how to cast their ballots. We conclude that it would, and we agree with the petitioners that the Attorney General was wrong to remove this language. We have no hesitancy in determining that the voting public would see this policy language as a directive to adjudicators to view the workers’ compensation statutes expansively so as to provide remedies to those injured on the job site. The mandate concerning interpretation included in Section 8 lies at the core of the proposed amendment, and its inclusion in the ballot title was imperative.

We are not unmindful in making this decision that we are requiring additional language in two instances to an already lengthy ballot title. One of the principles, already adduced, that we use to guide us in our review of these matters is that a synopsis of every provision of the proposed amendment is not required. Plugge v. McCuen, supra. Moreover, our statutes require that certified ballot titles be brief and concise. Ark. Code Ann. § 7-9-107(b) (Repl. 1993). Otherwise, voters could well run afoul of the five minute limit in voting booths when prospective voters are waiting in line. Ark. Code Ann. § 7-5-522 (Repl. 1993). Having said that, the materiality of the two omissions, the tendency to mislead, and the fact that the voters would need this information to make an intelligent decision on the amendment give us no alternative but to conclude that the ballot title is fundamentally misleading. We further observe that although it is not the duty of this court to draft ballot titles, surely in this instance certain verbiage could have been eliminated from the title.

Having determined that the ballot title is deficient on the issue of attorney fees and construction of workers’ compensation laws, we need not address the other points raised by the petitioners.

The petition is granted and the Secretary of State is enjoined from canvassing or certifying any returns on the proposal entitled “An Amendment to the Arkansas Constitution to Restructure the Workers’ Compensation Commission and Revise Workers’ Compensation Law” in connection with the general election to be held on November 8, 1994. The mandate shall issue five days from date of this opinion unless a petition for rehearing is filed in which instance the Clerk of the Supreme Court shall set an expedited briefing schedule.

Petition granted.

Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. I dissent. My strong disagreement begins with the majority’s inability to follow the long-settled standard of review which this court has applied to ballot title cases for years. In Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 698 (1968), this court thoroughly discussed the significance to be given the fact that the Attorney General approved the ballot title of a proposed measure. This court reviewed other states’ ballot title procedures, and determined that the courts in those states spoke in terms of presumptions arising from the approval of ballot titles by those charged with that responsibility. After considerable thought, the Fletcher court adopted the rationale employed by courts in those other states and concluded as follows:

There is a clear implication that the General Assembly intended that presumptions as to sufficiency of a ballot title approved by the Attorney General favor the sponsors of a referendum petition inasmuch as the act (Ark. Stat. Ann. § 2-208, adopted in 1943) specifically provides for relief to them, but not to opponents, by petition of this court.

For more than twenty-six years, this court has steadfastly adhered to the above standard of review in ballot title cases. Mason & Lamb v. Jernigan, Sec’y of State, 260 Ark. 385, 540 S.W.2d 851 (1976); Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). Why this court chooses to abandon this settled rule is beyond my reasoning.

The majority opinion sets out some language in Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988), and concludes the Gaines case is at odds with the cases decided following Fletcher. If you shepardize Fletcher and Gaines, no suggestion appears that Fletcher and its progeny has been affected by Gaines. Nor does the Gaines case indicate as much. All Gaines does is emphasize the fact that, while our case law gives deference to the Attorney General’s ballot title approval, the supreme court must make the ultimate or final decision as to whether the ballot title is sufficient.

Obviously, the sponsors of a measure, as well as the Attorney General, must first sort through the various provisions and details of a measure, and attempt to determine what must be included in the ballot title. They must then phrase or word the ballot title. In this process, the sponsors and the Attorney General must make choices and discretionary calls, and in doing so, they could unintentionally err by placing or omitting something which might later be said to be misleading to the reader.

In these special ballot title cases, this court wisely decided that, when the state’s Attorney General’s office has approved the title, a presumption of sufficiency arises and only in a clear case, should a title so prepared be held insufficient. Quite candidly, the majority court today, with little thought and no real study, has set aside a rule of law that was carefully researched and adopted twenty-six years ago and that rule has sustained the trial of time.

If this court is going to change this established ballot title law, it should first forewarn the voters so they can know the rules they must follow when submitting measures and ballot titles to the Attorney General. Obviously, if the sponsors of the measure in this case had known the Attorney General’s approval meant nothing, then they may well have objected to the modifications the Attorney General made to the ballot title they submitted. A great inequity is especially present here since the majority concedes that one of the reasons it is striking the proposed amendment from the ballot is because the Attorney General made a mistake by changing the sponsor’s proposed ballot title.

Next, I turn to the majority opinion and what it states are the deficiencies in the ballot title. Summarized, they are as follows:

1. The ballot title fails to reveal that legal fees payable on appeals are limited under existing law, but will not be under the proposed measure.
2. The ballot title omits a description of a provision contained in the measure which provides that the Workers’ Compensation laws shall be liberally construed and fails to show present law provides that reviewing courts must construe workers’ compensation laws strictly.

In analyzing the majority’s two points, I would first point to the popular name — An Amendment to the Arkansas Constitution to Restructure the Workers’ Compensation Commission and Revise Workers’ Compensation Law. (Emphasis added.) The popular name plainly announces to the reader that not only revisions are being proposed to existing workers’ compensation law, but an entire restructuring of the Commission will be made, as well. In sum, anyone reading this caption is well aware that major changes in existing workers’ compensation law are part and parcel of the proposed amendment.

The majority opinion calls for more ballot title detail than the law requires. The general rule that a ballot title is sufficient if it identifies the proposed act and fairly alleges its general purpose. Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248 (1934). Also, not every detail of an amendment or how it will work in every situation need be revealed in the ballot title. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988). Nor does this court require a ballot title to cover or anticipate every possible legal argument that might arise as a result of the proposed amendment. Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).

First, the majority court argues that, contrary to petitioners’ contention, the proposed measure’s ballot title is sufficient where it provides legal fees for the representations of injured employees are restricted to 25% of all sums paid on a claim decided at the trial or commission level. I agree with the majority’s holding in this respect. But the majority further concludes the ballot title should have revealed that present statutory caps on legal fees awarded on appeal would be removed by the proposed amendment. See Ark. Code Ann. § 7-9-715 (1987). What the majority opinion fails to mention is that, under the proposed amendment, attorney fees are awarded only when a claimant prevails on appeal, and even then, any fee or fee amount is contingent upon the appellate court’s considering the nature, length, and complexity of the services performed, and the benefits result to the claimant. Clearly, legal fees under the proposed measure are not unlimited and remain subject to the review and scrutiny of the courts.

As a practical matter, appellate legal fees pale in comparison with those fees awarded at trials and hearings. Also, the number of appeals from the Commission’s decisions in workers’ compensation cases fall significantly short of those settled or tried at the trial or commission levels. The majority’s attempt to attach materiality to appellate fee awards on workers’ compensation cases stretches the imagination.

Considering the length of the proposed amendment and the major changes it calls for, it is unreasonable to expect every detail to be covered by the ballot title. Appellate fees are relatively insignificant, and as is commonly treated in appeals, remain subject to the review of the court. This is hardly the kind of matter that would mislead a voter in the approval or rejection of an amendment especially when the measure openly announces it is intended to restructure and revise existing workers’ compensation law.

In my view, the majority court’s second point is even less a problem than the one just discussed. The settled law is that, in determining the sufficiency of a ballot title, this court must be liberal in construing the tenets of Amendment 7. Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).

As stated in the majority opinion, the sponsors of the proposed amendment submitted a ballot title which included a clause, stating that workers’ compensation laws shall be liberally construed in accordance with the remedial purposes of a workers’ compensation system. The Attorney General removed this clause from the ballot title and understandably so. The clause contains a legal standard of construction employed by courts and that standard would mean little to the average voter.

The proposed amendment is comprised of sixteen sections that make many major substantive changes in restructuring and revising present workers’ compensation law. Amendment 7 does not require every detail or procedural matter to be placed in the ballot title. This court has stated repeatedly over the years that it is difficult to prepare a perfect ballot title — it is sufficient if it informs the voters with such clarity that they can cast their ballot with a fair understanding of the issue presented. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988); Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982); and Hoban v. Hall, Secretary of State, 229 Ark. 416, 316 S.W.2d 185 (1958).

In rendering the proposed amendment invalid, this court requires the ballot title to meet a much higher standard than that called for by the Arkansas Constitution. This court’s rigid standard applied in this case portends the difficulty Arkansas voters will have in placing initiatives on the ballot so the people will have a voice in their government and an opportunity to change it if they feel aggrieved.

Hays, J., joins this dissent.

       To make matters worse, the sponsors of any proposed measure have absolutely no recourse to or review by this court of a ballot title, rejected or modified by the Attorney General, until after their petitions with ballot title are circulated, signed and then filed with the Secretary of State’s office. See Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), (a 4-3 decision, where the court decided that this court’s jurisdiction attached only after the petitions are declared sufficient and that determination must be of the sufficiency on both the title and the signatures.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. STATE of Arkansas
    94-213
    885 S.W.2d 14
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994
    [Petition for Rehearing Declared Moot November 21, 1994.]

      Elizabeth McGee, for appellant.

      Winston Bryant, Att’y Gen., by: Dinah M. Dale, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

A single point for reversal is raised by appellant Arkansas Department of Human Services (DHS) from a decision by the Pulaski County Chancery Court Juvenile Division placing a juvenile in DHS custody. On appeal, DHS argues that the placement with the agency was improper in that the chancellor failed to comply with the requirements of Ark. Code Ann. § 9-27-328(a)(2) (Repl. 1993) by neglecting to make specific findings of fact that family services were made available before removal of the juvenile. It is unnecessary, however, for us to address this issue because the matter is moot. DHS seeks what amounts to an advisory opinion, but we neither issue advisory opinions nor decide moot cases. See Arkansas Department of Human Services v. M.D.M. Corp., 295 Ark. 549, 750 S.W.2d 57 (1988).

Facts

A.R., a fifteen-year-old male, was charged with possession of cocaine on June 4, 1993. A detention hearing was held on June 8, 1993, at which the Pulaski County deputy prosecutor filed a petition requesting that the youth be adjudicated a delinquent and praying for a court-ordered disposition consistent with the best interests of the juvenile and society. Neither A.R.’s mother, who was his legal guardian, nor his grandmother, with whom he was living, appeared at the hearing. Timothy A. Boozer, a deputy public defender, was appointed to represent A.R., who was present, and stipulated to probable cause.

On June 22, 1993, a plea and adjudication hearing was held, with A.R. and his grandmother present. A.R. entered a plea of no contest, waiving his right to trial. The chancellor found that the juvenile had voluntarily entered the plea and that his grandmother understood the nature of the charge and the consequences of her grandson’s decision. The court received testimony from the grandmother and ordered A.R. released to her custody alone. Various conditions were set, including a drug and alcohol assessment.

Subsequently, on July 30, 1993, the prosecutor’s office filed a petition for revocation of probation on the grounds that A.R. had “failed to stay with his guardian” and had “failed to report to his Probation Officer each week.” A.R. and his grandmother were served with a summons on August 3, 1993, to appear at a hearing set for October 13, 1993. The chancellor signed a pickup order on August 4, 1993, for A.R. to be placed in detention.

The revocation hearing on October 13, 1993, also involved a plea on a new charge of second-degree battery and interference with a law-enforcement officer. Because his grandmother could not be present due to a leg amputation, A.R.’s sister appeared with him. The two were served with copies of the revocation petition at that time. The sister was made a party defendant, A.R. was released to the joint custody of the sister and the grandmother, with orders for “24-hour-a-day adult supervision.”

On October 18, 1993, A.R. was placed in detention after testing positive for cocaine. A hearing was held on October 26, 1993, on the petition for revocation of probation on the possession charge. In addition, the battery and interference charges were to be adjudicated. The battery charge was reduced to third-degree, and the deputy public defender, waiving the presence of parent or custodian, admitted to the revocation, the amended battery charge, and the interference charge. Another hearing was set for November 3, 1993. A show-cause order was served on the sister on November 2, 1993, for her failure to appear at the October 26 hearing.

At the hearing on November 3, 1994, neither the grandmother, who apparently was still incapacitated, nor the sister, who was in her ninth month of pregnancy and ¿t the doctor’s office, was present. Two DHS representatives, Elisabeth McGee and Lavona Wilson, were called into the courtroom at the request of the deputy public defender.

At that time, A.R.’s probation officer testified that a bed had been secured for A.R. at the Riverbend treatment center but that no parent or legal guardian was available to sign him over to the program. The court then ordered the youth placed in DHS custody for the purpose of his obtaining treatment at Riverbend and receiving aftercare. Ms. McGee objected to placement with DHS on the basis that findings of fact had not been made pursuant to Ark. Code Ann. § 9-27-328. The chancellor found, nevertheless, that, in order to expedite treatment, it was necessary to place A.R. in DHS custody and entered a formal order in that regard. The Pulaski County Juvenile Detention Center was ordered to transport the youth to Riverbend and to detain him until November 24, 1993, when a disposition hearing was scheduled.

At the disposition hearing on November 24, 1993, A.R.’s mother, who resided in Hughes, Arkansas, appeared and stated her willingness to become a party defendant and to take custody of her son. A.R. was placed on indefinite probation, and the chancellor transferred jurisdiction of the case to the First Judicial District Juvenile Division. Ms. Wilson was present on behalf of DHS, but the record does not reflect that she was called upon by the court or that she offered any objection to the disposition of the matter.

Mootness

Because A.R.’s mother appeared at the November 24, 1993, hearing and agreed to submit to the juvenile division’s authority as a party defendant, assuming custody of and responsibility for her son, the question of DHS involvement was rendered moot. In her order of November 3, 1993, the chancellor had placed the youth in DHS custody for the express purpose of obtaining treatment and receiving aftercare. By the time of the disposition hearing on November 24, 1993, the period of treatment had obviously terminated. Moreover, at that hearing, the chancellor released A.R. to his mother’s custody and transferred jurisdiction of the case to the judicial district in which she resided.

Although the chancellor entered no formal order relieving DHS of custody, the order releasing the youth to his mother, adding her as a party defendant, and relinquishing jurisdiction effectively absolved DHS of further responsibility in the case. Under these circumstances, then, this appeal is unreviewable.

As we held in Mastin v. Mastin, 316 Ark. 327, 329, 871 S.W.2d 585, 586 (1994):

Mootness may not determine whether we review a case which involves the public interest, or tends to become moot before litigation can run its course, or in which a decision might avert future litigation.... Most cases become moot due to events which transpire in the course of litigation. . . . When, however, mootness is the result of the complaining litigant receiving from the Trial Court the relief requested, we are not inclined to review the matter.

(Emphasis added.) Here, before notice of appeal was filed, custody of A.R. was removed from DHS, which thereby received, at the hands of the chancellor, the ultimate relief it sought.

Appeal dismissed.


text:
    Kenneth FLETCHER v. STATE of Arkansas
    CR 93-562
    884 S.W.2d 623
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Lea Ellen Fowler O’Kelly, for appellant.

      Winston Bryant, Att’y Gen., by; Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Kenneth Fletcher filed a notice of appeal from the trial court’s refusal to grant his motion to dismiss an information filed in Lonoke County Circuit Court charging him with four counts of incest on the grounds of former jeopardy. He specifically invokes the province of this court by stating in the jurisdictional statement of his brief that “the relief sought by appellant is in the nature of prohibition because of former jeopardy and prohibition is the remedy within the sole jurisdiction of the Arkansas Supreme Court, pursuant to Rule 1-2(a)(6).”

Prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction. Leach v. State, 303 Ark. 309, 796 S.W.2d 837 (1990).

The Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 359 U.S. 784 (1969). However, where there is no threat of either multiple punishment or successive prosecutions, the double-jeopardy clause is not offended. United States v. Wilson, 420 U.S. 332 (1975).

Fletcher argues that collateral estoppel should also bar relitigation between the parties on issues actually determined in a previous trial. In the landmark decision of Ashe v. Swenson, 397 U.S. 436 (1970), the United States Supreme Court accorded collateral estoppel constitutional dimensions by incorporating it into the Fifth Amendment bar against double jeopardy.

Using these standards, this court must analyze the circumstances surrounding the previous trial and the court’s rulings to determine whether or not prohibition should lie.

Fletcher was charged by amended felony information in Pulaski County Circuit Court with one count of incest and one count of rape perpetrated against his adopted daughter, with whom he had lived in both Pulaski and Lonoke Counties. Specifically, the information alleging incest, filed on January 8, 1992, stated, in part:

Mark Stodola, Prosecuting Attorney of the Sixth Trial District of Arkansas, in the name, by the authority, and on behalf of the State of Arkansas charges KENNETH LOWE FLETCHER, with the crime of violating Ark. Code Ann. 5-26-202 INCEST committed as follows, to-wit: The said defendant(s), in Pulaski County, over a period of time, from on or about May 12, 1985, through on or about December 31, 1989, unlawfully, feloniously, being sixteen (16) years of age or older, he did have sexual intercourse or engage in deviate sexual activity with ... a person he knew to be his adopted child, against the peace and dignity of the State of Arkansas.

On February 10, 1992, Fletcher entered a plea of guilty to this charge and was sentenced on March 13, 1992, to ten years in the Arkansas Department of Correction. The record before us is silent as to the count of rape, which was also charged in the same information.

One month later, on April 13, 1992, Fletcher was charged in Lonoke County Circuit Court with four counts of incest. The information states that:

I, Will Feland, Prosecuting Attorney within and for the Seventeenth West Judicial Circuit of the State of Arkansas, of which Lonoke County is a part, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant of the crime of INCEST (4 CTS), committed as follows: The said defendant on or about May 12, May 26, June 27, and November 19, of 1989:
engage[d] in sexual intercourse with, or engage[d] in deviate sexual activity with a person he knew to be his adopted daughter ... in violation of AR Code Ann. 5-26-202, a Class C Felony,
against the peace and dignity of the State of Arkansas.

According to the affidavit for warrant for Fletcher’s arrest, the facts constituting reasonable cause are that, on the four specific dates listed in the information, Fletcher had sexual intercourse with his adopted daughter and videotaped these acts from a closet in his bedroom without her knowledge or permission. The affidavit specifies that these alleged sexual acts occurred in Lonoke County.

Fletcher subsequently filed a motion to dismiss the Lonoke County information, stating that the trial of these matters was barred by former jeopardy based upon his previous plea of guilty in Pulaski County for acts that occurred in the same time period. At the hearing on his motion, Fletcher explained that when he pleaded guilty to the charge in Pulaski County, the State “had alleged to me that any conduct in Cabot was considered as part of what had begun in Pulaski County” and “it was my understanding that I was pleading to all of the conduct up to when [my adopted daughter] moved out of my home in November of 1989.” The State did not take issue with this testimony.

After considering the arguments and briefs of the parties, the Lonoke County Circuit Court denied Fletcher’s motion to dismiss the information, explaining that:

The Court, on this 22nd day of February, 1993, after considering the arguments and briefs of the above parties, does hereby deny the Defendant’s Motion to Dismiss based upon the following:
1. That the charge against Defendant cannot be defined as a continuing course of conduct because each act occurred as the result of a separate impulse;
2. Neither the elements of the offense nor the acts ‘requisite to the consummation of the offense’ occurred partly in both counties, but were complete in themselves;
3. Since each act is a separate occurrence, then the Pulaski County Court did not have jurisdiction over the acts which occurred in Lonoke County;
4. Therefore, pursuant to Arkansas Code Annotated 5-1-115(1), the former prosecution in Pulaski County is not a bar to prosecution within Lonoke County.
THEREFORE, the Defendant’s Motion to Dismiss is hereby denied.

Based on our review of these facts and the court’s findings, we cannot say that the trial court erroneously exercised its jurisdiction in making a finding. Leach v. State, supra. Because prohibition is a remedy of sufferance rather than of right, only when it is entirely clear that the court below is exceeding its jurisdiction will we grant it. For this reason, we deny the appellant’s request for a writ of prohibition without prejudice and without taking a position on the issues of double jeopardy and collateral estoppel.


author: Robert H. Dudley, Justice.

text:
    Rotonger BURNS v. Peter J. CARROLL, M.D.
    94-234
    885 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Joshua Dara, for appellant.

      Anderson & Kilpatrick, by: Michael P. Vanderford, for appellee.
   Robert H. Dudley, Justice.

Rotonger Burns filed suit seeking damages as the result of alleged medical malpractice by Peter Carroll. The trial court dismissed the suit, and Ms. Burns appeals. Ms. Burns’s abstract does not contain a brief description or abridgment of her complaint, the response, other pleadings if any, attachments to motions if any, or an abridgment of the trial court’s final order. We have often written that our review on appeal is limited to the record as abstracted and that we will not reach the merits of a case when the documents in the transcript that are necessary for an understanding of the case are not abstracted. In this case nothing is abstracted.

Rule 4-2 of the Rules of the Supreme Court and Court of Appeals sets out the requirements for the abstract and brief and the number of copies necessary. When the rule is not followed, we are left with only the one record. It is impractical and sometimes impossible for seven justices to pass around one record and transcript, and we will not attempt to so do. Davis v. Peeples, 313 Ark. 654, 857 S.W.2d 825 (1993).

We affirm this appeal for failure to comply with Rule 4-2.


author: Tom Glaze, Justice.

text:
    William W. GALLOWAY, et al. v. ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT, et al.
    94-26
    885 S.W.2d 17
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Henry Law Firm, P.A., by: David P. Henry, for appellant.

      Robert L. Wilson, Chief Counsel and Charles Johnson, Staff Att’y for appellee, Arkansas State Highway and Transp. Dep’t.

      Donald W. Bourne, City Att’y, for appellee, City of Russelville.
   Tom Glaze, Justice.

On November 19, 1992, William W. Galloway and others filed suit against the City of Russellville, Arkansas State Highway and Transportation Department (ASHTD), Arkansas State Highway Commission and its Commissioners and Director, seeking to enjoin a construction project to widen 2.5 miles of Highway 64 which runs through Russellville. Galloway alleged, among other things, that, under federal law, ASHTD was required to conduct a public hearing and prepare an environmental statement before proceeding with the project. Galloway claimed that ASHTD’s expenditures on the project, without its compliance with federal law, constituted illegal exactions under Article 16, § 13 of the Arkansas Constitution.

In their answers and motions, ASHTD and the other defendants denied that any illegal exactions existed and alleged a number of affirmative defenses, including the city’s claim that it was not a real party in interest and was not participating in the project.

Sometime after Galloway filed suit, ASHTD awarded the contract for the project to Southern Pavers, Inc. On March 5, 1993, Southern Pavers was allowed to intervene in this action to protect its interests. To prevent Southern Pavers from undertaking further work on the project, Galloway requested and obtained a preliminary injunction conditioned upon posting a $500,000 bond. No bond was ever posted.

In July of 1993, the trial court heard this matter on its merits, and it then filed extensive findings of fact and conclusions of law. In accordance with its findings and conclusions, the court dismissed Galloway’s suit against all defendants. In sum, the trial court determined the Highway Department had complied with all required procedures under applicable federal law, 23 U.S.C. § 128, and pertinent regulations, 23 C.F.R. §§ 771.101 — 137. Specifically, the trial court held that no public hearing was required for the Highway 64 project.

Galloway’s first point for reversal is that the lower court’s requirement of a $500,000 bond in an illegal exaction suit effectively denied him due process. He argues that the intervenor’s, Southern Pavers’s, potential damages were not caused by Galloway’s suit, but instead, by ASHTD’s request for bids and having awarded the contract after the suit was filed. Galloway cites no authority on this point except ARCP 65, and makes no effort to show how he was prevented from seeking a preliminary injunction after filing suit but before ASHTD awarded the construction contract.

ARCP 65(d) clearly provides a court with discretion to require the giving of an adequate security as a condition precedent to the issuance of a preliminary injunction and that discretion is given the trial court in such matters because that court is in the best position to know whether security should be required. See Reporter’s Notes to Rule 65. Because Galloway offers no convincing argument or citations of authority on this point, we reject his due process issue. In addition, we note that Galloway never perfected an appeal from the lower court’s preliminary injunction order; that being true, our decision herein, affirming the trial court’s ultimate ruling, dismissing this suit against the defendants, renders Galloway’s first point moot in any event.

Galloway next argues the trial court erred in granting a directed verdict, finding no public hearing and environmental impact statement were lawfully required before ASHTD could proceed with the Highway 64 project. Indisputably, eighty percent of this project is funded by the Federal Highway Administration (FHWA) and the remaining amount is underwritten by the state. Because the project involves federal monies spent on a highway project going through Russellville, Galloway says a public hearing and environmental statement were necessary under 23 U.S.C. § 128(a), which provides in relevant part as follows:

Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community.

ASHTD counters by arguing not all federally-funded projects require public hearings and environmental impact statements. It further points out that 23 U.S.C. § 315 provides for rules and regulations to implement Title 23, including § 128, and that 23 C.F.R. § 771.101, et seq., implements and complies with § 128, and the National Environmental Policy Act (NEPA) and its regulations. See 40 C.F.R. §§ 1500 through 1508. For instance, § 771.111(h) provides that, for the Federal-aid highway program, each state must have procedures approved by the FHWA to carry out a public involvement/public hearing program pursuant to § 128 and 40 C.F.R. sections 1500 through 1508. However, §771.11 l(h)(2)(iii) continues as follows:

One or more public hearings or the opportunity for hearing(s) to be held by the State highway agency at a convenient time and place for any Federal-aid project which requires (1) significant amounts of right-of-way, (2) substantially changes the layout or functions of connecting roadways or of the facility being improved, (3) has a substantial adverse impact on abutting property, (4) otherwise has a significant social, economic, environmental or other effect, or for which the FHWA determines that a public hearing is in the public interest. (Emphasis added; inserted parenthetical numbers.)

In addition, § 771.117 further provides that categorical exclusions based on past experience with similar actions, do not involve significant environmental impacts. Such an exclusion is further defined as a category of actions which do not individually or cumulatively have a significant effect on the human environment and have been found to have no such effect in procedures adopted by a federal agency in implementation of these regulations and for which neither an environmental assessment nor an environmental impact statement is required. See 40 C.F.R. § 1508.4.

In keeping with the foregoing regulations, and before letting bids on the Highway 64 project, ASHTD and FHWA field inspected the site and, by documentation, ASHTD subsequently notified FHWA that no public hearing would be held. Afterwards, FHWA approved the project.

Consistent with the federal requirement set forth in § 771-111 (h)(iii), the trial judge received considerable evidence in making the following findings of fact:

1. Approximately 99% of the Highway 64 project would be constructed within ASHTD’s existing right-of-way.
2. The project did not have a substantial adverse impact on abutting property, since it does not (a) induce significant impacts to planned growth of land use for the area, (b) require relocation of persons, residences or businesses, (c) have any significant impact on air, noise, or water quality as shown by ASHTD’s environmental evaluation.
3. The layout or function of Highway 64 will remain the same, in fact, with only two additional lanes which will almost lie within the existing right-of-way. The connecting roadways have the same access to and across the highway.
4. The project does not have a significant social, economic, environmental, or other effect upon the area.

Since FHWA approved the Highway 64 project, it obviously determined that the project came within a categorical exclusion and that a public hearing was not required under federal law and regulations. Certainly, the record does not reflect that, as authorized under § 771.111 (h)(2)(iii) above, the FHWA otherwise determined a public hearing would be in the best interests of the public.

By definition, categorical exclusions are categories of action that have been predetermined not to involve significant environmental impacts and therefore require no further agency analysis absent extraordinary circumstances. Nat. Trust for Historic Preservation v. Dole, 828 F.2d 776 (D.C. Cir. 1987); § 771.117(c). A review of FHWA’s categorical exclusion determinations involve whether its actions are arbitrary and capricious. Id. It also seems elementary to say that, in these circumstances, the enforcement of § 128(a) and relevant regulations is not the responsibility of the state court but rather that of federal agencies disbursing federal funds, and, if necessary, that of the federal courts by injunctive control of such agencies. See County Highway Comm’n of Rutherford Co. v. Smith, 61 Tenn. App. 292, 454 S.W.2d 124, 129 (1970).

In conclusion, we uphold the trial court’s decision that there is no substantial evidence upon which a fact-finder could find for Galloway. Most significant, Galloway cites no authority to counter FHWA’s interpretation of federal law, and no authority that its actions in approving ASHTD’s project without a public hearing were erroneous and unlawful. The cases Galloway has cited, Puerto Rico Conservation Foundation v. Larson, 797 F.Supp. 1066 (1992), and Hickory Neighborhood Defense League v. Burnley, 703 F.Supp. 1208 (1988), are readily distinguishable from the situation here. Certainly those cases offer no support for the proposition that a state court can declare unlawful a federal agency’s actions taken in the disbursement of federal funds. Nor has he shown authority which would empower a state court to enforce such a holding. This is not to say that, if a federal agency or federal court had ruled invalid the federal funding of the Highway 64 project without a public hearing, Arkansas citizens might not then have the right under the state constitution to bring an illegal exaction suit. Those, of course, are not the circumstances now before us.

For the reasons set forth above, we affirm.

       Other holdings or conclusions were reached by the trial court, but it is unnecessary to consider all such alternative holdings that might support its decision.


author: Donald L. Corbin, Justice.

text:
    Nola Jean HALL and Roger Hall v. Sherman Jack GRIMMETT
    94-131
    885 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Keil & Goodson, by: Matt Keil, for appellants.

      Mickey Buchanan, for appellee.
   Donald L. Corbin, Justice.

Appellants, Ñola Jean Hall and her husband Roger Hall, appeal a judgment of the Sevier County Circuit Court ordering that they take nothing on their claims against appellee, Sherman Jack Grimmett. Mrs. Hall and Mr. Grimmett were involved in an automobile accident on Highway 329 near DeQueen, Arkansas. The Halls sued Mr. Grimmett as a result of the accident, asserting claims of negligence and loss of consortium. The jury returned a general verdict in favor of Mr. Grimmett. As their sole point for reversal, the Halls contend the jury’s verdict was against the preponderance of the evidence. We find no error in the judgment and affirm.

Mr. and Mrs. Hall’s sole point on appeal is that the jury verdict was against the “great weight and preponderance of the evidence.” The Halls did not move for a new trial and this is not an appeal from the denial of a motion for new trial. See ARCP Rule 59(a)(6). It is not necessary to move for a new trial to preserve for appeal any error which could be the basis for granting a new trial. ARCP Rule 59(f). Rule 59 specifically states a motion for new trial may be granted for eight reasons, one of which is where the verdict is clearly contrary to the preponderance of the evidence.

Neither a motion for new trial nor this appeal tests the sufficiency of the evidence to go to the jury and neither is precluded by ARCP Rule 50(e). Yeager v. Roberts, 288 Ark. 156, 702 S.W.2d 793 (1986). However, similar to the test on appeal from a denial of a motion for new trial, the test on this appeal is whether there is substantial evidence to support the jury verdict. See Minerva Enter. Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992).

The Halls argue the jury had to completely disregard all the evidence of negligence in this case in order to find for Mr. Grimmett. They contend the evidence established that Mr. Grimmett was negligent in failing to yield the right of way as he entered the highway from his private driveway and that Mrs. Hall was not negligent in any respect. We find no merit to this argument.

Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. Minerva, 308 Ark. 291, 824 S.W.2d 377. In determining the existence of substantial evidence, we view the evidence in the light most favorable to the party on whose behalf the judgment was entered and give it its highest probative value, taking into account all reasonable inferences deducible from it. Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992). In reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

Viewing the evidence in the light most favorable to Mr. Grimmett, we conclude there was substantial evidence to support the jury’s verdict. While there may indeed have been conflicting evidence presented in this case, it is up to the jury to resolve the conflicts in the testimony and judge the weight and credibility of all the evidence. Rathbun, 315 Ark. 264, 866 S.W.2d 403. Based on the evidence presented at trial, the jury could have concluded, without speculation, that Mr. Grimmett did not act negligently when he pulled out of his driveway. Mr. Grimmett testified he looked both ways and did not see any approaching traffic. Captain Paul Watson of the DeQueen Police Department testified there is a blind spot in the view from Mr. Grimmett’s driveway and that Mr. Grimmett could not have seen Mrs. Hall’s car if it was in that blind spot.

Additionally, based on the evidence presented at trial, the jury could have concluded, without speculation, that the accident in question did not cause Mrs. Hall’s injuries. Mrs. Hall testified that about a year prior to this accident, she was involved in another automobile accident in which she suffered injuries to her lower back. She testified the back injuries she received in her first accident were some of the cause of her problems. The deposition of Nancy Griffin, a board-certified neurologist, was admitted at trial and read to the jury. Dr. Griffin stated that Mrs. Hall had a pain problem with injured disks in her back and neck and it was possible that the second accident aggravated the injuries Mrs. Hall received in the first accident. The deposition of Phillip Osborne, a medical doctor and director of numerous centers of occupational medicine and disability evaluation, was admitted at trial and read to the jury. Dr. Osborne testified that although initial results from a myelogram and x-rays indicated Mrs. Hall had bulging cervical disks, he was unable to verify Mrs. Hall’s injuries as suggested by the American Medical Association’s guide for evaluation of permanent impairment. Dr. Osborne stated that when a patient’s injuries could not be cross-validated, the AMA guide suggests obtaining a complete psychological profile to explain the patient’s inability to cross-validate. Consequently, Dr. Osborne’s primary diagnosis of Mrs. Hall was somatization disorder and personality disorder. He described someone with somatization disorder as one who takes physical stresses and converts them into physical deterioration.

In sum, based on the foregoing evidence, the jury could have concluded with reasonable certainty that the Halls did not meet their burden of proving that Mr. Grimmett acted negligently. As to the Halls’ contention that the jury’s verdict was unsupported by substantial evidence, we emphasize that where the verdict is against the party having the burden of proof, as in this case, a literal application of the rule would be untenable, as the defendant may have introduced little or no proof, yet the verdict was for the defendant. We have examined the rule in that context in a number of cases. Gilbert v. Shine, 314 Ark. 486, 863 S.W.2d 314 (1993) (and cases cited therein). Whether Mr. Grimmett acted unreasonably or caused Mrs. Hall’s injuries was resolved by the verdict. The foregoing evidence constitutes substantial evidence supporting the jury’s verdict for Mr. Grimmett.

The judgment is affirmed.


text:
    Stephen M. PARTIN v. STATE of Arkansas
    CR 93-682
    885 S.W.2d 21
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Charles A. Potter, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Stephen M. Partin, appeals a judgment of the Miller County Circuit Court convicting him of second-degree murder, sentencing him to thirty-five years imprisonment, and fining him $15,000.00. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant’s sole contention for reversal concerns the admissibility of testimony by a witness whose memory, appellant contends, was enhanced by hypnosis. We find no error and affirm the judgment.

The jury convicted appellant of murdering George O’Brien, the live-in boyfriend of appellant’s former wife, Joy Partin. The murder occurred in a parking lot of the hospital where Trevor Partin was being treated for two gunshot wounds to the head from a .22 rifle. Trevor Partin is the ten-year-old son of appellant and Joy Partin.

Trevor became lost in the woods while his mother and O’Brien were camping. Upon being discovered, Trevor told his rescuers that he shot himself with the .22 rifle. However, while appellant was visiting Trevor in the hospital, Trevor told appellant in the presence of a nurse and a paramedic that the incident did not occur the way he had been telling. The testimony of the nurse and the paramedic confirmed this. Appellant testified that Trevor then said that George O’Brien shot him; however, the testimony of the two witnesses could not confirm or negate this.

Minutes after Trevor told appellant that O’Brien shot him, appellant stated he witnessed O’Brien tampering with Trevor’s intravenous equipment. Appellant reported this to the Texarkana police and a reporter from the Texarkana Gazette. The police notified hospital security, but to no avail as appellant again encountered O’Brien in his son’s hospital room the following day. After appellant left the hospital, he encountered O’Brien in the parking lot. Appellant asked O’Brien what was going on. O’Brien reached for what appellant suspected was a weapon, but later proved to be car keys. Appellant shot O’Brien several times and immediately admitted to doing so.

After the close of appellant’s defense, the state called Trevor as a rebuttal witness. Appellant objected to any testimony by Trevor on the basis that Trevor had been hypnotized. The state responded that one Sharon Nolte, a private detective, and one Lynn Cox, a Texas law enforcement officer, attempted the hypnosis of Trevor on videotape and were not working as agents of the prosecution. The state became aware of the tape when Trevor’s mother brought the tape to the prosecutor during appellant’s trial. The trial court ordered the state to produce Trevor’s mother to testify outside the hearing of the jury as to the possible hypnosis of the child.

Joy Partin stated Sharon Nolte contacted her asking to hypnotize Trevor and record his statement. According to Ms. Partin, Ms. Nolte told her that Trevor would not have to testify in court if his hypnosis was videotaped. Ms. Partin stated that Trevor did not know if he was hypnotized, but opined that he was although she had never seen anyone hypnotized before. She stated the version of the shooting that Trevor had always told her had never changed from that he gave on the videotape — that Trevor shot himself.

After hearing Joy Partin’s testimony regarding the videotape and alleged hypnosis, the trial court acknowledged that neither the state nor the defense had knowledge of or participated in the hypnosis and ruled there was no clear evidence before the court that hypnotism occurred. The trial court stated that Trevor’s statements to numerous witnesses from the time of the shooting through the time of the alleged hypnosis session were consistent, thus no case law prohibited his testimony.

Trevor Partin then testified before the jury. He stated that he got lost in the woods and shot himself with the rifle. Trevor stated that he did not tell his father that George O’Brien shot him. However, he also stated that he did not recall much of what happened in the hospital. Specifically, he stated he did not remember an occasion when a nurse and a paramedic were in his hospital room while his father questioned him about the shooting.

On appeal, appellant contends the trial court erred in admitting any testimony by Trevor because he had been hypnotized. Appellant’s sole authority for this contention is Rock v. State, 288 Ark. 566, 708 S.W.2d 78 (1986), vacated, 483 U.S. 44 (1987). This court’s decision in Rock held that hypnotically enhanced testimony of a criminal defendant is inadmissible per se, and that testimony of pre-hypnotic memories is admissible if shown by the proponent by clear and convincing evidence to be reliable and if limited to memories prior to the hypnosis. Appellant acknowledges this court’s decision in Rock was vacated by the United States Supreme Court, but argues the vacation was limited to the effect on a defendant’s Constitutional right to testify.

In Rock v. Arkansas, 483 U.S. 44 (1987), the United States Supreme Court observed that other states which have adopted an evidentiary rule excluding hypnotically refreshed testimony have done so only for the testimony of witnesses other than criminal defendants, and that in Rock v. State, this court failed to make the constitutional analysis necessary when a criminal defendant’s right to testify is at stake. Thus, the judgment of this court in Rock was vacated by the Supreme Court. We need not determine whether the rules enunciated in Rock regarding admissibility of hypnotically enhanced testimony apply to a witness who is not a criminal defendant because we agree with the trial court’s ruling that Trevor was not hypnotized.

Rulings on the admissibility of evidence are matters within the trial court’s sound discretion, and we will not reverse such rulings absent an abuse of that discretion. Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Here, the trial court specifically found there was no clear evidence that Trevor had been hypnotized. The only evidence before the trial court on this particular point was the testimony of Trevor’s mother. Granted, the lack of evidence on this point was due to the lateness of Joy Part-in’s disclosure of the tape. Nonetheless, based on the record before it, we cannot say the trial court erred in finding Trevor had not been hypnotized. Moreover, the testimony Trevor gave at trial was consistent with the videotape and all the other accounts Trevor gave of the incident. Consequently, we cannot say the trial court abused its discretion in admitting the testimony.

The state contends that even if error was committed in admitting this testimony it would be harmless because the evidence was not central to appellant’s defenses of duress and self-defense. We agree. Trevor’s testimony is irrelevant to appellant’s state of mind concerning his duress or self-defense defenses. Moreover, numerous witnesses, including Trevor’s rescuers and hospital personnel, stated that Trevor said he shot himself. Thus, the same evidence was properly presented to the jury by other witnesses without objection, and if any error occurred in admitting Trevor’s testimony, it was harmless. Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991) (citing Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986)).

The judgment is affirmed.


author: Robert L. Brown, Justice.

text:
    WESTERN GROVE SCHOOL DISTRICT v. Joe TERRY, II
    93-1271
    885 S.W.2d 300
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Brazil, Clawson, Adlong, Murphy & Osmet, by: William Clay Brazil; and Martin Law Firm, P.A., by: Thomas A. Martin, for appellant.

      Mitchell, Blackstock & Barnes, by: David L. Ivers and Clayton R. Blackstock, for appellee.
   Robert L. Brown, Justice.

This case concerns the reinstatement of a teacher/coach, appellee Joe Terry, II, according to the terms of his 1992-93 contract with appellant Western Grove School District. The School District attempted to change that contract both as to services and pay for the 1993-94 school year. The circuit court ordered the reinstatement. The School District now appeals and asserts two points of error: (1) the circuit court erred in applying the Teacher Fair Dismissal Act (Ark. Code Ann. § 6-17-1501, et seq. (Repl. 1993)) to the facts of this case; and (2) Terry failed to avail himself of a hearing before the School Board which was his exclusive remedy. We disagree that these points constitute error, and we affirm the reinstatement order of the circuit court.

On March 11, 1992, Terry entered into a Teacher’s Contract with the School District for the 1992-93 school year. At the time Terry was a non-probationary teacher/coach who was certified as a teacher. His contract described these services to be performed:

Teacher of Physical Ed. and Health and High School Social Studies
High School Basketball Coach

The time period for the contract was August 24, 1992, to June 4, 1993, and the compensation to be paid was $28,550.

For the 1992-93 school year, Terry taught one elementary physical education class, one health class, and four additional physical education classes which in actuality were basketball practices for a girls’ senior and junior team and a boys’ senior and junior team. In November 1992, Terry was approached about giving up the two girls’ basketball teams with a concomitant reduction in pay. He refused. A girls’ basketball coach was hired, nonetheless, in December 1992 and assumed the coaching of the two girls’ teams. Terry’s compensation was not reduced at that time.

On March 11, 1993, the Western Grove School Board met and voted to divest Terry of his coaching responsibilities for the 1993-94 school year and to reduce his pay by $6,000. According to minutes of the board meeting, the $6,000 represented coaching stipends of $1,500 per basketball team. The next day, March 12, 1993, Superintendent Jack C. Robinson notified Terry of the School Board’s action by certified letter and enclosed a new Teacher’s Contract for the 1993-94 school year. That contract specified Terry’s services to be:

Secondary Ed
Health and Social Studies

The time period covered was from August 12, 1993, to May 16, 1994, and compensation was to be $22,750.

On April 12, 1993, Terry wrote to the superintendent that he intended to be employed by the School District as a teacher/coach the following school year. Superintendent Robinson wrote back the next day that he deemed Terry’s letter to be a resignation. Terry replied in writing on April 16, 1993, that he had not resigned. Additional correspondence ensued between the two men along the same lines.

On May 12, 1993, Terry filed a petition for writ of mandamus to compel the School Board to reinstate him “on at least the same salary and on at least the same terms as in the 1992-93 school year” pursuant to the Teacher Fair Dismissal Act. He included a prayer for declaratory relief and for damages. The School Board responded that Terry’s exclusive remedy was to request a hearing on the matter before the board, and the board also moved to dismiss the petition for failure to exercise that exclusive remedy. Following a hearing, the circuit court entered an order denying the motion to dismiss and granting the writ of mandamus, declaratory relief, and reinstatement. In doing so, the court found that the nonrenewal of Terry’s contract violated the terms of the Teacher Fair Dismissal Act and was arbitrary and capricious.

The School District argues as its first point on appeal that its action against Terry was merely a reassignment of duties —• not a nonrenewal ■— and that the Teacher Fair Dismissal Act was not applicable. The facts do not bear this out.

We first observe that Terry was a teacher holding a teaching certificate as a condition of his employment. Ark. Code Ann. § 6-17-1502(a)(l) (Repl. 1993). His contract combined his teaching and coaching duties and provided for a total salary. Indeed, his teaching and coaching duties merged in basketball practice where the student/athletes received physical education credit. No separate provision for “extracurricular activities” was provided in the contract. Terry, as a teacher/coach, fell within the ambit of Teacher Fair Dismissal Act protection. Lamar Sch. Dist. No. 39 v. Kinder, 278 Ark. 1, 642 S.W.2d 885 (1982).

We turn next to the Teacher Fair Dismissal Act itself which provides in part:.

(a) Every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year succeeding the, date of termination fixed therein, which renewal may be made by an endorsement on the existing contract instrument, unless by May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed or, unless during the period of the contract or within ten (10) days after the end of the school year, the teacher shall deliver or mail by registered mail to the board of directors his or her resignation as a teacher, or unless such contract is superseded by another contract between the parties.
(b) Termination, nonrenewal, or suspension shall be only upon the recommendation of the superintendent. A notice of nonrenewal shall be mailed by registered or certified mail to the teacher at the teacher’s residence address as reflected in the teacher’s personnel file. The notice of recommended nonrenewal of a teacher shall include a simple but complete statement of the reasons for such recommendation.

Ark. Code Ann. § 6-17-1506 (Repl. 1993).

The School District’s proposed 1993-94 Teacher Contract for Terry was not on the same terms or for the same salary as the contract for the previous year. The salary was reduced by about 20 percent and the duties were curtailed. Because of this, the case differs markedly from Chandler v. Perry-Casa Pub. Sch. Dist. No. 2, 286 Ark. 170, 690 S.W.2d 349 (1985). In that case, the teacher wanted an assignment as a secondary math teacher but was assigned as a computer instructor. No reduction in compensation was at issue. We noted that a teacher could not always be assigned to duties of that teacher’s preference and that the assignment by the school district appeared to be reasonable. In the case at bar, we agree with the circuit court that what took place was not a reassignment of duties but a nonrenewal of Terry’s contract.

The issue then becomes whether the Superintendent and School Board complied with the notice requirements of the Teacher Fair Dismissal Act which mandate that a superintendent give a prior notice of recommended nonrenewal to the teacher. Ark. Code Ann. § 6-17-1506 (Repl. 1993). In certain cases prior to 1989, we held that substantial compliance with the notice requirements sufficed. See, e.g., Murray v. Altheimer-Sherrill Pub. Sch., 294 Ark. 403, 743 S.W.2d 789 (1988); Lee v. Big Flat Pub. Sch., 280 Ark. 377, 658 S.W.2d 389 (1983). However, in 1989, the General Assembly enacted Act 625 which amended the Teacher Fair Dismissal Act and added this sentence to Ark. Code Ann. § 6-17-1503 (Repl. 1993):

A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school district’s applicable personnel policies.

No notice was given to Terry until after the action taken by the School Board on March 11, 1993, to dramatically alter his contract. This certainly was not strict compliance with § 6-17-1506. Hence, the action of the School Board was void.

Furthermore, this court has specifically held that the notice of proposed nonrenewal under the Teacher Fair Dismissal Act must be given to a teacher before the school board’s decision not to renew. Green Forest Pub. Sch. v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985); Burden v. Hayden, 275 Ark. 93, 627 S.W.2d 555 (1982). The reasoning behind these two cases is readily understandable. After a board has made its decision, the teacher is confronted with the much more daunting task of reversing formed opinions and formal action by the board members. The prejudice to the teacher under such circumstances is obvious and real.

We are mindful that this court has referred to substantial compliance with the Teacher Fair Dismissal Act in a case handed down after Act 625 of 1989. See Teague v. Walnut Ridge Schools, 315 Ark. 424, 868 S.W.2d 56 (1993). The Teague case concerned whether a teacher’s delivery of a resignation letter to the school principal which was addressed to the school board equated to delivery of the letter to the school board as the Act required. The principal passed the contents of the letter on to the school board by memorandum the next day. We concluded that the Act had been complied with and emphasized that our holding was based partially on the facts of that case. We reiterate today that the Teague case was decided on a unique set of facts. Substantial compliance no longer governs Teacher Fair Dismissal Cases, as the General Assembly has spoken unequivocably in Act 625 of 1989 that there must be strict compliance with the Act before a nonrenewal, termination, or suspension may be put into effect.

We hold that the circuit court was entirely correct in finding that the actions of the School Board, including the altered contract for the 1993-94 school year, constituted a nonrenewal by the Board without prior notice to Terry and was void under the Act. We further hold that the circuit court correctly concluded that Terry’s contract for the 1993-94 school year must be on the same terms and for the same salary as the 1992-93 contract.

The School District next urges that if this was a non-renewal of his contract, Terry was fatally remiss in bypassing the administrative hearing process set out in the Teacher Fair Dismissal Act. See Ark. Code Ann. §§ 6-17-1509, 6-17-1510 (Repl. 1993). The District notes that § 6-17-1510 describes this process as the “exclusive remedy” for any nonprobationary teacher aggrieved by a board decision. However, this procedure presupposes a proper notice of a nonrenewal recommendation by the superintendent to the teacher so that the teacher may request a hearing before board action. Here that was not done.

The School District points us to Green Forest Pub. Sch. v. Herrington, supra, and Murray v. Altheimer-Sherrill Pub. Sch., supra, as examples of cases where hearings were requested by teachers after board action. But the fact that other parties in other cases may have seen fit to request hearings after the board has acted does not decide the issue in the School District’s favor. We agree with the circuit court that there is no legal requirement that a teacher ask for a board hearing after the board has already taken action. Again, the burden on the teacher under such circumstances would be oppressive, and the effort perhaps even futile, following a board decision on the issue. See Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993). Terry appropriately filed his petition for relief in circuit court.

Affirmed.


author: Per Curiam.

text:
    Gloria Jean BILDERBACK v. STATE of Arkansas
    CR 94-1034
    888 S.W.2d 290
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Gene O’Daniel, for appellant.
    No response.
   Per Curiam.

Gloria Jean Bilderback, by her attorney, Gene O’Daniel, has filed a motion for a rule on the clerk. Her attorney, Gene O’Daniel, admits by motion that the record was tendered late due to a mistake on his part.

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

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


text:
    Larry FRANKLIN v. STATE of Arkansas
    CR 94-1002
    885 S.W.2d 23
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Louis A. Etoch, for appellant.
    No response.
   Per Curiam.

Petitioner Larry Franklin was tried on December 7 and 8, 1993, in the Phillips County Circuit Court on a charge of theft of property, a Class B felony. He was sentenced on December 8, 1993, to five years imprisonment. Franklin’s trial attorney, Louis Etoch, obtained an order granting the petitioner indigent status and allowing him to proceed on appeal in forma pauperis with Mr. Etoch as appointed counsel.

Attorney Etoch filed a notice of appeal and designation of record with the circuit court on December 30, 1993. On March 16, 1994, Mr. Etoch filed a motion for extension of time, noting that “Defendant has not received the transcript as of the 15 th day of March, 1994.” (The transcript was due by March 30.) The circuit court granted an extension to June 30, 1994. On June 30, Mr. Etoch filed a motion for a second extension, stating that the transcript had still not been received as of June 29, 1994. The court granted the requested extension to July 8, 1994, the final date allowable under our seven-month rule. See Rule 5 of Ark. R. of App. P.

On September 19, 1994, Mr. Etoch filed a motion for rule on the clerk and tendered a partial record. In addition, he asked for a “writ of habeas corpus to supplement partial record with transcript once transcribed” and offered the following account of the circumstances:

Judge Oily Neal’s court reporter, Nyla Keels, has been unable to deliver to defense counsel the trial record. Court reporter Keels has explained to Attorney Etoch that she expects the record to be ready within the next few weeks.

It is the attorney’s duty to file the record on time. Rockett v. State, 317 Ark. 430, 877 S.W.2d 593 (1994). When a complete record is not available, a partial record will suffice. Mr. Etoch did not tender a partial record until September 19, 1994, some two months late, and for this reason he has breached his duty. The fact that the court reporter had not prepared her transcript of trial did not prevent Mr. Etoch from obtaining a partial record from the Phillips County Circuit Clerk and tendering a partial record to us in a timely manner.

We direct Mr. Etoch to file a motion for rule on the clerk and affidavit in this case within fifteen days, accepting responsibility for failing to perfect the appeal. Appellant’s motion will then be granted, Watson v. State, 313 Ark. 409, 856 S.W.2d 1 (1993), and a copy of the opinion granting the motion will be forwarded to the Committee on Professional Conduct.

As to the failure of the court reporter Nyla Keels to prepare the transcript of trial, we direct the clerk of this court to issue a writ of certiorari directing Ms. Keels to complete the transcript within fifteen days. Failure to transcribe the proceedings of a two-day trial within the time prescribed by our rules is inexcusable.

The clerk is also directed to forward a copy of this per curiam order to the Board of Certified Court Reporter Examiners for any action it might deem necessary under its rules.


text:
    Clinton HANSBERRY, Jr. v. STATE of Arkansas
    94-991
    885 S.W.2d 296
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Heather Patrice Hogrobrooks, for appellant.
    No response.
   Per Curiam.

Appellant files a motion for rule on the clerk requesting the court to direct its clerk to accept appellant’s transcript. The trial judge orally announced his decision in open court on May 24, 1994, but his judgment was not entered until June 28, 1994. Appellant filed his notice of appeal on June 7, 1994 — before entry of the judgment.

Under ARCP Rule 36.9, a defendant must file his appeal within thirty days from the date of entry of the judgment, and a notice is invalid if it is filed prior to the entry of the judgment appealed from. Appellant points out the trial judge’s June 28, 1994 judgment was entered nunc pro tunc effective May 24, 1994, which, appellant urges, cures any premature timeliness of his notice of appeal. Not so. As we said in Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993), a nunc pro tunc order may be entered to make the court’s record speak the truth or to show that which actually occurred. Here, the event triggering the time for filing an appeal is when the judgment is entered. That event never occurred on May 24, 1994, and a nunc pro tunc order cannot be utilized to correct the omission.

We direct appellant’s counsel to file a motion and affidavit in this case within thirty days, accepting responsibility for failing to perfect the appeal. Appellant’s motion will then be granted, Watson v. State, 313 Ark. 409, 856 S.W.2d 1 (1993), and a copy of the opinion granting the motion will be forwarded to the Committee on Professional Conduct.

Accordingly, the motion is denied.


text:
    Eddie LAMBERT v. STATE of Arkansas
    CR 94-1037
    884 S.W.2d 626
    Supreme Court of Arkansas
    Opinion delivered October 17, 1994

      Robert P. Remet, for appellant.
    No response.
   Per Curiam.

Appellant has filed a motion for rule on the clerk. His attorney, Robert P. Remet, admits that the record was tendered late due to a mistake on his part. We find that such admission of fault by an attorney in a criminal case is good cause to grant the motion. See Tarry v. State 288 Ark. 172, 702 S.W.2d 904 (1986).

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