author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justicé,

text:
    REDFIELD TELEPHONE COMPANY v. ARKANSAS PUBLIC SERVICE COMMISSION
    81-49
    621 S.W. 2d 470
    Supreme Court of Arkansas
    Opinion delivered September 28, 1981

      McMath & Leatherman, by: James Bruce McMath, for appellant.

      Jeff Broadwater, for appellee.

      Bachmann, Weltchek & Powers, by Andrew Weltchek, New Orleans, LA for intervenor, ACORN.
   Richard B. Adkisson, Chief Justice.

This is an appeal from a circuit court judgment affirming the Arkansas Public Service Commission order of April 7, 1978, revoking the Certificate of Convenience and Necessity, hereinafter Certificate, of the Redfield Telephone Company, hereinafter Company. We affirm.

The Company was granted a Certificate by the Commission to serve certain areas of Pulaski, Jefferson, Saline, and Grant counties and is a public utility subject to the jurisdiction and supervision of the Commission by virtue of Ark. Stat. Ann. §§ 73-201 — 276.18 (Repl. 1979). The Commission took its action after notice and a full hearing in a formal proceeding which was recorded and is a part of the record on appeal.

In revoking the Certificate the Commission found, based upon testimony of customers, Company officials, and Commission investigative staff, that the Company had violated Special Rules 3-3, 11.1, 12, 17, 19, 22, 26, 27, 28, 31, 32, and 33 which were promulgated by the Commission on January 22, 1973, pursuant to Ark. Stat. Ann. § 73-218 (Repl. 1979) and that the Company had failed to comply with two separate Commission orders directing the Company to comply with these specific rules. The Commission also found that many of the customer service complaints could not be attributed to lack of operating funds but rather to the philosophy and ability of the present management and, therefore, customer difficulties with service would persist as long as the present management was associated with the Company. Based upon these findings, the Commission held that public necessity required the revocation of the Company’s Certificate since reasonably adequate service had not been provided. However, as an alternative to revocation, the Commission indicated that an agreement by the Company to transfer its plant and Certificate to an able third party would be acceptable.

In Public Service Commission v. Continental Telephone Co., 262 Ark. 821, 561 S.W. 2d 645 (1978), this Court recognized that a Certificate could be revoked.

If the rates are such that the Company cannot finance the improvements necessary to provide the required quality of service ... it is inevitable that confiscation will result and that Continental’s Certificate of Public Convenience and Necessity will be lost, through surrender or revocation, and awarded to some other telephone company . . .Id. at 830-831.

In holding that the Public Service Commission of Puerto Rico had the power to revoke a franchise, the United States Supreme Court in Public Service Commission v. Havemeyer, 296 U.S. 506 (1936), stated that in every grant of franchise is the implied condition that it may be lost by misuse.

Appellant argues that the Commission does not have authority to revoke its Certificate because revocation is a judicial as opposed to a legislative function. But, we held otherwise in Veteran’s Taxicab Co. v. City of Fort Smith, 213 Ark. 687, 212 S.W. 2d 341 (1948) where we affirmed the Fort Smith City Commission’s legislative revocation of a taxi franchise. In Delaware Coach v. Public Service Commission, 265 F. Supp. 648 (1967), it was stated that since granting or withholding certification to a public utility is a legislative function, the determination to revoke must also be legislative in character.

The Commission itself has long recognized it has the power to revoke a certificate, as evidenced by Re R. V. Taylor, 69 PUR 3d 205 (Ark. 1967):

[A] telephone company . . . must first obtain from this commission a certificate of convenience and necessity authorizing it to provide local telephone service. If thereafter, the public utility fails to render adequate service to the residents in the area which it professes to serve, the commission can cancel the certificate of convenience and necessity and so make the area available for service by another telephone company.

Appellant next argues that even if revocation is a legislative function, it has not been delegated to the Commission by the legislature. We have held to the contrary. The legislature has delegated and entrusted the administration of the Public Utilities Act to the Commission. Ark. Power & Light Co. v. Ark. Public Service Commission, 226 Ark. 225, 289 S.W. 2d 668 (1956); Dept. of Public Utilities v. Arkansas Louisiana Gas Co., 200 Ark. 983, 142 S.W. 2d 213 (1940). The Commission was created to act for the General Assembly, and it has the same power that body would have when acting within the powers conferred upon it by legislative act. Southwestern Bell Telephone Co. v. Ark. Public Service Commission, 272 Ark. 550, 593 S.W. 2d 434 (1980).

The delegation of such authority is evidenced by three separate Arkansas statutes.

First, Ark. Stat. Ann. § 73-202 (a) (Repl. 1979), provides:

The Department [Commission] herein created [Arkansas Public Service Commission or Arkansas Transportation Commission] is hereby vested with the power and jurisdiction, and it is hereby made its duty to supervise and regulate every public utility in this Act defined, and to do all things, whether herein specifically designated, that may be necessary or expedient in the exercise of such power and jurisdiction, or in the discharge of its duty.

Second, Ark. Stat. Ann. § 73-230 (Repl. 1979), provides:

The Department [Commission] may at any time, and from time to time, after notice, and after opportunity to be heard as provided in the case of complaints, rescind or amend by order any decision made by it. ...

Third, Ark. Stat. Ann. § 77-1632 (2) (Repl. 1981), provides:

(2) No cooperative shall undertake the construction, extension, or operation of any facilities for supplying or furnishing telephone service unless and until it [there] has been secured from the Commission a certificate that the present or future public convenience and necessity requires or will require such construction, extension, or operation: . . . Provided, further, that no area then being furnished with reasonably adequate telephone service by a telephone company or a cooperative shall be assigned to another cooperative or telephone company; ...

Courts in other states with similar statutes have held that a Commission has the power to revoke a Certificate, reasoning that the statutory power to rescind its decisions necessarily entails the authority too revoke a Certificate. Day v. Public Service Commission, 312 Pa. 381, 167 A. 565 (1933); Davis v. Corporation Commission, 96 Ariz. 215, 393 P. 2d 909 (1964); Northfield Woods Water & Utility Co. v. Illinois Commerce Commission, 28 Ill. App. 3d 664, 329 N.E. 2d 295 (1975).

Appellant argues that constitutionally adequate standards upon which to based revocation of a Certificate do not exist, thereby giving the Commission unregulated and undefined discretion. We disagree. Ark. Stat. Ann. § 77-1632 (2) provides that no company’s territory can be reallocated when the company is providing “reasonably adequate telephone service.” And, too, in a proceeding to revoke a Certificate, public necessity itself obviously becomes a standard. Also, due process safeguards exist to protect the Company from arbitrary action. Here, the Company had notice, a public hearing, and an opportunity to present and cross-examine witnesses. The Company received a written order with findings of fact and conclusions of law and had the opportunity to petition for rehearing and seek judicial review. See Public Ser. Commission v. Havemeyer, supra.

The next issued raised by appellant is whether the Commission’s decision to revoke the Company’s Certificate was supported by substantial evidence. After hearing testimony from Commission staff, customers, and Company employees, the Commission made specific findings of fact which included detailed explanation of each Special Rule violated.

Although these rules represent minimum standards of acceptable service, followed routinely by most telephone companies, the Commission found the Company to be in violation of a dozen of such rules, including Special Rules 19 and 3 3, which the Company had been specifically ordered to follow.

Special Rule 19 provides that there must be at least one pay phone in each of the four exchanges in the Company’s allotted area; however, the Company was providing pay phones only in its Woodson and Redfield exchanges. The Commission specifically ordered the Company to place a pay phone in its Hensley exchange. Instead of complying with this order, the Company removed its pay phone from the Woodson exchange, leaving only one pay phone in the Company’s entire area. Thereafter, on September 12, 1975, the Commission issued an order directing the Company to install pay phones in both the Hensley and Woodson exchanges. Almost a year later, however, the Company had still not complied, thereby illustrating the Company’s total disregard of the Commission’s orders and rules.

Special Rule 3-3 requires that each utility submit a plan to upgrade service so that no more than four parties are on a line. On May 17, 1974, the Commission ordered the Company to file within 15 days a plan for conversion of eight party lines to four party lines as required by the rule. Later the Company was granted a rate increase primarily for this purpose. In spite of the Commission order and the rate increase, testimony at a Commission hearing three years later revealed that the Company had still not complied with its order.

Special Rules 12 and 33 set standard for handling customer applications for telephone service as well as installation procedures and time tables. The Commission found violation of these rules based upon testimony at a hearing from numerous Company customers who expressed dissatisfaction with service. Their testimony revealed waiting periods of over a year before obtaining a telephone, lack of written notification as to when service would be provided, inability to obtain a private line as opposed to a party line, as well as billing problems.

The Commission additionally found the Company to be in violation of Special Rules 11.1, 17, 22, 26, 27, 28, 31, and 32. These findings were based upon testimony indicating lack of an adequate maintenance program for equipment and facilities, as well as lack of adequate facilities to meet anticipated demand for service. Other violations by the Company included failure to comply with minimum standards of the National Electric Safety Code, failure to maintain a record of trouble reports, and failure to equip central offices with required equipment and services.

In a judicial review of the Commission’s decision, its findings of fact are tested by the standard of substantial evidence. Ark. Stat. Ann. § 73-229-1 (Repl. 1979). In light of the Commission’s findings based upon the evidence as set out above, we find substantial evidence to support the Commission’s revocation of the Certificate. Furthermore, it was not error for the Commission to deny the Company’s petition for a rehearing. Rehearings before administrative bodies are addressed to their own discretion, and judicial interference is warranted only by a showing of the clearest abuse of discretion. Southwestern Bell Telephone v. Arkansas Public Service Commission, supra; United States v. Interstate Commerce Commission, 396 U.S. 491 (1970).

Appellant urges throughout its brief that the REA loan which it obtained would cure its problems and this should be considered before revocation of the Company’s Certificate. We hold that there is substantial evidence to support not only the Commission’s finding that the loan was considered, but also that the loan would not correct the Company’s management deficiencies.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justicé,

dissenting. I disagree with the opinion in this case because I feel the PSC has not handled the case as it should have. The controversy had become a personal matter between PSC staff members and Stancil Glasgow. The needs and wishes of the people in the area served by Redfield Telephone Company should have been uppermost in the minds of all parties involved including PSC personnel and Stancil Glasgow. When Glasgow failed to comply with the first order of the PSC, he should have been brought to task instead of ignored. It appears to me that the staff at the PSC deliberately gave him enough rope to hang himself and he obliged. However, the telephone customers have been left hanging alongside Mr. Glasgow.

The General Assembly did not specifically give the PSC the right to revoke a Certificate of Convenience and Necessity. However, it did expressly give the right to the PSC to grant a certificate as well as to enforce its orders. In the absence of a grant of power the PSC does not have the authority to revoke the certificate. I agree with the dissent of Commissioner Downie which is contained in the record.

The harshness of the order of revocation amounts to a taking of property without due process of law in my opinion. At the same time it adds to the woes of the intervenors or customers and would-be customers of telephone service in the Redfield area. The purpose of allowing Redfield to apply for the loan was to bring the service up to date. The company had held the charges of its service to customers to probably the lowest in the state. Redfield was no doubt in error by skimping on its services in order to keep the charges low. I do not intend to condone the action of Mr. Glasgow in ignoring the valid orders of the PSC.

As Commissioner Downie stated, the objective of the PSC should be to insure good telephone service to all who want it at the lowest possible cost. In an effort to comply with this objective and the orders of the PSC, Redfield obtained the services of a reputable engineering firm and in fact replaced Glasgow as head of the company. At the hearing Mr. Glasgow stated:

It is our intention to implement every suggestion made by the Public Service Commission’s staff in their recent report. In fact, we are doing more than was suggested. As I stated earlier, I have been so busy running the business myself, there were times I did not have the time to think of what was taking place in the community ....

It seems to me that when Redfield had completed all of the plans to update the services and comply with the orders of the PSC, the revocation order was entered. As a result, the Redfield Telephone Company had been practically shut down and the users and potential users of telephone service in the area are in worse shape than ever. There is no proposed schedule for implementing good services to the customers in the area. Likely the franchise will be awarded to another company which may take years to update and provide reasonable services and the customers will end up paying a heavier cost than they would have if corrective measures had been undertaken prior to the revocation of the Certificate of Necessity.

The cost of money to Redfield through the REA loan is no doubt much less than the cost of money borrowed by a large corporation on today’s money market. It will be the customers who will be forced to pay this additional cost. In my opinion, the PSC should have filed an action in the courts and obtained a judicial determination of the matter of revocation. However, by taking the action themselves the power of the court was diminished inasmuch as the standard for review in the court is much less stringent than the burden would have been for an original hearing in the court.

Although appellee contends it considered the REA loan and its effects on the customers and the company, it is clear from the record that such is not the case. If the loan was to be fully considered, why did the PSC not reopen the case to hear the details and effects of the loan? I submit it had become a personal matter and the customers will suffer and pay for such action. The PSC should not spare any effort, even if it has to swallow its pride sometime, in obtaining good telephone service at the lowest possible cost.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Eddie Lee MILLER v. STATE of Arkansas
    CR 79-80
    621 S.W. 2d 482
    Supreme Court of Arkansas
    Opinion delivered September 28, 1981

      Ray Harten stein, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In November, 1978, the petitioner was convicted of capital felony murder in the death of W. F. Bolin, a storekeeper whom Miller robbed and then, as the jury evidently believed, murdered to remove Bolin as a possible witness to the robbery. We affirmed the sentence of death. Miller v. State, 269 Ark. 341, 605 S.W. 2d 430 (1980), cert. den. 450 U.S. 1035 (1981). Miller now seeks postconviction relief under Criminal Procedure Rule 37.2.

Rule 37.2 provides that if a criminal conviction has been appealed to this court, postconviction proceedings in the trial court cannot be maintained without the prior permission of this court. Here, however, Miller does not seek any further hearing in the trial court; he merely presents constitutional arguments based upon the record on the original appeal. It is not the purpose of Rule 37.2 to provide a substitute for appeal, an alternative method of reviewing mere errors in the conduct of the trial, or an opportunity for a belated petition for rehearing. Neal v. State, 270 Ark. 442, 447, 605 S.W. 2d 421 (1980); Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934, 599 S.W. 2d 729 (1980), cert. den. 449 U.S. 938 (1980). We therefore need not discuss all the arguments in the present petition. Hulsey, supra.

Two related arguments are directed to the qualification of the jury. First, it is contended that the trial judge excused for cause three jurors who were not unequivocally opposed to considering the imposition of the death penalty. The original record shows, however, that each of the three was properly excused under the doctrine of Witherspoon v. Illinois, 391 U.S. 510 (1968): Juror Vogel, record p. 240; Juror Washington, record pp. 245 and 247; Juror Whitehead (Heard), record pp. 334-336.

Second, a related argument is that the veniremen should also have been examined to determine whether they could even find the defendant guilty, because a statute has recognized implied bias when a juror entertains such conscientious opinions as would preclude him from finding the defendant guilty of an offense punishable by death. Ark. Stat. Ann. § 43-1920 (7) (Repl. 1977). That statute was adopted in 1869, when the death penalty was mandatory for certain offenses, such as first-degree murder and rape. But in 1915 the legislature gave juries the option of imposing life imprisonment in all capital cases; so the existence of implied bias necessarily shifted from the mere finding of guilt to the imposition of the death penalty. See Needham v. State, 215 Ark. 935, 224 S.W. 2d 785 (1949). Thus the petitioner’s argument is without merit.

Petitioner asserts a denial of equal protection of the laws, because the prosecuting attorney may charge either capital felony murder or first-degree murder when the murder is committed in the perpetration of robbery or six other specified felonies. Cromwell v. State, 269 Ark. 104, 598 S.W. 2d 733 (1980). Essentially the same argument was rejected with respect to overlapping federal offenses in United States v. Batchelder, 442 U.S. 114 (1979). There the court held that where two federal statutes authorized different ranges of punishment for the same conduct, the prosecutor’s discretionary (tension to proceed under the more severe statute did not involve a denial of the process or equal protection. That case is controlling on the point now argued.

Petitioner’s other principal arguments are: (1) Our standard of appellate review, as expressed upon Miller’s original appeal, does not guarantee a proper review of the sentencing process; (2) the prohibition against double jeopardy precludes pecuniary gain’s being considered as an aggravating circumstance in a case of murder in the perpetration of robbery (also argued in Hulsey}-, (3) the trial judge should have required a sequestered voir dire of each juror, although it was not requested; (4) our death penalty statute is unconstitutional (an issue raised on the direct appeal); and (5) the failure of Miller’s counsel to raise arguments such as those now presented amounted to ineffective assistance. As in Hulsey, these arguments do not show that the original proceeding was void and hence do not call for postconviction relief.

Petition denied.


author: Frank Holt, Justice. Steele Hays, Justice,

text:
    BAXTER COUNTY NEWSPAPERS, INC. v. MEDICAL STAFF OF BAXTER GENERAL HOSPITAL et al
    81-108
    622 S.W. 2d 495
    Supreme Court of Arkansas
    Opinion delivered September 28, 1981
    [Rehearing denied November 16, 1981.]

      Ronald P. Kincade of Kincade & Cunningham, for appellant and Phillip Carroll of Rose Law Firm.

      G. Ross Smith, P.A., for appellees.

      Walter A. Paulson, II of Friday, Eldredge & Clark, for amicus curiae, Arkansas Hospital Association.
   Frank Holt, Justice.

This case arises under the Freedom of Information Act, Ark. Stat. Ann. § 12-2801 et seq. (Repl. 1979). Appellant’s reporter was denied admittance to a meeting of the Credentials Committee of the Medical Staff of the Baxter County General Hospital. The Committee had convened to make an initial determination as to whether the staff privileges of a doctor should be continued. Appellant filed an action in circuit court to declare the Credentials Committee meeting in violation of the FOI. Subsequently, appellant also filed an injunctive proceeding in chancery court to prevent the Medical Staff from holding a scheduled meeting to consider the Credentials Committee’s recommendations on the matter.

Under its bylaws, the Board of Governors of the hospital delegates to the Medical Staff, separately organized with its own bylaws, the authority to evaluate the professional competence of the Medical Staff members for purpose of admission or continuation of the privilege of practicing at the hospital. The staff’s Credentials Committee reviews the information and makes a recommendation to the full Medical Staff, which then votes on the matter; and if unfavorable, an evidentiary hearing is held. The Board then acts on the matter on the basis of the Staff’s recommendation and the hearing transcript. Appellant contends below and here, contrary to the trial court’s findings, that the meeting of the Credentials Committee and the anticipated meeting of the full Staff are subject to the Freedom of Information Act and must be open to the public.

Section 12-2805 of the FOI provides:

Except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of the governing bodies of all . . . counties . . . and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds, shall be public meetings.

There is no dispute that the hospital is a county owned facility supported by public funds. Ark. Stat. Ann. § 17-1501 (Repl. 1980). We have held that when a Board is subject to the provisions of the act, its committees are also subject to the act. Ark. Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W. 2d 350 (1975). Unless the questioned meetings here come under the “except as otherwise specifically provided by law” language of the act, the meetings of the Credentials Committee and of the Medical Staff, which are in issue, must be open meetings.

The trial judge consolidated the circuit court action and the chancery petition for injunction. He found the meetings were exempted from the FOI, relying on Act 445 of 1977, Ark. Stat. Ann. §§ 28-934 and 28-935 (Repl. 1979) and Ark. Stat. Ann. § 19-4724 (Repl. 1980). We do not find those statutes create a specific exception to the FOI as is required. Section 28-934 provides that “[t]he proceedings, minutes, records or reports” of such medical review committees “shall not be subject to discovery or admissible in any legal proceeding and shall be absolutely privileged communications; nor shall testimony as to events occurring during the activities of such committees be admissible.” The substance of this section, therefore, deals with the admissibility of evidence or testimonial privilege. Section 28-935 allows disclosure of such data in certain limited circumstances not pertinent here. Section 19-4724 makes it an obligation of any person engaged in work in a licensed hospital, who has information or knowledge relating to the care provided there, to advise review committees of such matters when requested. In Laman v. McCord, 245 Ark. 401, 32 S.W. 2d 753 (1968), we stated the rule that “statutes enacted for the public benefit are interpreted most favorably to the public,” pointing out also that the FOI Act states “except as otherwise specifically [our italics] provided by law, all meetings . . . shall be public meetings.” We there held that a statute providing a “testimonial disqualification” did not suffice as a specific exception. Further it is well established that the FOI Act is to be liberally construed to achieve its purpose. Laman v. McCord, supra; N. Cen. Assn. of Colleges v. Troutt Bros., 261 Ark. 378, 548 S.W. 2d 825 (1977); and Ark. Gazette Co. v. Southern State College, et al, 273 Ark. 248, 620 S.W. 2d 258 (1981).

Appellees contend that if those statutes do not create an exception, the meetings fall under the exception in § 12-2804 for executive session to consider employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee and the corresponding provision of the County Government Code, Ark. Stat. Ann. § 17-3108 (Repl. 1980). We cannot agree. The doctor here is not a public officer nor an employee of the hospital. His status is that of an individual who has certain privileges extended to him by the county hospital, which is public owned, operated, and supported by public funds.

We hold the FOI Act requires here that the hearing of testimony and a vote on the matter must be in public session and to that extent the finding of the trial court is modified. However, in the circumstances, we think that a discussion or consideration of a resolution of the issue by the committee members may be conducted in executive session. See Ark. State Police Comm’n v. Davidson, 253 Ark. 1090, 490 S.W. 2d 788 (1973); Yandell v. Havana Bd. of Education, 266 Ark. 434, 585 S.W. 2d 927 (1979).

Affirmed as modified.

Purtle and Hays, JJ. concur in part and dissent in part.

Steele Hays, Justice,

concurring in part, dissenting in part. I concur in that part of the opinion of the majority that affirms the trial court with respect to the right of the commission members to retire into executive session for the purpose of discussing or considering the decision they should reach — that issue was settled in Ark. State Police Commission v. Davis, 253 Ark. 1090, 490 S.W. 2d 788(1973). However, the majority opinion fails to explain how it arrives at a distinction in the statutes between the proceedings of a hearing and the “discussion or consideration” that resolves the issue itself. I believe it is clear under the law that meetings of the kind presented in this appeal are intended to be privileged in their entirety.

The majority opinion expands considerably the decision of Laman v. McCord, 245 Ark. 401, 32 S.W. 2d 753 (1968). At issue in Laman was the language of Ark. Stat. Ann. § 28-601 (Repl. 1962), now superseded by Rule 502, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, append. (Repl. 1979), rendering an attorney incompetent to testify concerning communications between the attorney and the client:

The following persons shall be incompetent to testify: . . . Fourth, an attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the client’s consent.

As Justice Fogleman correctly pointed out in his concurring opinion in Laman:

There is no conflict between these acts because § 28-601 does not specifically provide for private conferences between attorney and client. That section simply affords a measure of protection to the client against disclosure of the subject matter of those conferences. Thus, there is no specific provision of law which permits the governing board of a city collectively to have the advantage of confidential communications with its attorney. Laman, at 407.

At issue here is Act 445 of 1977, Ark. Stat. Ann. § 28-934, which specifically provides:

The proceedings ... of organized committees of hospital medical staffs or medical review committees of local medical societies having the responsibilities for reviewing and evaluating the quality of medical or hospital care, and any records compiled or accumulated by the administrative staff of such hospitals in connection with such review or evaluation, together with all communications or reports originating in such committees, shall not be subject to discovery or admissibility in any legal proceeding and shall be absolutely privileged communications; nor shall testimony as to events occurring during the activities of such committees be admissible. (Emphasis supplied.)

Had the Legislature intended to confer merely a testimonial privilege, as the majority reasons, it would have done so by amending the Uniform Rules of Evidence, and not by separate statute as was done here. But more than that, the Legislature must have employed the language as emphasized above with the purpose in mind that the hearings themselves were to be confidential. This view is buttressed by the language of § 28-935:

Nothing contained herein shall be construed to prevent disclosure of such data to appropriate state or federal regulatory agencies which by statute or regulation are entitled to access to such data . . .

The view taken by the majority renders § 28-935 mere surplusage and effectually void. The end result of today’s decision is to rewrite § 28-935 to say: “Nothing contained herein shall be construed to prevent disclosure of such data to the general public.” How can this result be said to have been intended by the Legislature? If any uncertainty were left, reference to the title and emergency clause of Act 445 forbears any reasonable doubt as to the legislative intent. The title states that the act is to provide an “absolute privilege of confidentiality to data presented to such committees” and the emergency clause reads:

It is hereby found and declared by the General Assembly of the State of Arkansas that in order to insure candor, objectivity and the presentation of all pertinent information sought by committees reviewing the quality of medical and hospital care and thus contribute to the effective functioning of committees striving to determine and improve such care, an absolute privilege of confidentiality should be afforded to data elicited during the course of such inquiries and that the privilege of confidentiality should be provided for as soon as possible. Therefore, an emergency is hereby declared to exist, and this Act, being necessary for the immediate preservation of the public peace, health and safety, shall be in effect from the date of its passage and approval. (Emphasis supplied.)

In reversing this case, the majority relies on the FOI proviso that all meetings shall be public “except as otherwise specifically provided by law.” But in so doing too much is made of the word “specifically” and too little of the words “except as otherwise . . . provided by law.” In enacting the FOI the Legislature did not, I believe, intend to render void all instances of confidentiality except those categorically preserved in the act. I agree with the trial court that the language of Act 445 meets the exception “as otherwise specifically provided by law.” The degree of particularity required of the statutes by the majority opinion cannot be rationally inferred from the purpose and intent of the FOI embodied in Ark. Stat. Ann. § 12-2802.

I would affirm the lower court in full.

Purtle, J., joins.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Joe David SMOTHERS v. STATE of Arkansas
    CR 81-32
    621 S.W. 2d 475
    Supreme Court of Arkansas
    Opinion delivered September 28, 1981

      Gene Worsham, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

On April 15, 1977, the appellant, on pleas of guilty, received a 42 year sentence on 21 counts of aggravated robbery and 5 years on two counts of kidnapping. It appears they were concurrent sentences. A commitment was issued that day. On June 10, 1980, he filed a Rule 37 petition to vacate his sentence on the ground his guilty pleas were constitutionally infirm in that they were not knowingly, freely and voluntarily made. After conducting a hearing, the trial court found that appellant’s pleas of guilty on four counts of robbery were not knowingly made and ordered a new trial on them; however, on the remaining counts, he found his pleas were knowingly, freely and voluntarily made. The trial court refused to reduce the 42 year sentence since it was within the range of penalties for aggravated robbery and kidnapping. Appellant insists that the trial court erred in its finding that his pleas of guilty to all the charges were not voluntarily made, and his refusal to modify or reduce his sentence should be reversed. We affirm.

A petition for postconviction relief, as here, must be filed within three years from the date of the commitment unless the judgment was absolutely void. Rules of Criminal Procedure, Rule 37.2 (c), Ark. Stat. Ann. Vol. 4A (Supp. 1981). Collins v. State, 271 Ark. 825, 611 S.W. 2d 182 (1981); Washington v. State, 270 Ark. 840, 606 S.W. 2d 365 (1981); Scott v. State, 267 Ark. 536, 592 S.W. 2d 122 (1980); Poe v. State, 273 Ark. 194, 617 S.W. 2d 361 (1981). Here, there is nothing indicating the judgment is absolutely void.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully disagree with the majority in this case primarily because they have apparently placed the appellant in double jeopardy. He originally received a single 42 year sentence on 21 counts. The trial court has granted relief on several of these counts after finding that he did not properly consent to a plea of guilty. The court refused to reduce the 42 year sentence and has placed the appellant in a position of standing trial on several counts which were included in the original conviction. If he is convicted, he will be sentenced again for the same offense. Marshall v. State, 265 Ark. 302, 578 S.W. 2d 32 (1979).

The easiest way to dispose of this case is to declare the action of the trial court in setting aside the guilty pleas to be a nullity. The petition was filed more than three years after the pronouncement of sentence. Therefore, the court was without authority to hear the petition, unless the grounds asserted are such as to render the judgment void. Collins v. State, 271 Ark. 825, 611 S.W. 2d 182 (1981).


author: Darrell Hickman, Justice.

text:
    Cora Lee HUFFMAN v. Jacquelinn DAWKINS and Adonna HOLBROOKS
    81-38
    622 S.W. 2d 159
    Supreme Court of Arkansas
    Opinion delivered September 28, 1981
    [Rehearing denied November 9, 1981.]

      Wright, Lindsey & Jennings, and Ray & Donovan, for appellant.

      Haley & Young, PA., by: Jack Young-, and Mitchell, Williams, Gill & Selig, by: David Allan Gates, for appellees and cross-appellants.
   Darrell Hickman, Justice.

Jack Hawkins died of a heart attack in Las Vegas, Nevada, on the 26th of February, 1979, at the age of sixty-two. He was there to obtain a divorce from his wife of thirty-five years. Hawkins had been the manager of Sears Department Stores in Arkansas when he retired in 1977. A will in Hawkins’ handwriting was admitted to probate court in Pulaski County March 20, 1979. Hawkins had a substantial estate consisting of considerable stock in Sears, stock in First American National Bank, cash, insurance, and real estate.

The will was contested because a provision in his will left a considerable amount of his personal property to Cora Lee Huffman, who had been a fellow employee of Hawkins at Sears and with whom he was living when he died. The bequest included his vehicle, office furniture, 8,000 shares of common stock in Sears and the contents of a lock box. In the will he described Miss Huffman as his “best friend, my companion, my greatest of all loves and the individual most responsible for my life and happiness these past several years — the one I would like most to spend the rest of my life with . . .''

The will made provisions for Hawkins’ wife, Katherine, leaving her their residence (it was valued at $100,000.00, held by the entirety and went to her regardless of his will), and 1,680 shares of a profit sharing plan of Sears.

To his adult daughter of his marriage to Katherine Hawkins, Adonna Holbrooks, he left 1,000 shares of an employee profit sharing plan; to his daughter from a prior marriage, Jacquelinn Dawkins, he gave 560 shares of the same stock. He also left some property to his mother.

The widow filed an election to take against the will claiming the one-third interest authorized by Ark. Stat. Ann. § 60-5Ó1 (Repl. 1971) and sought statutory allowances provided for in Ark. Stat. Ann. § 62-2501.

The two daughters contested the will on two grounds: The will was improperly executed and Hawkins lacked the proper mental capacity to make a will. The will was holographic, totally in Hawkins’ handwriting. However, one person witnessed the will. It was argued that the will must fail because it was intended to be an attested will and it lacked a second witness. Also, the daughters claimed that the will was the product of two insane delusions Hawkins had: First, he was suffering from a delusion that a relationship actually existed betweeen him and Miss Huffman as he described in his will; and, second, he suffered from an insane delusion that his wife Katherine was going to kill him.

Miss Huffman challenged the right of the widow to claim against the will or receive statutory allowances, arguing both Arkansas statutes violated the equal protection clause in the United States Constitution because rights were granted to members of the female sex with no like provisions for males.

A special master heard the testimony of many witnesses, both lay and expert, as to Hawkins’ mental capacity. Considerable testimony was taken from family members, friends of the family, acquaintances and employees at Sears who had known Hawkins for years. The master concluded that the will was a valid holographic will. The fact that the will was wholly in Hawkins’ handwriting and signed by him was conclusively proven by numerous witnesses and controverted by none. The master found that Hawkins had the required mental capacity to make a will as required by law and that the daughters failed to meet the law’s rigid requirement of proof regarding insane delusions. He found that Miss Huffman had no standing or right to raise the constitutional issue and, therefore, denied her the right to claim that the Arkansas statutes were unconstitutional. The probate judge accepted the detailed findings and conclusions as his own in an order dated November 24, 1980.

Miss Huffman appealed raising two issues: The ruling on standing and the failure to find the will was also a valid attested will. The daughters cross-appealed arguing that the judge erred in finding that the will was validly executed and that Hawkins had the requisite capacity.

Katherine Hawkins argues in favor of the judge’s ruling but advances three arguments regarding the constitutional issue. She argues that if Miss Huffman does have standing her claim should fail for three reasons: The court should not strike down the statutes but extend them to apply to males and females alike; or, if we declare the statutes unconstitutional, we should only do so prospectively; and, in any event, an act of the General Assembly, Act 714, passed on the 25th day of March, 1981, cured the defect.

We did, in fact, decide that these laws were unconstitutional in Stokes v. Stokes, 271 Ark. 300, 613 S.W. 2d 372 (1981) and Hess v. Wims, 272 Ark. 43, 613 S.W. 2d 85 (1981), but this was after this case was decided by the trial court.

We affirm the probate judge on all his findings except the issue of standing. Miss Huffman did have standing to raise the constitutional issue. The Arkansas statutes are indeed unconstitutional as we found in Stokes and Hess, and the case will be remanded for a disposition consistent with those cases and this opinion.

The cross-appellants, Dawkins and Holbrooks, do not controvert that the will was in Hawkins’ handwriting and signed by him, conceding that such a will, if otherwise valid, can be admitted to probate. Ark. Stat. Ann. § 60-404 (Repl. 1971). They contend, however, that Hawkins did not intend his will to be treated as a holographic will since he made an attempt to have it witnessed. Therefore, it should be treated as an attested will. Such a will must be witnessed by at least two people who can attest that the will was indeed that of the testator and signed by him. Ark. Stat. Ann. § 60-403. Only one person, Arnold Sikes, the postmaster at North Little Rock and a friend of Hawkins’, “witnessed” Hawkins’ will. Sikes’ signature was “notarized” before Lennie Taylor, a notary public. The case of Walpole v. Lewis, 254 Ark. 89, 492 S.W. 2d 410 (1973) is cited by the daughters as controlling but it is distinguishable. In Walpole a holographic will had been changed by an obliteration of a part of the will. It was critical to the decision in Walpole to determine whether the will was indeed an attested will or a holographic will. The probate judge found that the will of Hawkins, which had not been altered in any way, was a valid holographic will. That finding precludes any need to consider whether the will would also be a valid attested will. The law is clear that a will can satisfy both the requirements for a holographic and an attested will. Walpole v. Lewis, supra.

Hawkins was found to have the necessary mental capacity to make a will and it was found that the cross-appellants failed to meet the burden of proving the two claimed insane delusions. In order to reverse that finding we would have to find the judge was clearly wrong. Rules of Civ. Proc., Rule 52. On this record we cannot reverse that finding.

An insane delusion was defined in Taylor v. McClintock, 87 Ark. 243 (1908) as:

Where one conceives something extravagant, and believes it as a fact, when in reality it has no existence, but is purely a product of the imagination, and where such belief is so persistent and permanent that the one who entertains it cannot be convinced by any evidence or argument to the contrary, such a person is possessed by an insane delusion.

Such a delusion must not only exist but the will must be a product of the delusion. Dumas v. Dumas, 261 Ark. 178, 547 S.W. 2d 417 (1977); Kelley v. Reed, 265 Ark. 581, 580 S.W. 2d 682 (1979). If there is any basis in fact for the delusion, or if it is not proved that the will was a product of the delusion, such a delusion will not warrant setting aside a legal document. Taylor v. McClintock, supra; Kelley v. Reed, supra; Dumas v. Dumas, supra.

Hawkins was a very successful businessman, respected in the community and at Sears. He started out at the bottom and rose to the top of his profession. Numerous witnesses testified as to his mental stability, including his personal physician, Dr. Gordon Holt.

His marriage had not been stable. He had twice sought a divorce, once in 1972 and again in 1978. He withdrew his first suit and reconciled with his wife. His second petition for divorce was denied for lack of grounds. He was in Las Vegas seeking a divorce when he died.

His wife testified that he changed after his heart attack in 1971, became insecure at work and developed mental problems thereafter. He and his wife sought help from a clinical psychologist after the separation in 1971. She denied that she threatened to kill him. Hawkins, of course, could not testify but his deposition from his Arkansas divorce case was admitted. In that testimony he said his wife had over the years consistently accused him of affairs with employees at Sears and had indeed, said she would kill him. Whether his belief she would kill him was well-founded was certainly controverted, but he said he had some basis for that belief.

Hawkins’ relationship with Miss Huffman may not have been as he described in his will which was dated August 31, 1977. Miss Huffman denied they ever had sexual intercourse or even “dated” before he made his will. She said they had mutual respect for each other as fellow employees and after he retired in 1977, they had lunch together once, and twice went to a park during the daytime.

Did he have an insane delusion about their relationship and the death threat? The test is whether there was any basis for Mr. Hawkins’ beliefs. It is the burden of one proposing to set aside a will because of an insane delusion to prove it by a preponderance of the evidence. Dumas v. Dumas, supra. The judge found the evidence short in this regard and we cannot overrule that finding. The testimony of Hawkins’ doctor and an expert clinical psychologist was in conflict. The clinical psychologist, assuming certain facts, testified that Hawkins did suffer from the two insane delusions. It was the role of the probate court to resolve the conflicts. Dumas v. Dumas, supra. Having found the cross-appellants failed to meet their burden of proof, we cannot clearly say the probate court was wrong.

The court was wrong, however, on the issue of standing. Miss Huffman, a devisee and benefciary of Hawkins’ will, did stand to lose financially, and in fact did so when the wife was allowed to take against the will. In companion cases we found standing to challenge the constitutionality of these very statutes in those who would stand to lose a financial interest. Stokes v. Stokes, supra; Hess v. Wims, supra. It is argued that those decisions are distinguishable because heirs, not strangers, raised the issue. Those decisions were made without any such limitation. The key was whether the party would lose financially unless the issue was raised. Miss Huffman satisfies that requirement.

In Stokes and Hess we intentionally made no limitation on whether the application of our decision would be retrospective or prospective. We have generally held that when a statute is declared unconstitutional it must be treated as if it had never been passed. Morgan v. Cook, 211 Ark. 755, 202 S.W. 2d 355 (1947); State v. Williams-Echols Dry Goods Co., 176 Ark. 324, 3 S.W. 2d 340 (1928); Cochran v. Cobb, 43 Ark. 180 (1884). That is the standard in dealing with the effect of unconstitutional laws, with few exceptions.

We must treat the parties in this case the same as we did in Stokes and Hess. Miss Huffman timely raised the constitutional issue and was entitled to a ruling.

Act 714 of 1981 was passed to cure the defects in the Arkansas dower laws and related statutes, and it cannot be applied retroactively to remedy the problems created by those unconstitutional statutes. That is the case because the act deals with a matter of substantive rather than procedural law. In Lucas v. Handcock, 266 Ark. 142, 583 S.W. 2d 491 (1979), we set forth the law regarding retroactive application of such laws. It is presumed such legislation will not be retroactively applied. Snuggs v. Board of Trustees of Ark. State Employees Retirement System, 241 Ark. 402, 407 S.W. 2d 933 (1966).

Affirmed in part, reversed and remanded in part.

Hays, J., not participating.


author:
Robert H. Dudley, Justice. John I. Purtle, Justice,
      Robert H. Dudley, Justice.

text:
    Susan WARREN v. James Timothy WARREN
    81-58
    623 S.W. 2d 813
    Supreme Court of Arkansas
    Opinion delivered September 28, 1981
    Supplemental Opinion on denial of rehearing delivered December 7, 1981

      Patten, Brown & Leslie, by: Charles R. White, for appellant and cross-appellee.

      William P, Smith oí Mobley & Smith, for appellee and cross-appellant.
   Robert H. Dudley, Justice.

On Spetember 28, 1979, James Warren filed suit for a divorce against Susan Varren. -The trial court granted Susan Warren a divorce on her counter claim, divided the property, awarded custody of the child, ordered child support and impounded funds belonging to James Warren. All of the decree is appealed except the granting of the divorce and the awarding of the custody of the child.

The Warrens purchased part of their property and filed their suit after the effective date of Act 705 of 1979, commonly referred to as the marital property act. Ark. Stat. Ann. § 34-1214 (Supp. 1979). The trial court ruled that property held in a tenancy by the entirety was not affected by the 1979 marital property division act.

We have traditionally recognized two categories of property in divorce cases. One category has been divided pursuant to the general property division statute which has been codified as Ark. Stat. Ann. § 34-1214 in the 1947 publication, the 1962 replacement and the various supplements prior to 1979. The other category, property held in tenancies by the entireties, has never been divided pursuant to the general property division statute.

Our rule of law on this second category, or entirety property, was well stated in Jenkins v. Jenkins, 219 Ark. 219, 242 S.W. 2d 124 (1951).

We have repeatedly held that a decree of divorce cannot dissolve an entirety case. See Roulston v. Hall, 66 Ark. 305, 50 S.W. 690; Heinrich v. Heinrich, 177 Ark. 250, 6 S.W. 2d 21; Ward v. Ward, 186 Ark. 196, 53 S.W. 2d 8; and Davies v. Johnson, 124 Ark. 390, 187 S.W. 343. In Heinrich v. Heinrich, supra, we said: “An estate by entirety, either legal or equitable, cannot be divested out of the husband and invested in the wife, or vice versa, by the courts. The right to the whole estate by the survivor prevents this. Roulston v. Hall, 66 Ark. 305, 50 S.W. 690, 74 Am. St. Rep. 97.”
The majority of jurisdictions hold that divorce dissolves the entirety estate; but our holding to the opposite conclusion has become a rule of property in this State.

See also, Tenancy by the Entirety Divorce A Peculiar Rule of Property in Arkansas, 22 Ark. L. Rev. 386 (1968).

By Act 340 of 1947, Ark. Stat. Ann. § 34-1215 (Repl. 1962), the General Assembly gave courts the authority to convert marital survivorship estates to a tenancy in common. That explicit and concise act stated:

Courts of Equity, designated Chancery Courts within the State of Arkansas shall have the power to dissolve estates by the entirety or survivorship, in real or personal property, upon the rendition of a final decree of divorcement, and in the division and partition of said property, so held by said parties, shall treat the parties as tenants in common.

This statute is the only authority for dividing estates by the entirety, and it provides for the equal division of property without regard to gender or fault. Minor amendments have since been made but they have no bearing on the issues of this case. See § 34-1215 (Supp. 1981).

From 1891 until the effective date of Act 705 of 1979, all property in the general property category was divided according to the general property division statute, § 34-1214. The first clause in that general statute provided for a limited restoration to each spouse of his or her property not disposed of at the commencement of the action. For a detailed discussion of this provision and a citation of applicable cases see Domestic Relations —Restoration of Property Obtained In Consideration or by Reason of Marriage Upon Divorce, 7 Ark. L. Rev. 64 (1952). The statute next provided that when the wife was granted the divorce because she was the “injured party” as described by § 34-1203 (Repl. 1962), she was entitled to one-third of the husband’s personal property absolutely and one-third of his real property for life. We have referred to the clause in the statute as “awarding the injured wife her dower.” Alston v. Bitely, 252 Ark. 79, 477 S.W. 2d 446 (1972). If the divorce was granted to the husband because of the fault of the wife, the statute was construed to mean that she was not entitled to any dower whatsoever. Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 2d 393 (1915). The statute made no provision whatever for the husband to share in the wife’s property. This statute, § 34-1214 (Repl. 1962), required that property be divided on the bases of gender and fault while property divided according to the entirety statute, § 34-1215, was always divided equally.

The reasons for the amendment of § 34-1214 (Repl. 1962) by Act 705 of 1979 are obvious. Public caveats on the infirmities of the old statute were given. See Family Law Divorce Constitutionality of Arkansas Property Settlement and Alimony Statutes, 2 UALR Law Journal 123 (1979). The fact recites that those warnings were heard:

SECTION 7. It is hereby found and determined by the General Assembly that in a dissenting opinion to the recent case of McNew v. McNew, 262 Ark. 573 (1977), regarding Ark. Stat. Ann. § 34-1214, a justice of the Arkansas Supreme Court said that “The Arkansas law regarding property was enacted before the turn of the century and can no longer be defended historically or legally with any confidence,” and that “It clearly violates the Equal Protection Clauses of the Arkansas and the United States Constitutions”; that in the majority opinion in that same case the Court did not decide this issue, stating “We will not decide constitutional issues unless their determination is essential to disposition of the case,” and holding that this issue of property division at the time of a divorce action was not properly before it; that a decision holding that Ark. Stat. Ann. § 34-1214 is unconstitutional would create chaos in all divorce actions then pending in Arkansas courts until such time as the Arkansas General Assembly could enact legislation to cover this subject; and that this Act is designed to correct and clarify the law on this subject. ***

Appellant contends that even though the reasons and the intent for amending the general property division statute, § 34-1214, are crystal clear, the act also abolished the separate statute dealing with entirety property. We disagree. Section 1 of the 1979 act, as well as Section 7 quoted above, state that the general property division statute, § 34-1214, is the statute amended.

SECTION 1. Section 416 of the Arkansas Civil Code, as amended, the same being Arkansas Statutes Section 34-1214, is hereby amended to read as follows:

In 1979 it was necessary for the General Assembly to take some immediate action to cure the defects in § 34-1214. Consequently, Act 705 was made applicable to all cases filed after its effective date and it necessarily affected property purchased before, as well as after, that effective date. By excluding that separate category of property, estates by the entireties, the General Assembly wisely avoided a legal quagmire, for in Jenkins v. Jenkins, 219 Ark. 219, 242 S.W. 2d 124 (1951), we had held that an estate by the entirety in real estate created a vested property interest which could not be modified by a statute which became effective after the date of purchase.

Act 705 nowhere refers to property acquired as tenants by the entirety; it only refers to “all property acquired by either spouse.” Section (1) (B). The conspicuous reason for not amending § 34-1215, the entirety statute, is that it did not need amending. It has no constitutional infirmities.

There is also an apparent consideration of public policy by the General Assembly, and that is the recognition that there ought to be reckonability in the law. When a husband and wife cause a marital survivorship instrument to be created they ought to know that if they remain married the survivor will own the property, and they ought to know that if they divorce the property will be divided equally, and they ought to know that they will not be subjected to the eight variables of the 1979 act. The variables which may be taken into consideration by the court in dividing general marital property are:

(1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker.

Wehold that Act 705 of 1979, § 34-1214 (Supp. 1979),is not applicable to property owned as tenants by the entirety.

In this case the home and apartment building were owned by the parties as tenants by the entirety. Susan Warren contended that James Warren fraudulently caused her to include him on the warranty deeds. Clearly, the entirety dissolution statute, § 34-1215 (Supp. 1981), has no application where one of the parties fraudulently causes his or her name to be added to the deed. Johnson v. Johnson, 237 Ark. 311, 372 S.W. 2d 598 (1963). The Chancellor found that she had not been defrauded. Admittedly, it was a difficult factual decision. The testimony of Susan Warren is nebulous. She did not know who prepared the deeds, admitted that it was her idea to purchase the properties, and at one time admitted and at another time denied that she discussed the purchases with her mother and with the family attorney. She offered no testimony about a fraudulent act by Jimmy Warren and testified there was no discussion concerning title. The only reasons given to set aside the tenancy by the entirety are that he left only two days after she put the property in both names and he contributed nothing to the down payment. They both still owe on the balance. The Chancellor found no fraud. Findings of fact by a trial court will not be set aside unless they are clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure, Vol. 3A (Repl. 1979). We cannot say that the findings of fact by the trial judge are clearly against the preponderance of the evidence and we affirm on this issue.

The certificate of title to the 1971 Corvette automobile was in the names of “James T. or Susan Warren.” Since Union and Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S.W. 1 (1921), tenancies by the entireties in personal property have been upheld. However, in this case title was taken in alternative names so that one could transfer title to the divestment of the other. This does not qualify as a tenancy by the entirety. See Franks v. Wood, 217 Ark. 10, 228 S.W. 2d 480 (1950). However, it does create a “ . . . survivorship in real or personalty . . as set forth in the entirety division statute, § 34-1215. We affirm the action of the trial court in treating this automobile pursuant to the entirety division statute.

The trial court correctly applied the marital property statute, § 34-1214 (Supp. 1979), to the rest of the personal property. We cannot say that dividing equally the proceeds derived from the sale of this property is against the preponderance of the evidence.

At the time of the trial James Warren was earning take-home pay of $250 per week. During the marriage Susan Warren gave him substantial sums of money and gave him the entirety interest in the home and apartment building. She is now a college student with the responsibility of raising a small child. Under these circumstances we modify the amount of child support from $37.50 to $50 per week.

The trial court ordered that all the proceeds from the sale of James Warren’s interest in the property be impounded in order to insure future child support payments. There was no pleading asking impoundment, no notice and no proof on the matter. There is no judgment for arrearages and this does not qualify as a bond. We find no authority for the impoundment of funds under these conditions and reverse this holding on cross-appeal. The manner of distributing the proceeds as set out in the decree is otherwise affirmed.

Affirmed as modified on appeal. Reversed on cross-appeal.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the majority in this case for reasons to be set out below.

The problem presented to the court is whether Act 705 of 1979 as amended is applicable to the present facts. We are particularly concerned with that part of the code designated as Ark. Stat, Ann. § 34-1214 (Supp. 1981). Section (A) of the Act provides that all marital property shall be distributed one-half to each party unless the court finds such division to be inequitable. The criteria for distribution of marital property, in case equal division is inequitable, are set out in § (A) (1). Section (A) (2) of the Act provides:

All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subparagraph (A) above, in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.

Section (B) provides:

For the purpose of this statute “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, bequest, devise or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent;...

I see nothing ambiguous about the language of the above-quoted statute. It is quite obvious that the legislature intended that one party would not be allowed to pull a shenanigan on the other simply by marrying, getting property transferred into his name, and then shucking the spouse for someone else. Any interpretation other than the plain language of the statute requires a little bit of judicial legislation and a fertile imagination.

Let us look at what the husband said about how the property was acquired. He stated:

... I did not contribute a dime to the purchase of the real property. Every dime that was put into the real property we acquired during the marriage was received from her inheritance from her father. I never made a house payment from my funds. *** I was in the used car sales business and the money that financed the business came from my wife’s guardianship estate left to her by her father. All of the money came from my wife’s guardianship estate. *** The only income I had was from the business of selling autos and she furnished the money for that. I lost money and got out of the business and there was money left which I paid bills with. *** I’d say her money was my money, that’s the way I looked at it. I came out of the business with the Corvette and I paid 55 for it and spent well over $1500 fixing it up. I have it in my possession now and it is titled in both our names. *** The only thing I had when we got married was a cár and I couldn’t even tell you what car that was. I believe it was a ’76 Cutlass and my wife helped pay for it, it just came out of the account. ...

After the parties were separated the husband went to Texas where he obtained employment for a salary netting him $250 per week. During this time he was living with his girlfriend in Texas and helping pay the rent, utilities and some of the groceries. Between the temporary hearing and order of October 10,1979, and the final hearing in November 1980 the appellee paid only $61 child support, creating a delinquency of $1677.50. These parties were married in January 1978 and separated in September 1979- They were ages 17 and 19 at the time of the marriage.

The only reason Ark. Stat. Ann. § 34-1215 (Supp. 1981) remains on the books is to convert tenancy by the entirety to tenancy in common in case the chancellor fails to make a ruling as to that particular property. § 34-1215 is the codification of Act 340 of 1947, as amended by Act 457 of 1975. Act 705 is the latest legislative action and should take precedence over the earlier law in case of a conflict. The purpose of Act 705 was to bring our divorce statutes in line with our decisions and to update the law.

The majority opinion is a step backwards. It is contrary to the trend in Arkansas divorce law and infringes into the rights of the legislature. I would follow the plain language of Act 705 and thereby prevent the appellee from enjoying the mistakes his former wife made.

Supplemental Opinion on Petition for Rehearing delivered December 7, 1981

Robert H. Dudley, Justice.

Susan Warren has filed a petition for rehearing with two contentions. One simply reargues interpretation of statutes, but on rehearing we do not consider such repetition. Rule 20 (g). The other concerns the impoundment of funds. We deny the petition for rehearing but desire to explicate that issue.

Susan Warren argues that she asked for a lien on James Warren’s property for future child support. We have no statute authorizing a lien for future support and courts of equity have no inherent authority to grant one. Some states have held that statutory language to make “provision for ... support and education of the minor children of the marriage” gives the implied authority to declare a lien in limited circumstances on specific items of property. Jones v. Jones, 294 P. 2d 304 (Okla.), 59 ALR 2d 651 (1956). This appears to be the majority view. Annotation: Decree for Periodical Payments for Support or Alimony as a Lien on the Subject of a Declaration of Lien, 59 ALR 2d 656, §4. While Ark. Stat. Ann. §34-1211 (Supp. 1981) is comparable to the Oklahoma statute, we have never adopted the majority view. As early as 1881 we held that there was no lien on a husband’s land for future alimony payments. Kurtz v. Kurtz, 38 Ark. 119 (1881). By 1921 this concept was held to have become a rule of property Whitmore v. Brown, 147 Ark. 147, 227 S.W. 34 (1921). In Brun v. Rembert, 227 Ark. 241, 297 S.W. 2d 940 (1957) we held that the cases involving future alimony were applicable to cases involving future child support and affirmed that a decree for future child support is not a final decree upon which execution may issue or which creates a lien on real estate. The reason stated was that an award of child support is not a final decree as to future payments because it can be prospectively modified. Petitioner Susan Warren is not entitled to prevail under her theory of enforcing a lien for future child support. However, this holding is not applicable to the situation where one has reduced past due child support to judgment, for in that case the judgment lien statute, Ark. Stat. Ann. § 29-130 (Repl. 1979), is operative.

The petitioner alternatively contends that even if she is not entitled to a lien on all of James Warren’s property for future child support, she is entitled to have the property impounded as a bond pursuant to Ark. Stat. Ann. § 34-1211 (Supp. 1981). This court has long recognized that a chancery court has the inherent power to require a bond for payment of child support. Zeddy v. Zeddy, 180 Ark. 235, 21 S.W. 2d 157 (1929). The inherent power to order a bond could only be exercised when the obligor had defaulted or was about to leave the state. Clay, Act 56-Bond for Child Support, 5 Ark. L. Rev. 360 (1951). We have held that the obligor can be committed to jail for refusing to make such a bond. Ex parte Caple, 81 Ark. 504, 99 S.W. 830 (1907); Ex parte Coulter, 160 Ark. 550, 255 S.W. 15 (1923). The General Assembly broadened the chancellors’ inherent power by statutorily authorizing a bond when there is any reason to believe the obligor might not pay. Ark. Stat. Ann. §34-1211 (A) (Supp. 1981). We recognize the public policy embraced in the statute and desire to give it a broad interpretation. Even so, we find no language in the statute which authorizes the seizure of one’s property without limitation under the guise of a bond. The statute authorizing a requirement of security, and the bonds by inherent equitable authority, both contemplate notice to the recalcitrant obligor that he or she will be required, either voluntarily or involuntarily, to make a bond in some specific amount necessary to secure future payments. The bond is to be conditioned upon compliance with the order and shall be in such form and have such sureties as the court shall direct. In the case at bar James Warren was never ordered to make a bond, was not given the opportunity to make a bond and never attempted to make a bond. No conditions were made or met and no conditional pledges of property or sureties were allowed. There simply was no bond.

While there was no bond, there could have been a valid sequestration for the chancery court has the authority to impound property to insure future payment of child support. The general rule is that a court of equity is without the inherent power to impound property to secure the future payment of support. Ring v. Ring, 185 Va. 269, 38 S.E. 2d 471, 165 ALR 1237 (1946). Annotation: Inherent Power of Court to Secure Future Payment of Alimony and Support Money, 165 ALR 1243. However, for a century we have held that our courts of equity have the statutory authority to sequester the obligor’s property to secure future payments in proper cases. In Casteel v. Casteel, 38 Ark. 477 (1882), this court held that while future alimony could not create a lien upon the obligor’s land, payment might be secured pursuant to Gantt’s Digest, § 2205. The case of Rowell v. Rowell, 184 Ark. 643, 43 S.W. 2d 243 (1931), held that § 3509, Crawford & Moses Digest, provided for sequestration. The statute cited in both of those cases was slightly modified in 1941 and is now codified as Ark. Stat. Ann. §34-1212 (Supp. 1981). It continues to provide for sequestration and we have held that, in its present form, it grants to the chancery court the authority to sequester an obligor’s property to secure future payments. Harbour v. Harbour, 230 Ark. 627, 324 S.W. 2d 115 (1950). However, a sequestration of the obligor’s property cannot be had without notice to the obligor. That notice should give the reason sequestration is being sought; for example, the defendant is able to pay but refuses to do so or the defendant is about to leave the state. See Ex parte Caple, supra. The order must show the nature and amount of property sought for sequestration, Rowell v. Rowell, supra, and it must provide the conditions upon which the property is to be returned to the obligor or transferred to the obligee or transferred to a third party. It ought to provide for the care, maintenance and reinvestment of the proceeds of the property. In the case before us this due process was not affordable to James Warren. This amounted to an arbitrary action. Rowell v. Rowell, supra.

In summation, while we do not recognize a lien on the obligor’s real estate to insure the future payment of child support, we do have a statutory provision for sequestration of the obligor’s property to insure the payment of future support. A sequestration of property requires notice of the reason for sequestration and the order must provide the nature and amount of property to be sequestered and the conditions of sequestration. In addition, we have statutory bonds as well as bonds by the inherent authority of equity courts to secure future payment of child support. There are other proceedings for enforcement of child support orders, not material to this opinion, such as injunctions and restraining orders, contempt proceedings, judgment lien proceedings and proceedings to sell real or personal property of the obligor pursuant to Ark. Stat. Ann. § 34-2448 (Supp. 1981).

The petition for rehearing is denied.


author: Steele Hays, Justice.

text:
    Merrill OSBORNE v. Wiley Wayne WORKMAN et al
    81-36
    621 S.W. 2d 478
    Supreme Court of Arkansas
    Opinion delivered September 28, 1981

      Oscar Fendler and Bill W. Bristow, for appellant.

      John B. Mayes, for appellees.
   Steele Hays, Justice.

The primary issue presented by this appeal is whether under the Uniform Partnership Act one partner can terminate a partnership created for an indefinite term where the partnership agreement provides for its continuation until “dissolved mutually or by law.” We are asked to reverse the trial court’s refusal to dissolve a partnership or to nullify a provision of the agreement that a withdrawing partner forfeits his interest in the accounts receivable. We affirm the holding and decline to nullify the provision.

The parties are all doctors. In 1966 the appellant joined other doctors in forming a medical clinic. Their partnership agreement specified no definite term, only that it would continue “until said partnership is dissolved mutually or by law.” If a doctor withdrew he was to be paid his percentage of the assets, excluding accounts receivable. When the partnership was formed, the clinic’s accounts receivable were §105,679-00 and were treated as an asset of the partnership. The accounts gradually increased as some seven doctors withdrew and new ones entered and by 1979 aggregated $513,934.0o. With one exception, the withdrawing partners received nothing for their share of the accounts.

In August 1978 Dr. Osborne decided to leave the firm. The matter was discussed at several partnership meetings. He insists that he never intended to leave without his share of the accounts but just when, or if, he made that condition known to the others is not clear from his testimony, which is emphatically denied by theirs. By early 1979 he had settled on the old Chickasawba Hospital, being renovated, and said he would try to be out by July 1. It is clear that arrangements for another doctor to replace Dr. Osborne were linked to his withdrawal. He changed his office address and telephone number in the Blytheville telephone directory, and handed out notices to his patients that around July 1 he would be moving to the new location and would be “in solo practice.” The July 1 deadline was later moved to July 31 due to a delay in the renovation.

On June 27 Dr. Osborne filed suit to dissolve and liquidate, alleging that the partnership was not for a definite term but until “dissolved mutually or by law” and, thus, was subject to dissolution at the will of any partner under the Uniform Partnership Act. Ark. Stat. Ann. §65-131 (Repl. 1980). He asked for dissolution, termination, and the appointment of a receiver to wind up the partnership. Trial was concluded on March 6, 1980, and the chancellor announced his finding, but entry of the decree was deferred until August 26.

Appellant contends that dissolution should have been ordered under § 65-131, entitled “Causes of Dissolution,” which provides some nine instances of dissolution by operation of law, including the express will of any partner where no definite term is specified in the agreement. The agreement here did not provide for a specific term; hence it is urged that any partner could dissolve the partnership at will. But the argument fails in two respects: It ignores the precondition clearly stated in § 65-131, that the section applies “without violation of the agreement between the parties;” and it fails to consider what was intended by the partnership agreement itself. Moreover, § 65-129 defines dissolution:

The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business; provided that this change in the relation of the partners shall not effect a dissolution of the partnership in contravention or violation of the agreement between the partners. (Emphasis supplied.)

Self-limiting language appears throughout the UPA which renders it “subject to any agreement to the contrary.” [See Ark. Stat. Ann. §§ 65-118, 65-119, 65-129, 65-131, 65-137, 65-140, 65-142 (Repl. 1980).] Even the section for the settling of accounts after dissolution and winding up, which provides the method of distribution among the partners, is “subject to any agreement to the contrary.” The clear intent of the UPA to defer to any existing partnership agreement is recognized in two cases cited by appellees, Frank v. R. A. Pickens & Son Co., 264 Ark. 207, 572 S.W. 2d 133 (1978), and Devlin v. Rockey, 295 F. 2d 266 (7th Cir. 1961). In Devlin the Seventh Circuit, interpreting the Illinois UPA, held that two doctors who dissolved a medical partnership without definite term were only entitled to the interest due a withdrawing partner under the partnership agreement and not in accordance with the provisions of the Act. In Franks we held that a partner whose interest was terminated at the will of the managing partner could not dissolve and liquidate the partnership where there was an oral agreement that a terminated partner would receive only his interest in the firm’s capital account.

Turning to the agreement itself, we note that in construing the agreement we are governed by what the parties intended. Asimos v. Reynolds, 244 Ark. 1042, 429 S.W. 2d 102 (1968); Scrinopski v. Meidert, 213 Ark. 336, 210 S.W. 2d 281 (1948). Appellant contends that the wording “until said partnership is dissolved mutually or by law” triggers that provision in § 65-131 giving any partner the right to dissolve at will. Certainly any partner can withdraw at will and to the extent that withdrawal is a dissolution he is correct. But appellant seeks dissolution in its fullest sense, i.e., the termination of the partnership by liquidation, and we cannot agree these partners intended such a result. We think the clear intent was that dissolution by termination would occur only by mutual agreement and not by the unilateral act of a single partner. Appellant’s contention cannot be reconciled with the words “mutually dissolved,” as the dissolution could be achieved by a single partner — the reverse of mutual. It is undisputed that seven doctors withdrew over the years and the partnership retained all of the accounts receivable and in determining what the parties intended reference is had to what they did. McPhail v. Laughrun, 214 Ark. 276, 217 S.W. 2d 244 (1949); American Snuff Co. v. Stuckey, 197 Ark. 540, 123 S.W. 2d 1063 (1939). It is inconceivable that six doctors would form a partnership, enter into an elaborate agreement intended to promote longevity, set up a common practice, pool their equipment, records, and resources, and intend that any one of them could end it at any time by demanding dissolution and liquidation.

The same issue was considered and answered in the case of Adams v. Jarvis, 127 N.W. 2d 400 (Wisconsin 1964) which has striking similarities to this case: Nine doctors formed a medical partnership with an identical provision, i.e., that in the event any partner withdrew from the partnership the accounts receivable remained the sole property of the remaining partners. Two doctors withdrew and claimed they were entitled to a share of the accounts receivable under the dissolution section of the Act. The lower court agreed, but the Supreme Court reversed, with the following language:

Persons with professional qualifications commonly associate in business partnerships. The practice of continuing the operation of the partnership business, even though there are some changes in partnership personnel, is also common. The reasons for an agreement that a medical partnership should continue without disruption of the services rendered are self evident. If the partnership agreement provides for continuation, sets forth a method of paying the withdrawing partner his agreed share, does not jeopardize the rights of creditors, the agreement is enforceable. The statute does not specifically regulate this type of withdrawal with a continuation of business. The statute should not be construed to invalidate an otherwise enforceable contract entered into for a legitimate purpose.

In the alternative, appellant urges that the agreement with respect to the accounts receivable should be nullified because of public policy. We have considered the arguments and do not find sufficient merit to warrant overturning a provision these parties not only accepted and observed, but under which they benefitted, over a long period of time. It would only lengthen this opinion unnecessarily to deal with each one in detail. It is said the agreement resembles a Tontine contract, but this appears to have been raised initially in a motion to reopen the case filed in August, some five months after the trial. It is said the agreement operates to lessen competition in the medical profession, but we find no evidence to support the assertion and we have no way of gauging its merit. Appellant claims that third-party payment by Medicare and Medicaid has created changed conditions and equity should no longer uphold the agreement. But third-party payment was not unknown in 1966, as insurance, workers’ compensation and welfare frequently used that method. We think the change in conditions not so great as to render the agreement unenforceable. Appellant also states that the provision results in a forfeiture, which equity abhors. There may be some similarity, but it can also be said that appellant benefitted by the partnership retaining the accounts as others withdrew, and it would be inequitable to permit one party to profit by his agreement and then repudiate it when it no longer serves his purpose. Murray v. Murray Laboratories, Inc., 223 Ark. 907, 270 S.W. 2d 927 (1954).

Finally, appellant argues that the chancellor should have reopened the case on his motion. We are not persuaded that he was compelled to do so, as all trials must reach an end, and the trial court’s discretion is the better gauge of when that occurs. Subsequent events of themselves are seldom a sufficient cause for reopening, or finality would never be achieved. We find no abuse of discretion in the chancellor’s denial of the motion. Appellant insists that the chancellor somehow erred in connection with the accounts receivable for June and July; we are unable to follow the argument and the cited discourse from the record provides no help. We are left to assume that the decree as entered is consistent with his findings. Evidently the clinic’s billing procedures were slow, but that condition seems to have been chronic rather than deliberate.

In conclusion, where competent parties knowingly enter into an agreement suited to their purposes, keep that agreement in effect over many years to their mutual benefit, it is not for the courts to nullify such agreement where public policy is not impaired. Arkansas Fuel Oil Co. v. Scaletta, 200 Ark. 645, 140 S.W. 2d 684 (1940).

The decree is affirmed.

       Estimates of collectibility varies, from c. 1100,000 to c. *400,000.

       In 1968 one doctor was asked to withdraw due to undisclosed circumstances; with the approval of all partners he received a part of his accounts receivable.


text:
    William TERRY v. STATE of Arkansas
    CR 81-29
    621 S.W. 2d 476
    Supreme Court of Arkansas
    Opinion delivered September 28, 1981

      Jack R. Kearney, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant appeals from a judgment of the Washington Circuit Court, case no. 74-387, denying his petition for post-conviction relief under Rule 37 of the Rules of Criminal Procedure. The public defender was appointed to represent appellant, but appellant’s motion to proceed pro se was granted by the circuit judge on condition that the public defender be present and available at the hearing. During the proceedings the public defender assumed an active role with appellant’s approval.

On May 6, 1975, appellant was convicted of burglary and grand larceny in case no. CR 74-387. He was committed to the Department of Corrections on May 9, 1975, and paroled on December 18, 1975. Appellant was again accused of a burglary committed on February 7, 1977, and was tried and convicted of that crime on April 25, 1977, in case no. CR 77-50. The public defender represented appellant in both cases and continued to represent him in 77-50, but not in 74-387, having been relieved by order dated May 21,1975, on a finding that appellant intended to retain other counsel on appeal.

On or after June 2, 1980, appellant filed, pro se, a Rule 37 petition in CR 74-387, alleging ineffective assistance of counsel, that the jury was unconstitutionally impanelled, that he was subjected to double jeopardy in that he was convicted of two crimes for a single incident, and that he was denied a speedy trial and the benefit of voir dire examination.

On August 27, 1980, an amended Rule 37 petition was filed, pro se, setting out additional grounds for relief and alleging that appellant had attempted to file a Rule 37 petition directly with the then circuit judge, Judge Cummings, who forwarded it to the public defender, and that the public defender falsely advised appellant that the petition could not be filed until a pending appeal was disposed of. The trial court heard testimony and found the appellant had failed to prove his allegations by a preponderance of the evidence and that the Rule 37 petition was not filed before June 2, 1980, more than five years after appellant’s commitment.

Appellant argues on appeal that the circuit court erred in finding that his Rule 37 petition was untimely, in refusing his request for documentary evidence and additional witnesses; that he was denied effective assistance of counsel and the findings were against the preponderance of the evidence.

We first consider the timeliness of appellant’s petition because unless it was filed within three years we do not reach the other arguments. Collins v. State, 271 Ark. 825, 611 S.W. 2d 182 (1981). Rule 37.2 (c) provides:

A petition claiming relief under this rule must be filed in circuit court ... within three years of the date of commitment, unless the ground for relief would render the judgment of conviction void.

Here, it is evident that the time lapse between the commitment on May 5, 1975, and the date of the petition, June 2, 1980, exceeds the allowable period by over two years. No argument is made that the judgment is void, rather, it is urged that appellant “kept in frequent contact with his trial counsel” and “made several requests for post-conviction relief.” He claims that he specifically requested in one letter that his counsel file a Rule 37 petition and made several requests for post-conviction relief in correspondence with the circuit judge and others.

This is a voluminous record, consisting of five volumes and 1170 pages, and appellant wrote a number of letters and drafted a number of pro se pleadings in both cases, but we can find no evidence, either in the abstract or the record, that he actually filed, or even tendered, a pleading that can be identified or rationally treated as a Rule 37 petition, at least in case CR 74-387. If such exists, it was incumbent on appellant to abstract it, or to point to the record where it can be found. He has done neither. See Anderson v. Erberich, 195 Ark. 321, 112 S.W. 2d 634 (1938). Appellant contends that this effort is evidenced by a letter from the public defender, Mr. John B. Baker, dated May 17, 1977, acknowledging appellant’s request that his appeal “be under Rule 37.” Mr. Baker’s letter explains, correctly, that no action under Rule 37 can be taken until the pending appeal is decided. It is clear from the letter itself that it related to the appeal in case 77-50 and not to case 74-387. This is confirmed by Mr. Baker’s testimony and by the fact that the public defender was not even representing appellant in case 74-387.

We do find a handwritten pleading from the appellant, again acting pro se, dated October 31, 1977, which is cited in appellant’s brief as petitioner’s exhibit 8, but it is not abstracted and according to the record (T. 128) was not received in evidence. We take it to be the petition that appellant claims he attempted to file with Judge Cummings, who forwarded it to the public defender. (T. 133). We mention it to point out that while it does relate to case CR 74-387, it makes no reference to Rule 37 or to post-conviction relief. The pleading bears no file stamp and it was refused in evidence because no foundation was laid. It is entitled “Affidavit of Error on Appeal” and essentially raises two points: that while appellant was in custody, Fayetteville police officers conducted an illegal search of his apartment, and that persons of a particular class or race were systematically excluded from the jury panel. Even if this were treated as a Rule 37 petition, the same arguments were considered by the circuit judge and found to be unsupported by the evidence. Thus, appellant has been heard on these same allegations and afforded the Opportunity to present evidence.

There are letters from the appellant, mainly to the public defender, but they relate to other subjects. Mr. Baker testified that he found no request from appellant for post-conviction relief in his file on case 74-387 and we cannot find, either in the abstract or the record, letters from the appellant which bear out this assertion. Even if it could be supported it would be of doubtful effect as the burden is on the appellant to file a proper pleading within the three years allowed for post-conviction relief.

Much of the confusion of this record and the problems of this appeal stem from appellant having undertaken to represent himself. He has that right, but he has the onus as well. The wiser course would have been to accept the representation of the public defender, who evidently served him capably when appellant permitted him to do so. Even so, and notwithstanding the lateness of the petition, the trial court considered appellant’s petition on its merits after giving him an adequate opportunity to produce his evidence. We find no error in the proceedings.

The judgment is affirmed.

       No filing date appears on the petition, but the acknowledgement is notarized on June 2, 1980.