text:
    Willie Ray MACKEY v. STATE of Arkansas
    CR 82-120
    651 S.W.2d 82
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      Campbell & Campbell, by: James C. Campbell, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

This appeal from the Garland County Circuit Court arises from appellant’s conviction of first degree murder wherein he received a life sentence and a fine of $15,000. Six points for reversal are argued and will be. set out separately in the opinion below. We do not find that any prejudicial error occurred in the appellant’s trial.

Appellant was charged with capital murder in furtherance of the crimes of robbery and kidnapping, in violation of Ark. Stat. Ann. § 41-1501 (Repl. 1977). Vladimir Vejrosta was murdered on January 20,1981. His body was discovered in the trunk of his car at the Dallas-Fort Worth airport on April 10,1981. An autopsy revealed he died as a result of two gunshot wounds to the top of his head. The victim also had evidence of blunt trauma to his rib muscles which injury occurred prior to his death.

Appellant’s involvement commenced in late 1980 when he and his wife, Judy Mackey, entered into negotiations with the deceased to sell him some gold coins. Various witnesses established that the coin deal was to be consummated on January 20, 1981, at which time Vejrosta was to give appellant’s wife a check for $15,000 in return for the coins. The appellant and/or his wife cashed the check at a used car lot where appellant used $6,500 to purchase a Corvette. The dealer testified appellant had been trying to deal for the vehicle over a period of several weeks and had said he was waiting for a check to clear. Officers of a local bank testified they had required the deceased to deposit his check from a Nebraska bank in a Hot:Springs bank until it cleared. On January 20, 1981 the bank allowed Vejrosta to draw on the Nebraska check and established a, checking account for Vejrosta who in turn wrote a $15,000 check payable to appellant’s wife. This was the last day Vejrosta was seen alive.

The investigation was long and complicated. Appellant became a suspect and was picked up for questioning on May 18, 1981, in Crescent City, California and three days later was arrested for interstate flight to avoid prosecution. On May 22,1981, he informed the California authorities that he would waive extradition hearings and return to Arkansas. An Arkansas parole officer picked appellant up on June 29, 1981 and returned him to the Garland County jail on July 2, 1981. The information was filed on July 14, 1981 and a hearing was held the next day. On that day appellant was held to be a parole violator and it was found that he should be returned to the Arkansas Department of Corrections. However, it appears that he remained in the Garland County jail up until his trial was completed on May 21, 1982.

On August 6, 1981, the information was amended to also charge appellant’s wife, Judy Mackey, with capital murder. She was arrested, made bond, fled the state and has not been heard from since.

Testimony at the trial was to the effect that the deceased either bought or attempted to buy gold coins from appellant and his wife. There was uncontradicted evidence that the victim gave them a check for $15,000 on the day he was murdered. Other testimony was to the effect that appellant’s brother, Carl Mackey (who pled guilty to the crime of hindering apprehension), helped appellant and his wife dispose of decedent’s body. Carl was the state’s chief witness; he testified that he went to appellant’s home on the evening of January 20, 1981, helped wrap the body of the victim and transport it to the Dallas-Fort Worth airport. Carl was paid $500 for driving the victim’s vehicle, with the body in the trunk, to the airport. He testified that appellant and Judy Mackey both told him they had killed a man whom they had set up on a deal to purchase nonexistent gold coins.

It was appellant’s contention that his wife killed Vejrosta while appellant was visiting his parents in the early afternoon. He further contended that she later told him about the killing and he helped dispose of the corpse in order to keep from having his parole revoked for being present with his wife after she killed Vejrosta. These matters were told to the jury in the opening statement by appellant’s attorney. The jury was instructed that Carl was an accomplice and that his testimony alone was not sufficient to convict the appellant. The jury convicted appellant of murder in the first degree, sentenced him to life and fined him $15,000.

I

The appellant argues he was denied a speedy trial as required by A.R.Cr.P., Rule 28 and the federal and state constitutions. Our Rule 28 was adopted for the purpose of enforcing the constitutional provisions requiring a speedy trial. Rule 28.1 (a) requires a person held in jail on an offense to be tried within nine months or released on his own recognizance. Rule 28.1 (b) requires a person being held in prison in this state to be tried within twelve months, excluding periods of necessary delay, or if this provision is not complied with to be granted an absolute discharge as to the offense charged.

Appellant was first arrested on May 21, 1981. His trial commenced on May 18,1982 and concluded on May 21,1982. The record reveals he was arrested for parole violation and as a fugitive avoiding prosecution. He was questioned about the murder while he was under arrest in California but he was not charged. The information was not filed until July 14,1981. Since his parole was revoked and he still had time to serve, it can be concluded that he was being held in prison within this state for conviction of another crime. No doubt he was held in the Garland County jail for the convenience of his attorney and the state. He was not being held in jail solely on the pending charge for the nine months, but even if he were, he would have only been entitled to release on his own recognizance. A.R.Cr.P., Rule 28.1 (a). He was subject to release from the former sentence on March 28,1982. Under the circumstances he was held on the present charge for less than two months. Therefore, if all time claimed to be excluded by the state is eliminated he is still not entitled to relief pursuant to Rule 28.

II

Appellant also makes the argument that there was not sufficient independent evidence to corroborate the accomplice’s testimony. We agree with appellant’s statement of the law that such other evidence is insufficient if it merely shows that the offense was committed and the circumstances thereof. Ark. Stat. Ann. § 43-2116 (Repl. 1977). The corroborating evidence must be of a substantial nature which tends to some degree to connect the defendant with the commission of the crime. King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973). Some of the independent evidence tending to connect the appellant with the crime was: he was in possession of and assisted in cashing the decedent’s check on the day it was issued; he was dealing with the victim for the sale of gold coins with a value of f15,000 which coins were not seen by others with the exception of a few coins which were tested; he purchased a car with part of the proceeds of the victim’s check; he admitted helping dispose of the body to avoid anyone being apprehended; and he traveled to California shortly after the murder. The evidence, other than the accomplice’s testimony, is substantial and tends to connect the appellant with the crime. It was, therefore, proper to allow the jury to consider the totality of the evidence, including the accomplice’s testimony.

Ill

It is also argued that the trial court erred in refusing to allow a witness to testify that he had sold a .22 revolver to Judy Mackey and another one to the deceased. We think this evidence should have been admitted pursuant to Arkansas Uniform Rules of Evidence, Rule 401. However, the error cannot be considered prejudicial because the same evidence was introduced by other witnesses and was properly before the jury for its consideration. Geryaldine Ivan and Jack Mackey both testified that the victim had a handgun in his possession at the time the transaction between the Mackeys and the victim took place. Dorothy Mackey testified that she had seen Judy Mackey with a .22 handgun on many occasions. Therefore, the proffered testimony would have been cumulative in nature.

IV

It is argued that the trial court erred in refusing to order subpoenas for out of state government employed witnesses. These witnesses had performed certain tests which had been negative or at least inconclusive in connecting appellant to the crime. We think the trial court erred in refusing to issue the subpoenas. However, the error is rendered harmless by events which occurred at the trial. During appellant’s opening and closing statements the jury was told that all of these tests were run and produced no evidence incriminating the appellant. Additionally, detective Don Adams stated none of the test reports were returned to him. The detective’s testimony, coupled with appellant’s opening statement and closing argument makes it obvious that the jury knew the test results were negative. This is the same testimony the witnesses sought by appellant would have presented. The state attempted to prevent the negative test results from being presented to the jury. Had any of these tests been positive the state would have offered the results into evidence. The very purpose of the tests was to obtain relevant evidence connecting appellant to the murder of Vejrosta. To hold the negative test results inadmissible would be tantamount to holding that such evidence is admissible only if it points to a defendant’s guilt. The results of such tests are admissible pursuant to Rule 402.

It is true that Ark. Stat. Ann. § 43-2001 (Repl. 1977) provides for unlimited out of state witnesses in capital felony cases. However, this statute must be read in conjunction with Ark. Stat. Ann. § 43-2006 (Repl. 1977) which provides that such witnesses must be material. We have interpreted these statutes by declaring such right not to be absolute but, rather, resting within the sound discretion of the trial judge. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). We have also held that the right to have out of state witnesses in capital felony cases means material witnesses. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983). Under the circumstances contained in this case we do not find the error to be prejudicial.

V

Did the trial court err in permitting a witness to offer hearsay testimony? We think it did not. The hearsay testimony was that the deceased told a friend, “Well, if grandma is a man, I’ll leave.” The statement involved a proposed meeting between the deceased and the appellant’s wife in the matter of negotiating for the sale and purchase of the coins. Uniform Rules of Evidence, Rule 803 reads in part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3)... A statement of the declarant’s then existing state of mind, emotion, . . . plan, motive, design, mental feeling. . .

The state was allowed to introduce the statement for the purpose of showing the victim’s state of mind. However, during closing arguments the state said “grandma” was the defendant, thereby showing that the appellant planned to meet with the deceased on the date of his death. Although the state misused the statement in closing argument it was nevertheless proper for the purpose for which the court allowed its introduction. We have held that evidence of the state of mind of the victim, prior to a murder, was admissible. State v. Abernathy, 265 Ark. 218, 577 S.W.2d 591 (1979). See also United States v. Calvert, 523 F.2d 895 (8th Cir. 1975).

VI

Appellant’s final argument is that the trial court erred in limiting the testimony of a witness for the defense. The testimony was offered for the purpose of attacking the credibility of Judy Mackey, the appellant’s wife and apparent accomplice, who was not present at appellant’s trial. The proffered testimony portrayed Judy Mackey as an unfaithful and lying wife and said she was involved in prostitution. It also contended she had acted in the same manner with several of her former husbands. Uniform Rules of Evidence, Rule 608 states:

. . . The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b). . .specific instances of the conduct of a witness ... may ... if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness . . .

In interpreting Rule 608 we have adopted a three-fold test of admissibility: 1) the question must be asked in good faith, 2) the probative value must outweigh its prejudicial effect, and 3) the prior conduct must relate to the witness’ truthfulness. Cameron v. State, 272 Ark. 282, 613 S.W.2d 593 (1981). We specifically held that it was error to ask about instances of conduct which were not probative of veracity. Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980).

The elicited testimony was proffered during direct testimony of a witness for the defense. Rule 608 (a) allows credibility evidence only after the witness’ character for truthfulness has been attacked. Section (b) allows such testimony only on cross-examination. In any event the trial court did not err in this matter because Rule 608 applies to examination of witnesses and Judy Mackey was not a witness in this case.

We have reviewed the record for all objections made by the appellant and find no adverse rulings to him which were prejudicial.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    LEIGH WINHAM, INC. and Leigh WINHAM, Individually v. REYNOLDS INSURANCE AGENCY et al
    82-305
    651 S.W.2d 74
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      Friday, Eldredge ér Clark, by: Michael G. Thompson and Timothy O. Dudley, for appellants.

      Davidson, Horne, Hollingsworth, Arnold & Grobmyer, P.A., by: Allan W. Horne and Virginia R. Williams, Rule XII Law Student, for appellees.

      Laser, Sharp ir Huckabay, P.A., for appellee National American Insurance Company of New York.
   Robert H. Dudley, Justice.

Appellants, Leigh Win-ham, Inc., an interstate trucking company, and Leigh Winham, individually, filed suit alleging that appellees, Reynolds Insurance Agency, Inc. and National American Insurance Company of New York, wrongfully denied insurance coverage and refused to pay a valid claim. Appellants in the alternative pleaded that appellee Reynolds Insurance Agency negligently failed to acquire the insurance. The trial court granted summary judgment in favor of both appellees. We affirm. Jurisdiction is in this Court pursuant to Rule 29 (1) (o).

A summary judgment is granted if there is no genuine issue as to any material fact that would preclude judgment in favor of the moving party as a matter of law. ARCP Rule 56 (c). A summary judgment is an extreme remedy; consequently, any proof submitted with the motion must be viewed most favorably to the party resisting the motion and any doubts and inferences must be resolved against the moving party. Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260(1981).

The facts, construed against the movants for summary judgment, are as follows. Appellant Leigh Winham, a California resident, and appellant Leight Winham, Inc., a California corporation, leased six trucking units to B. J. McAdams, Inc., an interstate hauler with offices in North Little Rock. An employee of McAdams suggested that appellants purchase their insurance through appellee Reynolds, a Little Rock agency. In late December of 1978, appellant Leigh Winham contacted John Reynolds, the principal of appellee Reynolds Agency, by telephone. The two did not know each other and had had no prior business dealings. Winham inquired about insurance, and Reynolds stated that he would calculate the premium and call him back. On January 2, 1979, Winham again contacted Reynolds and, according to Winham, Reynolds told him the total amount of the full year’s premium, the extent of coverage, and the cost of the first installment on the premium. Winham stated that he informed Reynolds that he had to have coverage immediately and Reynolds told him that the insurance coverage would “be bound effective the day of the postmark.” Winham mailed a check drawn on the corporate account to Reynolds on January 3, 1979. Upon receiving the check Reynolds had his bank contact the payor bank and, in so doing, discovered that appellant had insufficient funds in its account to clear the check. Reynolds then deposited the check in his own bank. On January 16, Winham was given notice by his back that his corporation’s check would not clear. On January 20 Winham learned that one of his trucks had been involved in an accident. He called Reynolds to inform him of the claim and to tell him the check would be returned for insufficient funds. Winham asked Reynolds to redeposit the check. Reynolds was hesitant and Winham wired him the money which Reynolds refused to accept. Winham again phoned and stated that, “[Reynolds] told me that he was going to have to check with the insurance company to see when they wanted the insurance, when they wanted it dated, the date of the policy. And I said, You mean you haven’t bound my coverage? And he said well, he’s got to check with them to see when they want the date of the policy dated. And then in the course of that week he also asked me, he said something about he was going to have to get a signed application, would I allow [an employee of McAdams] to sign the application for me.”

In late January, 1979, Winham was informed that the claim was denied. In May 1979, Winham settled the claim against the tortfeasor who caused the accident.

The appellees moved for summary judgment on two grounds: (1) no insurance coverage was ever in force since appellants’ check was dishonored; and (2) even if insurance was in force, the release admittedly given by appellants in settling their claim was a breach of the subrogation clause of the policy.

Appellants first contend that prepayment of the premium is not a condition precedent to coverage. However, our general rule is that “payment of the premium is ordinarily a condition necessary to the operation of a policy of insurance, and usually a provision to that effect is made in the policy.” Home Fire Ins. Co. of Okla. v. Stancell, 94 Ark. 578,127 S. W. 966 (1910). Of course, we have exceptions to our general rule. For example, we recognize that effective oral binders are often issued prior to payment of the premium. See Ark. Stat. Ann. § 66-3219 (Repl. 1980); Home Ins. Co. v. Moyer, 252 Ark. 51, 477 S.W.2d 193 (1972). Also, policies are often sold on credit. King v. Cox, 63 Ark. 204, 37 S.W. 877 (1896); Mann v. Charter Oak Fire Ins. Co., 196 F. Supp. 604, 609 (E.D. Ark. 1961).

The trial judge, after viewing the facts most favorably to the appellants, found that there was no dispute of a material fact and that all of the material facts were in favor of appellees’ contention that Reynolds, the insurance agent, did not waive the ordinary condition precedent of payment of the premium by stating that “the insurance would be effective the day of the postmark,” and then accepting the check.

The appellants contend that, even though the fact of Reynolds’ statement and acceptance of the check is undisputed, reasonable men may reach different conclusions from those facts and so summary judgment was not proper. Summary judgment should be denied if under the evidence reasonable men might reach different conclusions from undisputed facts. Runyon v. Reid, 510 P.2d 943 (Okla. 1973); Lang v. Cruz, 74 N.M. 473, 394 P.2d 988 (1964).

Reynolds’ statement establishes that there was no intention to extend credit to appellant Winham, an unfamiliar person. Had an intent to extend credit existed, Reynolds would have put a binder for insurance in effect immediately after the telephone conversation rather than when the check was mailed. See Home Ins. Co. v. Moyers, 252 Ark. 51, 477 S.W.2d 193 (1972). Therefore, it was not error for the trial court to grant summary judgment on the basis that prepayment of the premium was a condition precedent to coverage.

Appellants next contend that even if prepayment of the premium was a condition precedent, the summary judgment was improper because the issue of whether the appellees accepted the plaintiff’s check as absolute payment was a question of fact. Appellants are correct that the resolution of this issue involves a question of intent. However, “[t]he law is well settled that receiving a check as payment for an insurance policy is conditional and will not prevent a forfeiture of the policy for non-payment of the premium. Of course, if the insurance company’s acts indicate that receipt of the check is payment then such will justify a finding that the insurance company is bound.” Jones v. American Pioneer Life Ins. Co., 255 Ark. 474, 500 S.W.2d 748 (1973), citing National Life Co. v. Brennecke, 195 Ark. 1088, 115 S.W.2d 855 (1938); see also, Security Benefit Association v. Punch, 173 Ark. 572, 292 S.W. 994 (1927); National Union Fire Ins. Co. v. Wright, 163 Ark. 42, 257 S.W. 753 (1924). In this case, however, none of the insurance company’s acts indicate that Reynolds intended to receive appellants’ worthless check unconditionally as payment in order to bind the insurance company.

Nevertheless, appellants argue that the actions of Reynolds might enable reasonable men to reach a different conclusion. They contend that Reynolds, in addition to stating that coverage would be effective when the check was mailed, deposited the check even after he knew it would not clear appellants’ bank. According to appellants this indicates an intent to accept late payment of the check. Then, they argue, even after the return of the check Reynolds did not deny that there was coverage. Reynolds stated he would have to check with the company to see when it wanted the policy dated. After the check had been returned, Reynolds asked if an employee of B. J. McAdams could sign an application. Finally, appellants argue that after the accident Reynolds told appellants they had no liabilty for the accident as it was caused by the tortfeasor.

Together, these actions would not lead to the conclusion that there was an intention to extend credit to appellant Winham, an unfamiliar person. Presentment of appellants’ check to the payor bank was necessary to establish a dishonor of the check. In addition, the appellants might have placed funds in the account during the interval between the phone call and presentment for payment and the check then could have been good on its initial presentment. Therefore, presentment for payment is not inconsistent with a refusal to extend credit. The failure to expressly deny that appellants had coverage could not lead reasonable men to conclude that Reynolds intended to extend coverage under the facts of this case. Similarly, the fact that Reynolds stated that he would have to check with the company to see when the policy would be dated and Reynolds asking if an employee of B. J. McAdams could sign an application could not be found by reasonable men to relate back to the original mailing date, because these actions were in response to Winham’s later assurances on January 20, 21 and 23 that he would wire the premium payment. We find no indication in Reynolds’ statements of an intent to accept liability for appellants’ insurance coverage. Since reasonable men could not reach different conclusions from the undisputed facts of this case, we agree that the appellees were entitled to a judgment as a matter of law.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. My first disagreement with the majority opinion is that portion which reads, in regard to summary judgment, “However, here reasonable men.could not reach different conclusions.”

I also disagree with that portion of the opinion which stated, “the law is well settled that receiving a check as payment for an insurance policy is conditional and will not prevent a forfeiture of the policy for non-payment of the premium.” In the business world insurance is bought and sold over the telephone in many instances. An agent is authorized to give a telephone binder which immediately binds the insuring company. In such a case failure to pay the premium would not automatically cancel the binder.

There is a difference of opinion between the appellant and appellee as to whether a binder was issued in the case before us. This is clearly a controversy requiring the resources of the judicial system. If, as testified, the agent agreed by telephone to bind the company at the time a check was placed in the mail then there’s certainly a question of fact. What has happened in the present case is that the trial court and a majority of this court have decided the facts adversely to the appellant without giving him an opportunity to present his argument to a jury. A valid controversy deserves its day in court. To deny such is to pull the rug out from under appellants’ cause. I cannot say that appellants would prevail in a full blown trial, but they are certainly entitled to make use of the system set up by our Constitution and the Arkansas General Assembly. I would, therefore, remand for a trial on the disputed issued in this case.


author: Robert H. Dudley, Justice.

text:
    LITTLE ROCK MUNICIPAL WATER WORKS v. Charles D. RAGLAND, Commissioner of Revenues
    83-6
    651 S.W.2d 78
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      John C. Lessel of Mitchell, Williams, Selig, Jackson ir Tucker, for appellant.

      Timothy J. Leathers, Joseph V. Svoboda, Wayne Zakrzewski, Kelly S. Jennings, John H. Theis, Ann Fuchs, Michael D. Munn, by: Joe Morphew, for appellee.
   Robert H. Dudley, Justice.

The issue in this case is whether the Gross Receipts Tax, Ark. Stat. Ann. § 84-1901, et seq. (Repl. 1980), applies to a sale when that sale is billed but the account is not collected.

Appellant, Little Rock Municipal Water Works, is a municipally owned and operated water works system. Appellee, the Commissioner of Revenues, levies a three percent tax upon the gross receipts derived from sales of water by appellant. Between October 1, 1976 and September 30, 1979, appellant did not include within its computation of gross receipts amounts it billed but had not collected for water service furnished to residents of the City of Little Rock and surrounding communities. Appellant was assessed a $2,130.38 deficiency in gross receipts tax and a “negligence penalty” by appellee. The trial court upheld the appellee’s assessment and the imposition of the negligence penalty. We affirm. Jurisdiction is in this Court pursuant to Rule 29 (1) (a) and (c) and Ark. Stat. Ann. § 84-4721 (b) (Repl. 1980).

We find no merit in appellant’s argument that “gross receipts” include only amounts actually collected. Ark. Stat. Ann. § 84-1903 states, “There is hereby levied an excise tax of three percentum (3%) upon the gross receipts . . . derived from all sales----” Ark. Stat. Ann. § 84-1902 (d) defines gross receipts as follows:

Gross Receipt — Gross Proceeds: The term “gross receipts” or “gross proceeds” means the total amount of consideration for the sale of tangible personal property and such services as are herein specifically provided for, whether the consideration is in money or otherwise, without any deduction therefrom on account of the cost of the properties sold, labor service performed, interest paid, losses or any expenses whatsoever.

Appellant contends that the Gross Receipts Tax is not a sales tax and that the statute requires appellant to pay the tax only on amounts actually collected. It argues that “derive” is defined as taking or receiving, especially from a specified source, and that something must be received in order to constitute a “gross receipt.” However, we have repeatedly held that the present Gross Receipts Tax Act, Act 386 of 1941, is a sales tax act. Cook v. Sears-Roebuck & Co., 212 Ark. 308, 206 S.W.2d 20 (1947); U-Drive-Em Service Co. v. Hardin, 205 Ark. 501, 169 S. W.2d 584 (1943). Ark. Stat. Ann. § 84-1902 (d) defines “gross receipt” as the “total of consideration for the sale,” the consideration bargained or contracted for, not the amount actually paid to the seller. Furthermore, in Cook v. Southwest Hotels, Inc., 213 Ark. 140, 142, 209 S.W.2d 469, 471 (1948), we stated as follows:

Although the word “derived” as used in Act 386 has a general meaning, we do not agree with appellee that the Commissioner would be compelled to withhold his demand for payment until a tax had actually been collected by the retailer. It is sufficient if the taxpayer should have done so.

Thus, the Gross Receipts Tax is due when the contract is entered into. Accord, Gardner-White Co. v. Dunckel, 296 Mich. 225, 295 N.W. 624 (1941).

In addition, Ark. Stat. Ann. § 84-1902 (d) precludes any deduction from the Gross Receipts Tax for “losses.” Because uncollected accounts are clearly “losses” in the context of this statute, they cannot be excluded in computing the tax. Accord, Olympic Motors, Inc. v. McCroskey, 15 Wash.2d 665, 132 P.2d 355 (1942).

Appellant next contends that the application of the Gross Receipts Tax to amounts billed but not collected results in a taking of its property in violation of due process and Art. 16 § 5 of the Arkansas Constitution. Appellant stipulated that it collects a deposit from each customer prior to the initiation of service, and it concedes that the amount of the deposit exceeds any tax assessed. Therefore, appellant has failed to show that any of its property is taken in payment of the Gross Receipts Tax for amounts billed but not collected. Accordingly, we do not reach these issues.

Finally appellant contends that the assessment of a ten percent negligence penalty under Ark. Stat. Ann. § 84-4741 (c) was erroneous. Appellant reasons that because both parties stipulated that appellant did not fail to pay the Gross Receipts Tax due to intentional disregard of the statutes involved and because there was no proof of negligence other than the fact of nonpayment, the penalty cannot be applied.

Ark. Stat. Ann. § 84-4741 (Supp. 1980) provides as follows:

If any part of a deficiency in taxes is determined to be due to negligence or intentional disregard of rules and regulations promulgated under the authority of this Act or any State tax law, then the Commissioner shall add a penalty of ten percent (10%) of the total amount of the deficiency, in addition to aiiy interest provided by law. [Emphasis added.]

The emphasized language was added to former law by Act 914 of 1981, section 6. However, the amended statute was not effective at the time of the deficiency assessment and it is not applicable. See Ragland, Comm’r. v. Miller Trane Service Agency, 274 Ark. 227, 623 S.W.2d 520 (1981). Although the current penalty provision, Ark. Stat. Ann. § 84-4741 (c) (Supp. 1980), may require a factual determination of negligence or intentional disregard of the Gross Receipts Act or of appellee’s regulations, we held that the former statute imposed an automatic penalty in Great Lakes Chemical Corp. v. Wooten, 266 Ark. 511, 587 S.W.2d 220 (1979). Therefore, the assessment of the ten percent negligence penalty in this case was proper.

Affirmed.


text:
    Herbert Chester MATTHEWS v. Michael E. RODGERS
    83-71
    651 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      James C. Cole, for appellant.

      Richard S. Muse and Sam L. Anderson, Sr., for appellee.
   Robert H. Dudley, Justice.

This appeal raises questions about an alleged implied bias of the trial judge and his award of compensatory and punitive damages to the victim oían intentional tort. We affirm the judgment. Jurisdiction over this torteaseis in this Court pursuant to Rule 29(1) (o).

The case was tried before the court sitting as a j ury. The facts surrounding the intentional tort are in dispute but the testimony may be summarized as follows. The appellee, plaintiff Michael Rodgers, testified that on June 30, 1979, he, his wife, and a friend, John Martin Smith, were unarmed and in their parked vehicle at a Dallas County gravel pit. The appellant, defendant Herbert Matthews, armed with a shotgun, walked up to appellee and stated that he was going to kill him. As the appellant got closer the appellee j umped out of his vehicle and the appellant fired a .20 gauge shotgun directly into appellee’s abdomen. The appellee’s wife and John Martin Smith testified to the same sequence of events. This version was corroborated in part by the testimony of the two deputy sheriffs who investigated the mayhem.

The appellant’s account of the event was that the appellee grabbed the shotgun causing it to fire and injure himself.

The trial judge awarded $39,500 in compensatory damages and $67,000 in punitive damages.

Theappellant first contends the judgment should be set aside because of an implied prej udice on the part of the trial judge. He does not contend the trial judge was intentionally dishonest or that he was even aware of his bias but that, as a matter of law, bias must be implied.

The implied bias is alleged to exist because of three factors: (1) the trial judge coerced appellant into agreeing to a trial by the court; (2) the judgment was imprinted on paper with the name and address of the appellee’s attorneys in the margin; and (3) the opposing counsel served as a pallbearer at the funeral of the judge’s father. The arguments are without merit.

In this case the judge was not disqualified on constitutional or statutory grounds. See Ark. Const, art. VII, § 20; Ark. Stat. Ann. § 22-113 (Repl. 1962).

The fact that a judge may have, or develop during the trial, an opinion, or a bias or prejudice does not make the trial judge so biased and prejudiced as to require his disqualification in further proceedings. Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966). Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). The reason is that bias is a subjective matter peculiarly within the knowledge of the trial judge. We find no Arkansas case where a trial judge has stated that he was without prejudice and could hear a case and, without more, we reversed that decision. Thus, absent some objective demonstration of prejudice, it is a communication of bias which will cause us to reverse a judge’s decision on disqualification. In this case there was no objective showing of prejudice.

Appellant first contends that he was coerced into a trial by the court. This argument is based on a mimeographed form of pretrial order which requires the attorney who is to conduct the trial to appear at pretrial with the authority to enter binding stipulations, including authority to waive j ury trial .Not one word of spoken coercion is alleged to have occurred and appellant did not waive a jury until over four months after the pretrial order. On two occasions after the pretrial conference but before the trial the parties appeared in court and nothing was said about a jury trial. The argument is without merit.

Appellant next argues bias was shown because the judgment was typed on paper which had the name and address of appellee’s attorney printed on the margin. Again, we find no merit in the argument. Frequently trial judges request the attorney for the prevailing party to prepare the precedent. The appellant does not contend that such a practice is prejudicial but contends that it leaves an impression of prejudice with the client. We understand how a judgment typed on paper with the attorney’s name printed in the margin might leave an unintended impression upon a layman and we encourage the trial judges to request the prevailing attorney to prepare the precedent on plain paper. However, we do not find that type of implied bias which would cause us to reverse the case.

The next argument with regard to bias is more difficult. This case was tried on February 23 and 24, 1982. On March 24, the trial court commenced his memorandum of decision and completed it on March 26. Five days later, on March 31, 1982, the father of the trial judge died. The mortuary which made the funeral arrangements asked the j udge if he wanted any attorneys to serve as pallbearers. He responded affirmatively and the funeral director suggested that at least two attorneys be named. The judge considered both of the attorneys involved in this case but named only one, the appellee’s attorney. The funeral home then contacted the attorney who served as a pallbearer on April 3. On April 5, the memorandum of opinion was filed and on April 9 the judgment was entered. Thus, appellee’s attorney served as pallbearer eight days after the decision had been made but two days before it was communicated to the parties.

In Farley v. Jester, 257 Ark. 686, 692, 520 S.W.2d 200 (1975), we stated:

However, court proceedings must not only be fair and impartial — they must also appear to be fair and impartial. This factor is mentioned in a Comment found in 71 Michigan Law Review 538, entitled, “Disqualification for Interest of Lower Federal Court Judges: 28 U.S.C. § 455”, as follows:
“Another factor to be considered in a judge’s decision to disqualify is the contention that the appearance of impartiality is as important, if not more so, than actual impartiality. In 1952, Justice Frankfurter explained his disqualification in a case by stating that ‘justice should reasonably appear to be disinterested as well as be so in fact.’ The Supreme Court gave support to this view in the due process context when in Murchison Justice Black wrote for the Court:
[T]o perform its high function in the best way ‘justice must satisfy the appearance of justice.’
More recently the Court set aside an arbitration award and stated that ‘(a)ny tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.’”
Likewise, in the Code of Judicial Conduct, prepared by the Special Committee on Standards of Judicial Conduct of the American Bar Association, and adopted by this court by Per Curiam Order of November 5,1973, the Commentary to Canon 2 points out that not only must a judge avoid all impropriety, but he must avoid also any appearance of impropriety.

In each of the three cases in recent years where we held that a trial judge should have disqualified there was a bias and a communication of that bias. Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982); Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978); Farley v. Jester, supra.

The fundamental issue we must consider here is whether the judge, by the act of allowing appellee’s attorney to serve as a pallbearer, gave an appearance of impropriety and communicated an impartiality which might “reasonably be questioned.” See Code of Judicial Conduct Canon 2 (B), Canon 3 (C).

In this State trial judges often know most, if not all, of the attorneys who practice before them. They may have attended the same schools, churches, or belong to the same civic clubs. Most are members of the same bar association. Given these circumstances it probably is not unusual for an attorney to be asked to serve as a pallbearer for the funeral of a member of a judge’s family and similarly judges are often honored to serve as pallbearers for the funeral of a member of an attorney’s family. These friendships within the bench and bar do not, of themselves, cause prejudice. The public and the clients are aware of their mutual acquaintances and friendships. In this particular case appellant’s attorney was also considered for service as a pallbearer. At the hearing on the motion for new trial the trial judge explained to the appellant:

THE COURT: Well, I would like the record to reflect that when the funeral arrangements were made for my father, I’m the one who made them, and because my mother was simply not able to do so, when Mr. Hale at Caruth inquired about pallbearers, I asked him if it were necessary and he said, “Well, it would look better.” I said, “Okay.” Then he said, “Do you have any names?” So, I gave him a list of names and I started to give him Mr. Cole’s [appellant’s attorney] name but I didn’t think I could get him from Malvern over here [to Hot Springs]. But, nevertheless, I just simply gave a list of names and they did the calling. I told him if he needed any additional names to give me a call, and that’s the way it was. I don’t think . . .

Given this background, and the appellant’s awareness of the circumstances, we do not find a communication of partiality which might reasonably be questioned.

Appellant next argues that there is insufficient evidence to support the award of $39,500 compensatory damages. He does not contest the finding of fault. Appellee was shot at point blank range with number four shot from a .20 gauge shotgun. The wound was on the right side and lower portion of the abdomen and required an immediate surgical opening. This exploratory laparotomy was for a determination of the damage and treatment. It required two incisions. The first was between six and seven inches in length and extended above and below the navel. The second was into the wound itself, which was six to eight inches, for extensive debridement of damaged tissue. The wound was then irrigated. The scar was closed with metal skin staples. Multiple pellets remain in the abdominal wall and most will remain there for the life of appellee although, over a period of years, some will work their way out. The doctor who treated appellee testified that appellee’s abdomen would remain tender and anything which rubs against the abdominal wall would bother him. Future plastic surgery or skin grafts might be required for scar revision at a cost of $500 to $2,000. The scar tissue will be subject to sunburn. In addition, he testified there would be a permanent partial disability and a permanent scarring. He did not estimate the disability as a percentage. The appellee testified that he could no longer lift heavy objects and that his abdomen was tender and frequently hurt. It was three to four months before he was able to return to his business and he could then only partially perform his duties. His medical expenses amounted to $2,699.01.

We have said that precedents are of scant value in appeals of this kind. Dyer v. Payne, 246 Ark. 92, 436 S.W.2d 818 (1969). In each case we must study the proof, viewing it most favorably to the appellee, and decide the difficult question of whether the verdict is so great as to shock our consicence or to demonstrate passion or prejudice on the part of the trier of fact. St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 679, 553 S.W.2d 436, 451 (1977). Here only one of the elements of damage is measurable with exact certainty. The past medical expense in the amount of $2,699.01 was proven. That was a valid element of damage. Williams v. Gates, 275 Ark. 381, 630 S.W.2d 34(1982). Future medical expenses do not require the same degree of certainty as past medical expenses. Williams, supra. The doctor testified that the appellee might need future medical procedures. The appellee testified he still had pain in the area. This was sufficient for the court to consider this element of damages. Williams, supra. The plaintiff proved a permanent injury as a result of the intentional shooting. This too constitutes a separate element of damages. Adkins v. Kelley, 244 Ark. 199, 424 S.W.2d 373 (1968). The appellee was self-employed and did not prove with any degree of certainty a loss of profits, either past or future. However, he did prove a loss of earning capacity and the trial j udge could validly consider this element of damage. Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983); Woods, Earnings and Earning Capacity as Elements of Damage in Personal Injury Litigation, 18 Ark. L. Rev. 304 (1965). The appellee has suffered disfigurement and has scars. These are elements of damage separate and apart from mere embarrassment and the mental anguish they may cause. Adkins, at 206, 424 S.W.2d at 376, citing Volentine v. Wyatt, 164 Ark. 172, 261 S.W.2d 308 (1924). Finally, the appellee has proven the element of pain, suffering and mental anguish. He is entitled to a recovery for this element in the past as well as that reasonably certain to be experienced in the future. St. Louis Southwestern Ry. Co. v. Pennington, supra. The award is unquestionably liberal, but when we take into account all of the elements of damage we are unable to say that the amount of the award, $39,500, is so great that it shocks the conscience of this Court.

The final point is the most difficult, that is, whether the award of punitive damages was excessive. For many years, our law has been that punitive damages may be imposed when the defendant acted with malice. Barlow v. Lowder, 35 Ark. 492 (1880). Clearly malice was present and punitive damages were proper in this case. There is no fixed standard for the measurement of punitive damages. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). They constitute a penalty and must be sufficient not only to deter similar conduct on the part of the same tortfeasor but they must be sufficient to deter any others who might engage in similar conduct. Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). They may amount to somewhat of a windfall to the plaintiff. Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960). The amount of actual damages sustained by a plaintiff is but one criterion for the assessment of punitive damages. Ray Dodge, Inc., supra. Evidence of the defendant’s financial wealth is a proper element to be considered in the computation of punitive damages. Holmes at 352, 352 S.W.2d 96 at 99. The amount of punitive damages in this case was not based solely upon the actual damages. An affirmance must be based upon the appellant’s wealth. Testimony elicited at trial was that appellant and his wife owned, prior to the tort, as tenants by the entireties 250.3 acres of land having a value of $167,000. Appellant admitted that after the tort action he conveyed his interest to his son for about $10. The appellant admitted that he owned a truck and tractor worth $10,000 to $12,000. He admitted that after the suit was filed he gave $12,000 derived from the sale of his cattle to his son. He admitted that he gave his son another $5,000 but his wife testified that the gift was $9,000. These admissions amount to $10,000 to $12,000 in his own name and $184,000 to $189,000 in his and his wife’s names. Appellant and his wife also owned common stock in the F. W. Woolworth Company and appellant receives $ 190.12 per month from a balance due, in an unknown amount, on a house sale. Appellant, in addition to the above items, receives $918.00 per month in civil service retirement benefits.

We have examined in detail the appellant’s financial worth, and when we consider it in relation to the intentional tort he committed and the need to prevent him or others from repeating such an act, we cannot say that the amount of the award is so great that it shocks the conscience of this Court. Nor are we convinced that the award was motivated by passion or prejudice. In our best judgment the decision of the trial court must be upheld.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This is in many respects a very tragic case. The majority’s opinion today does nothing but magnify the tragedy. My conscience will not allow me to join the majority opinion which, in my opinion, is as unreasonable and unfair as the judgment of the trial court. I realize it is our custom to state only the facts supporting the verdict when we affirm the judgment of a trial court. However, we are not required to ignore the other facts altogether. ■

The parties to this action had been feuding for quite some time prior to this incident. By all reports there had been a series of unpleasantries exchanged. The appellee, a younger man than appellant, lived in Hot Springs and the appellant lived in Bradley County. On the date of the incident the appellee, his wife and a friend were in Bradley County, about 11 o’clock p.m. and very near appellant’s house. The pretext of being in the vicinity of appellant's house that night was that appellee had to relieve himself and thought it would be all right to do so in a gravel pit across the road from appellant’s house. Appellant entered the gravel pit to investigate and discovered it was the appellee and wife and friend. It was undisputed that appellant was in possession of a shotgun. Appellee and his witnesses stated the appellant threatened to kill him and ordered the others to stand back. Appellant argues appellee attacked him and the gun fired during the tussle. He also stated he was severely injured by having his own shotgun broken over his head. Appellee was shot at such an angle that no pellets entered the . abdominal cavity but instead lodged in tissue in the outer abdominal area. The appellant was knocked unconscious by a blow to the head. The appellee alleged he threw the shotgun to the ground and broke it before beating hell out of appellant. The results of the incident were that appellant spent more time in the hospital and incurred more medical expenses than did the appellee. Appellee, after severely beating appellant, rode in a car to the Hot Springs hospital while appellant had to be transported in an ambulance. The only permanent results of appellee’s injuries is a scar on his lower abdomen where the doctors opened him up to see if he had internal injuries, which he did not. Without taking sides, it is all but impossible to glean from the record which man was truly the initial aggressor. In the end, it was definitely appellee who was the victor, not that it makes any difference, but rather to show that it was not a typical case which would j ustify an inordinate amount of compensatory and punitive damages.

The trial court awarded appellee $39,500 compensatory plus $67,000 punitive damages. The combined judgments exceed appellant’s total net worth by far. This judgment would take away appellant’s home, all of his lifetime savings and still remain unsatisfied. It is my belief that a judgment in a case like this should be based upon the total circumstances and certainly contributory negligence should have reduced this judgment. Appellee’s total medical expenses were less than $3,000, and his pain and suffering did not seem to be extraordinary. The medical expenses and other circumstances simply do not justify an award of this magnitude.

I must also disagree with the majority opinion that there are no grounds to disqualify a judge who is biased or prejudiced. A judge who is biased or prejudiced should never sit in judgment of a case. Our whole system is predicated upon trials being conducted by judges who are fair and impartial. To hold otherwise would be an act of destruction to the system. I am in agreement with that portion of the opinion which states we would need some objective manifestation of prejudice or bias before we would hold a judge should not preside over a case. I also agree that there was no evidence of prejudice or bias on the part of the trial judge in this case. My disagreement with him is solely on the amount of the judgment.

If affirmance of the punitive damage award depends upon the appellant’s wealth, as the majority writes, then this judgment should be reduced by at least fifty percent. His interest in the farm is only contingent and that item represents the bulk of the wealth attributed to him by the trial court and by this court. His actual net worth is less than $25,000. It certainly would be unjust as well as cruel to force appellant’s wife, who was not a party to this suit, to sell their farm in order to get money to satisfy this judgment. If financial worth is an element to be considered in the matter of punitive damages there must be a remittitur in this case. It seems to me that the appellee’s conduct contributing to this unfortunate affair should be considered. He was obviously looking for trouble or he would not have traveled from his home in Garland County, where the suit was brought, to Bradley County, the home of appellant, to relieve himself in a gravel pit near the residence of a man with whom he had been at odds for sometime past. The severe and near fatal beating he imposed upon appellant is evidence of why he was in Bradley County. I cannot join in rewarding him for picking a fight wherein he was injured.

My conscience is shocked at the amount of the awards. I disagree with the best judgment of the majority. It is my best judgment that a remittitur should be entered.


author: Steele Hays, Justice. Dudley, J., Darrell Hickman, Justice, John I. Purtle, Justice, Richard B. Adkisson, Chief Justice,

text:
    Jim DuPREE et al v. ALMA SCHOOL DISTRICT NO. 30 of Crawford County et al
    82-175
    651 S.W.2d 90
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      Friday, Eldredge & Clark, by: George Pike, Jr., for appellants Little Rock School District and North Little Rock School District.

      Seay & Bristow, by: Bill W. Bristow, for appellants Clover Bend School District et al.

      Dailey, West, Core, Coffman & Canfield, by: Ben Core; Stephen L. Spitz; and Long ir Silverstein, by: David Long, for appellees.

      Pryor, Robinson & Barry, by: H. Clay Robinson, for amicus curiae, the Fort Smith School District.

      Cearley, Mitchell & Roachell, for amicus curiae, the Arkansas Education Association.
   Steele Hays, Justice.

The issue presented on appeal is the constitutionality of the current statutory method of financing public schools in Arkansas under Act 1100 of 1979, the Minimum Foundation Program and vocational funding under § 7 of Act 1004 of 1975 (authorized under Act 363 of 1967). Appellees, eleven school districts, brought this class action suit against appellants, Jim DuPree and other members of the Arkansas State Board of Education (also joined by other districts), charging that the present system violates the state constitution’s guarantee of equal protection (Art. II, §§ 2, 3, 18) and its requirement that the state provide a general, suitable and efficient system of education (Art. XIV § 2). The appellees’ basic contention is the great disparity in funds available for education to school districts throughout the state is due primarily to the fact that the major determinative of revenue for school districts is the local tax base, a basis unrelated to the educational needs of any given district; that the curent state financing system is inadequate to rectify the inequalities inherent in a financing system based on widely varying local tax bases, and actually widens the gap between the property poor and property wealthy districts in providing educational opportunities. The trial court found the present system to be in violation of the constitutional provisions in question, which decision we affirm. We will first comment on the trial court’s finding and then address the points raised on appeal.

The funding for Arkansas schools comes from three sources: state revenues provide 51.6%, local revenues 38.1%, and federal revenues 10.3%. The majority of state aid is distributed under the Minimum Foundation Program (MFP). In 1978-79 MFP constituted 77.1% of all state aid. Act 1100 of 1979, the current MFP program, is similar to prior MFP programs and consists of two major elements: base aid and equalization aid. The base aid program originated under the Minimum School Budget Law of 1951. The formula was based on a calculation of teacher and student population per district. The base aid program contained a “hold-harmless” provision which guaranteed that no district would receive less aid in any year than it received the previous year. As a result, a district with declining enrollment would over the years get continually higher aid per; pupil. While Act 1100 eliminates the district “hold-harmless” provision, it still contains a pupil “hold-harmless” provision which has no bearing on educational needs or property wealth; the base aid year is permanently held at the 1978-79 level, and the inequities resuting from thirty years of the district “hold-harmless” provision are being carried forward without compensating adjustments.

The funds remaining after allocation for base aid are distributed under “equalization aid”. Under this section of the act, half of the remaining funds are distributed under a flat grant on a per pupil basis. Districts receive the same amount of aid under this provision irrespective of local property wealth and revenue raised. The remaining funds under the equalization provision are then distributed under a formula directed at equalizing the disparity between the poor and wealthy districts. Of the total allocated under this program in 1979-80, this accounted for only 6.8% of MFP aid.

The other area of contention is the distribution of funds for vocational education. In order for a school district to institute a program of vocational education approved for state funding, it must first establish a program with local funds. The state will consider funding a portion of the program only if the program is already operational. Obviously, this requirement works to the advantage of the wealthier school districts which can raise the funds and to the disadvantage of the poorer districts which lack the resources for such programs.

Against this backdrop of funding is the undisputed evidence that there are sharp disparities among school districts in the expenditures per pupil and the education opportunities available as reflected by staff, class size, curriculum, remedial services, facilities, materials and equipment. In dollar terms the highest and lowest revenues per pupil in 1978-79 respectively were $2,378 and $873. Disregarding the extremes, the difference at the 95th and 5th percentiles was $1,576 and $937. It is also undisputed that there is a substantial variation in property wealth among districts. The distribution of property wealth, measured as equalized assessed valuation per pupil in average daily attendance (ADA) in 1978-79, ranged from $73,773 to $1,853. These wealth disparities are prevalent among both large and small districts. As the system is currently operating, the major determinative of local revenues is district property wealth and the amount a school district can raise is directly related to its property wealth.

The range in revenues among school districts in Arkansas is not limited to the extremes. There are a substantial number of children affected by the revenue disparities. In 1978-79, only 7% of the pupils resided in school districts with over $1,500 per pupil in state-local revenues, while over 21% resided in districts with less than $1000 in state-local revenues, and 55% of the districts were below the state mean. This great disparity among the districts’ property wealth and the currentstate funding system as itis now applied does not equalize the educational revenues available to the school districts, but only widens the gap.

The appellants devote little attention to the constitutional provisions in question, but contend that there is no requirement of uniformity of educational opportunities throughout the state, that the constitution only requires that all children receive a “general, suitable and efficient” education. Appellants point to cases from other jurisdictions finding no violation of equal protection clauses under similar funding systems, decisions based primarily on the legitimate state interest of promoting local control. See Board of Education v. Nyquist, 453 N.Y.S.2d 643 (1982); McDaniel v. Thomas, 248 Ga. 632, 285 S.E.2d 156 (1981). The arguments are not persuasive.

Most cases finding similar state financing systems unconstitutional have found their state’s equal protection clause to be applicable and to require equal educational opportunities. See Washakie County School District No. One v. Herschler, 606 P.2d 310 (Wyo. 1980); Pauley v. Kelly, 255 S.E.2d 859 (W. Va. 1979); Serrano v. Priest, 557 P.2d 929 (Cal. 1976); Horton v. Meskill, 376 A.2d 359 (Conn. 1976). In at least one jurisdiction, the court found its constitution demanded an equal education opportunity based solely on an education clause similar to ours. Robinson v. Cahill, 303 A.2d 273 (N.J. 1973).

There is no sound basis for holding the equal protection clause inapplicable to the facts in this case. The constitutional mandate for a general, suitable and efficient education in no way precludes us from applying the equal protection clause to the present financing system, in fact under the interpretations of such cases as Robinson, supra, that clause only reinforces the decision that the equal protection clause applies.

We can find no legitimate state purpose to support the system. It bears no rational relationship to the educational needs of the individual districts, rather it is determined primarily by the tax base of each district. The trial court found the educational opportunity of the children in this state should not be controlled by the forfuitous circumstance of residence, and we concur in that view. Such a system only promotes greater opportunities for the advantaged while diminishing the opportunities for the disadvantaged.

Those jurisdictions finding no equal protection violation in a system based on district wealth generally uphold the system of funding by finding a legitimate state purpose in maintaining local control. We find, however, two fallacies in this reasoning. First, to alter the state financing system to provide greater equalization among districts does not in any way dictate that local control must be reduced. Second, as pointed out in Serrano, supra, at 948, “The notion of local control was a ‘cruel illusion’ for the poor districts due to limitations placed upon them by the system itself. . . . Far from being necessary to promote local fiscal choice, the present system actually deprives the less wealthy districts of the option.” Consequently, even without deciding whether the right to a public education is fundamental, we can find no constitutional basis for the present system, as it has no rational bearing on the educational needs of the district.

We come to this conclusion in part because we believe the right to equal educational opportunity is basic to our society. “It is the very essence and foundation of a civilized culture; it is the cohesive element that binds the fabric of our society together.” Horton at 377, Bogdanski, J. cone. Education becomes the essential prerequisite that allows our citizens to be able to appreciate, claim and effectively realize their established rights. The opening phrase to our constitutional mandate for a public school system underscores the truth of the principle.

Intelligence and virtue being the safeguards of liberty and bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools . . . (Art. 14 § 1)

The appellants’ arguments are wide of the mark in this case. They concede the disparities that exist among the school districts, but they offer no legitimate state purpose to support it. Rather, their attack comes from an oblique standpoint. They assert that the constitution only requires a suitable, effective education and that the appellees have failed to prove that is not true in their districts. The evidence offered may have shown that the appellee districts offered the bare rudiments of educational opportunities, but we are in genuine doubt that they were proved to be suitable and efficient. However, even were the complaining districts shown to meet the bare requirements of educational offerings, that is not what the constitution demands. For some districts to supply the barest necessities and others to have programs generously endowed does not meet the requirements of the constitution. Bare and minimal sufficiency does not translate into equal educational opportunity. “Equal protection is not addressed to minimal sufficiency but rather to the unjustifiable inequalities of state action.” San Antonio School District v. Rodriquez, 411 U.S. 1, 70 (1972). Marshall, J., dissenting.

Appellants also submit that the reason appellees are lacking in funds is not that they are property poor but that they under assessed. The individual school districts, however, have only limited control over the assessment procedure. The assessment is done on a county wide basis and all school boards in the county are represented on the county equalization boards as a minority. Appellants’ argument is additionally weakened by the evidence presented that all counties are presently under assessed and that there are instances where appellee and appellant districts are in the same county and consequently are subject to the same assessment practices.

Appellants contend that once the appellee districts are properly assessed at the mandated level (per Public Service Commission v. Pulaski County Equalization Board, 266 Ark. 64, 582 S.W.2d 942 [1979]) they will have sufficient revenues to provide a suitable education. However, the trial court found otherwise and the evidence does not convince us to the contrary. Too, it misses the main issue. When all counties are assessed at the proper level, the gap will still exist between the poor and wealthy districts and the mandate of the constitution will remain unfulfilled. The appellants’ amicus brief presents a similar point, arguing that the trial court’s ruling was premature and a decision should be deferred until reassessment is completed. This argument ignores the trial court’s findings, which we find convincing, that reassessment will not improve the plight of the property poor districts. The argument also ignores the fact that regardless of the result of reassessment, the fatal flaw in the distribution method under the present system would still exist.

Appellants point out that the appellee districts are not voting the same level of millage as the appellant districts. The record shows otherwise, however, and the average millage of the appellee districts is equal to and in some cases higher than that of the appellant districts. Appellants contend that the income level of appellee districts is higher and they would need to raise their millage level considerably to put them at the same “pain threshold” as that of the appellant districts. Appellants also point to Amendment 40 of the constitution which they claim requires all districts to levy taxes for needed funds before the district can request additional aid from the state. The appellees, they claim, have not first met this burden.

Appellants’ claim that the complaining districts are all of higher income levels is unsustained except for general allegations and unsupported by any statistical proof.' We would also have to assume that this was the case with all property poor districts throughout the state and such speculation has no place in this issue. The same argument was addressed in Serrano, supra. That court responded that the constitutional provision that “specifically authorizes local districts to levy school taxes, in no way implies that that section authorizes a system in violation of the requirements of equal protection.” Serrano at 955. We find that reasoning disposes of the issue.

We have discussed the two major problems faced in financing our state’s educational system. The first is the obvious disparity in property wealth among districts. That wealth is what primarily dictates the amount of revenue each district receives and the quality of education in that district. The second problem is the manner in which the state determines how the state funds are distributed, and as we have said, the current system is not a rational one. The end result is a violation of the mandates of our constitution. Ultimately, the responsibility for maintaining a general, suitable and efficient school system falls upon the state. “Whether the state acts directly or imposes the role upon the local government, the end product must be what the constitution commands. [When a district falls short of the constitutional requirements], whatever the reasons for the violation, the obligation is the state’s to rectify it. If local government fails, the state government must compel it to act, and if the local government cannot carry the burden, the state must itself meet its continuing obligation. ’ ’ Robinson, supra, at 295 and cited with approval in Pauley, supra at 873. Serrano in.addressing the same problem notes also the limits of judicial interpretation on this issue. The comments are worth repeating:

The dispositive answer to the above arguments is simply that this court is not now engaged in — nor is it about to undertake — the “search for tax equity” which defendants prefigure. As defendants themselves recognize, it is the Legislature which by virtue of institutional competency as well as constitutional function is assigned that difficult and perilous quest. Our task is much more narrowly defined: it is to determine whether the trial court committed prejudicial legal error in determining whether the state school financing system at issue before it was violative of our state constitutional provisions guaranteeing equal protection of the laws insofar as it denies equal educational opportunity to the public school students of this state. If we determine that no such error occurred, we must affirm the trial court’s judgment, leaving the matter of achieving a constitutional system to the body equipped and designed to perform that function. Serrano at 946.

The trial judge was assigned specially to this case. He heard thirty-nine witnesses and reviewed 287 exhibits resulting in over 7400 pages of transcript. His conclusions of fact and law were extensive and detailed, and obvious time and study went into the final decision. We will not overturn the decision below unless we find it clearly erroneous. (ARCP 52). After our own review of the trial court’s findings, the arguments presented by both sides and the decisions of other jurisdictions, we conclude that the findings are not clearly erroneous and, accordingly, the decree is affirmed.

Appellees’ motion to tax costs against appellants pursuant to Rule 9 (e) is denied. We concede the abstract is abbreviated, to say the least, but this is an exceptional case, involving issues and concepts of the broadest possible scope, and we are satisfied appellants have made a good faith effort to give an adequate, if concise, abridgement of the record.

Adkisson, C.J., dissents.

Hickman and Purtle, JJ., concur.

Dudley, J.,

concurs to the extent that the majority opinion finds a violation of Article XIV, § 1 of the Arkansas Constitution.

Darrell Hickman, Justice,

concurring. I wholeheartedly agree with the majority. I concur only to add some thoughts that ought to be expressed. This is a case which we could have easily decided the other way with good legal justification. But there are equally good legal reasons for our decision. In addition the subject matter almost compels us to act because public education is one of the most important services provided by state government. Education is too important a right or privilege for any authority in state government to ignore when it is in dangerous straits and the legal means exist to address the problem. We have before us a problem that the other branches of government have either been unable or unwilling to resolve and part of the answer lies easily within the realm of our authority. Their failure to act is understandable in view of the complexity of the problem and the pressure that comes to bear on the largest expenditure of state funds.

A disparity exists in the dispensation of state funds to local school districts that cannot be justified by any solid constitutional principle. Equality is always the rule in constitutiona law, not the exception, and it is a principle repeatedly contained in our Constitution, specifically in the equal protection clause, ARK. CONST, art. 2 § 3; the privileges and immunities clause, ARK. CONST, art. 2 § 18; and even in ARK. CONST, amend. XIV, which prohibits local and special legislation.

Equality is, of course, mostly an ideal or goal, and hardly ever a reality in government. Reasons are always given for not requiring equality but they are usually no more than excuses, and I do not hesitate to point out that if the Arkansas legislature approaches its new task with anything less than the goal of equality in dispensing state funds, it risks repeating the same mistakes that brought about this situation. To be specific, I cannot justify, on this record, any formula of distribution except on a per pupil basis. If there are not enough funds, using such a formula, to insure each student a decent educational opportunity, then the answer lies elsewhere and not in the unequal distribution of funds.

The large and small districts alike argue that it takes more money to provide an education because of their size. I am very doubtful that is the case for larger districts, and the small districts may find the answer to their problem lies in consolidation or merger. Small districts may have to concede that they cannot continue to provide a suitable education for their students under such a formula. The large districts have three alternatives: Either change the composition of their district, seek extra funds locally, or more aid for all schools. I do not say any formula, except one based on a per pupil basis, would fail legal examiation; but it would certainly have a more difficult time surviving legal scrutiny. The evidence to justify any distribution, other than a per pupil basis, should be both clear and convincing.

There is no doubt in my judgment that the formula must take into consideration the value of local property available for taxes. I think the majority has said this, but it needs to be made plain, that the disparity that exists, exists partly because of the difference in local taxes that are available. To be specific, a school district that is fortunate enough to have a nuclear energy plant in its district has more tax dollars available than a rural school district that has no taxable local industry. But the children of each district should have the same educational opportunity. That means the wealthier district cannot receive the same state aid the poor district does. A proper formula will consider this disparity. While the state-wide assessment we ordered in Arkansas Public Service Commission v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979), will not cure all the inequities that exist, it will certainly provide a basis for addressing the problem. Furthermore, those counties that refuse in the future to properly and lawfully assess their taxable property should be legally accountable to the school districts located in counties that do conscientiously assess property, because it is common knowledge some counties simply refuse or neglect to properly assess property.

We have only the question of the state money before us, but the problem has many facets and the peripheral and collateral questions are staggering. They cannot be ignored by us or the legislature in addressing the question. Local school districts cannot assume their borders will or should remain static forever. Consolidation or merger, or even reducing the size of a district should not be unthinkable.

The legislature will have the same difficulties in setting a new formula as it has had in dealing with the one rejected. Some school districts will want special consideration, whether they are small, medium, large, from an urban or rural area. If the funds are distributed equally, some districts may lose funds. This immediately raises the question of what kind of education should be provided. The appellants point to The Quality Education Act of 1969 (Ark. Stat. Ann. §§ 80-4601 — 4615) which is supposed to insure that the children of Arkansas receive a quality education. The Act is, of course, meaningless so far as quality is concerned. Any school district that can only comply with that Act is probably not offering its students a decent education opportunity as required by ARK. CONST, art. 14, § 1. The Act was probably passed so that small districts would not have to consolidate. In addition to the problems and questions to be resolved, if these were not enough, there looms in the shadows ARK. CONST, amend. 59 passed in 1980. It deprived school districts of valuably needed tax dollars by granting specific tax favors to certain property owners and freezing to an extent tax revenue. Its validity has never been challenged in court.

It is my respectful judgment that this court had no intention of intervening in a legislative or executive matter. Nor do we intend to supervise their work and if the General Assembly takes this opportunity to correct years of habit and starts afresh providing a truly equal formula for dispensing state aid, then there will be no need for this court to speak on this matter again. We are not a wealthy state but we have the means to provide to every student, both at the secondary and higher level, a decent opportunity for an education. But our assets cannot be squandered by political decisions or unnecessary compromise.

John I. Purtle, Justice,

concurring. I concur with the majority with the exception that I insist that the right to a free public education is fundamental. Article 14, sec. 1 of the Arkansas Constitution of 1874 clearly mandates the state to provide a free school system to safeguard liberty and provide a bulwark for free and good government. Not to hold that such an education is fundamental is to chip away at the underlying foundation and, indeed, the cornerstone of our present democratic way of life.

It further seems to me we ought to suggest some type of alternate plan to the one which has been struck down. One simple solution would be to require each district to levy and collect a certain millage on all property assessed at 20% of market value. The state would then distribute its money on a per capita basiá, taking into consideration certain weighted allowances for special situations such as a handicapped program, to be applied to all districts alike.

Richard B. Adkisson, Chief Justice,

dissenting. The majority point to the fact that there is a great disparity in property wealth among the districts as being part of the problem with our school financing, but it is undisputed that Amendment 40 contemplates that school financing will be on a local level. The implication of the majority opinion is that our law, Ark. Stat. Ann. § 80-401 (Repl. 1980) and following, which allows the incorporation of certain property rich school districts to the exclusion of other property poor districts is unconstitutional. Although at this time there may be a disparity in wealth among districts, it is not known to what extent that disparity will exist after the state has completed the court mandated reassessment as per Public Service Commission v. Pulaski County Equalization Board, 266 Ark. 64, 582 S.W.2d 942 (1979). Once reassessment is complete, the disparity may not be so great as the majority indicates. For that reason, I would not make a premature decision of such magnitude until all the facts necessary to the decision are established.

Moreover, it is worth noting that of the thirteen courts that have reviewed state school financing systems similar to ours, only four have found such systems to be unconstitutional. Washakie Co. School Dist. No. One v. Herschler, 606 P.2d 310 (Wyo. 1980); Serrano v. Priest, 135 Cal. Rptr. 345, 557 P.2d 929 (1977); Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977); Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972). The weight of authority clearly points toward upholding our system. San Antonio Independent Sch. Dist. v. Rodriquez, 411 U.S. 1, 93 S. Ct. 1278, 36 L.Ed.2d 16, reh’g denied, 411 U.S. 959, 93 S. Ct. 1919, 36 L.Ed.2d 418 (1973); Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005 (Colo. 1982); Bd. of Educ. of City Sch. Dist., etc. v. Walter, 58 Ohio St.2d 368, 390 N.E.2d 813 (1979); McDaniel v. Thomas, 248 Ga. 632, 285 S.E.2d 156 (1981); Olsen v. State, 276 Or. 9, 554 P.2d 139 (1976); Thompson v. Engelking, 96 Idaho 793, 537 P.2d 635 (1975); Northshore Sch. Dist. No. 417 v. Kinnear, 84 Wash.2d 685, 530 P.2d 178 (1974); Shofstall v. Hollins, 110 Ariz. 88, 515 P.2d 590 (1973).

       Alma, Mulberry, Van Burén, Conway, Lake Hamilton, Sheridan, Paris, Cabot, Bryant, Greenwood, Mansfield.

      Jim DuPree, et al; Clover Bend School District No. 12 of Lawrence County, individually and as a Representative of All School Districts Requiring Minimum Foundation Program Aid Funds to Provide their Students a Minimum Level of Education, Little Rock School District, North Little Rock School District.'

      §3. Equality before the law. —The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity, nor exempted from any burden or duty, on account of race, color or previous condition.
      § 2. Freedom and independence. — All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. To secure these rights the governments are instituted among men, deriving their just powers from the consent of the governed.
      § 18. Privileges and immunities — Equality. — The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belpng to all citizens.

      § 1. Free school system. — Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education. The specific intention of this amendment is to authorize that in addition to existing constitutional or statutory provisions the General Assembly and/or public school districts may spend public funds for the education of persons over twenty-one (21) years of age and under six (6) years of age, as may be provided by law, and no other interpretation shall be given to it.

      No. 40, Article 14 § 3, Amendment No. 11 Amended. § 1. Poll tax —School district tax — Budget — Approval of tax rate by electors. — The General Assembly shall provide for the support of common schools by general law, including an annual per capita tax of one dollar, to be assessed on every male inhabitant of this State over the age of twenty-one years; and school districts are hereby authorized to levy by a vote of the qualified electors respectively thereof an annual tax for the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness, the amount of such tax to be determined in the following manner:
      The Board of Directors of each school district shall prepare, approve and make public not less than sixty (60) days in advance of the annual school election a proposed budget of expenditures deemed necessary to provide for the foregoing purposes, together with a rate of tax levy sufficient to provide the funds therefor, including the rate under any continuing levy for the retirement of indebtedness. If a majority of the qualified voters in said school district voting in the annual school election shall approve the rate of tax so proposed by the Board of Directors, then the tax at the rate so approved shall be collected as provided by law. In the event a majority of said qualified electors voting in said annual school election shall disapprove the proposed rate of tax, then the tax shall be collected at the rate approved in the last preceding annual school election.
      Provided, that no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.


author: Thomas M. Bramhall, Special Justice.

text:
    Felix D’AVIGNON v. ARKANSAS RACING COMMISSION et al
    82-99
    651 S.W.2d 87
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      Rubens ir Rubens, by: Kent J. Rubens, for appellant.

      Byron Freeland of Mitchell, Williams ér Selig, for appellees.
   Thomas M. Bramhall, Special Justice.

Felix D’Avignon appeals from a judgment affirming a decision of the Arkansas Racing Commission suspending his trainer’s license for sixty (60) days. On June 19, 1975, Stylish Kim, a dog trained by D’Avignon, placed first in the fourth race at Southland Greyhound Park in West Memphis, Arkansas. Following the race a routine urine sample was taken and sent to a laboratory for analysis. The Commission’s chemist reported that the analysis revealed the presence of caffiene and/or analog or derivative thereof in violation of Rule 1233 of the Rules and Regulations Governing Greyhound Racing in Arkansas. Rule 1233 is as follows:

The trainer shall be responsible for and be the absolute insurer of the condition of an entry he enters regardless of the acts of third parties.
Should the chemical analysis of any sample indicate the presence of a drug, the trainer of the entry shall be suspended for sixty (60) days, or more, or shall be ruled off. In addition, any other person shown to have had the care or attendance of the entry shall be suspended for sixty (60) days, or more, or shall be ruled off. Further, the owner of such entry shall not participate in the purse distribution.

Prior to the race, Stylish Kim was placed in a lock-out kennel pursuant to Rule 3104 of the Rules and Regulations Governing Greyhound Racing in Arkansas, which provides:

Immediately after being weighed in (prepost weight) the greyhounds shall be placed in lock-out kennels under the supervision of the Paddock Judge, and no owner or other person excepting the Paddock Judge, State Veterinarian, Kennel Master, Scale Clerk, Lead-outs under the supervision of the Paddock Judge, Presiding Judge or Commission’s representatives shall be allowed in or near the lock-out kennels.

Although trainers and owners are not permitted in the lock-out kennels there are two closed-circuit television cameras positioned in such a manner so that the entire lock-out room can be observed by watching one of two sets of monitors. These monitors are located in the State Veterinarian’s office and the area of the weigh in scales so trainers and owners may observe their dogs.

After a hearing, D’Avignon was suspended for sixty (60) days and on appeal he contends that Rule 1233, the absolute insurer rule, is unconstitutional by its own provisions and in its application in conjunction with Rule 3104. We will first address the issue of the constitutionality of Rule 1233.

The refusal to impose individual liability for an act which one would not reasonably or ordinarily foresee as causing harm is a basic precept ingrained in our system of jurisprudence. However, the courts have long recognized that the imposition of liability without fault may be appropriate for the general welfare or protection of the public and such sanctions do not violate the due process clauses of the State and Federal Constitutions so long as they bear a reasonable relationship toward accomplishing the desired result. There are many instances in which the United States Supreme Court has approved the application of strict liability and this court is of the opinion that this rule of law is well enough established to allow this court to forego a discussion of the particular cases. See Sandstrom v. California Horse Racing Bd., 31 Cal.2d 401, 189 P.2d 17, 20-21, cert. denied, 355 U.S. 814 (1948), see cases cited; Maryland Racing Comm. v. McGee, 212 Md. 69, 128 A.2d 419, 424 (1947), see cases cited. This court has recognized the power of the Arkansas Racing Commission to:

Take such other action, not inconsistent with law, as it may deem necessary or desirable to supervise and regulate, and effectively control in the public interest, Greyhound Racing in the State of Arkansas.

Arkansas Racing Comm. v. Hot Springs Kennel Club, Inc., 232 Ark. 504, 339 S.W.2d 126 (1960).

We feel the enterprises of horse and dog racing are especially susceptible to fraud and deceit because of the parimutuel wagering. It is apparent that detection of the adulteration of an entrant prior to payment to the winning betters is not feasible and it is imperative that society be afforded as much protection as possible to prevent abuses. For these reasons, we find the absolute insurer (Rule 1233) a constitutional and valid exercise of the police power of this state.

D’Avignon next contends that the absolute insurer rule (Rule 1233) is unconstitutional because of its application in conjunction with the lock-out rule (Rule 1304). He argues that the imposition of a rule of strict liability is predicated on the concept that the one on whom such a burden is placed has control of the instrumentality causing the harm and that this control places him in the best position to prevent harm or injury. The vicious dog is in the control of the owner — the locomotive that starts a fire on the railroad right-of-way is maintained by and in the control of the railroad — the one using a dangerous substance such as explosives for blasting can prevent injury by exercising a high degree of care — the merchant who processes food is in the best position to prevent its adulteration. Counsel for Appellant makes a persuasive argument that Appellant has been deprived of his control of Stylish Kim because of the lock-out rule. No cases from any jurisdictions have ruled on the constitutionality of the absolute insurer rule in conjunction with a lock-out rule.

Several reasons have been given for the lock-out rule. Testimony was offered at the hearing that this rule eliminates the need for a prerace weigh in. Under this rule all of the dogs that are entered in the twelve races to be held that evening are weighed in at approximately 6:00 p.m. After they are weighed the dogs are delivered to race officials for placement in cages in the lock-out room which is monitored by closed-circuit television cameras. The room contains as many as 96 dogs before the first race is run. Stylish Kim was placed in the cage designated as “4 — 4” representing the fourth dog in the fourth race. The cages for each race are together to make the dogs more readily available and for ease in handling the animals prior to each race. There are usually three attendants in the lock-out room at all times. Immediately prior to a race, the dogs entered are taken to a “prerace walk area” for waste elimination purposes and they are then paraded to a reviewing stand allowing spectators to see the animals. The lock-out room is air conditioned and provides a better environment than a cage in a truck in the parking lot. In summer the heat in the parking area would have an effect on the performance of a dog in a race.

A major benefit of the lock-out rule is the elimination for the need for the dogs to be weighed immediately prior to a race. The dogs must be within two pounds of a given weight when they are entered for the race and if they were taken back to their cage in the trucks in the parking area they would have to be weighed again prior to the race. Since the dogs are turned over to the track officials immediately after the entry weigh in, they do not have the opportunity to eat and the prerace weigh in is unnecessary.

In the oral argument of this case other benefits of the lock-out rule were given such as the prevention of a trainer or owner from using various measures to excite an animal to increase his performance. The condition and treatment of the dog is certainly a concern of the Commission.

Counsel for appellant has made an excellent presentation of his position that the lock-out rule causes an unconstitutional application of the absolute insurer rule but this court is of the opinion that appellant has the opportunity to observe his animals while they are in the lock-out room if he so desires. D’Avignon testified that he was too busy to stand at the closed-circuit television monitors and constantly watch his animals. He said that he had to pick up dogs after they had raced to return them to his truck while his other entrants remained in the lock-out room. This court recognizes that without the lock-out room D’Avignon would have to leave some of his animals in his truck to take other entrants to a prerace weigh in so in any event his dogs would be left unobserved unless he has an assistant.

Nowhere in the record of this case can be found any testimony or evidence that D’Avignon complained that the manner in which the lock-out room was constructed or equipped does not afford a proper opportunity to observe the animals and protect them from abuse or adulteration. Even more noticeable is the absence of any evidence in this record that the design of the lock-out room or equipment in fact does not afford the opportunity to guard the animals against abuse or tampering. Although physical control of Stylish Kim was relinquished by D’Avignon when the dog was placed in the lock-out room, Appellant’s argument of lack of control falls short under the evidence in this case. Since there are two television cameras located inside the lock-out room and two sets of monitors on which a trainer or owner can view the lock-out room and since there is no evidence in the record reflecting inadequacies in the design of the lock-out room which might deprive D’Avignon from properly observing his animal, this court is of the opinion that trainers and owners still maintain a sufficient degree of control for the observation and protection of their animals.

From the foregoing considerations it follows that the evidence in this case is not such as to warrant a finding by this court that the application of the lock-out rule in conjunction with the absolute insurer rule is unconstitutional.

Affirmed.

Hays, J., not participating.


author: Per Curiam.

text:
    William FARMER v. William F. EVERETT, Director of Labor, and ALLRIGHT PARKING, INC.
    83-100
    651 S.W.2d 99
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      Marilyn Rauch, Central Arkansas Legal Services, Inc., for petitioner.

      Bruce H. Bokony, for respondents.
   Per Curiam.

The Court of Appeals affirmed the Board of Review’s denial of unemployment benefits to petitioner, Farmer. Farmer v. Everett, 8 Ark. App. 23, 648 S.W.2d 513 (1983). We granted the petitioner’s petition to review that affirmance on May 2, 1983. After carefully studying the issues presented and the record, we are of the view that the petition was imprudently granted. Consequently, we dismiss the petition. As we have said, a denial of a petition for review does not imply approval or disapproval of the decision. Wilson v. City of Pine Bluff, 278 Ark. 65, 643 S.W.2d 569 (1982); Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979); Masingill v. State, 278 Ark. 641, 648 S.W.2d 62 (1983).

Petition dismissed.


text:
    Johnny Lee NELSON v. STATE of Arkansas
    651 S.W.2d 98
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      Appellant, pro se.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Johnny Lee Nelson was convicted of burglary and misdemeanor theft of property on March 12, 1982. He alleges in his motion for belated appeal that retained counsel Edwin Keaton filed a notice of appeal but did not pursue the appeal after that point. He states that he tried to contact counsel but could not reach him. He asks that Keaton be relieved as counsel, but he does not request appointment of other counsel.

When appellant filed this motion, a copy of it was sent to Mr. Keaton with the request that he respond to the motion by affidavit. He has not done so; therefore, we have no choice, but to accept appellant’s claim that counsel abandoned his client despite the fact that appellant wanted to continue the appeal.

Rule 36.26 of the Arkansas Rules of Criminal Procedure provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

The method for taking the appeal is set out in Rule 36.9. In the case at bar, the attorney Keaton was not relieved as counsel by the trial court before he filed the notice of appeal. Once the notice of appeal was filed, he was obligated to obtain permission from this Court to withdraw in accordance with Supreme Court Rule 11 (h). Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1982). Rule 11 (h) in pertinent part states:

Any motion by counsel for a defendant in a criminal case for permission to withdraw made after the notice of appeal has been given shall be addressed to this Court, shall contain a statement of the reasons for the request, and shall be served upon the defendant appealing.

Counsel, whether retained or appointed, cannot file the notice of appeal and sit idle. When a person convicted of a crime desires to appeal, his constitutional right to effective assistance of counsel is denied where counsel fails to pursue the appeal. See Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).

In light of his failure to follow the procedure prescribed for withdrawal from a case, Keaton remains the attorney of record. See Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). He is therefore responsible for the duties imposed on him by the rules, statutes and opinions of this Court. We decline to grant appellant’s request that Mr. Keaton be relieved as counsel. As retained counsel, Mr. Keaton shall be required to either properly petition this court for permission to withdraw within thirty days or file within thirty days a motion for rule on the clerk asking for permission to file the record on appeal. Failure to act will be considered a serious breach of professional duty.

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

Motion granted.