author: John I. Purtle, Justice. Jack Holt, Jr., Chief Justice,

text:
    Tom M. FERSTL, Joe Dawson, Bob Balhorn and Bob Lamb v. W.J. “Bill” McCUEN, Secretary of State
    88-228
    758 S.W.2d 398
    Supreme Court of Arkansas
    Opinion delivered October 12, 1988

      Friday, Eldredge & Clark, by: Michael G. Thompson and Robert S. Schafer, for petitioners.

      Steve Clark, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for respondent.

      Youngdahl & Youngdahl, P.A., by: James E. Youngdahl, for respondents-intervenors Gov. Bill Clinton, et al.
   John I. Purtle, Justice.

Petitioners, as citizens, residents and taxpayers, in their own behalf and on behalf of all others similarly situated, bring this petition to enjoin the Secretary of State from placing this proposed constitutional amendment on the ballot at the November 8,1988, general election. Numerous individuals and groups have been allowed to intervene on behalf of the respondent. The proposed amendment is presented pursuant to Amendment 7 of the Arkansas Constitution.

The petitioners contest the popular name and the ballot title of the proposed amendment on grounds that they are inaccurate and misleading to such an extent that the voters will not be able to cast a knowing and intelligent vote on the amendment. We do not find either the popular name or the ballot title to be invalid. Consequently, the petition for an injunction is denied.

On September 9,1988, the Secretary of State certified that the proposed amendment had received the requisite minimum number of signatures to qualify the proposal for submission to the electors at the general election to be held on November 8,1988. Certification is not contested in this proceeding. We are here concerned only with the validity of the popular name and ballot title.

Pursuant to Ark. Code Ann. § 7-9-107 (1987), Governor Bill Clinton, as sponsor of the proposed amendment, submitted the ballot title and popular name, as they will appear on the ballot, to Attorney General Steve Clark for approval. The Attorney General, in opinion number 88-059, approved them as submitted.

The popular name and ballot title read as follows:

(POPULAR NAME)
An amendment to repeal the personal property tax on household goods; to require a vote of sixty percent of the legislature or approval by popular referendum to levy or amend any tax; and to authorize a consolidation of procedures for motor vehicle registration.
(BALLOT TITLE)
A proposed amendment to the Constitution of the State of Arkansas exempting household goods, as defined, from all ad valorem taxes levied by cities, counties, school districts and other taxing units in this State;
Establishing a three-fifths vote of the total membership of each house of the General Assembly as the required majority for passage of any bill to levy any tax, to alter the rate of any tax, to grant any exemption, exclusion, credit or deduction with respect to the application of any tax, to extend the application of any tax or to otherwise amend or repeal any provision of law levying a tax;
Authorizing the General Assembly to refer to the people any bill to levy a tax, to alter the rate of any tax, to grant any .exemption, exclusion, credit or deduction with respect to the application of any tax, to extend the application of any tax, or to otherwise amend or repeal any provision of law levying a tax, if such bill receives the affirmative vote of a simple majority of the total membership of each house of the General Assembly; providing that any bill so referred shall be considered by the qualified electors voting in the general election next following the adjournment of the legislative session in which such bill was referred and shall become law if approved by a majority of the qualified electors casting votes for and against such bill;
Authorizing the General Assembly to establish procedures for assessing and collecting ad valorem taxes on motor vehicles at the time of registration of such vehicles;
Repealing Section 2 of Amendment 19 to the Arkansas Constitution which requires a three-fourths vote of the membership of each house of the General Assembly or approval of the qualified electors of the State to increase property, excise, privilege or personal tax rates; making this amendment effective January 1, 1989.

Due to its length the text of the proposed amendment will not be set out in full in the body of this opinion. We will summarize the proposal in sufficient detail to enable us to intelligently discuss it in this opinion. The body of the proposal is attached as an appendix.

The text of the proposed amendment provides for: the exemption of household goods from all ad valorem taxes levied by any taxing unit in this state; and an affirmative vote of three-fifths of each house of the General Assembly for passage, alteration, or application of any tax, or to otherwise change a law levying a tax. The proposed amendment also provides that the General Assembly, by a simple majority vote of the total membership of each house, may refer such tax measures to the people; and permits the General Assembly to establish procedures for the assessment and collection of ad valorem taxes on motor vehicles.

We first consider the popular name of the proposed amendment. The sponsors of the amendment have complied with Ark. Code Ann. § 7-9-107 (1987) by submitting both the proposed popular name and ballot title to the Attorney General for approval. Although Amendment 7 itself does not require such approval, Amendment 7 does state that laws may be enacted to facilitate its operation. The above statute was enacted pursuant to this authority. There is no allegation that the statute is unconstitutional. It is therefore presumed valid. The sponsors have also complied with Amendment 7 by obtaining the requisite number of signatures in order to refer a proposal to the people for a vote.

Although the sponsors have complied with these provisions of the constitution and the law, we are bound to examine the popular name to determine whether it sufficiently conveys an intelligible idea of the scope and import of the proposed amendment; and whether it contains any misleading language or partisan coloring. Bradley v. Hall, Secretary of State, 220 Ark. 925, 251 S.W.2d 470 (1952).

The popular name states that the proposal will “repeal” the tax on household goods, but the ballot title states such goods are “exempt” from the tax on personal property. The petitioners argue that this use of different terms makes the popular name or ballot title misleading. We perceive a fundamental, legal difference in the terms, however, that difference is not one which will cause the voters to be misled in evaluating this amendment. It is consistent to interpret the popular name to indicate that any existing tax on household goods will be repealed on January 1, 1989, and to interpret the ballot title to indicate that household goods will thereafter be exempt from any tax levied by any taxing unit. We find nothing in the popular name to contain misleading language or partisan coloring. Neither do we find any suggestion that the scope and import of the proposal are anything other than that embodied in the text.

We make a more detailed examination and analysis of the proposed ballot title than we do the popular name. The popular name is designed primarily to identify the proposal, while the ballot title is designed to adequately summarize the provisions of the proposal and be complete enough to convey to the voter an intelligible idea of the scope and import of the proposal. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931). The ballot title must also be free from any misleading tendency, whether by amplification, omission or fallacy. It must not be tinged with partisan coloring. Bradley v. Hall, supra; Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936).

It is difficult to prepare a perfect ballot title. It is sufficient if it informs the voters with such clarity that they can cast their ballot with a fair understanding of the issue presented. Becker v. Riviere, Secretary of State, 277 Ark. 252, 641 S.W.2d 2 (1982); and Hoban v. Hall, Secretary of State, 229 Ark. 416, 316 S.W.2d 185 (1958). The question is not how the members of this court feel concerning the wisdom of this proposed amendment, but rather whether the requirements for submission of the proposal to the voters have been met. It is the function of this court to see that the ballot title (and popular name) are: (1) intelligible, (2) honest, and (3) impartial. Arkansas Womens Political Caucus v. Riviere, Secretary of State, 283 Ark. 463, 677 S.W.2d 846 (1984); and Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960).

The petitioners also contend that the popular name and ballot title are misleading with respect to the provision for “a consolidation of procedures for motor vehicle registration.” It is argued that the error of the phrase is by “amplification” and “fallacy,” and that this “error” will mislead the voters. The argument appears to be that the amendment provides for registration, assessment and payment of taxes at the same time, and that this possible consequence cannot be discerned by reading the popular name and ballot title. Certainly not every detail of an amendment or how it will work in every situation can be revealed in the name and title. It is not possible to do so. We hold that this popular name and ballot title sufficiently inform the public that a change in vehicle registration, assessment and payment of taxes will be authorized.

The last argument concerns an alleged discrepancy among the popular name, ballot title, and the text of the amendment. The popular name contains the phrase “to levy or amend any tax”; but the ballot title uses the words “to grant any exemption, exclusion, credit, or deduction with respect to the application of any tax.” We have determined that “levy or amend” is broad enough to encompass the acts discussed in the ballot title. The word levy cannot fairly be said to be ambiguous. To amend, in its ordinary sense, is to change or modify something already in existence. Adding or deleting a tax credit or deduction could only come about by amending an existing or future tax law.

It is not our function in the present litigation to interpret the amendment or explain how it is to be implemented. Neither is it our purpose in this opinion to discuss the proposal’s merits or its faults. It is rather our function to see that the popular name and ballot title are a fair and honest means of presenting this measure to the people for their consideration. We must simply determine whether the sponsors of the proposed amendment have complied with the law, and whether the popular name and ballot title fairly represent the issue which will be presented to the electors. We hold that it is an adequate and fair representation without misleading tendencies or partisan coloring. The proposal is proper for inclusion on the ballot at the general election on November 8, 1988. The petition is therefore denied.

Petition denied.

APPENDIX

BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS:

Section 1(a). Effective January 1,1989, items of household goods shall be exempt from all ad valorem taxes levied by cities, counties, school districts and other taxing units in this state.

(b). As used in this amendment “household goods” shall mean items of household furniture and furnishings, clothing, appliances, and other personal property used within the home, if not held for sale, rental, or other commercial or professional use.

Section 2(a). The affirmative vote of at least three-fifths of the total membership of each House of the General Assembly shall be required for passage of any bill to levy a tax, to alter the rate of any tax, to grant exemptions, exclusions, credits or deductions with respect to the application of any tax, to extend the application of any tax, or to otherwise amend or repeal any provision of law levying a tax.

(b). The General Assembly is authorized to refer to the people any bill to levy a tax, to alter the rate of any tax, to grant exemptions, exclusions, credits, or deductions with respect to the application of any tax, to extend the application of any tax, or to otherwise amend or repeal any provision of law levying a tax if such bill receives the affirmative vote of at least a simple majority of the total membership of each House of the General Assembly. Any bill referred to the people pursuant to this amendment shall be considered by the qualified electors voting in the general election next following the adjournment of the regular or extraordinary session of the General Assembly in which such bill was referred and shall become law if approved by a majority of the qualified electors casting votes for and against such bill.

Section 3. The General Assembly may establish procedures whereby the ad valorem taxes on motor vehicles shall be assessed and collected at the time of the vehicle registration with the State and at the time of renewal of the registration. The tax rate shall be the rate of personal property taxes in effect or last levied by the taxing units in which the motor vehicle being taxed is located for purposes of registration, at the time of issuance or renewal of the registration of such motor vehicle.

Section 4. Section 2 of Amendment 19 to the Arkansas Constitution is hereby repealed and any other constitutional provision or parts thereof which conflict with this amendment are hereby repealed to the extent of such conflict.

Section 5. This amendment shall become effective on January 1, 1989. Sections 1 and 2 of this amendment shall be self-executing.

FIolt, C.J., and Newbern, J., concur.

Jack Holt, Jr., Chief Justice,

concurring. I concur with the results reached by the majority inasmuch as the ballot title, when read in conjunction with the popular name, sufficiently identifies the proposed act and fairly alleges its general purpose. Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 698 (1968). However, I remain concerned that the popular name assigned to the amendment does not speak in complete candor.

As noted in Pafford v. Hall, Secretary of State, 217 Ark. 734, 233 S.W.2d 72 (1950), our constitution makes no reference to a popular name; it is merely a legislative device [Ark. Code Ann. § 7-9-110 (1987)] which is evidently useful in making it easy for voters to discuss a measure for the election. Likewise, the requirements for the popular name are not as stringent as those for the ballot title. Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984).

It is obvious to me that the popular name designated for this amendment is misleading. Although the popular name speaks in terms of “repealing” certain taxes, the ballot title speaks of “exemptions.” The majority perceives a fundamental legal difference in the terms, however, that difference is not one which will cause the voters to be misled in evaluating this amendment. Perhaps not. However, to a casual reader the thoughts of a repeal of a present tax is always appealing, whereas reference to the fact that exemptions may exist with reference to certain taxes draws little, if any, attention.

I am more troubled that part of the popular name states that the amendment authorizes “a consolidation of procedures for motor vehicle registration” when in fact, the amendment provides for a change of procedures for motor vehicle registration and taxation. In reading the ballot title it becomes clear that the nebulous words “consolidation of procedures for motor vehicle registration,” really means that the proposed amendment will authorize the General Assembly to establish procedures for assessing and collecting ad valorem taxes on motor vehicles at the time of registration of such vehicle, which is a distinct departure from existing law.

In oral argument, the state admitted that the failure to mention a proposed change in taxation procedure in the popular name was an “omission,” but not the type that would cause the voters to pause for reflection. I think that it would.

Were we to judge this case on the strength of the popular name alone, I would say that it is not free from any misleading tendency. The question then arises as to whether or not the flaws in the popular name rise to such a level that they destroy the integrity of the ballot title and the amendment. Since the ballot title fairly explains the purpose of the amendment, I conclude that the proposed amendment is sufficient to be submitted to the public for vote.

I concur.

Newbern, J., joins in this concurrence.


source: Caselaw Access Project

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

license: Public Domain

text:
    Cary L. GAINES and Bob Lamb v. W.J. “Bill” McCUEN, Secretary of State Governor Bill Clinton, et al., Intervenors/Respondents
    88-229
    758 S.W.2d 403
    Supreme Court of Arkansas
    Opinion delivered October 12, 1988

      Friday, Eldredge & Clark, by: Michael G. Thompson and Robert S. Shafer, for petitioners.

      Steve Clark, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for respondent.

      Rose Law Firm, A Professional Association, by: Webb Hubbell and Jess Askew III, for intervenors/respondents.
   Robert H. Dudley, Justice.

By this original action, the petitioners seek to enjoin the Secretary of State from certifying as sufficient a popular name and ballot title to be voted upon at the general election in November. Pursuant to Paragraph 22, Amendment 7 to the Constitution of Arkansas, we have treated the case on an expedited basis. The petition asserts that the popular name is incomplete and that the ballot title is both incomplete and misleading. These assertions are controverted by the respondent Secretary of State and by the sponsors of this initiated act. We find that the popular name is sufficient to identify the initiative and the ballot title fairly states the general purposes of the proposed act and, accordingly, we decline to issue the injunction.

Petitioners first attack the popular name of the initiative, which is: “Standard of Conduct and Disclosure Act For Lobbyists And State Officials.” The popular name of a proposed act must be intelligible, honest, and impartial. Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984). The popular name is designed to make it easy for voters to discuss the proposal prior to the election, by giving them a label to identify it. Pofford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950). We have declared popular names invalid because they were misleading or used biased language. Jackson v. Clark, 288 Ark. 192, 703 S.W.2d 454 (1986); Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958); Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). However, because so little is required of a popular name, we have never held a proposed measure invalid solely because of an incomplete description of the act by the popular name. See Kennedy, Initiated Constitutional Amendments In Arkansas: Strolling Through the Mine Field, 9 UALR L.J. 1, 23 (1986-87).

In this case the popular name reflects that the proposed ethics act affects “Lobbyists and State Officials.” However, the proposed act also applies to candidates for state elective office. The petitioners contend that the failure to include mention of candidates for state office invalidates the measure. The argument is without merit because the popular name is concise enough, and clear enough, for the voters to refer to and identify it easily.

The petitioners next argue that the ballot title, as distinguished from the popular name, is invalid. It reads as follows:

A proposed act requiring lobbyists, as defined, to register with the Secretary of State if seeking to influence legislative or administrative actions of state government; excepting some persons from registering; requiring lobbyists to file quarterly reports, and monthly reports during legislative sessions; specifying information to be reported, including gifts, as defined, itemized expenses, except campaign contributions, exceeding twenty-five dollars ($25.00), special event expenses, total expenses incurred in lobbying, business associations between the lobbyists and those lobbied, and loans in excess of twenty-five dollars ($25.00) made, promised, or contracted for to public officials, as defined, which are not in the ordinary course of business by regular lenders;
Prohibiting lobbyists from using coercion or bribery to influence any public official, as defined, purposely providing false information to public officials, as defined, while lobbying, purposely falsifying information when registering, or acting as a lobbyist for three years after being convicted of a violation of the subchapter governing lobbyist registration and disclosure;
Prohibiting any person from purposely employing a lobbyist who is required to register but is not registered;
Requiring public officials, as defined, to report annually for themselves and their spouses the following: their names and all names under which they do business, sources of income exceeding one thousand dollars ($ 1,000.00) and twelve thousand five hundred dollars ($12,500.00) annually except individual items of income constituting a portion of the gross income of the public official’s, as defined, or spouse’s business or profession, business investments exceeding one thousand dollars ($1,000.00) and twelve thousand five hundred dollars ($12,500.00), offices or directorships held in businesses subject to government regulation in Arkansas, and gifts received having a value of one hundred dollars ($100.00) or more; requiring such officials to report each creditor, excepting family members and regular lenders, to whom five thousand dollars ($5,000.00) or more is owed, each guarantor or co-maker, excepting family members, of debts assumed or arising after January 1, 1989, and nongovernmental sources of payment for their official food, lodging, and travel exceeding one hundred fifty dollars ($150.00); requiring such officials to disclose employment with firms regulated by the official’s government office, and financial ties with firms doing business in excess of one thousand dollars ($1,000.00) annually with such office;
Prohibiting public officials, as defined, from receiving private gifts or compensation for the performance of official duties, or purposely disclosing or using confidential government information to secure something of material benefit; restricting appearances by state legislators on behalf of others for compensation before state agencies; requiring state legislators to report official actions that may conflict with or affect their personal financial interests or their businesses;
Punishing violations as Class A misdemeanors requiring a purposeful mental state; providing that prosecuting attorneys in districts where violations occur have jurisdiction; granting the State Attorney General authority to investigate alleged violations, to conduct hearings, to issue public letters of caution or warnings, to issue advisory opinions and guidelines, and to make reports and recommendations, when appropriate, to law enforcement officials and prosecuting attorneys; making the initiated act effective on January 1, 1989; and for other purposes.

The sponsors of the proposed act submitted the popular name and ballot title to the Attorney General for his approval prior to circulation of the initiative petitions. See Ark. Code Ann. § 7-9-107 (1987). The Attorney General changed both the popular name and ballot title and, as changed, certified them as sufficient. The respondents contend that the Attorney General’s determination of sufficiency mandates deference, pointing to our statement “that only in a clear case, should a title so prepared be held insufficient.” The quoted language is from Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976). We have made other similar statements but they are somewhat illusory. Whether the Attorney General has correctly determined the sufficiency of the name and title is a matter of law to be decided by this Court. It is not at all comparable to a finding of fact by a trial court, which we will set aside only if it is clearly erroneous. ARCP Rule 52(a).

Ark. Code Ann. § 7-9-107, the only statutory law concerning sufficiency of ballot titles, provides that the ballot title “shall briefly and concisely state the purpose of the proposed measure.” The bulk of the law on the subject is case law. Our most significant rule is that in determining the sufficiency of the title we give a liberal construction and interpretation of the requirements of Amendment 7 in order to secure its purposes to reserve to the people the right to adopt, reject, approve, or disapprove legislation. Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 697 (1968). We assume that many voters will enter the voting booth knowing little about an initiated proposal, Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931), and, therefore, the title should contain enough information to “convey an intelligible idea [of the] scope and import of the proposed law.” At the same time, it must not be unduly long since a voter is allowed only three minutes in the voting booth. Ark. Code Ann. § 7-5-522(d) (1987). The ballot title must accurately reflect the general purposes and fundamental provisions of the proposed initiative, so that an elector does not vote for a proposal based on its description in the ballot title, when, in fact, the vote is for a position he might oppose. Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248 (1934). The title need not recite all of the details of the proposal, Coleman v. Sherrill, supra; however, if the information would give the elector “serious ground for reflection” it is not a mere detail, and it must be disclosed. Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958). Finally, a ballot title, like the popular name, must be intelligible, honest, and impartial. Arkansas Womens Political Caucus, 283 Ark. 463, 677 S.W.2d 846 (1984).

Three of the petitioners’ points of appeal are that the ballot title at issue is invalid because of omissions. They first argue that the title does not mention candidates for state elective office, and that since the proposed act concerns them, the title is invalid. Although the ballot title does not expressly refer to candidates for state elective office, neither does the proposal itself purport to have the general purpose of regulating campaign practices. It only tangentially governs candidates for state office, by seeking to illuminate those relationships which would be covered under the initiative if the candidate were to win the election. The only real change in the proposed act regarding candidates is a slight broadening of the scope of disclosure and an increase in the penalty for violation of the disclosure requirements, from a Class B misdemeanor to a Class A misdemeanor. The proposal does not affect any other existing laws governing candidates, which remain within the scope of the campaign practices and financing laws, found in Ark. Code Ann. §§7-6-101 to -214 (1987). These changes are minimal when viewed in the context of the entire initiative, and are certainly consistent with the act’s general purposes. This is not the type of omission that would give the elector “serious ground for reflection” if he were made aware of it.

Petitioners next attack the ballot title because it “fails to disclose the act’s disparate treatment of lobbyists.” The title states that “lobbyists, as defined” will be required to register and that “some persons” will be exempt from registration. This is sufficient since it states that the proposed act defines “lobbyist” and provides for certain exemptions from the act. The general purpose and fundamental provisions of the initiative are set out. Requiring more detail would thwart the purpose of having a ballot title.

Petitioners next state that the title fails to disclose that small gifts from lobbyists do not have to be reported, and argue that this constitutes a material omission. Again, the title refers to “gifts, as defined” and provides: “Specifying Information to be Reported, Including Gifts, as defined, Itemized Expenses, except Campaign Contributions, exceeding Twenty-Five Dollars ($25.00) . . . .” The ballot title is accurate in its description of the reporting requirement.

In addition, petitioners argue that the ballot title contains two statements which are false and misleading. A ballot title must be honest, it must not be misleading or deceptive. The first allegedly deceptive statement is that “lobbyists” will be subject to prohibitions for using undue influence or for providing false information to public officials. Petitioners contend that the statement is deceptive because the prohibitions actually apply to “all persons engaged in lobbying” and not just to “lobbyists.” Initiative § 21-8-607 (b) (1) and (2).

The only difference between a “lobbyist” and a “person engaged in lobbying” is that a lobbyist is paid, or spends more than $250.00, excluding expenses, on lobbying in a calendar quarter. At present, all citizens, whether lobbyists or persons engaged in lobbying, are prohibited from bribing public officials or using deceit to influence public action. See Ark. Code Ann. §§ 5-52-102 to -105 (1987). Sections 21-8-607(b)(1) and (2) of the initiative would not change the present law on bribery of public officials or on the use of deceit to influence public officials. They would only prevent some practices, which, though not directly public servant bribery or deceit, fall into a gray area. This is not a significant change in the law, only an incremental one to fill a void in the current law, and the statement is not misleading or deceptive.

Finally, the petitioners argue that the title misleadingly provides that lobbyists will be required to file public reports under the initiative when, in actuality, those who are exempt from registration will not be required to file a public report. We are of the opinion that petitioners’ initial premise, that the title is misleading, is not valid. The pertinent part of the title provides:

A proposed act requiring lobbyists, as defined, to register with the Secretary of State if seeking to influence legislative or administrative actions of state government; excepting some persons from registering; requiring lobbyists to file quarterly reports ....

As can be seen, the title expressly states that some persons may be exempted from registering, and nowhere does it indicate that exempt persons would be required to file public reports. However, even if a voter could not tell from the title that only registered lobbyists must file reports, the alleged variance between the ballot title and the initiative is not of any real significance and does not counteract the general purpose of the initiative.

In summary, the initiative is adequately identified by popular name and its general purposes are fairly stated in the ballot title. A liberal construction of Amendment 7 requires that we not thwart the right of the voters to approve or reject the measure because of the minor deficiencies asserted by petitioners.

The petition for an injunction is denied.

Purtle, J., dissents.

Hays, J., not participating.

John I. Purtle, Justice,

dissenting. It gives me no pleasure to dissent in a case where the objectives of the proposed initiated act are so clearly laudible. However, it is my duty and responsibility to point out the mistake that has been made by the sponsors of the proposed amendment and the majority of this court.

I am in complete agreement with the majority concerning the law and precedent. My difference with them is in the interpretation of the popular name and ballot title. The popular name is short and simple-looking and clear, provided you know what a “lobbyist” is. Certainly the name does not explain the meaning of the word. To compound the error, the act itself uses the term in several different ways.

The ballot title is supposed to give the voter a condensed version of the text of the proposal in sufficient detail to enable the voter to make an intelligent choice when voting on the proposal. Westbrook v. McDonald, 184 Ark. 740, 44 S.W.2d 331 (1931). The present ballot title does not meet this requirement. Most voters cast their vote with no more information than is contained in the ballot title. Publication and public discussion of the text cannot cure the defects in a ballot title. Since it is the single most influencing factor utilized by most voters in casting their ballots, it must be complete enough to convey the major components of the proposal.

The ballot title commences: “A proposed act requiring lobbyist, as defined, to register with the Secretary of State if seeking to influence legislative or administrative actions of state government. . . .” Yet nowhere in the title is “lobbyist” defined or explained. By reading the text of the proposed act, one learns that indeed an ordinary citizen may be classified as a lobbyist by simply performing his civic duty to persuade his elected officials of the merits or faults of proposed legislation. The text defines a “lobbyist” as a person who “expends two hundred fifty dollars ($250) or more in a calendar quarter for lobbying. . . .” “Lobbying” is defined in the text to mean “communicating directly or soliciting others to communicate with any public official — with the purpose of influencing legislative action or administrative action.”

The act does allow a citizen to spend two hundred and fifty dollars ($250), including postage, without being labeled a lobbyist, and consequently subjected to all the provisions of the act, provided the communication has first been filed with the Secretary of State or published in the news media. This smacks of censorship and prior restraint. It also is in direct violation of freedom of speech as guaranteed by the First Amendment.

It would take clairvoyant powers to glean from the popular name or ballot title the fact that any active citizen who spends some time and money in an effort to keep in close contact with public officials might well end up violating the law. It seems to me we ought to be encouraging the citizens and their public servants to communicate instead of constructing barriers between them.

Although perhaps unintended, the result is that only registered lobbyists will be allowed to sponsor “appreciation” dinners and receptions for legislators and other candidates and public officials. Since cities, civic clubs, churches and corporations are “persons” for the purposes of the act, they may be subject to the penalties of this law if they sponsor events with the intent of influencing public officials. Any group of persons who tries to block legislation or cause it to be enacted cannot expend more than two hundred fifty dollars ($250) in their efforts without being subject to the provisions of the act. The mailing of a thousand letters or brochures would place the group in the class of “lobbyists.”

All persons engaged in “lobbying,” including ordinary taxpayers as well as professional lobbyists, will be subject to the prohibitions and penalties of the act. Average citizens who are interested in the performance of their public officials cannot possibly learn from the ballot title that they themselves are potential lobbyists. The term “lobbyist” as used by the media and perceived by the public means a person who works for pay rather than belief in a cause. It is a label which the ordinary person seeks to avoid. The act therefore will have a chilling effect on the relationship between the citizens and their public officials.

The intent behind this proposal is worthy of much praise. However, good intentions alone are insufficient to present this matter to the people for a vote.


text:
    Howard D. DAVIS v. STATE of Arkansas
    CR 88-103
    758 S.W.2d 706
    Supreme Court of Arkansas
    Opinion delivered October 17, 1988
    [Rehearing denied November 7, 1988.]

      Robert Meurer, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.

       Hickman, Purtle, and Newbern, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

The appellant was convicted of two misdemeanors. On appeal, he argues that the arresting officer did not meet the minimum standards established by the Executive Commission on Law Enforcement, and, therefore, he could not be convicted of the offenses. We affirm the convictions.

The general rule is that an illegal arrest does not void a conviction. O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984). “It goes almost without saying that a defendant, after having been fairly tried in a court of competent jurisdiction and found guilty... is not entitled to be set free on the basis of some flaw in the manner of his arrest.” Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974).

However, an exception to the general rule applies when a non-qualified officer issues the only charges in a case, since “any action” taken by such officer “shall be held as invalid.” Ark. Code Ann. § 12-9-108(a) (1987). Pursuant to that particular statute, when the non-qualified policeman’s citation is the only charging instrument, it is the same as if no charge were ever filed. Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985). Thus, the accused was never charged, and “a party cannot be found guilty of a crime with which he was never charged.” Brewer v. State, supra (quoting Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983)).

In this case the appellant does not tell us whether the non-qualified officer’s citation was the only formal charge, or whether a judicial officer issued an arrest warrant which was served by the non-qualified officer, or whether he was later charged by information. Accordingly, we do not know whether the trial court erred in applying the general rule, and we will not presume error.

Affirmed.

Hickman and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. I almost neglected to dissent in this case because I didn’t recognize the facts as set forth in the majority opinion as the same case argued in the briefs and considered by this court. The majority opinion appears to concern itself with whether or not a “defect” in the arrest procedure may be “cured” by other hypothetical events, without even deciding whether the arrest was in fact illegal. The question presented in this case is whether the person making the arrest had the authority to do so. The prosecuting attorney and defense counsel stipulated that the only issue before this court is “whether the arresting officer was qualified to make the arrest in this situation.”

The majority opinion recognizes that a non-qualified officer’s arrest cannot be the basis for a conviction. As stated in the majority opinion: “when the non-qualified policeman’s citation is the only charging instrument, it is the same as if no charge was ever filed. Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985).”

The provisions of Ark. Code Ann. § 12-9-108(a) (1987) state:

A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.

The stipulation filed by the parties clearly establishes that the person making the arrest in this case does not meet the provisions of these standards. Therefore, his issuance of the citation was an invalid act, and the arrest itself was void.

It’s puzzling to me that the failure of enforcement officers to comply with the law shifts the burden of proof to the accused to demonstrate that an illegal arrest was in fact illegal, i.e., that an illegal arrest was not “cured” by other events. This is not a case where an arrest warrant was issued with some defect; rather, this is a case where the arrest itself was void. There is no law or precedent which would allow a person to be convicted of an act for which he has never been charged. See Brewer, supra.

In Brewer, the auxiliary officers did not meet the minimum standards and we held that they had no authority to make the arrest. If Brewer could not be held for the offense, nor tried, why should Davis?


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Melba Dean SCOTT and C.L. Scott v. Danny E. McCLAIN
    88-98
    758 S.W.2d 409
    Supreme Court of Arkansas
    Opinion delivered October 17, 1988

      Jack Skinner, for appellants.

      Pryor, Barry, Smith and Karber; and Walters Law Firm, for appellee.
   David Newbern, Justice.

This is an automobile accident case. The appellants, Melba Dean Scott, and her husband, C.L. Scott, sued the appellee, Danny E. McClain, alleging he negligently caused injuries to Mrs. Scott and property damage to the Scotts’ automobile. Mrs. Scott was driving south on U.S. Highway 71. She was being followed by a pickup truck with a camper or “minihome” being driven by Mr. Haack which, in turn, was being followed by Mr. McClain driving his pickup truck. The evidence showed that Mrs. Scott looked in her rearview mirror and saw only Mr. Haack’s truck and camper. She signaled for a left turn, and as she turned her car was struck in the side by Mr. McClain’s truck, which had pulled around to pass Mr. Haack. Mrs. Scott testified she could not see around the Haack vehicle to her rear, and although she did not check her outside mirror it would have made no difference, as she could not have seen around the Haack vehicle. Mr. McClain testified that when he pulled out to pass he could not see around the Haack vehicle in front of him. He testified he signaled his lane change and peered around the camper but did not see Mrs. Scott’s vehicle. The jury returned a verdict in favor of Mr. McClain. We affirm.

The Scotts contend first that the preponderance of the evidence was clearly in their favor. Second, they contend they were entitled to an instruction on the responsibility for defective brakes. Third, they argue the court should have disqualified a defense attorney who is a state senator and who, they allege, was brought into the case by Mr. McClain just six days before trial solely for the purpose of exerting “influence” on the jury.

1. Preponderance of the evidence

Mrs. Scott’s argument on this point is largely based on the rule that the driver of the vehicle to the rear has a duty to yield to a forward vehicle which has signalled for a left turn, citing 2 P. Kelly, Blashfield Automobile Law and Practice, § 113.9 (3rd ed. Repl. 1979). Mr. McClain argues he had no way of seeing Mrs. Scott’s vehicle or the left turn signal until, as he put it, she “darted” in front of him as he was passing. There is no question but that Mrs. Scott had the right to make her turn, just as there is no question that Mr. McClain was passing in a place where it was not prohibited and he was driving within the posted speed limit.

The only basis on which we could set aside this jury verdict would be if we found it to be “clearly against the preponderance of the evidence,” thus warranting the granting of the new trial motion made by the Scotts, Ark. R. Civ. P. 59(a)(6), or if we found the verdict to have been the subject of “passion or prejudice.” Duggar v. Arrow Coach Lines, Inc., 288 Ark. 522, 707 S.W.2d 316 (1986); AAA T.V. & Stereo Rentals, Inc. v. Crawley, 284 Ark. 83, 679 S.W.2d 190 (1984). Here the jury could have found either that neither party was negligent or that both of them were and that Mrs. Scott’s negligence equalled or exceeded that of Mr. McClain. In either case, the defendant’s verdict would have been proper. We find no evidence of passion or prejudice in the jury’s verdict. Where a motion for a new trial is based on the allegation that the jury verdict was clearly against the preponderance of the evidence, we will not reverse the denial of the motion if there is substantial evidence to support the verdict, giving it the benefit of all reasonable inferences permissible under the proof. Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987); Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985).

We were given pause by the fact that at one point the jury, after having retired to consider the case, returned to the courtroom to ask what to do if they found no negligence on the part of either party, and the judge told them to render a verdict for the defendant. While we are not certain that was technically the correct procedure, and the point is not argued by the Scotts, the short answer is that there was no objection made when the court responded to the question. See Thigpen v. Polite, 289 Ark. 514, 712 S.W.2d 910 (1986).

2. The brakes instruction

Mr. and Mrs. Scott asked the court to give an instruction that violation of a statute is evidence of negligence (AMI 903). Their argument was that Ark. Code Ann. § 27-37-501(a) (1987) requires that a motor vehicle have proper brakes, and there was evidence that Mr. McClain’s truck’s brakes were defective. The evidence referred to was the fact that Mr. McClain’s truck left a skid mark from one wheel only.

The state trooper who investigated the accident was asked what could have caused Mr. McClain’s truck to leave a skid mark made only by one wheel. He responded that there could have been several explanations. At one point, on redirect examination, he seemed to say the vehicle had defective brakes. He testified: “There would be several other reasons possibly for the one skid mark. The vehicle. . .may have had a defective right front wheel and the brakes on the right front wheel were not working proper to stop the tire when the skid mark was made. . . .” However, on recross examination, some of the questions and answers were:

Q: Officer, there was nothing in your investigation to indicate that Mr. McClain’s right front wheel was in any way defective was there?
A: No, sir.
Q: Or that the brakes were in any way defective?
A: No, sir.

No testimony was given to show that Mr. McClain’s truck was inspected or found to be defective in any way. The officer’s speculation among possible causes of the one skid mark was not a sufficient basis to give the requested instruction. See Arkansas Power & Light Co. v. Cummins, 182 Ark. 1, 28 S.W.2d 1077 (1930).

3. Attorney disqualification

The Scotts admit in their brief that they can cite no case holding that the adding of co-counsel before the trial begins constitutes reversible error. They cite the only rule on the matter of which we are aware, that is, that counsel may be disqualified if added after voir dire of the jury panel in which questions might have been asked to reveal relationships between the new counsel and prospective jurors. In re Winslow’s Will, 146 Ia. 67, 124 N.W. 895 (1910). That rule does not apply in this case.

The Scotts’ counsel argues that he accused counsel for Mr. McClain of bringing the senator into the case for the purpose of influencing the jurors and that Mr. McClain’s lawyer admitted as much. Jurors decide cases under oath to do so impartially considering only the facts and the law. It is inevitable that some lawyers command more respect in the community than others, just as some are more skilled than others. While the skill or prestige of counsel may give one party or the other an edge, we have had enough experience with the jury system to indulge our faith that fair results will be reached regardless of these factors, and any rule we might try to impose to equalize counsel in every case would be unnecessary and completely impossible to administer.

Affirmed.

Purtlb, J., dissents.

John I. Purtle, Justice,

dissenting. I cannot join the majority opinion for three reasons: (1) the trial court should have given an instruction on defective brakes; (2) the trial court should not have “directed a verdict” for the defendant; and (3) the court should have granted a new trial.

I will not repeat the facts in detail, but I do wish to call attention to the fact that the plaintiff was the forward of three vehicles traveling north on U.S. Highway 71. Another motorist was following her, driving a pickup truck with a camper shell on it. The defendant, appellee, was the third vehicle. Signalling her intentions, the appellant had engaged her left turn signal. While passing the camper, the appellee was confronted with the appellant’s vehicle, which was in the process of making a left turn onto a side road. The driver of the camper sounded his horn in an effort to warn the appellee. The appellee then applied his brakes, leaving only one skidmark, cut to his left, and struck the appellant’s vehicle on the driver’s side, near the steering wheel. The accident actually occurred on the left shoulder of the road.

We recently decided a case factually very similar to this one. Stephens v. Saunders, 293 Ark. 279, 737 S.W.2d 626 (1987). The jury returned a verdict in favor of the defendant who had crossed over onto the plaintiff’s side of the road at the time the collision occurred. The trial judge found the verdict to be clearly against the preponderance of the evidence and set aside the jury verdict. We upheld the trial court and stated:

Even though his testimony and arguments were apparently accepted by the jury, they are so much at variance with the physical evidence and the testimony of the other witnesses that the trial judge did not act improvidently or abuse his discretion in finding that the verdict was clearly against the preponderance of the evidence.

There is no dispute among the authorities concerning the right of drivers of vehicles going in the same direction and the priorities afforded them. The law of the road is that the automobile in front has the superior right to the use of that highway for the purpose of leaving it on either side to enter intersecting roads or highways. A polestar decision is Madison Smith Cadillac Company v. Lloyd, 184 Ark. 542, 43 S.W.2d 729 (1931). The Madison case was very similar to the present case, and in fact happened in the same area of the state. In Madison the plaintiifs were following the defendant vehicle when he turned left into a junkyard. The plaintiff had started to pass and in order to avoid striking the left-turning lead vehicle, ran into the ditch and overturned. The opinion requoted the law of the road and reversed a judgment for the appellees and dismissed the case. Speaking about the passing automobile, the court stated:

They had ample time to think in covering that distance and could have easily stopped their car until they ascertained what purpose the Hudson car had in slowing down. There was no necessity whatever for them to act hastily in order to avoid striking the Hudson car. They had control of their car, but rather than reduce their speed and stop if necessary, they deliberately chose to maintain their speed, and by doing so assumed the hazard of turning to the left and passing the Hudson car.

There is no substantial evidence of the appellant’s negligence in the record. Therefore, the court erred in instructing the jury to find for the defendant. There is no evidence whatsoever of negligence on the part of the appellant driver. Any minor negligence which might be attributed to her certainly could not be said to be a proximate cause of the collision. She was traveling in her own lane when she gave a signal to turn left off the highway and she proceeded across the road where she was struck by the appellee’s vehicle, which was by then out of control. There is no physical evidence whatsoever that the appellant was violating any law, ordinance or rule of the road.

A case very close in point to the present case is that of Superior Forwarding Company v. Garner, 236 Ark. 340, 366 S.W.2d 290 (1963). In the Garner case the trailing vehicle attempted to pass and in so doing went into the other lane and caused a collision between his vehicle and another. This court reversed the jury award, finding both drivers negligent. We held that the trial court should have granted a verdict for the appellants or should have granted the appellants’ motion for a new trial.

The relevant language in the Gamer case is as follows:

On the basis of the record presented to us in this case we are of the opinion that the trial court should have directed a verdict as requested by the appellants. As we view the evidence in this case, appellee’s cause is based on inferences, speculation and conjecture. We do not find any substantial evidence to support any of the allegations of the appellants’ alleged acts of negligence in this case. The burden was upon the appellee to produce some substantial evidence from which the jury might find some act or omission constituting negligence by the appellants as alleged in appellee’s complaint. Such evidence can be established either by direct or circumstantial evidence but the appellee cannot rely upon inferences based on conjecture or speculation in order to establish proof of negligence.

The court refused to give the brake instruction on the ground that there was no evidence of defective brakes. Clearly the testimony of the state policeman was that the defective brakes were a possible cause for the appellee’s vehicle leaving only one skidmark. In my opinion, that is evidence upon which to base such an instruction.

Since I find absolutely no evidence of negligence on the part of the appellant, the lead vehicle, I believe the trial court should have granted a new trial.


author: Tom Glaze, Justice.

text:
    John B. DALRYMPLE, Jr. and Barbara W. Dalrymple v. SIMMONS FIRST NATIONAL BANK of Pine Bluff
    88-127
    758 S.W.2d 5
    Supreme Court of Arkansas
    Opinion delivered October 17, 1988

      Hargis & Wood, by: David M. Hargis and Jannell C. Dillon, for appellants.

      Mitchell, Williams, Selig & Tucker, by: Byron Freeland and Stuart P. Miller, for appellee.
   Tom Glaze, Justice.

The issue presented in this appeal is whether appellants can appeal from a circuit court’s order which transferred their case to chancery court. Appellants filed suit in Jefferson County Circuit Court against the appellee, asserting deceit, intentional misrepresentation and breach of contract. Appellants were involved in a condominium development project, and their cause of action was based upon a loan agreement entered into with appellee to finance the project. Appellee answered and counterclaimed, alleging, among other things, that appellants had defaulted on the loan and that appellee was entitled to judgment and to foreclosure. Appellee then moved to transfer the entire case to Jefferson County Chancery Court, and the circuit judge granted the motion. From that order, appellants bring this appeal.

The rule of law that controls the issue here is well established and is set forth in Contractor Tire & Supply v. Tires, Tubes, Wheels, 274 Ark. 326, 625 S.W.2d 449 (1981); quoting from Arkansas Sav. & Loan v. Corning Sav. & Loan, 252 Ark. 264, 478 S.W.2d 431 (1972), this court said:

[A]n order transferring a cause from circuit to chancery ... is not appealable, even though it affects a substantial right, because it does not determine or discontinue the action or prevent an appealable judgment, but only transfers the cause to another forum where it continues until disposed of.

Consistent with the foregoing rule, we have also held that before a judgment is final and appealable it must dismiss the parties from the court, discharge them from their action or conclude their rights to the subject matter in controversy. Corning Bank v. Delta Rice Mills, Inc., 281 Ark. 342, 663 S.W.2d 737 (1984). See also Ark. R. App. P. 2(a)(1) and (2).

In Bassett v. Bourland, 175 Ark. 271, 299 S.W. 13 (1927), the court set out the procedure to which a party must adhere when he or she objects to a circuit court’s transfer of a cause to a court of equity. There, we held that upon a transfer of a cause from circuit to the chancery court, the proper course of the party objecting is to appear in the chancery court and move for a retransfer; if denied, the party could choose either to stand upon the motion and refuse to proceed with the trial — in which case the chancellor would no doubt dismiss the party’s complaint and enter judgment — or he or she could go to trial in the chancery court and, upon an adverse decree, appeal to this court, thereby testing the jurisdiction of the chancery court. In announcing this procedure, the court in Bassett refused to discuss the correctness of the chancery court’s decision not to re-transfer to the circuit court; instead, the court stated that, if both courts were wrong, their decisions could only be corrected on appeal.

Appellants cite ARCP Rules 13(a), 18(b) and 42, and discuss Moore’s Federal Practice and several federal cases in arguing theories they say could eliminate the judicial waste of time caused by the longstanding rule that does not allow an immediate appeal from an order that transfers a case between courts of law and equity. Appellants’ argument actually involves their disagreement with the continuing existence of Arkansas’s dual court system, which they characterize as “a cumbersome relic which still breathes.”

Aside from how one might characterize or feel about Arkansas’s dual court system and the respective jurisdiction reserved to each court, law and equity, Arkansas’s required rule and procedure to test a court’s jurisdiction is both clear and well-settled. While, as appellants suggest, diseconomy, at times, will be the product when following Arkansas’s established rule in these jurisdictional quandaries, we also acknowledge that on other occasions judicial economy will be best served. By allowing both trial courts the first opportunity to decide the jurisdictional issue and to try the merits of the case, an appeal may be avoided altogether. The courts might retransfer the cause or sever part of the proceeding, which could result in ending the jurisdictional problem. Also, in those cases where the jurisdiction question remains after a trial on the merits, this court, on appeal, will benefit from the arguments and evidence presented at trial when deciding close questions as to whether a court correctly retained or transferred the case.

Because we find no compelling reason to break with the longstanding precedent which allows no appeal from an order that transfers a case between a court of law and equity, we reject the appellants’ urging that we hold otherwise. Therefore, we dismiss this appeal.

       In fact, this court, on appeal, reviewed the chancery court’s failure to re-transfer and held it had erred. The court determined the circuit court had jurisdiction of the matter and since the circuit court’s jurisdiction was invoked first, chancery court should have retransferred the cause to circuit court. See Bassett v. Mutual Benefit Health & Accident Ass’n, 178 Ark. 906, 12 S.W.2d 893 (1929).


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

text:
    SEBASTIAN COUNTY v. EDUCARE CENTERS of Arkansas, INC.
    88-51
    758 S.W.2d 413
    Supreme Court of Arkansas
    Opinion delivered October 17, 1988
    [Supplemental Opinion on Denial of Rehearing November 21, 1988.]

      Martin, Vater, Karr & Hutchinson, by: Charles Karr, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Tom Glaze,

Justice. This case involves the ad valorem assessment of property owned by appellee, Educare Centers of Arkansas, Inc. (Educare), a corporation for profit that operates four of its centers in Sebastian County. The Sebastian County Court, ujpholding the County Board of Equalization, ruled that Educare’s property was subject to taxation. Educare successfully appealed that ruling to the Sebastian County Circuit Court, which determined Educare was a school and exempt as such under Ark. Const, art. 16, § 5(b). In this appeal, appellant argues the trial court was wrong because Educare operates child care facilities, not schools. It further contends that, even if Educare qualified as a school, a school must be a non-profit organization to claim an exemption.

The parties’ dispute centers on Ark. Const, art. 16, § 5(b), which reads as follows:

(b) The following property shall be exempt from taxation: public property used exclusively for public purposes; churches used as such; cemeteries used exclusively as such; school buildings and apparatus; libraries and grounds used exclusively for school purposes; and buildings and grounds and materials used exclusively for public charity.

The exemptions set out in art. 16, § 5(b), are acts of grace, and must be strictly construed, and every reasonable intendment must be made that it was not the design to surrender the power of taxation, or to exempt any property from its due proportion of the burden of taxation. Brodie v. Fitzgerald, 57 Ark. 445, 22 S.W. 29 (1893).

In the early case of Phillips County v. Sister Estelle, 42 Ark. 536 (1884), this court, in construing the above constitutional provision, extended tax freedom to a private nonprofit institution, which operated exclusively for school purposes. Twelve years later, the court, in considering the public property exemption contained in art. 16, § 5(b), rejected a public school’s claim for exemption of property which the school had purchased and held in its commercial capacity, i.e., with a view towards making an investment and a profit. School District of Ft. Smith v. Howe, 62 Ark. 481, 37 S.W. 717 (1896). Cf. Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960) (wherein the court denied an exemption for Harding College’s dairy, laundry and print shop because their services competed with like businesses in the community and were not used exclusively for school purposes); see also 71 Am. Jur. 2d State and Local Taxation § 382 (1973) (in general, educational institutions kept and maintained for profit are regarded as taxable in the same manner as other business enterprises, even if provision is made for the payment of the tuition fees of the children of poor parents out of an endowment fund).

We noted in Hilger the similarity of the language employed in art. 16, § 5(b), that exempts property used for school, public and charitable purposes, and stated the principles and rules applying to one category will apply with force to the other categories. Hilger, 231 Ark. at 694, 331 S.W.2d at 856. In reviewing the language of art. 16, § 5(b), particularly in light of this court’s holdings in Sister Estelle and Howe, we believe the conclusion is inescapable that any school must operate its institution, and use its property, directly and exclusively for school purposes and with no view to profit, before the school, or its property, is entitled to an exemption.

In the present case, Educare offers strong evidence and forceful argument that it qualifies as a school, not a child care facility, as the term school is intended under art. 16, § 5(b). Nonetheless, even if we agreed with Educare on that point, Educare was established and is operated to make a profit. Educare’s executive director even conceded that fact in his testimony. That being so, we hold that the trial court’s decision finding Educare exempt from taxes under art. 16, § 5(b), is erroneous. Accordingly, we reverse and remand this cause.

Purtle, J., concurs.

Dudley and Newbern, JJ., dissent.

John I. Purtle, Justice,

concurring. I concur simply to state that only public schools, owned and operated by the state or district, qualify for exemption from taxation under art. 16.

Robert H. Dudley, Justice,

dissenting. My personal philosophy of taxation is in complete accord with that expressed by the majority opinion, that is, for-profit schools should not enjoy an ad valorem tax exemption. However, one’s personal philosophy on a subject should not be controlling when interpreting the plain language of the constitution.

In discussing the appropriate manner in which to interpret our constitution, we have said: “If the language is clear and unambiguous its meaning and intent are to be ascertained from the instrument itself by construing the language as it is written.” Kervin v. Hill, County Judge, 226 Ark. 708, 292 S.W.2d 559 (1956). The language of the constitution, as written, is clear in providing the ad valorem tax exemption for all schools, without qualification as to whether they are for-profit or not-for-profit. The instrument provides: “The following property shall be exempt from taxation: . . . school buildings and apparatus; libraries and grounds used exclusively for school purposes; . . . .” Ark. Const, art. 16, § 5(b).

761 S.W.2d 884

The trial court found that appellee was a school. This Court does not dispute that finding. The constitution provides that schools are exempt. The intent of the framers and voters is clear. Therefore, I would affirm the trial court in granting the exemption to the appellee.

Newbern, J., joins in this dissent.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

NOVEMBER 21, 1988

Tom Glaze, Justice.

In its petition for rehearing, appellee argues that the parties, by an express stipulation, had agreed that appellee’s elementary school, grades one through six, was exempt under Ark. Const, art. 16, § 5(b). Now the appellee asserts, among other things, that this court’s decision that its facilities run for profit could not be tax exempt is contrary to this express stipulation.

We first would point out that the stipulation mentioned by appellee is nowhere in the abstract of record. Apparently the stipulation was contained in a witness’s deposition and resulted from an exchange between the parties’ counsel. It appears that the parties’ counsel agreed on the stipulation when taking the deposition of an expert, and the purpose of the stipulation was to limit the scope of the witness’s examination. Basically, the parties desired to limit their concern to whether the appellee’s child-care facilities were schools and therefore exempt under art. 16, § 5(b). In doing so, the parties agreed the appellee’s elementary facility was a school, but they never mentioned in the stipulation the question as to whether the appellee’s facilities, both child-care or the elementary school, should be taxed since appellee was a profitmaking organization. In its petition, the appellee now attempts to use the parties’ stipulation, out of context, and argues the appellant stipulated for-profit schools could be tax exempt.

Neither party abstracted nor mentioned the stipulation until now, and accordingly, we are not obliged to consider such an argument at this late date. See Ark. Sup. Ct. R. 20(h). Even if we were, we need only note that stipulations are not considered binding as to issues of law. Of course, this court’s holding rested upon its interpretation and construction of Ark. Const, art. 16, § 5(b) and our interpretation is obviously contrary to the construction the parties placed upon that constitutional provision when they agreed that appellee’s elementary facility was exempt merely because it was a school.

Appellee further claims that the appellant never argued below that appellee’s property could not be tax exempt because appellee is a corporation for profit. Again, appellee raises this argument for the first time in its petition for rehearing, even though the appellant, citing School District of Ft. Smith v. Howe, 62 Ark. 481, 37 S.W. 717 (1896), and Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960), in its appellate brief, persuasively argued that the appellee, as a profit-making corporation, should not be given an exemption under art. 16 § 5(b). In sum, the court concludes it was clearly justified in reaching and deciding the “profit-making” issue the appellee now questions since that matter was previously briefed and argued without objection.

The remainder of appellee’s petition concerns a mere repetition of argument already considered by the court and for that reason, we need not consider or discuss further. See Ark. Sup. Ct. R. 20(g).

For the foregoing reasons, we deny the appellant’s petition for rehearing.


author: Per Curiam.

text:
    Thomas Kevin TAYLOR v. STATE of Arkansas
    RC 88-54
    757 S.W.2d 959
    Supreme Court of Arkansas
    Opinion delivered October 17, 1988

      Matt Keil, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Thomas Kevin Taylor, seeks to appeal a judgment of conviction entered January 14, 1988. He filed a motion for a new trial January 22, 1988, which was denied April 8,1988. His notice of appeal was filed April 25, 1988. At the time, Ark. R. App. P. 4(c) provided for extension of the time for filing a notice of appeal by filing a new trial motion, but it was required that the motion for new trial be ruled on or taken under advisement within thirty days or it would be deemed denied. The time for filing a notice of appeal began to run at the end of thirty days from the time the new trial motion was filed.

On August 15,1988, an order was filed stating that the trial judge had taken the new trial motion under advisement January 31,1988. As that order was not a matter of record within thirty days of the filing of the motion for new trial, it was of no effect. Brittenum & Associates v. Mayall, 286 Ark. 427, 692 S.W.2d 248 (1985).

The clerk was correct in refusing to docket the case. We will permit the record to be filed if the attorney whose responsibility it was to file a timely notice of appeal accepts full responsibility for having failed to do so. Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986).


author: Jack Holt, Jr., Chief Justice.

text:
    R.C. PINKSTON, Jr. v. John F. LOVELL, Jr.
    88-67
    759 S.W.2d 20
    Supreme Court of Arkansas
    Opinion delivered October 24, 1988

      Reuben “Jay” Pinkston, pro se.

      Baxter, Eisele, Duncan & Jensen, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, attorney R.C. Pinkston, Jr., brought an action for slander against the appellee, attorney John F. Lovell, Jr. This appeal is from an order dismissing Pinkston’s suit on motion for summary judgment by Lovell. On appeal, Pinkston contends the court erred: (1) in denying his request for a continuance; (2) in failing to recuse; (3) in granting Lovell’s motion for summary judgment; and (4) in concluding that certain documents would be inadmissible at the hearing on the motion for summary judgment. We find no error and affirm.

The suit by Pinkston centered around statements made by Lovell on two occasions. The first statement was made sometime shortly before January 24,1986, to a Mr. and Mrs. Caldarera — Pinkston’s clients in a probate proceeding. The Caldareras came to see Lovell for his legal opinion on Pinkston’s handling of the Caldareras’ probate matters, Pinkston’s charges for his services, and a divorce which the Caldareras were contemplating. On this occasion, Lovell’s statements reflected his opinion as to Pinkston’s competency with regard to the Caldareras’ questions.

The second incident took place sometime in February 1987. By this time the Caldareras had divorced. Along with her present husband, Mrs. McKee, formerly Caldarera, sought an opinion from Lovell on the advisability of a malpractice action against Pinkston for overcharging her and her former husband and failing to protect their interests in the probate litigation. On this occasion, according to affidavits introduced at the hearing on the summary judgment motion, Lovell had agreed with Mrs. McKee’s sentiments that Pinkston was not competent as an attorney. Lovell also stated that he had heard Pinkston testify to that effect under oath during trial proceedings in an unrelated criminal matter.

Suit by Pinkston was filed on March 20, 1987. Lovell’s motion for summary judgment was filed on August 5. In his response to the motion for summary judgment, Pinkston requested a continuance in order to conduct further discovery. At a hearing on October 5,1987, the trial court denied the motion for a continuance, denied a motion to recuse, excluded certain documents offered by Pinkston, and granted the motion for summary judgment on the grounds that “[a] 11 of the statements . . . allegedly made by defendant about plaintiff are either barred by the statute of limitations, constitute mere opinion, or constituted advice given to a client within the course and scope of the attorney-client relationship.”

CONTINUANCE

Rule 56 of the Arkansas Rules of Civil Procedure governs summary judgments and subsection (f) provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Subsection (f) makes evident that the decision to grant a continuance is within the discretion of the trial court. Pinkston acknowledges our rule that the refusal to grant a continuance will not be reversed absent an abuse of the trial court’s discretion. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987).

We are not convinced from Pinkston’s brief that additional discovery would have changed the outcome of the summary judgment proceedings and generally find Pinkston’s arguments on this issue unpersuasive. Under the circumstances, we cannot say that the trial court abused its discretion.

RECUSAL

The primary thrust of Pinkston’s argument on this point is that the trial judge should have recused when it became clear that Pinkston might call the judge as a witness during trial of the slander suit inasmuch as the judge had previously presided over the unrelated criminal trial at which, according to Lovell, Pinkston had testified under oath concerning his competency to handle a particular criminal proceeding. Pinkston also asserts that the impartiality of the trial judge had been brought into question.

In his order granting summary judgment, the judge ruled:

Plaintiff’s Motion for Recusal should be denied. . . . That the trial judge may be a witness in the trial of this action has not been sufficiently shown, and in any event, is moot, inasmuch as. . .there are no issues of fact subject to proof by oral testimony of any witness, the trial judge included.

In effect, the judge determined: (1) the facts did not support the conclusion that he would have been called as a witness in the event the case went to trial; and (2) the issue was moot as the suit was being dismissed on motion for summary judgment. The trial court was correct.

First, any testimony taken at the earlier criminal proceeding was a matter of record. Thus, the judge’s testimony would have been cumulative and unnecessary. Second, disposition of the slander suit by summary judgment obviated the need for addressing Pinkston’s various grounds for the trial judge’s recusal — with the exception of the impartiality issue, which we find to be without merit.

The matter of disqualification is one largely left to the discretion of the trial judge. Sloss v. Farmers Bank and Trust Co., 290 Ark. 304, 719 S.W.2d 273 (1986). We find no abuse in this regard.

SUMMARY JUDGMENT

Summary judgment, like a mistrial, is an extreme remedy. It will be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c) of the Arkansas Rules of Civil Procedure. The burden of proving that there is no genuine issue of material fact is upon the appellee in this case, and all proof submitted must be viewed in a light most favorable to the party resisting the motion — appellant Pinkston. Ford v. Cunningham, 291 Ark. 56, 722 S.W.2d 567 (1987). Any doubts and inferences must be resolved against the moving party — appellee Lovell.

Pinkston brought suit against Lovell in March 1987. The allegedly slanderous statements by Lovell occurred during meetings with the Caldareras in January 1986 and February 1987. Ark. Code Ann. § 16-56-104(4) (1987) provides that actions for slander shall be commenced within one year after the cause of action accrues, which is the time of publication. As such, part of the action [dealing with the statements made in 1986] was barred as a matter of law.

As to the remaining statements, made in February 1987, the trial court granted summary judgment on the grounds that they constituted opinion or were privileged. Under the circumstances, we hold that the statements made by Lovell were privileged, not because they were made in the course of the attorney-client relationship, but because of the privilege of an attorney to publish defamatory matter as set forth in Selby v. Burgess, 289 Ark. 491, 712 S.W.2d 898 (1986).

In Selby, this court discussed section 586 of the Restatement of Torts (Second), which provides:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

As concerns the statements by Lovell, two issues surface. Were the statements preliminary to a proposed judicial proceeding in which Lovell was to participate as counsel? Next, did the statements have some relation to the proceeding? In Selby, we focused on the meaning of “preliminary to a proposed judicial proceeding” and quoted from subsection (e) of the Commentary to section 586:

As to communications preliminary to a proposed judicial proceeding the rule stated in this Section applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.

Having reviewed the affidavits of Mrs. McKee and appellee Lovell, we have no difficulty in concluding that their discussions relating to a malpractice action against Pinkston reflected “a proceeding that is contemplated in good faith and under serious consideration.”

Whether all the statements made by Lovell had some relation to the proceeding is of some concern, however. Our discussion in Selby provided the key. We said, “Although the privilege is absolute where it applies, we consider it to be a privilege narrowed closely by the ‘relevancy’ and ‘pertinency’ requirements.” Selby at 495. In this regard, subsection (c) of the Commentary to section 586 provides:

Relation of statement to proceedings. The privilege stated in this Section ... is available only when the defamatory matter has some reference to the subject matter of the proposed or pending litigation, although it need not be strictly relevant to any issue involved in it. Thus the fact that the defamatory publication is an unwarranted inference from the evidence is not enough to deprive the attorney of his privilege .... [T] he privilege does not cover the attorney’s publication of defamatory matter that has no connection whatever with the litigation.

The most troublesome question is as to whether Lovell’s statements concerning Pinkston’s testimony at an unrelated criminal proceeding had any relation to Mrs. McKee’s concerns about Pinkston’s ability to handle her affairs. The dominant theme of Mrs. McKee’s visits to attorney Lovell dealt with Pinkston’s competency as an attorney. It was that issue which suggested a possible malpractice action and which prompted Lovell’s comments about Pinkston’s prior statements under oath. Hence, while Lovell’s comments may not have been “strictly relevant” to some identifiable issue in the proposed malpractice suit, we cannot say that there was “no connection whatever.”

Accordingly, we find no error in the trial court’s dismissal of the suit on grounds that, as a matter of law, Lovell’s statements were either privileged or barred by the applicable limitations period.

INADMISSIBLE DOCUMENTS

Rule 56(c) provides that the motion for summary judgment shall be served at least 10 days before the time fixed for the hearing, and “ [t] he adverse party, prior to the day of hearing, may serve opposing affidavits.” (Emphasis ours.) Pinkston sought to introduce several documents during the hearing on Lovell’s motion for summary judgment. The record contains the proffered exhibits. We have reviewed them and do not find that their introduction would have altered the outcome of the proceedings. We find no abuse of discretion by the trial court in ruling that the materials should not be admitted for failure to comply with Rule 56(c).

Affirmed.


author: Darrell Hickman, Justice.

text:
    Ronnie L. GARRETT v. STATE of Arkansas
    CR 88-79
    759 S.W.2d 23
    Supreme Court of Arkansas
    Opinion delivered October 24, 1988

      Edward T. Barry, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal from an order by the trial court denying a petition for postconviction relief under A.R.Cr.P. Rule 37.

Ronnie Garrett pled guilty to capital felony murder and rape on November 26, 1984. He filed an extensive petition seeking to set aside his conviction. The trial court denied the petition without a hearing. The petition is entirely conclusory in nature. We have repeatedly stated that a hearing is not required on a petition containing conclusory allegations. Smith v. State, 291 Ark. 496, 725 S.W.2d 849 (1987).

The record on its face conclusively shows that Garrett is not entitled to any relief. He makes numerous allegations but facts are lacking. A guilty plea waives nonjurisdictional defects and errors. Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988).

The ineffective assistance of counsel argument is not accompanied by a statement that Garrett would not have pled guilty but for counsel’s error. Strickland v. Washington, 466 U.S. 668 (1984).

The claim that the trial judge should have recused because of coercion is conclusory.

Affirmed.


text:
    Donald COUSINS v. FARM BUREAU MUTUAL INSURANCE COMPANY of Arkansas, Inc.
    88-138
    758 S.W.2d 707
    Supreme Court of Arkansas
    Opinion delivered October 24, 1988
    [Rehearing denied November 21, 1988.]

      Odom, Elliott & Martin, by: Don R. Elliott, Jr. and Bill Bracey, for appellant.

      Davis, Cox & Wright, by: Kelly Carithers, for appellee.
   Darrell Hickman, Justice.

The trial court granted Farm Bureau’s motion for summary judgment and dismissed it from this suit. Other defendants remain in the suit. According to ARCP Rule 54(b), this is not an appealable order. See Rone v. Little, 293 Ark. 242, 737 S.W.2d 152 (1987).

Appeal dismissed.


author: John I. Purtle, Justice.

text:
    Carolyn KING, Mother, Natural Guardian and Next Friend of Katrina King, a Minor v. LITTLE ROCK SCHOOL DISTRICT
    88-134
    758 S.W.2d 708
    Supreme Court of Arkansas
    Opinion delivered October 24, 1988

      Nussbaum, Newcomb & Hendrix, for appellant.

      Friday, Eldredge & Clark, for appellee.
   John I. Purtle, Justice.

The appellant filed a tort action in the Circuit Court of Pulaski County against the Little Rock School District, Trinity Evangelistic Association, Inc., and Irving J. Dennis. The trial court granted a motion to dismiss on behalf of the Little Rock School District. The appellant filed a notice of appeal, and the transcript was lodged in this court. However, the order appealed from is not an appealable order pursuant to ARCP Rule 54(b).

Rule 54(b) provides that when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Here, the order did not dispose of all the parties, nor did the trial court direct the entry of a final judgment. See Bryan Farms, Inc. v. State of Arkansas, 295 Ark. 180, 747 S.W.2d 115 (1988); and 3-W Lumber Co. v. Housing Authority, 287 Ark. 70, 696 S.W.2d 725 (1985).

Inasmuch as the order appealed from did not comport with the requirements of the rule, there is no appealable order. The appeal is therefore dismissed.


author: Robert H. Dudley, Justice.

text:
    Michael VICK v. Ruth McMURRY
    88-140
    758 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered October 24, 1988

      Nussbaum, Newcomb & Hendrix, by: Robert A. Newcomb, for appellant.

      Huckabay, Munson, Rowlett and Tilley, P.A., by: Beverly A. Rowlett, for appellee.
   Robert H. Dudley, Justice.

This tort case arises out of an automobile collision. The jury returned a general verdict for the defendant, appellee. We affirm.

If there is a noteworthy rule in this opinion, it is that a trial attorney should make his motions on the record because we will not reverse a trial judge on the basis of something outside the record. Harvey v. Castleberry, 258 Ark. 722, 529 S.W.2d 324 (1975).

The appellant’s primary complaint is that the trial court erred in denying his motion in limine. The appellant may have made a motion to limit testimony at the beginning of the trial, as he argues, but it is not shown in the record. The record does reflect that a bench conference was held at the beginning of the trial, but the conference itself was not made of record. The only record about a motion in limine is that after the jury had retired to decide the case, the appellant’s attorney requested that the record be made to show that during the examination of appellee’s last witness, the appellant moved that the witness be limited in answering questions about whether he was represented by the Nussbaum Law Firm. That is all we have. The short answer to the appellant’s argument is that the witness was not asked, and did not respond, about the Nussbaum Law Firm representing him.

Appellant’s second point of appeal concerns an instruction. Again, there is no record of the instruction conference. The record only shows that after the jury had retired, the appellant asked that the record should be made to reflect that he had objected to the comparative fault instruction. We see no error in giving the comparative fault instruction, but even if we did, we recognize that some type of fault instruction had to be given, and we have no idea what the appellant requested. It may well have been for a directed verdict for the plaintiff, which we do not allow in this type of case. Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986).

Affirmed.

Glaze, J., concurs.