author: David Newbern, Justice. Tom Glaze, Justice.

text:
    CITY OF FORT SMITH and Fort Smith Civil Service Commission v. Chris DRIGGERS
    90-313
    808 S.W.2d 748
    Supreme Court of Arkansas
    Opinion delivered May 6, 1991

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

      Pryor, Barry, Smith, Karber & Alford, by: Gregory T. Karber, for appellee.
   David Newbern, Justice.

This is a promotion and back pay case brought by a Ft. Smith fireman, the appellee, Chris Driggers, against the City of Ft. Smith and its Civil Service Commission (the City). The case, in which both specific and declaratory relief were sought, was tried without a jury, and the Circuit Court held Driggers was entitled to the relief he requested. The City appeals contending the Court erred in finding that, at the time critical for this case, the Ft. Smith civil service criterion for promotion of firemen was examination scores and not seniority. It is also contended by the City the Court erred in not holding that Driggers failed to exhaust his administrative remedies and that the Court erred in awarding attorney’s fees. We affirm the judgment.

1. Promotion criteria

Prior to 1967, the City of Fort Smith had a commission form of government. Act 138 of 1957 permitted a city of the first class having a commission form of government to base fire department promotions on seniority. In 1967, the City adopted a city administrator form of government. Generally, promotions in fire departments in cities having the city administrator form of government are required to be based solely on examination scores. Ark. Code Ann. § 14-51-301 (b)(9)(A) (1987). See Bradley v. Bruce, 288 Ark. 342, 705 S.W.2d 431 (1986), reh’g denied, 288 Ark. 343-A, 713 S.W.2d 451 (1986). There is, however, a provision in Section 7(a) of Act 36 of 1967, quoted in relevant part, as follows:

When a city effects a change of government under this Act, it shall remain subject to and controlled by all laws (except those inconsistent with this Act) which on the effective date of such reorganization applied to or governed such city. . . . The city, as reorganized, shall have all of the rights, powers and authority which it had immediately prior to reorganization, and shall also be entitled to exercise any right, power or authority (except those inconsistent with the provisions of this Act) permitted cities organized under any other form of government. . . . All by-laws, ordinances and resolutions lawfully passed and in force in such city under its former organization, and not in conflict with this Act, shall remain in force until altered or repealed by the Board of Directors elected under the authority of this Act.

Section 7(a) is included in the codification at Ark. Code Ann. § 14-48-102 (1987).

Fireman Chris Driggers sued the City of Fort Smith and its Civil Service Commission on account of failure to promote him to the rank of captain in 1983 despite his having made the highest score on the test for promotion to that rank. The reason the City gave for denying the promotion was that Driggers did not have sufficient seniority. The Circuit Court awarded a summary judgment in favor of Driggers on the basis of documents showing that the Civil Service Commission had adopted rules after 1967 eliminating the seniority requirement. This Court reversed and remanded that decision because we found that the documents on which it was based presented a remaining genuine issue of material fact as to whether the Civil Service Commission had made such a change. City of Fort Smith v. Driggers, 294. Ark. 311, 742 S.W.2d 921 (1988).

Upon retrial of the case, the Circuit Court, not by way of summary judgment but after a full hearing, found and stated in the first paragraph of its amended order:

That the Civil Service Rules and Regulations in force in the City of Fort Smith at the time of the transition from a Commission form of government to a City Administrator form of government did not incorporate seniority as a part of the promotion process for firemen.

The Circuit Court thus reached the same result it had reached in the previous summary judgment and awarded the promotion to Driggers along with back pay.

In its first and main point of this second appeal, the City argues that Act 138 of 1957 made seniority the criterion for promotion of a fireman in a city having a commission form of government and that, because of the saving provisions of Section 7(a) of Act 36 of 1967, that criterion remained in effect. The City’s brief, however, recognizes that the City had the power to change the promotion criterion, and that Act 138 did not lock the City into using seniority as the promotion criterion indefinitely. Here is language from the City’s brief:

By its own terms, this transition or savings provision is applicable to the case at bar. Paraphrasing, it says that when a city effects a change of government, it shall remain subject to and controlled by all laws which applied to or governed the city on the effective date of the reorganization. These laws shall remain in force until altered or repealed by the board elected after reorganization.

After making that statement, the City argues the Circuit Court erred in finding that the City was not using the seniority criterion in 1967 when the reorganization occurred. The City contends that the testimony of lawyers working in the law firm serving as city attorney was insufficient to establish that the seniority criterion was not being used.

Attorney Orville Ben Core testified that he was with the law firm serving as city attorney, and that he also served individually as city attorney, during the period prior to and after the 1967 reorganization. He testified that a document entitled “Rules and Regulations Board of Civil Service Commissioners City of Fort Smith, Arkansas, for Fire and Police Departments” which contained seniority as a criterion for promotion was dated April 30, 1969. He referred to a copy in his possession entitled “Proposed Rules and Regulations” with a note at the top in his handwriting stating, “Adopted 4-30-69.”

Attorney Paul Giuffre, also with the firm serving the City, succeeded Mr. Core as the lawyer principally responsible for the City’s work. Mr. Giuffre testified he was involved in the reorganization. He examined Plaintiffs Exhibit Eight and expressed his opinion, based on a note on the exhibit in his handwriting and on Mr. Core’s testimony, that Exhibit Eight constituted the rules and regulations in effect prior to April 30, 1969. The rules and regulations contained in Exhibit Eight did not mention seniority as a criterion for promotion. In a section entitled “Eligibility Lists,” that document provided:

Section 1. Open and competitive examinations shall be held on the first Monday in April and October of each year, and more often if deemed necessary by the Board of Civil Service Commissioners, for the creation of lists of those eligible for employment or promotion for each rank in the Fire and Police Departments.
Section 5. In order to be eligible for examination for advancement from lower to a higher rank, an applicant, (1) shall have served at least one year in the next lower rank except in the case of an emergency the existence of which shall be decided by the Civil Service Commission; (2) must undergo and pass a physical examination similar to that required of an applicant for appointment to the eligible list for employment by either of the two departments and the applicant must be free from any impairment that in the judgment of the Board might reasonably be expected to handicap him in the performance of his duties in the higher rank; (3) must have a.good record in the lower ranks in which he has served and be of good moral character.
Section 6. After examination has been held the names of those who are approved for appointment on the eligible list for employment or for promotion shall be entered in the minute book of the secretary of the Board in the order of their standing in the examination, and a list of the same certified to the Chief of the Department affected and the City Clerk. In the event of a vacancy in any rank in either of the Departments, the vacancy shall be filled by the applicant standing highest on the eligible list for that particular rank.
All lists for appointments or promotion shall be certified by the Board as of the date of the examination and all lists shall remain in force and effect for a period of one year from the date of the examination and at the expiration of said year all rights and priorities under said lists shall cease.

These are all of the relevant provisions of the Exhibit governing eligibility for promotion in the Fire Department. If, as a matter of fact, these provisions were in effect at the time of the reorganization of government which occurred in 1967, it is clear that the City was not using a seniority criterion but was basing promotion on examination scores.

The City’s argument comes down to its contention that the testimony of the two lawyers did not help Driggers’ case “sufficiently.” That is so, according to the City’s brief, because Fire Chief James Moore testified that between 1957 and 1986 promotions were based on seniority and because that fact was demonstrated by the City’s Exhibit 3. That Exhibit consists of seven letters written by the Civil Service Commission to Fire Chief R. L. Rudd setting forth the names and rankings of persons eligible for promotion. Three of the letters, written in 1956 and early 1957, state the rankings on the basis of examination scores only. Beginning with a letter of December 4, 1957, and continuing through the latest letter of December 18, 1957, the lists are stated in terms of seniority of those passing the examination.

Chief Moore testified that sometime in 1957 the standard changed from being based purely on examination to being based on seniority as well. He testified that he had been involved in promotions during his employment by the Department, and that of his own personal knowledge, the seniority criterion was used from 1957 until a decision by this Court made in 1985 or 1986, apparently referring to Bradley v. Bruce, supra, after which the Commission changed the rules back to reliance on examination scores only.

On cross-examination, Chief Moore stated he began employment with the Department as a driver in 1950 and did not receive his first promotion until 1969. He was thus not personally involved in the promotion process around the time of the reorganization of government in 1967.

Whether the City used the seniority criterion after 1967 was a fact question which was resolved by the trial court in accordance with our earlier opinion. The City has given us no basis for overturning that factual determination.

The City’s brief seems to argue at one point that, because Act 138 of 1957 required use of the seniority standard and because subsection (a) of Act 36 of 1967 required the City to continue to use that standard it could not, as a matter of law, have discontinued use of the seniority criterion after 1967. That ignores the remainder of subsection (a) of Act 36 which accords a city changing its form of government entitlement “to exercise any right, power or authority . . . permitted under any other form of government. . . and states that “All by-laws, ordinances and resolutions lawfully passed and in force in such city under its former organization . . . shall remain in force until altered or repealed by the Board of Directors elected under the authority of this Act. . . .”

The City had the authority to remove the seniority criterion for promotion in its fire department after 1967 when it reorganized its government from the commission form to the city administrator form. As a matter of fact, the Circuit Court found that it was not using the seniority criterion for a time after 1967. Although there is evidence that the City attempted to go back to using seniority on April 30,1969, it had no authority to do so. The obvious purpose of a “saving clause” such as Section 7. of Act 36 of 1967 is to prevent unnecessary disruption which might be caused by sudden change. The City lost the protection of the saving clause when, at the time of the government reorganization in 1967, it promoted firemen in accordance with the law governing cities of the first class having a city administrator form of government contained in Chapter 48 of Arkansas Code Annotated including § 14-51-301 which we have held requires promotion solely on the basis of examination. Bradley v. Bruce, supra.

2. Administrative remedy exhaustion

The City argues that Driggers’ declaratory judgment cannot fulfill the requirement that a party complaining about an administrative deprivation exhaust the administrative remedies available. While we agree with that general proposition, Rehab Hospital Services Corp. v. Delta Health Systems Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985), we cannot apply it here, as we find Driggers exhausted the administrative remedies available to him.

The Rules and Regulations of the Civil Service Commission of the City of Ft. Smith were made an exhibit at the trial. Section 5:05 grants a grievant the right to present the grievance in writing to the Commission within 15 days of the date the grounds arose and request a hearing. Section 5:06 provides for the holding of a hearing upon such a request, and provides, “No hearing provided for herein shall be construed as giving the individual involved any right of appeal to courts of law or equity other than is provided by law.”

Obviously Driggers was given no right of appeal by the Commission Rules. The City contends, however, that he had a statutory right of appeal, citing Ark. Code Ann. § 14-51-308 (1987), but that statute, by its terms, deals only with appeals from suspension, discharge, or reduction in rank or compensation. We are not convinced that there was any administrative remedy beyond the hearing before the Commission.

Driggers’ original complaint was filed in 1986. The Commission’s two-day hearing on Driggers’s grievance was not held until 1988, after which Driggers added to his complaint, after the case was remanded, the allegation that the Commission had denied relief. Citing Worth v. El Dorado Civil Service Commission, 297 Ark. 251, 761 S.W.2d 169 (1988), the City contends it was improper for Driggers to add an allegation about the hearing to his complaint, as that went beyond the scope of the order remanding the case.

In the Worth case, we specifically noted that we had said in the earlier appeal, Worth v. El Dorado Civil Service Commission, 294 Ark. 643, 746 S.W.2d 364 (1988), “This is not the type of case we remand for a complete new trial and in which the parties may amend their pleadings.”

In this case, no trial had occurred. The case was decided the first time by summary judgment. The brief for the City refers to the addition of the allegation as an “amendment” to Driggers’ pleadings. Arkansas R. Civ. P. 15(a) provides that “a party may amend his pleadings at any time without leave of court.” Rule 15(a) permits a party to object to an amendment on the basis of delay or prejudice. There is no showing that any such objection was made here.

As the matter added to Driggers’ complaint was with respect to something which had happened after the original complaint was filed, we regard it as a supplementary complaint governed by Ark. R. Civ. P. 15(d) rather than an amendment under Rule 15(a). We find no allegation in the City’s brief that the Court was asked to rule on the addition, either as an improper amendment or supplemental complaint.

The City makes a final argument under this point that, as in the Worth case, Driggers did not join any of the persons who were promoted ahead of him and whose rights might somehow be affected if his promotion were granted. Again, we have no evidence that any such argument was made to the trial court, and thus we will not consider it. Lovell v. Magnet Cove School Dist. No. 8, 301 Ark. 94, 782 S.W.2d 41 (1990).

3. Attorney’s fees

The City argues that Ark. Code Ann. § 16-22-308 (Supp. 1989), which deals with the award of attorney’s fees in certain civil actions does not permit them to be awarded in a case like this, and thus the Court erred in awarding attorney’s fees to Driggers. The statute provides:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

As noted above, Driggers’ complaint sought specific relief in the form of promotion and back pay, and he prevailed on those items. The recovery he received is pay for “labor or services” he should have been allowed to perform had he been promoted to captain when he deserved to be promoted. In Woodhaven Homes, Inc. v. Kennedy Sheet Metal Co., 304 Ark. 415, 803 S.W.2d 508 (1991), we held that recovery could be had for attorney’s fees where the underlying recovery was for “labor or services” on the basis of quantum meruit regardless whether a contract was shown. While this is not a quantum meruit claim, we find that it is a claim for “labor or services” within the meaning of the statute.

Affirmed.

Hays, Glaze and Corbin, JJ., dissent.

Tom Glaze, Justice.

I respectfully dissent. Under Act 138 of 1957 [Ark. Code Ann. § 14-5 3-109 (a)], the City of Fort Smith had formed a commission form of government, and it continued with that form of government until 1967, when the city adopted the administrator form authorized under Act 36 of 1967 [Ark. Code Ann. §§ 14-48-101 to -131 (1987 and Supp. 1989)]. As a commission form of government, Fort Smith’s sole criterion for the promotion of firefighters was based on an applicant’s seniority as mandated by §§ 1 and 2 of Act 138 [now codified as § 14-53-109(a) and (b) (1987)]. In particular, § 2 of Act 138 [§ 14-53-109(b)] provides as follows:

It is the purpose of this section to establish seniority in service as the basis for promotion in cities of the first class having the commission form of government.

The majority opinion states the record in this appeal suggests Fort Smith, when it was a commission form of government, did not recognize seniority as the criterion for promotion. However, even if that was true, the city’s action in adopting competitive examinations as the criterion would have been contrary to Act 138 and therefore invalid. The City of Fort Smith, as a commission form of government, simply had no authority to recognize any criterion other than seniority as provided by Act 138.

The majority opinion states that even if Fort Smith had previously followed seniority when awarding promotions, the city had authority to change that criterion to examination scores after it adopted the administrator form of government in 1967. For this proposition, the court cites the “savings provision” of the City Administrators Act, § 7 of Act 36 of 1967 [§ 14-48-102], which, in relevant part, provides as follows:

When a city effects a change of government under this Act, it shall remain subject to and controlled by all laws (except those inconsistent with this Act) which on the effective date of such reorganization applied to or governed such city including, without limiting the foregoing, the laws relating to improvement districts. The city, as reorganized, shall have all of the rights, powers and authority which it had immediately prior to reorganization, and shall also be entitled to exercise any right, power or authority (except those inconsistent with the provisions of this Act) permitted cities organized under any other form of government. In cities having the commission form of government immediately preceding the adoption of the City Administrator form of government, the Board of Directors elected under the authority of this Act may, by ordinance duly adopted, organize or reorganize any municipal board, commission, authority, agency or department pursuant to the authority provided in the general laws of the State for municipalities having the mayoraldermanic form of government, except that no such reorganization shall be lawful which impairs the validity of existing contracts. All by-laws, ordinances and resolutions lawfully passed and in force in such city under its former organization, and not in conflict with this Act, shall remain in force until altered or repealed by the Board of Directors elected under the authority of this Act. (Emphasis added.)

In reading § 7(a) above, when Fort Smith changed from commission to the administrator form of government, the city remained subject to those laws that governed it as a commission form of government. Thus, as previously discussed, the governing law, §§ 1 and 2 of Act 138, required Fort Smith to use seniority when promoting firefighters. However, the savings provision further provided that, under Act 36, the new board of directors under the city administrator government may by ordinance duly adopted, organize or reorganize any municipal board, commission, authority, agency or department in accordance with the general laws of the state. From my search of the record in this appeal, I am unable to find any evidence to support the fact that Fort Smith’s board of directors by ordinance changed its law to provide for promotions based on competitive examinations rather than seniority.

Almost all of the evidence taken by that court after our remand of this cause, see City of Fort Smith v. Driggers, 294 Ark. 311, 742 S.W.2d 921 (1988), shows that, from 1957 to 1986, Fort Smith based its firefighter promotions upon seniority. For example, Fire Chief James Moore, a firefighter employee for the city for forty-one years, testified that from 1957 to 1986, promotions in the fire department were based seniority. In addition, testimony and exhibits given and introduced through attorneys, who had worked for the city before and during the transitional period in dispute, reflect that rules and regulations purportedly adopted by the city’s Board of Civil Service Commissioners in 1969 and 1974 provide for promotion by seniority. The only exhibit introduced even mentioning competitive examinations was a copy of the purported Rules and Regulations of the Civil Service Commission, which reproduction exhibit came from one of the attorney’s files and which was further labeled in handwriting, “old copy, effective prior to April 30, 1969.” Although the trial court relied on this exhibit (and the majority court sustains that reliance) to show that the city, at some time after 1967, based its promotions on something other than seniority, such exhibit fails in any evidentiary way to show the city’s board of directors ever adopted any such change by ordinance, resolution or otherwise, as is required by the “savings provision” of Act 36 of 1967. In sum, there is no evidence whatsoever to show the city’s board of directors ever took any action to change the seniority criterion the city was statutorily mandated to follow as a commission form of government. At most, the appellee Driggers showed only that the city’s Civil Service Commission, not the city board of directors, may have adopted exams as the promotion criterion. Such proof fails to meet in any way the dictates of Act 36. In sum, the trial court erred in finding the city ever legally changed its seniority criterion for purposes of promoting firefighters, and the majority court is wrong in affirming that finding.

For the foregoing reasons, I would reverse and remand this cause.

Hays and Corbin, JJ., join this dissent.

       The City of Fort Smith objected to this exhibit’s introduction, and I think properly so. Besides having no relevance on the issue of whether the board of directors had changed the seniority criterion previously required and followed by Fort Smith, the record reflects the city’s Civil Service Commission had rules in 1974 that used seniority as its basis for awarding promotions.


source: Caselaw Access Project

author: David Newbern, Justice. Robert L. Brown, Justice.

license: Public Domain

text:
    Phil CONLEY v. STATE of Arkansas
    CR 90-240
    808 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered May 6, 1991

      John Wesley Hall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Phil Conley, was convicted of illegal possession of a controlled substance. The state alleged Conley was an habitual offender. In the first phase of a bifurcated trial, the jury found Conley guilty. Evidence of prior convictions was admitted in the second or sentencing phase, and the jury sentenced Conley to eight.years imprisonment. The Court disallowed Conley’s request to be allowed to testify in the sentencing phase that he had been a cocaine addict when the offenses were committed but had placed himself in a rehabilitation program and had “kicked the habit.” Conley contends the ruling was a needless encouragement to him to give up his right not to testify in the guilt-innocence phase of the trial, and thus was a violation of that right. We hold the trial Court did not err in refusing the testimony he proposed.

In Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981), we wrote that the statute upon which the two-phase trial for alleged habitual offenders is based, Ark. Code Ann. § 16-90-205 (1987), contained no indication of a legislative intention to allow introduction of any proof in the sentencing stage other than proof to rebut the evidence of previous convictions. We noted that an accused person has the right to present mitigation testimony in the guilt-innocence phase. We pointed out that “[c]ertainly the hardened criminal is not entitled to preferential treatment, which he would receive if, after the finding of guilt, he could for the first time admit his guilt, and make a plea for leniency. The first offender has no similar opportunity.”

In Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982), which did not involve a bifurcated trial, we wrote:

matters of mitigation of punishment are relevant and appropriate, within the court’s discretion, for a jury’s consideration in arriving at punishment. . . . [W]hen a witness . . . admits a previous conviction, he is not absolutely precluded from offering any explanation of the offense unless it tends to retry the case and demonstrate innocence.. . . [T] his is an issue of relevancy, and the trial court is permitted a wide range of discretion and will not be reversed absent an abuse of that discretion.

The Jones case was an expression of the law’s willingness to permit introduction of evidence of mitigating circumstances. It did not address the problem often faced by the criminal defendant in deciding whether to testify as to mitigation, which may jeopardize his chances of being found innocent or not doing so and losing the effect of that testimony with respect to sentencing. Certainly the case stands for the proposition that, within limits, it is proper for an accused person to introduce evidence in mitigation, assuming it is done at the proper time.

From Wasman v. United States, 468 U.S. 559 (1984), Conley quotes a statement to the effect that a sentencing authority must be allowed to consider any information reasonably bearing on a proper sentence for a particular defendant. The statement is quoted in support of Conley’s argument that his right to due process granted by the Fourteenth Amendment to the United States Constitution was violated as well as Ark. Const. art. 2, § 8, basically his right not to incriminate himself and his right to present evidence in his own behalf.

In the Wasman case, the defendant had previously been convicted of the offense for which he was tried a second time. The original conviction was reversed. In the second trial, the judge gave a greater sentence than Wasman received in the first trial, and the judge specifically considered a conviction Wasman had received in the interim. The holding of the Supreme Court was that the trial court could consider the conviction. Thus, while we understand Conley’s reference to the Court’s rhetoric, the holding in the Wasman case does not support the argument.

Other Supreme Court cases cited are United States v. Jackson, 390 U.S. 570 (1968), and Simmons v. United States, 390 U.S. 377 (1968), in which it was held that a criminal defendant cannot be needlessly encouraged to give up a constitutional right or made to choose between asserting separate constitutional rights.

In the Jackson case, a federal statute made the death penalty available in kidnapping cases only if it were imposed by a jury. That meant an accused who chose to exercise his right to a jury trial faced a possible death sentence which could be avoided by relinquishing the jury trial right. In the Simmons case it was held an accused’s testimony given in a pre-trial hearing on standing could not be used in the trial because, if it could be so used, an accused would have to choose between his Fourth Amendment right with respect to standing and his Fifth Amendment right not to testify.

An accused’s right to testify in his or her own defense may not be limited in an unconstitutional manner, Rock v. Arkansas, 483 U.S. 44 (1987), and an accused, of course, has a right not to testify. In any criminal trial, however, the choice between exercising one of those rights or the other may become necessary.

We explained in Heard v. State, supra, that the purpose of a bifurcated trial is to protect the defendant by keeping evidence of prior convictions from the jury to assure that an accused person will not be convicted on the basis of his or her past record. In the sentencing phase, the state may only introduce evidence of prior convictions, and the accused may only introduce evidence to rebut the existence of those convictions. Nothing in § 16-90-205 suggests the General Assembly intended anything else, and we know of no constitutional provision which requires the trial to be opened in the sentencing phase to evidence the accused could have but declined to present in the guilt-innocence phase.

Affirmed.

Holt, C.J., and Brown, J., dissent.

Robert L. Brown, Justice.

The time has come to reexamine our holding in Heard v. State, supra. Our statutes specifically provide for a separate hearing to fix punishment for those alleged to be habitual criminals:

(2) If the defendant is found guilty, the same jury shall sit again and hear evidence of the defendant’s prior conviction or convictions. However, the defendant shall have the right to deny the existence of any prior convictions and to offer evidence in support of this denial;

Ark. Code Ann. § 16-90-205(2) (1987). That language clearly does not authorize mitigation evidence. But at the same time it does not expressly preclude such evidence either. The majority opinion, when it holds that the accused may only rebut the existence of prior convictions, reads into this language a limitation that does not exist. By doing so it goes too far.

The truth of the matter is that some trial judges can and do allow multiple offenders to offer testimony in mitigation during the sentencing phase. And that is where the matter should lie — with the trial judges to determine the propriety, scope and relevance of such testimony. Here, the majority takes that discretion away and denies the testimony altogether on the premise that § 16-90-205 forbids it. I disagree.

Under our system of criminal procedure the jury for all intents and purposes sets the punishment for all offenders (unless trial by jury has been expressly waived by the offender). In cases where enhanced punishment is at issue and the sentencing phase is activated, the jury should have the benefit of all evidence in mitigation deemed relevant by the trial judge. This is especially true where the defendant has not previously testified. And because a bifurcated procedure is already in place for habitual criminals, mitigation testimony should not unduly burden the process.

The trial judge, in the case before us, forbade mitigation testimony on the basis of Heard v. State, supra. Had he done so on the basis of his own discretion I would not object, since I believe the matter is best left to the discretion of the individual judges. But I cannot agree that our statutes eliminate mitigation testimony altogether in all cases for habitual criminals. To the extent that Heard v. State, supra, disallows such testimony in bifurcated trials, I would overrule it.

I respectfully dissent.

Holt, C.J., joins.


author: David Newbern, Justice. David Newbern, Justice.

text:
    Bobby Joe ELMORE v. STATE of Arkansas
    CR 91-6
    809 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered May 6, 1991
    [Supplemental Opinion on Denial of Rehearing June 10, 1991.]

      Gammill Law Offices, by: Randall L. Gammill, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Bobby Joe Elmore, the appellant, was convicted in Carlisle Municipal Court of driving his car left of center in violation of Ark. Code Ann. § 27-51-301 (1987). He appealed to the Lonoke County Circuit Court and sought a jury trial both by written pretrial motion and orally on the day of trial. He was tried by the Court de novo without a jury and convicted. The only issue on appeal here is whether Elmore’s constitutional right to a jury trial was violated. The State concedes Elmore had a right to jury trial in the Circuit Court but argues that we cannot consider the issue because Elmore did not get a ruling from the Circuit Court on his motion. We hold Elmore was entitled to be tried by a jury without even making such a motion, and thus the judgment is reversed and the case is dismissed.

Arkansas Const. art. 2, § 7, provides, “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law.. . .” Arkansas R. Crim. P.31.1 provides that there may not be a waiver of the right without the assent of the prosecutor and the approval of the court. Rules 31.2 and 31.3 provide the manner in which waiver is accomplished in other than capital cases.

It does not matter that the offense in this case was a misdemeanor. In Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975), Johnston appealed her speeding conviction from a municipal court to a circuit court where she was again tried and convicted. Her motion for trial by jury was overruled. On appeal to this Court, the State, among other arguments, contended Johnston had waived her jury trial right because her motion was untimely. We held the argument was without merit, solely on the basis of Ark. Code Ann. § 16-89-108 (1987), subsection (a) of which provides:

In all criminal cases, except where a sentence of death may be imposed, trial by a jury may be waived by the defendant, provided the prosecuting attorney gives his assent to the waiver. The waiver and the assent thereto shall be made in open court and entered of record. In the event of waiver, the trial judge shall pass both upon the law and the facts.

We thus held that a procedural lapse which might have been fatal to an appellant’s case in a different context was of no moment with respect to the absolute jury trial right which is to be accorded to a defendant in a circuit court unless it is waived. We also pointed out in that case that when an appeal is taken to a circuit court, it stands for trial as though the case had originated in the circuit court. Issues of fact in criminal cases, except with respect to admissibility of a confession, are tried by jury in circuit court. Ark. Code Ann. § 16-89-107(b)(1) (1987).

JUNE 10, 1991

There was no need for Elmore to demand or move for a trial by jury, much less obtain a ruling on the issue, thus the trial court erred in not honoring Elmore’s right to be tried by a jury.

The judgment is reversed, and the case is dismissed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Gammill Law Offices, by: Randall L. Gammill, for appellant.

Winston Bryant, Att’y Gen., by: Clint Miller, Sr. Asst. Att’y Gen., for appellee.

David Newbern, Justice.

By our earlier opinion in this case we reversed and dismissed Bobby Joe Elmore’s conviction for driving his car left of center in violation of Ark. Code Ann. § 27-51-301 (1987). In a petition for rehearing the State contends we erred in dismissing the case rather than remanding for retrial.

We agree with the State’s contention for two reasons. Elmore sought only reversal and remand rather than dismissal. Failure to grant a jury trial is the kind of trial error which, unlike insufficiency of the State’s evidence, does not require dismissal under the double jeopardy clause. See, e.g., Nard v. State, 304 Ark. 163-A, 801 S.W.2d 634 (supplemental opinion, 1990).

In considering the State’s second point, we were given pause by the thought that a bald failure to honor a defendant’s request for a jury trial should result in the defendant having to suffer retrial. We are convinced, however, the law requires it.

In United States v. Tateo, 377 U.S. 463 (1963), the Supreme Court discussed the balance between the interests of government and those of the accused when the matter of “mere trial error” or something more fundamental is at issue. Tateo contended he should not be retried because his change of plea from not guilty to guilty, which was found to have been coerced by remarks of the judge at his trial, resulted in his case not going to a jury. The Supreme Court wrote:

We find this argument unconvincing. If a case is reversed because of a coerced confession improperly admitted, a deficiency in the indictment, or an improper instruction, it is presumed that the accused did not have his case fairly put to the jury. A defendant is no less wronged by a jury finding of guilt after an unfair trial than by a failure to get a jury verdict at all; the distinction between the two kinds of wrongs affords no sensible basis for differentiation with regard to retrial. [377 U.S. at 466-67]

The decision is modified to state that the case is remanded to the Circuit Court for a new trial.


author: Tom Glaze, Justice.

text:
    Marion C. BARNES, Timothy D. Brooks, James A. Faulkner, and Soloman Cornelius v. STATE of Arkansas and Steven E. Nelson v. State of Arkansas
    CR 91-11
    810 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered May 6, 1991

      Poynter & Gearhart, P.A., by: Van A. Gearhart; and Osman, Chism & Ethredge, by: Richard S. Paden and Kerry D. Chism, for appellants.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

These five driving while intoxicated cases have been consolidated for appeal. Either Trooper Mark Blankenship or Trooper Mark Hollingsworth was the arresting officer in these cases. The appellants made a motion to suppress evidence and for dismissal on the basis that the two arresting officers failed to comply with the Law Enforcement Standards Act, Ark. Code Ann. §§ 12-9-101 to -404 (1987), because their files did not contain medical forms F-2 and F-2a. The Arkansas Commission on Law Enforcement Standards (Commission) required these forms by regulation under the authority of Ark. Code Ann. § 12-9-108(a) (1987). The officers’files did, however, contain medical history questionnaire forms and medical examination report forms, and in referring to this information, the trial court held the officers had substantially complied with the requirements of the law and denied the appellants’ motion. Appellants appeal that ruling.

This court has held that strict compliance with the standards and qualifications of police officers is required by the language of § 12-9-108(a), and that substantial compliance is not sufficient. Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), and Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). In Mitchell and Grable, we reversed where the defendants’ convictions were based solely on citations issued by officers who failed to meet the requirements established by the Commission under § 12-9-108(a). Thus, if these two decisions controlled the situations now before us as appellants suggest, we would be obliged to reverse their cases. Matters, however, have changed since these decisions were rendered and those changes compel our affirmance of the trial court’s convictions.

Since the Grable and Mitchell cases, the General Assembly has passed Act 44 of 1989, which amended § 12-9-108(a) to provide that the mere failure to meet law enforcement standards shall not invalidate actions taken by law enforcement officers. Act 44 went into effect on November 8,1989, which was after the appellants’ arrests in the instant case but prior to the trial court’s denial of their motion to suppress from which they bring this appeal. The Act further expressed the General Assembly’s intent that it should apply to any pending cases. Furthermore, our court has recently upheld the constitutionality of Act 44, stating the Act’s retroactive applicability to pending cases did not violate the ex post facto doctrine of either the state or federal constitution. Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991); Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991). Therefore, the Act — its retroactive effect having been ruled constitutional — eliminated or removed the earlier language contained in § 12-9-108(a) (1987), that invalidated official actions taken by police officers who had failed in some aspect to meet the standards and qualifications of the Law Enforcement Standards Act.

As pointed out, the appellants’ cases here were pending when Act 44 was enacted. Thus, applying Act 44 to the present situations, officers Blankenship’s and Hollingsworth’s arrests of the appellants were not invalidated merely because their files failed to contain the specified medical forms required by the Commission.

In reaching our holding, we note that Act 44 was not argued below, and that, in two earlier cases, we declined to address for the first time on appeal that the (1) state’s argument that Act 44 should be interpreted and applied so as to validate actions of officers who had failed to meet Commission standards or qualifications and (2) defendants’ counter arguments that the Act’s retroactive application violated the ex post facto clause. See Johnson v. City of Kensett, 301 Ark. 592, 787 S.W.2d 651 (1990), and Freeman v. City of DeWitt, 301 Ark. 581, 787S.W.2d 658 (1990). However, since our decisions in Johnson and Freeman, we have laid to rest the issues bearing on Act 44’s interpretation and the constitutionality of its retroactive application to pending cases. Ridenhour, 305 Ark. 90, 805 S.W.2d 639. Thus, while we refused in Johnson and Freeman to reach or rule on these issues surrounding Act 44, those issues have now been fully developed and decided. As decided in Ridenhour, Act 44 applies to cases which were pending at the time of its enactment and its retroactive application is constitutional.

Undisputably, the appellants’ cases before us now were pending when Act 44 was enacted. Thus, although the trial court was wrong in stating officers Blankenship and Hollingsworth had substantially complied with the requirements of § 12-9-108(a), its decision upholding the officers’ arrests of appellants was correct under Act 44 — the amendment removing the strictures of § 12-9-108 (a) that previously invalidated any actions taken by officers who did not meet Commission standards or qualifications. In sum, while the trial judge was in error in his reasoning when rendering the appellants’ convictions, the result reached by him was correct. See Marchant v. State, 286 Ark. 24, 688 S.W.2d 744 (1985). Therefore, we affirm.


author: Robert L. Brown, Justice.

text:
    Brad CARNEY v. STATE of Arkansas
    91-83
    808 S.W.2d 755
    Supreme Court of Arkansas
    Opinion delivered May 6, 1991

      Marianne L. Chaney, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal is brought by a juvenile, appellant Brad Carney, from a conviction for public intoxication (a class C misdemeanor), where his sentence included suspension of his driver’s license for one year. The appellant contends the statute authorizing this suspension violates the Equal Protection Clause of the federal and state constitutions due to age discrimination.

We do not agree, and we affirm the adjudication and sentence.

The facts are these. The appellant was arrested for public intoxication on August 17,1990, while attending the Tontitown Grape Festival in Washington County. At the time of his arrest he was seventeen years old, his date of birth being February 17, 1973. The prosecutor subsequently petitioned that the appellant be adjudicated a juvenile delinquent, and he was so adjudicated on October 2,1990, after a hearing before the trial court. He was then sentenced on October 30, 1990, to a fine, probation, public service, court costs and suspension of his driver’s license for one year. The license suspension is authorized under Act 93 of 1989, now codified as Ark. Code Ann. §§ 5-64-710, 5-65-116, and 27-16-914 (Adv. Code Svc. 1990-1991).

The state, as appellee, raises two procedural arguments on appeal and argues that they prevent our consideration of the appellant’s equal protection issue. It first claims that the appellant failed to raise the equal protection issue before the trial court accompanied with the expansive arguments he now makes on appeal. We disagree. At the sentencing hearing the defense counsel addressed the court:

Defense Counsel: Your Honor, we concur with all of the recommendations except the suspension of his driver’s license. I believe that the State’s doing this pursuant to Act 93 of 1989, which we feel violates the equal protection clause of the United States Constitution and Arkansas Constitution Article 2, Sections 2 and 3.

Subsequently, the trial court said in its ruling: “It’s my view that the Act is constitutional, and it does meet the equal protection requirements of the Constitution of the United States and the Constitution of the State of Arkansas.” In our view the issue was sufficiently raised and decided. Had the trial court wished more expansive arguments at that time, the court could have requested the same. It was not incumbent upon the appellant to expand his objection beyond what was stated.

The appellee, who is represented by the Attorney General on appeal, also argues that the Attorney General was not notified that the constitutionality of a state statute was at issue at the trial level. According to the argument, this resulted in the issue’s not being fully briefed before the trial court. The appellee cites in support of its argument the declaratory judgment statute which reads in part:

(b) In any proceeding which involves the validity of a municipal ordinance or franchise, the municipality shall be made a party and shall be entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.

Ark. Code Ann. § 16-111-106(b) (1987).

We have interpreted this statute many times. We have reversed and remanded a finding by the trial court that part of a statute was unconstitutional where the Attorney General was not notified. See Roberts v. Watts, 263 Ark. 822, 568 S.W.2d 1 (1978). We have also refused to address the merits of an appellant’s arguments on the constitutionality of the Arkansas replevin statutes, absent notice to the Attorney General. See Olmstead v. Logan, 298 Ark. 421, 768 S.W.2d 26 (1989). However, we have further said that “even though noncompliance with the notice requirement [of § 16-111-106 (b)] is generally reversible error, reversal is not mandated by the statute.” City of Little Rock v. Cash, 277 Ark. 494, 512, 644 S.W.2d 229, 237 (1982). We added in Cash that the purpose of§ 16-11 l-106(b) is to prevent a statute or ordinance from being declared unconstitutional without a full adjudication with adversary parties.

Initially, we note that there has been a full adjudication of the equal protection issue before this court, including a brief by the Attorney General as counsel for the appellee. It is further clear from the record that the appellant was not formally advised that he would have his license suspended under Act 93 until the sentencing hearing. Under these facts it would be impractical in the extreme to expect the appellant to notify the Attorney General in the middle of a hearing. Lastly, § 16-111-106 (b) relates to civil actions — and by the chapter heading it specifically relates to Declaratory Judgments — where the state is not automatically a party. Here, that is not the case. The state was a party at the sentencing hearing and was represented by the prosecuting attorney. We find no merit in the appellee’s argument.

Turning now to the appellant’s constitutional argument, Act 93, which is the legislation at issue, provides in part:

Section 1. Whenever a person who is less than eighteen (18) years of age pleads guilty, nolo contendere or is found guilty of driving while intoxicated under Chapter 65 of Title 5 of the Arkansas Code or of any criminal offense involving the illegal possession or use of alcohol or controlled substances, or is found by a juvenile court to have committed such an offense, the court shall prepare and transmit to the Department of Finance and Administration within twenty-four (24) hours after the plea or finding an order of denial of driving privileges for the minor. In cases of extreme and unusual hardship, the order may provide for the issuance of a restricted driving permit to allow driving to and from a place of employment or driving to and from school.
Section 2. Upon receipt of an order of denial of driving privileges under this act, the Department of Finance and Administration shall suspend the motor vehicle operator’s license of the minor for twelve (12) months or until the minor reaches 18 years of age, whichever is longest.

Act 93 of 1989, now codified as Ark. Code Ann. §§ 5-64-710, 5-65-116, 27-16-914 (Adv. Code Svc. 1990-1991). On its face Act 93 sets out a classification between persons under the age of eighteen and those age eighteen and older. The appellant also argues that a second classification exists between persons under age eighteen and persons who are eighteen, nineteen, and twenty who cannot purchase alcoholic beverages yet are not penalized by license suspension under Act 93.

At the outset we observe that an Arkansas Act is presumed constitutional, and the burden rests upon the party challenging that constitutionality. See Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990). In addition, if a classification exists in an Arkansas statute and that classification has a rational basis and is neither unreasonable nor arbitrary, the statute will not be struck down on equal protection grounds. See Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987).

The emergency clause to Act 93 lends some insight to the purpose behind the Act:

It is hereby found and determined by the General Assembly that additional enforcement mechanisms are urgently needed to deter persons under 18 years of age from illegally using or dealing in drugs; that this Act provides an additional enforcement mechanism; and that this Act should go into effect immediately in order to grant law enforcement officers and courts greater flexibility in dealing with the illegal use and sale of drugs.

Act 93 of 1989 (Third Extra. Session). The General Assembly clearly saw license suspension as a deterrent to the use of drugs (including alcohol) by those under age eighteen. This purpose is laudable and proper. Presumably, the General Assembly further looked to the dangers resulting from a combination of youth and alcohol, whether on the road or otherwise.

Other states have wrestled with this same problem of lengthy license revocation for those under age eighteen as compared to those who are older. See, e.g., In re Arthur W., 171 Cal. App. 3d 179, 217 Cal. Rptr. 183 (1985). In Arthur W., a seventeen-year-old raised an equal protection claim and contested a California statute which revoked a driver’s license for one year for those under eighteen years of age upon a finding that the person was driving while intoxicated. The California Court of Appeal upheld the statute, observing that the rights of minors are not coextensive with those of adults when it comes to driving on public streets. The court further took into account the fact that revocation only transpired after a criminal offense. It concluded:

The longer period of license revocation imposed upon minor offenders serves an additional state interest in the protection and safety of the minor, as well as the public at large, by removing from the streets and highways those children under 18 years of age who have clearly demonstrated the lack of judgment necessary to safely operate a motor vehicle.

In re Arthur W., 171 Cal. App. at 190, 217 Cal. Rptr. at 190. This same rationale readily applies to the case before us. The appellant sees a difference between applying Act 93 and license suspension when intoxication associated with a vehicle is involved as opposed to public intoxication not associated with driving. We do not make that distinction. A rational basis exists for suspending a license under Act 93 in either instance.

We have previously held that the state’s authority to supervise children is broader than that over similar actions by adults. See Wright v. Dewitt School District, 238 Ark. 906, 385 S.W.2d 644 (1965). And we recognize that the General Assembly had to draw the age line with accompanying penalties somewhere. Whether this line is drawn at age seventeen, eighteen, or twenty-one involves many factors including existing classifications under state law, which the General Assembly, no doubt, considered. The line drawn at age eighteen in Act 93, however, is reasonable and does not approach the level of irrationality or arbitrariness advanced by the appellant.

We hold, therefore, that Act 93 is constitutional on its face and as applied in this case and that the trial court was correct in its ruling.

Affirmed.


author: Per Curiam.

text:
    Alonzo GILLIAM v. STATE of Arkansas
    CA 91-35
    808 S.W.2d 738
    Supreme Court of Arkansas
    Opinion delivered May 6, 1991

      Omar F. Green II, for appellant.

      Winston Bryant, Att’y Gen., for appellee.
   Per Curiam.

The attorney for the appellant has filed a “no merit” brief and a motion to be relieved as counsel in the appeal of the adjudication that appellant is a juvenile delinquent. The case is docketed on the civil docket of the Court of Appeals. Counsel asks that the motion and brief be provided to the appellant so that he may respond in accordance with Anders v. California, 386 U.S. 738 (1967). The Court of Appeals has certified the motion to this court to determine whether the provisions of Anders, which protect the adult appellant’s right to counsel on appeal, should apply to the appeal of an adjudication of juvenile delinquency.

In Anders, the United States Supreme Court held that a criminal appellant may not be denied representation on appeal based on appointed counsel’s conclusory assertion that counsel is of the opinion that there is no merit to the appeal. The court set up a procedure to follow for allowing appointed counsel for an indigent criminal defendant to withdraw from a first appeal on the basis that the appeal is frivolous. The procedure, which our court has incorporated in its Rule 11(h), requires counsel to first conduct a “conscientious examination” of the case and then support a request to withdraw with a brief referring to anything in the record which might arguably support the appeal. The appellate court must then conduct a full examination of all the proceedings and permit withdrawal if its separate inquiry reveals no nonfrivolous issue, but must appoint new counsel to argue the appeal if such an issue exists. See Penson v. Ohio, 488 U.S. 75 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988). It is clear that a denial of counsel in a criminal case casts such doubt on the fairness of the trial process that it can never be considered harmless error. Because the fundamental importance of the assistance of counsel does not cease as a prosecutorial process moves from the trial to the appellate stage, the presumption of prejudice must extend as well to the denial of counsel on appeal. Satterwhite v. Texas, 486 U.S. 249 (1988).

Although delinquency proceedings are not penal in nature and are essentially a civil proceeding, certain due process safeguards, made applicable to the states by the fourteenth amendment, normally associated with criminal proceedings have been extended for the protection of juveniles. Among these is the right to counsel at the adjudicatory stage of the proceedings. In Re Gault, 387 U.S. 1 (1967). The court in Gault noted that “the juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry in+o the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child requires the guiding hand of counsel at every step of the proceedings against him.” 387 U.S. at 36. The right to counsel in juvenile proceedings is specifically provided in Ark. Code Ann. § 9-27-316 (Repl. 1991).

Given that a juvenile has a constitutional right to counsel, the next question is whether a juvenile has a right to effective assistance of counsel. While a criminal defendant’s right to effective assistance of counsel is based on the sixth amendment of the United States Constitution, made applicable to the states through the fourteenth amendment, Gideon v. Wainwright, 372 U.S. 335 (1963), a child’s constitutional right to counsel in a juvenile proceeding is based on the due process clause of the fourteenth amendment and is not necessarily as broad as the right to counsel in a criminal case. In Re Gault, 387 U.S. 1; see also McKeiver v. Pennsylvania, 403 U.S. 528 (1971). As the law relating to the right to effective representation by counsel has developed, however, the distinction as to the source of the right to effective counsel has become “a distinction without a difference.” Matter of Smith, 393 Pa.Super. 39, 573 A.2d 1077, 1079 (1990). Various decisions have held that the right to counsel is the equivalent of the right to effective counsel; otherwise, there is a denial of due process. Evitts v. Lucey, 469 U.S. 387 (1985).

The Supreme Court has not held that due process affords a right of appeal in criminal proceedings. It has held that to the extent a state makes an appeal available to criminal defendants, equal protection requires that the appeal procedure be available to all such persons. Griffin v. Illinois, 351 U.S. 12 (1956). Although there is no constitutional right to appeal from juvenile court orders, any statutory appeal procedure must be administered fairly to all persons to avoid denial of equal protection. Noting that the relative flexibility of the juvenile adjudication and the possible subsequent substantial infringement on the juvenile’s liberty make the right to appeal perhaps more, and certainly not less, vital to safeguard the fairness of the juvenile process, the United States Court of Appeals for the Third Circuit held unconstitutional a Virgin Island statute providing for appeals from juvenile court orders only in the discretion of the juvenile court judge. In Re Brown, 439 F.2d 47 (3rd Cir. 1971). Since the right of appeal was absolute in criminal cases and all other civil cases, the court held that restricting the right in juvenile cases was a violation of equal protection. The California Court of Appeals held in In Re Arthur N., 36 Cal.App.3rd 935, 112 Cal.Rptr. 89 (1974), that equal protection guarantees to juveniles the same right accorded to adults by statutes to be advised of the rights to appeal and to be represented by counsel on appeal.

We find that juveniles have a due process right to counsel on appeal based on the application of the reasoning in Gault. Moreover, the equal protection clause requires counsel for juveniles on appeal if adults are so entitled. This conclusion follows the Supreme Court’s decision in Douglas v. California, 372 U.S. 353 (1963), in which the court held that, although no constitutional right to appeal exists, if states afford a statutory appeal procedure, fairness dictates that counsel be appointed for persons unable to afford counsel. The State of Arkansas in Ark. Code Ann. § 9-27-343 (Repl. 1991) gives a juvenile a right of direct appeal. Due process requirements ordinarily accorded criminal appellants extend to safeguard the juvenile’s appeal. See State v. Berlat, 146 Ariz. 505, 707 P.2d 303 (1985). Even though the right of counsel in juvenile proceedings is predicated on due process concepts of fairness and is not necessarily as broad as the right to counsel in criminal proceedings, if due process requires that the juvenile be represented at trial and on appeal by effective counsel, then counsel are required to comport with the same procedures set out in Anders which were established to assure that there is no denial of the right to counsel on appeal. We recognize that the juvenile appellant may not personally have the capability and maturity to prepare a brief or other response to the attorney’s-motion and brief, but the juvenile must be afforded the opportunity to respond if he can do so personally or to avail himself of the assistance of a parent, guardian, or other adult. This court does not require the adult criminal appellant to prepare his brief or response without assistance under our Rule 11(h), and it is no less acceptable for the juvenile appellant to have assistance, if needed, in the preparation of a brief or other response. We also recognize that there will be instances where there is no responsible adult available to assist the juvenile. Essentially this same problem also confronts the adult criminal appellant who is illiterate, of low intelligence, or poorly educated who may not have another person to assist him in responding to an Anders brief. Clearly, the procedure outlined in Anders is not perfect, but all efforts to protect an appellant’s constitutional rights are flawed in some manner. At best, the procedure can only provide one more safeguard in the final disposition of the case on appeal which, when taken with our full examination of the record and counsel’s examination of the record and reference to anything in the record which might arguably support an appeal, helps assure the appellant, whether adult or juvenile, that the “no merit” appeal is given the thorough attention it must have.

The clerk is directed to provide appellant and his parent or guardian with a copy of counsel’s motion to be relieved and the brief filed by counsel so that appellant may file a pro se brief or other response within thirty days if he so chooses. The final disposition of counsel’s request to be relieved in the case will be made by the Court of Appeals after the court has conducted the full examination of all the proceedings as set out in Anders.

Motion granted in part.


author: Jack Holt, Jr., Chief Justice.

text:
    Julie COOK v. Ed Watkins WILLS; Wills-Cook & Associates, Inc.; Wills-Cook & Associates, a Joint Venture
    90-359
    808 S.W.2d 758
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991

      William L. Owen, for appellant.

      Henry Hodges, for appellees.
   Jack Holt, Jr., Chief Justice.

This is an appeal from the dismissal with prejudice of the third-party complaint of the appellant, Julie Cook, against the appellees, Ed Wills, Wills-Cook & Associates, Inc. (Wills-Cook Inc.), and Wills-Cook & Associates, a Joint Venture (Wills-Cook Joint Venture), and the granting of summary judgment in favor of the appellees on Ms. Cook’s alleged count of securities fraud.

The pertinent, general background of this appeal shows that on May 15, 1989, Boyle Realty Company (Boyle) filed a complaint against Ms. Cook to collect past due rent on office premises leased to Ms. Cook. Ms. Cook answered and claimed that Wills-Cook Inc. was a necessary and indispensable party, whereupon Boyle amended its complaint to include Wills-Cook Inc. Ms. Cook then filed an amended answer and third-party complaint against Mr. Wills, Wills-Cook Inc., and Wills-Cook Joint Venture claiming two counts of breach of contract, one count of securities fraud, and seeking specific performance and a declaratory judgment on her contention that her company, J.C. Cook and Company, had merged with that of Mr. Wills, Frank J. Wills Company, to form Wills-Cook Inc. Mr. Wills counterclaimed on the basis of Ms. Cook’s alleged misrepresentation of accounting information pertaining to her business.

On August 27, 1990, partial summary judgment was granted to the appellees on the securities fraud count. Also on that date, the trial court entered its judgment and dismissed with prejudice, upon settlement, Boyle’s complaint and, as a sanction for her abuse of discovery, struck with prejudice Ms. Cook’s amended third-party complaint against the appellees. Mr. Wills’s counterclaim was dismissed without prejudice.

Ms. Cook alleges three points of error on appeal: 1) that the trial court erred in striking her amended third-party complaint with prejudice, 2) Ark. R. Civ. P. 37 requires a showing of willful disregard to the discovery rules before imposition of sanctions are imposed, and 3) the trial court erred in granting summary judgment dismissing her securities fraud count. None of these arguments has merit, and we affirm.

On May 25, 1990, the appellees filed a request for production of documents from Ms. Cook seeking copies of income tax returns for 1985, 1986, 1987, 1988, and 1989. Ms. Cook responded and objected that the income tax returns for 1985, 1986, and 1989 were irrelevant; she ultimately agreed to produce the income tax returns for 1987 and 1988. The appellees received the 1987 income tax return; however, on July 17,1990, the day of trial, Ms. Cook had not produced the 1988 income tax return after her repeated assurances that she would do so. It was at that juncture that the trial court made its decision to sanction Ms. Cook for her abuse of the discovery process due to her failure to produce her 1988 income tax return.

Ms. Cook initially argues that the trial court erred in striking her amended third-party complaint with prejudice. Ark. R. Civ. P. 34(b) addresses the procedure of the production of documents and provides in pertinent part that:

[t]he party upon whom the request is served shall serve a written response within 30 days after the service of the request .... The response shall state, with respect to each item. . . that inspection and related activities will be permitted as requested, unless the request is objected to .... If objection is made to part of an item or category, the part shall be specified. . . .

Ms. Cook answered the appellees’ request for the production of documents, specifically objecting to the production of the 1985, 1986, and 1989 income tax returns; she produced her 1987 income tax return and, although she agreed to produce her 1988 income tax return, failed to do so by the date of trial. Ms. Cook acknowledges in her appellate brief that she “does not contend that her 198 8 tax return was not discoverable nor was it privileged nor is there any reason why she would not have made it available.' She intended to make the 1980 tax return available. Timing of the inspection had been agreed upon between counsel.”

In Dunkin v. Citizens Bank of Jonesboro, 291 Ark. 588, 727 S.W.2d 138 (1987), we affirmed the imposition of sanctions against a party who had not answered all of the interrogatories propounded to her by striking her partial answer. In that case, we stated:

Authority for the trial court’s action can be found in our rules of civil procedure. Arkansas R. Civ. P. 26(b)(1) provides that ‘[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the issues in the pending actions,. . .’Ark. R. Civ. P. 37(d) states that if a party fails to serve answers or objections to interrogatories ‘the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (B)(2) of this rule.’ Rule 37(b)(2)(C) then permits the court to enter an order ‘striking out pleadings or parts thereof.’

Rule 37(d) also applies to a party’s failure to serve a written response to a request for inspection submitted under Rule 34.

Also, in Cagle v. Fennel, 297 Ark. 353, 761 S.W.2d 926 (1988), we noted that dismissal with prejudice is a drastic sanction. However, in that case, we found that the trial court had acted well within its discretion in entering its final order dismissing the appellant’s suit with prejudice in light of her failure to attend two depositions and her subsequent failure to pay the costs and fees assessed by the judge in lieu of and to avoid the dismissal of her case. Our decision in that case was influenced by the trial court’s obvious concern that the penalized party have her day in court and that she not be unnecessarily penalized.

In this case, Ms. Cook repeatedly agreed to the production of her 1988 income tax return. There were three pretrial hearings at which Ms. Cook could have apprised the trial court of her difficulty in producing the 1988 tax return; yet, she positively assured defense counsel and the trial court that the document would be produced prior to trial. On the day of trial, and after the jury had been impaneled, defense counsel advised the trial court that Ms. Cook had not produced her 1988 tax return as she had promised on prior occasions. In light of Ms. Cook’s conduct, defense counsel’s complaint to the trial court of her non-compliance with the discovery process served as the functional equivalent of a formal motion for purposes of Rule 37(d).

The tax return was deemed to be crucial to the appellees’ defense on a variety of bases, and the trial court on at least one occasion commented that Ms. Cook “hasn’t done what the court has told her to do . . .” and that “she has not produced evidence I’ve told her to produce. . . .” As previously stated, Ms. Cook agreed to the production of her 1988 income tax return although she subsequently failed to honor her promises. Pursuant to Rule 37 (d), the court “may make such orders in regard to the failure as are just,. . .” and, under these circumstances, the trial court did not abuse its discretion in imposing severe sanctions under that rule for Ms. Cook’s acknowledged obligation to produce documents in the course of discovery.

Ms. Cook’s second point of error claims that Rule 37 requires a showing of willful disregard to the discovery rules before sanctions are imposed. In Cagle v. Fennel, supra, we stated that our rules of civil procedure do not require a finding of willful or deliberate disregard under the circumstances before sanctions may be imposed for failure to comply with the discovery rules.

Finally, Ms. Cook argues that the trial court erred in granting summary judgment on her securities fraud count. The trial court made its decision on the basis that the Arkansas Securities Act did not apply to the facts of this case. He is correct in that the stock involved in the alleged merger of the two companies involved was not a security within the meaning of Ark. Code Ann. § 23-42-102 (1987).

In Grand Prairie Sav. and Loan Ass’n v. Worthen Bank & Trust Co., N.A., 298 Ark. 542, 769 S.W.2d 20 (1989), we noted that securities under the Arkansas Securities Act were properly found when a transaction is an investment in the risk capital of a venture with an expectation of benefits but with a lack of control on the part of the investor. There are five significant common factors of traditional securities: 1) the investment of money or money’s worth, 2) investment in a venture, 3) the expectation of some benefit to the investor as a result of the investment, 4) contribution towards the risk capital of the venture, and 5) the absence of direct control over the investment or policy decisions concerning the venture, Smith v. State, 266 Ark. 861, 587 S.W.2d 50 (1979), and the definition of what constitutes a security must necessarily depend on an analysis of all of the factors in any given transaction, Schultz v. Rector, Phillips, Morris, Inc., 261 Ark. 769, 552 S.W.2d 4 (1977).

Here, Ms. Cook and Mr. Wills effectively combined their separate companies to form a new business entity. It is disputed as to whether Ms. Cook was to receive 20% or 40% controlling interest in the new company, but it is not disputed that Ms. Cook and Mr. Wills would provide their skills and expertise in the advertising and marketing business. In fact, Ms. Cook stated in her deposition that the main point of her receiving an interest in the new business was her future creative ability to be used on behalf of the new business. This can hardly be categorized as a lack of control on her part.

Consequently, the judgment of the trial court is affirmed.

Brown, J., not participating.


author: Robert H. Dudley, Justice. Per Curiam. Robert H. Dudley, Justice.

text:
    STATE of Arkansas v. Theresa and Doug THURMAN
    CR 91-93
    808 S.W.2d 762
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991
    [Supplemental Opinion on Petition for Rehearing June 17, 1991.]
    [Supplemental Opinion on Denial of Rehearing October 28, 1991.]

      Winston Bryant, Att’y Gen., by: Sandy Moll, for appellant.

      Cross, Kearney & McKissic, by: Gene E. McKissic, for appellees.
   Robert H. Dudley, Justice.

The jury found the appellees guilty of a misdemeanor. They moved for judgments notwithstanding the verdicts. The State objected and, among other things, contended that such judgments are not authorized by the Rules, of Criminal Procedure. See A.R.Cr.P. Rule 36.22. The trial court granted the judgments notwithstanding the verdicts. The State attempts to appeal the decision for the future guidance of trial courts. See A.R.Cr.P. Rule 36.10. We dismiss the appeal because the transcript was not filed within the sixty (60) day period as required by A.R.Cr.P. Rule 36.10(c), and we do not have jurisdiction.

On June 4, 1990, the trial court entered the judgments of acquittal notwithstanding the verdicts of the jury. On July 2, 1990, the State timely filed its notice of appeal. However, the transcript was not filed until September 5,1990, which was more than sixty (60) days after the filing of the notice of appeal. The filing of the transcript within the sixty (60) day period as required by Rule 36.10(c) is jurisdictional. State v. Bland, 260 Ark. 511, 542 S.W.2d 497 (1976). Since we are without jurisdiction, we must dismiss the appeal.

Newbern, J., not participating.

809 S.W.2d 821

JUNE 17, 1991

Winston Bryant, Att’y Gen., by: Sandy Moll, for appellant.

Cross, Kearney & McKissic, by: Gene E. McKissic, for appellee.

SUPPLEMENTAL OPINION ON PETITION FOR REHEARING

Per Curiam.

On May 13,1991, we handed down an opinion dismissing the State’s appeal in this case because the transcript was not filed within the sixty (60) day period as required by A.R.Cr.P. Rule 36.10(c).

The State’s notice of appeal was filed on July 2,1990, and the transcript should have been filed on or before 5 p.m. on Friday, August 31. The file marks reflect that it was not filed until Wednesday, September 5, 1990.

The Attorney General has filed a petition for rehearing in which he makes the following alternative allegations:

(a) The transcript was, in fact, tendered to the clerk before 5:00 p.m. on Friday, August 31, and the clerk made a mistake in affixing the filing date of September 5.

(b) Even if the transcript was not tendered before 5:00 p.m. on Friday, August 31, it was tendered before 8:00 a.m. on Tuesday, September 4 and should have been back-dated to Friday, August 31. (The clerk’s office was closed Monday September 3, which was Labor Day.) The State contends “that it has been a long standing practice of the Office of the Supreme Court Clerk to file-mark all transcripts, pleadings, and briefs present on the Clerk’s desk in the morning when the clerk’s office officially opens with a file-mark of the previous business date.”

It is necessary for a hearing to be held to determine whether either allegation is true. We appoint the Honorable Bruce T. Bullion as Master to conduct the hearing. The Master is to presume the affixed filing date is correct, and the Attorney General will have the burden of proving, by a preponderance of the evidence, either allegation. Upon receiving a finding of fact form the Master, we will make a decision on the State’s Petition for Rehearing. In the meanwhile, the mandate in this case will be held in abeyance.

Newbern, J. not participating.

816 S.W.2d 889

OCTOBER 28, 1991

Winston Bryant, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for petitioner.

Gene McKissic, for appellee.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Robert H. Dudley, Justice.

On May 13, 1991, we dismissed the appeal of this case because the transcript was not filed within the 60-day period required by Rule 36.10 of the Arkansas Rules of Criminal Procedure. See State v. Thurman, 305 Ark. 448, 808 S.W.2d 762 (May 13, 1991). The State filed a petition for rehearing and asserted that the dismissal was based upon an error of fact, that the transcript was “constructively” filed in time, and that the office of the Clerk of this court placed the wrong date on the file mark.

In response to the petition for rehearing, we appointed the Honorable Bruce T. Bullion as a master for this court. He has heard extensive evidence and filed a complete report in which he finds that there is no evidence to detract from the Clerk’s file mark. We adopt that report, and deny the petition for rehearing.

Newbern, J., not participating.


author: David Newbern, Justice.

text:
    ARKANSAS MOTOR VEHICLE COMMISSION, et al. v. CANTRELL MARINE, INC.
    90-289
    808 S.W.2d 765
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991

      Mary B. Stallcup, Att’y Gen., by: C. Kent Jolliff, Asst. Att’y Gen., for appellant, and Winston Bryant, Att’y Gen., C. Kent Jolliff, Asst. Att’y Gen., for appellant/cross-appellee Arkansas Motor Vehicle Commission.

      Leslie R. Ablondi and Henry Hodges, for intervenor/ appellant Red River Marine of Heber Springs.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for amicus curiae Arkansas Automobile Dealers Ass’n.

      Barbara Morgan,■ for appellee/cross-appellant.
   David Newbern, Justice.

Cantrell Marine, Inc., the appellee, sought from appellant, Arkansas Motor Vehicle Commission, a motor vehicle dealer license pursuant to Act 388 of 1975 as amended by Act 65,§7, of 1989. Cantrell Marine is a boat dealer. Cantrell Marine’s application was returned with a letter from the Commission’s Director stating, “in my opinion a marine dealer does not qualify as a Motor Vehicle Dealer, as found under A.C.A. 23-112-103(1) and (2).” The cited statutory subsections codify the Act’s definitions of “motor vehicle” and “motor vehicle dealer.”

Nothing of record suggests Cantrell Marine sought a hearing before the Commission or that the application was even submitted to the Commission for decision. Rather, Cantrell Marine filed its complaint in the Chancery Court for declaratory judgment that the Commission erred in refusing the license but that if the Commission’s action was in accordance with the provisions of Act 388, the Act violated Cantrell Marine’s rights to equal protection and due process of law as well as the privileges and immunities provisions of the United States and Arkansas Constitutions.

Twenty-five other boat dealers intervened in the action on the side of the Commission. The Chancellor held the Act unconstitutional. In addition to the brief of the intervenors, we have a brief from the Arkansas Automobile Dealers Association amicus curiae urging that we decide the case in favor of the Commission’s position on the merits. We cannot reach the merits. We must reverse and dismiss because Cantrell Marine did not exhaust its administrative remedies.

In Consumers Co-Op. Assn. v. Hill, 233 Ark. 59, 342 S.W.2d 657 (1961), we held that “[t]he rule is well established that a litigant must exhaust his administrative remedies before instituting litigation to challenge the action of the administrative agency.” See also Cheney v. East Texas Motor Freight, Inc., 233 Ark. 675, 346 S.W.2d 513 (1961). Arkansas Code Ann. § 23-112-502(a) (Supp. 1989) provides: “Any interested party shall have the right to have the commission call a hearing for the purpose of taking action in respect to any matter within the commission’s jurisdiction by filing with the commission a complaint setting forth grounds upon which the complaint is based.” There is no doubt that an application for a license as a motor vehicle dealer falls within the jurisdiction of the Commission. Failure on the part of Cantrell Marine to seek a hearing before the Commission with respect to the Director’s action was clearly a failure to exhaust its administrative remedies. Dixie Downs, Inc. v. Arkansas Racing Comm., 219 Ark. 356, 242 S.W.2d 132 (1951).

In Barr v. Arkansas Blue Cross & Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988), we noted exceptions to the exhaustion of remedies doctrine, including instances where it would be futile to pursue an administrative remedy or where there was no genuine opportunity to do so. We cannot say that either exception applies, as Cantrell Marine did not even ask the Commission to overrule its Director’s expression of opinion that Cantrell Marine did not qualify as a motor vehicle dealer.

In Consumers Co-Op. Assn. v. Hill, supra, we held that failure to seek a rehearing before an administrative agency was failure to exhaust administrative remedies where rehearing could have cleared up a confusing ruling. Our holding was without prejudice to the seeking of the rehearing. Likewise, this decision will not preclude Cantrell Marine from following administrative procedure and, in the event of a ruling against it, an appeal which would be to circuit court. Ark. Code Ann. § 23-112-506 (1987).

Reversed and dismissed.

Holt, C.J., and Brown, J., not participating.


text:
    Dr. Judy JOHNSON v. ARKANSAS BOARD OF EXAMINERS IN PSYCHOLOGY
    90-356
    808 S.W.2d 766
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991

      Friday, Eldredge & Clark, by: C. Tab Turner, for appellant.

      Winston Bryant, Att’y Gen., by: Jack R. Kearney, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

The Arkansas Board of Examiners in Psychology suspended appellant’s psychologist license for having violated Rule 6(a) of the Psychologists Code of Ethics, which the Board adopted pursuant to Ark. Code Ann. § 17-96-203(5) (1987). The circuit court affirmed that part of the Board’s decision finding she had sexual relations with her client in violation of Rule 6(a). She appeals that decision by challenging (1) the constitutionality of Rule 6(a) as being vague, arbitrary and violative of her rights of due process, and (2) the Board’s finding that sufficient evidence existed to show a dual relationship existed between her and her client, Reid Morgan, which violated the terms of Rule 6(a). Appellant also contends that the Board improperly utilized a preponderance of the evidence standard of proof instead of a stricter or higher standard. We hold none of appellant’s arguments have merit. Therefore, we affirm.

Rule 6(a) is the focus of appellant’s arguments, and it provides as follows:

a. Psychologists are continually cognizant of their own needs and of their potentially influential position vis-a-vis persons such as clients, students, and subordinates. They avoid exploiting the trust and dependency of such persons. Psychologists make every effort to avoid dual relationships that could impair their professional judgment or increase the risk of exploitation. Examples of such dual relationships include, but are not limited to research and treatment of employees, students, supervisees, close friends, or relatives. Sexual intimacies with clients are unethical. (Emphasis added.)

Appellant’s constitutional argument is based on her assertion that Rule 6(a) fails to define the terms “dual relationships” or the depth of the phrase “sexual intimacies with clients.” Nor, she continues, does the Rule provide guidance for the psychologist when determining when her or his client is ethically no longer a client under the terms of the Rule. Factually, appellant contends her professional relationship with Mr. Morgan had ended before she had any sexual intimacy with him and therefore her relationship with Morgan was not expressly or clearly prohibited by Rule 6(a).

When considering the facts and the appellant’s arguments in this case, we fail to see the vagueness the appellant attributes to Rule 6(a). Like statutes, we must presume the validity and constitutionality of the Board’s rules or regulations and the words contained in them are given their plain and ordinary meaning unless there is an ambiguity. See Rowell v. Austin, 276 Ark. 445, 637 S.W.2d 531 (1982). Here, no ambiguity exists. Rule 6(a) clearly and unmistakenly declares sexual relationships with clients to be unethical. In this case, the dual relationship prohibited by Rule 6(a) is a psychologist’s sexual contact with his or her client at the same time a professional or therapeutic relationship exists between the two.

As mentioned earlier, appellant argues that the record reveals no credible evidence that she maintained a personal or sexual relationship with Reid Morgan while he was her client. Appellant is clearly mistaken on this point. The record reflects the appellant began counseling Reid and his wife for marital problems on January 8, 1986. On August 9, 1986, the Morgans attended a social function with appellant, and according to Reid Morgan, appellant made “advances” to him that evening. By appellant’s own appointment book, she saw Mr. Morgan in group session on September 8, 15 and 28, 1986. In addition, the Morgans each testified that they were billed for a counseling session on October 1, 1986. Mr. Morgan further related that he and appellant had intercourse on September 2, 1986. While appellant stated her therapeutic relationship with Mr. Morgan ended in August 1986, a clinical social worker’s letter reflected the appellant and Mr. Morgan saw the social worker professionally on September 23, 1986, after which appellant and Morgan decided their therapeutic relationship should end immediately. Based upon the foregoing evidence, the circuit court upheld the Board’s finding that the appellant engaged in a sexual relationship with Mr. Morgan when he was her client.

The court’s standard of review is whether the Board’s finding is supported by substantial evidence. Reed v. Alcoholic Beverage Control Bd., 295 Ark. 9, 746 S.W.2d 368 (1988). The question is not whether the testimony would have supported a contrary finding, but whether it supports the finding that was made. Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984). And whenever the record contains affirmative proof supporting the view of each side, we must defer to the Board’s expertise and experience. Id.

Unquestionably, the evidence is in conflict as it bears on appellant’s relationships with Mr. Morgan and when those relationships occurred. Nonetheless, the record here clearly reveals evidence that supports the Board’s finding that the appellant violated the terms of Rule 6(a). In addition, we also have no hesitation in deciding that the terms of Rule 6(a) are quite clear in the type conduct a psychologist is prohibited from engaging in with a client, at least as those terms relate to the circumstances now before us. Accordingly, we hold Rule 6(a) is constitutional and meets the necessary requirements of due process.

In her third and final argument, appellant contends the Board utilized the wrong standard of proof, viz., preponderance of the evidence, when finding her guilty of violating Rule 6(a). She urges that because this administrative proceeding against her involved the suspension of her psychologist license, a higher standard of proof such as clear and convincing evidence should be employed.

Here, the Psychology Board of Examiners’ statutes and rules do not establish the standard of proof. Traditionally, the judiciary defines the burden of proof in an administrative proceeding when the legislature has failed to establish the degree of proof. See Herman & McLean v. Huddleston, 459 U.S. 375 (1983); Steadman v. SEC, 450 U.S. 91 (1980); Woodby v. Immigration & Naturalization Serv., 385 U.S. 285 (1966). The traditional standard required in a civil or administrative proceeding is proof of preponderance of the evidence, Bender v. Clark, 744 F.2d 1424 (10th Cir. 1984), and our court has applied that standard in cases involving professional conduct of attorneys where sanctions were considered and imposed. See Sexton v. Arkansas Supreme Court Comm. on Professional Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989); Muhammed v. Supreme Court Comm. on Professional Conduct, 291 Ark. 29, 722 S.W.2d 280 (1987). We are unaware of any reason why a different standard of proof should be applied to hearings before the Psychology Board of Examiners, nor does the appellant offer any convincing authority that a higher standard should be invoked.

For the reasons stated above, we affirm.

Brown, J., not participating.

       The trial court reversed the Board’s finding that appellant also violated the rule against having a business relationship with a client, but the Board does not challenge that ruling in this appeal.


author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Rose Mary AUSTIN v. FIRST NATIONAL BANK OF FAYETTEVILLE
    90-324
    808 S.W.2d 773
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991

      Jeff Slaton and Esther M. White, for appellant.

      Mashburn & Taylor, by: Timothy L. Brooks, for appellee.
   Donald L. Corbin, Justice.

Appellant, Rose Mary Austin, filed suit against appellee, First National Bank of Fayetteville, for conversion and wrongful dishonor. Appellant’s complaint alleged that appellee acted willfully and intentionally with respect to appellant’s property and that appellee was therefore liable for punitive damages. Appellee filed a motion for partial summary judgment on the issue of punitive damages. The trial court granted the motion concluding there was no genuine issue of fact as to the punitive damages because there was no evidence that appellee acted with the purpose of violating appellant’s right to her property or with the purpose of causing damages. The trial court entered an order which stated it was a final judgment and authorized an appeal pursuant to Ark. R. Civ. P. 54(b). This appeal is from that order.

Ark. R. Civ. P. 54(b) provides the means of bringing an appeal of one or fewer than all the claims within a suit, when a final order settling all the claims has not yet been rendered. Pursuant to Rule 54(b), the trial “court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” The order entered by the trial court in this appeal merely recites the language of Rule 54(b) without stating any facts to support the finding there is no just reason for delay.

We have previously held that, “in order to find there is no just reason for delay, the trial court must find some likelihood of hardship or injustice which would be alleviated by an immediate appeal.” Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 574, 726 S.W.2d 674, 677 (1987). In Arkhola, supra, we specifically gave “notice that merely tracking the language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is some danger of hardship or injustice which would be alleviated by an immediate appeal.” Arkhola at 575, 726 S.W.2d at 677.

As previously noted, the order entered by the trial court in this case merely recites the language of Rule 54(b) without stating any supporting facts. The record is void of any facts to support a conclusion of possible danger of hardship or injustice which would be alleviated by an immediate appeal of the punitive damages issue. Thus, we conclude the order appealed from in this case is not a final order pursuant to Rule 54(b). Moreover, there is law to indicate an order such as the one entered in this case is contrary to the policy of prohibiting piecemeal appeals enunciated in Ark. R. App. P. 2.

In Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984), we held that an order granting partial summary judgment on the issue of punitive damages was not a final order from which an appeal could be taken. There, we reasoned that:

We have held in numerous cases that we do not reach the merits of an appeal if the order appealed is not final. [Citations omitted.] In all of these cases we stated that in order for a judgment to be appealable, it must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter in controversy. [Citation omitted.] The trial court did not grant summary judgment in the whole case, and we are not in a position to predict what evidence will be presented at trial relevant to all claims for relief sought by the appellants. If this appeal were allowed and we decided the issue on punitive damages and subsequent errors occurred during the trial on the remaining issues, the case could be appealed a second time, resulting in two appeals where one would suffice. This case illustrates simply the reason for the rule that an order must be final to be appealable. See Rule 2, Arkansas Rules of Appellate Procedure. This is a jurisdictional requirement we are obliged to raise even when the parties do not. [Citations omitted.] Accordingly, this appeal is dismissed.

Fratesi, 282 Ark. at 214, 666 S.W.2d at 713.

The issue in Fratesi, supra, is identical to the issue now before us and the result and reasoning applied there is applicable here. Consistent with Arkhola, supra, and Fratesi, supra, we hold the order granting partial summary judgment on the issue of punitive damages is not a final, appealable order. Accordingly, this appeal is dismissed.

Appeal dismissed.

Newbern, J., concurs.

David Newbern, Justice,

concurring. Everything written in the Court’s opinion is correct. I wish to add my conclusion that punitive damages is not, in the language of Ark. R. Civ. P. 54(b), one of several “multiple claims” on which “the court may direct the entry of a final judgment.” Punitive damages is nothing more than an element of damages sought as part of a claim. Our cases hold it may not even be awarded unless there is an accompanying award of compensatory damages. Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988); Winkle v. Grand Nat. Bank, 267 Ark. 123, 601 S.W.2d 559 (1980).

For purposes of Rule 54(b), a penalty may not be separated from liability to produce “more than one claim for relief’ under the Rule. Reserve Mining Co. v. United States, 514 F.2d 492, 532, n. 78 (1975). This Court would lack jurisdiction of this appeal even if the trial court had given reasons for its finding no need to delay appeal of the punitive damages decision.