author: Robert L. Brown, Justice. Ray Thornton, Justice, Robert L. Brown, Justice.

text:
    Terry Jo CHATMAN v. STATE of Arkansas
    97-1269
    985 S.W.2d 718
    Supreme Court of Arkansas
    Opinion delivered February 11, 1999
    [Supplemental opinion on denial of rehearing delivered April 8, 1999.]

      William R. Simpson, Jr., Public Defender, by: Russell Byrne, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Terry Jo Chatman appeals from a man appeals from a forty-five-day commitment order entered by a Pulaski County probate judge sitting as a Stone County probate judge. He contends that the commitment order was invalid because a probable-cause hearing had not first been held by the Stone County probate judge, as required by law. We agree that the forty-five-day commitment order was invalid and that the probate judge in Pulaski County lacked jurisdiction to enter the order for two reasons: (1) failure to conduct a probable-cause hearing to determine whether Chatman should be admitted for evaluation; and (2) the fact that the probate judge conducting the forty-five-day hearing was not the Stone County probate judge. We reverse and dismiss.

On Friday, August 1, 1997, the probate judge for Stone County received a telephone call from a deputy sheriff of the Stone County Sheriffs Department advising him that Chatman had a gun and was making threats of suicide. Chatman was picked up by the Sheriffs Department that same day and placed in jail for the night. On Saturday, August 2, 1997, Chatman was evaluated by a licensed clinical social worker who confirmed his suicidal threats. The Stone County deputy sheriff completed a petition to have Chatman involuntarily admitted to the Arkansas State Hospital based on these threats. This petition was filed on Monday, August 4, 1997. Also, on Saturday, August 2, 1997, the Stone County probate judge found probable cause to believe Chatman posed a clear and present danger to himself or others and ordered that he be detained and transported to the Arkansas State Hospital for a seven-day mental health evaluation. Chatman apparently was transported to the Arkansas State Hospital that same day. The order of detention and evaluation was not filed until August 13, 1997. According to the record and Chatman’s testimony, no probable-cause hearing was conducted by the Stone County probate judge prior to his order to transport Chatman to the Arkansas State Hospital for evaluation.

On Friday, August 8, 1997, a Pulaski County probate judge sitting as a Stone County probate judge assumed jurisdiction of the matter pursuant to Ark. Code Ann. § 20-47-205(g) (Supp. 1997), and conducted a hearing. Following the hearing, she entered an order involuntarily admitting Chatman to the Arkansas State Hospital for a period not to exceed forty-five days. This order was filed on August 27, 1997. It is from that order that Chatman appeals.

Chatman contends on appeal that the probate judge erred in entering a forty-five-day mental-treatment order when no probable-cause hearing had first been held. His request for relief is that this court should stop such omissions in procedure from occurring.

We begin by addressing two preliminary matters. First, there is the mootness point. The forty-five days for treatment which was ordered by the probate judge has clearly expired. Chatman, nevertheless, requests that this court reach the merits of the issue because cases like this, he posits, will always become moot before litigation can run its course. We agree with Chatman’s point. In Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993), we noted that we will not ordinarily decide issues which are moot, but that when a case involves the public interest or tends to become moot before litigation can run its course, we will decide the case. The instant case clearly fits within the parameters set out by this court in Campbell. Persons committed under a forty-five-day civil commitment order would never be able to appeal those orders because they will likely have been released from the order before their appeals can reach this court. For that reason, we will address the merits of this case.

The State raises a second procedural point, and that is whether Chatman preserved his argument for appeal. At the beginning of the hearing before the probate judge on Friday, August 8, 1997, Chatman’s counsel and the judge engaged in the following colloquy:

Defense Counsel: Your Honor, before we get started, I object to proceeding at this point because I just learned that there was no Section Five hearing.
Probate Judge: Okay. The Court notes the objection, and you can represent testimony to that effect. Ms. Ball.
Counsel for Petitioner: The Petitioner calls Doctor Lisa Beisel to the stand.

The judge then proceeded with the hearing and heard the testimony of Dr. Lisa Beisel, staff psychiatrist for the Arkansas State Hospital. Following Dr. Beisel, Chatman took the stand and testified that he had been transported to the Arkansas State Hospital without a hearing before the Stone County probate judge. He was in the midst of his testimony and testifying that he was at his girlfriend’s house at the time of his pickup by the Sheriffs Department, when his counsel renewed his objection. The judge responded:

The Court notes that. It is not an appellate court, so I’m not sure that this Court has jurisdiction to be able to say that — it’s certainly notable that it looks like all this happened on a Saturday. The Petitioner apparendy is also a Stone County Sheriff s Deputy. Did you — were you at your girlfriend’s home, Mr. Chatman? Is that the —
A. Yes, ma’am.

The hearing then continued.

We believe that Chatman’s issue on appeal is preserved for our review. It is clear that Chatman’s counsel first objected to “proceeding at this point” because he had just learned that there had been no probable-cause hearing, which is also known as a Section Five hearing. The probate judge noted the objection but proceeded on with the hearing. When Chatman’s counsel objected a second time, the probate judge noted that she was not an appellate court and, again, continued with the hearing. It is clear to us that Chatman’s counsel objected to the hearing’s taking place and that the probate judge made a conscious decision to go forward with the hearing despite the fact that a probable-cause hearing had never been conducted. Because of this decision, we turn to the merits.

The statutory scheme for evaluating and treating a person who is dangerous to himself or others is laid out in the Code under the title “Commitment and Treatment of the Mentally Ill.” See Ark. Code Ann. §§ 20-47-201 through 20-47-222 (Repl. 1991, Supp. 1997). The first step in the procedure for involuntary admissions is for an individual who has reason to believe another person constitutes a danger to himself or others to file a petition in the probate court in the county where that person resides. Ark. Code Ann. §§ 20-47-207, 20-47-210 (Repl. 1991). After the petition is filed, a hearing must be held within three days of that event before the probate judge of that county to determine whether there is probable cause to believe the person has a mental illness and is a danger to himself or to others. Ark. Code Ann. § 20-47-209 (Repl. 1991). This is the Section Five hearing, and in order for a person to be admitted to a hospital for evaluation, the probate judge must be convinced that such is warranted by clear and convincing evidence. Id. If the probate judge orders the person admitted for evaluation, a second hearing must be held within seven days by a probate judge where the person is being evaluated to decide if detention in a hospital or receiving facility or other program for up to forty-five days for treatment is needed. Ark. Code Ann. §§ 20-47-205(b), 20-47-214 (Repl. 1991, Supp. 1997). Any probate judge in the Sixth Judicial District, where the Arkansas State Hospital is located, may hold that hearing if the person is detained within that district. Ark. Code Ann. § 20-47-205(g) (Supp. 1997). If the probate judge determines by clear and convincing evidence that the person is- a danger to himself or others, the judge shall order detention for treatment for a maximum of forty-five days. Ark. Code Ann. § 20-47-214 (Repl. 1991).

There is also a procedure for immediate confinements and evaluation for emergency situations. See Ark. Code Ann. § 20-47-210 (Repl. 1991). Under § 20-47-210, whenever a person is a danger to himself or to others and immediate confinement appears necessary, a law enforcement agency in the jurisdiction shall transport that person to a hospital or receiving facility, if there is no other safe means of transportation available. A petition for involuntary admission with a request for immediate confinement must be filed within seventy-two hours, excluding weekends and holidays. The probate judge for the county then holds an ex parte hearing with the petitioner to determine whether there is reasonable cause for involuntary admission and imminent danger of death or serious bodily harm. If the probate judge finds that immediate confinement under those criteria is necessary, the judge shall order the law enforcement agency to transport the person to a receiving facility. A probable-cause hearing under § 20-47-209(a)(1) (the Section Five hearing) must then be held within seventy-two hours of the person’s detention and confinement.

In the case at bar, the probate judge for the Sixth Judicial District conducted the forty-five-day hearing, acting as a Stone County probate judge, on August 8, 1997. It is clear, though, that no probable-cause hearing had been held. Based on Chatman’s testimony, he was picked up by the Stone County sheriffs office on Friday, August 1; jailed for one night in Stone County; and transported to the Arkansas State Flospital in Litde Rock on Saturday, August 2, where he was detained without a hearing until the following Friday, August 8. This violates the procedure for involuntary admissions as well as the procedure for immediate confinements as clearly expressed by the statutory scheme in that no probable-cause hearing was held within three days of the petition’s being filed or his detention in the Arkansas State Hospital. See Ark. Code Ann. §§ 20-47-207, 20-47-209, 20-47-210 (Repl. 1991, Supp. 1997). The State argues that the probate judge’s decision following the forty-five-day hearing cured any defects in procedure and that in any event there was substantial compliance with the procedural mandates. We do not agree. It is imperative under the statutes that a probable-cause hearing, justifying further detention and evaluation, be conducted within three days of the petition for involuntary admission or, in the case of immediate confinement, within three days of detention. The hearing to determine probable cause is mandatory, and no hearing was held.

The question then confronting this court is what remedy is appropriate. We turn once more to Campbell v. State, supra, for guidance. The issue in Campbell was the failure to file a petition for immediate confinement under Ark. Code Ann. § 20-47-210 (Repl. 1991), within seventy-two hours of detention. We held that filing a timely petition was mandatory under the statute, and that failure to comply with this statutory mandate rendered the probate court devoid of jurisdiction to conduct the forty-five-day hearing.

The same holds true in the instant case. Failure to conduct a probable-cause hearing was a fatal defect in the process and divested any successive court of jurisdiction to proceed further in the matter. Counsel for Chatman correctly assailed the jurisdiction of the probate court at the forty-five-day hearing, and the resulting order by the trial court for treatment up to forty-five days was void. As we did in Campbell, we hold that the order of the probate judge directing treatment for Chatman for up to forty-five days be reversed and the case dismissed.

But there is a second jurisdictional defect evident in this case which is not raised by Chatman but which we are required to raise on our own motion. See Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998); Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995). The jurisdiction of the state’s probate courts is spelled out in Section 34, Article 7 of the Arkansas Constitution:

In each county the Judge of the court having jurisdiction in matters of equity shall be judge of the court of probate, and have such exclusive original jurisdiction in matters relative to . . . persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law.

The General Assembly, by Act 28 of 1989, (3d Ex. Sess.), enacted comprehensive mental-treatment legislation which included a provision for either a probate judge in the Sixth Judicial District, which includes Pulaski County, to conduct the forty-five-day hearings for a person detained in the Arkansas State Hospital or for the probate judge outside the Sixth Judicial District who had original jurisdiction to do so:

(g) Each probate judge within the Sixth District may conduct involuntary commitment hearings prescribed by §§ 20-47-214 and 20-47-215 provided that the person sought to be committed is detained within the boundaries of the Sixth District at the time of the hearing. Provided, however, if the person was transported to a location within the Sixth District by order of a court outside the Sixth District, the court of original jurisdiction may conduct the hearings prescribed by §§ 20-47-214 and 20-47-215.

See Ark. Code. Ann. § 20-47-205(g).

Neither option provided by Act 28 was followed in this case. The Stone County probate judge did not conduct the forty-five-day hearing in Pulaski County. Nor did the Pulaski County probate judge conduct the hearing in her capacity as a Pulaski County-probate judge. Rather, the Pulaski County probate judge assumed the mantle of a Stone county probate judge, which Act 28 does not authorize and which, according to the record before us, she had no power to do.

Furthermore, assuming the Pulaski County probate judge was acting as a Pulaski County probate judge, she had no authority to do so. It is axiomatic that a court has no authority to act prior to the filing of a motion, petition, or other pleading in that court. State v. Pulaski County Circuit Court, 327 Ark. 287, 938 S.W.2d 815 (1997) (per curiam). Without a petition’s being filed in Pulaski County probate court in the Chatman matter, no Pulaski County probate judge had jurisdiction to act. Accordingly, the order to commit Chatman for treatment was void.

Reversed and dismissed.

Thornton and Smith, JJ., concur in part; dissent in part.

Ray Thornton, Justice,

concurring in part, dissenting in part. part. I respectfully dissent from the majority opinion in this case in so far as it reverses and dismisses the order of the Stone County Probate Court directing treatment for appellant, because in my view the Stone County Court substantially complied with the requirements of Ark. Code Ann. § 20-47-210 concerning immediate detention of a person requiring treatment. This statute provides that whenever it appears that a person is a danger to himself or others and immediate confinement appears necessary to avoid harm to such person or others, an interested person or the local law enforcement agency may take the person to a hospital or to a receiving facility or program. A petition praying for involuntary admission of the person shall thereafter be filed in the probate court of the county in which the person resides or is detained within seventy-two hours, excluding weekends and holidays, and a hearing as provided in § 20-47-209 (a)(1) shall be held within three days, excluding weekends and holidays, of the filing of the petition. Ark. Code Ann. § 20-47-210(a) (Repl. 1991).

The affidavit of Stone County Chancellor Stephen Choate reflects that the judge received a call around 9:00 p.m. on Friday, August 1, 1997, from a Stone County Sheriffs Department deputy who had responded to a 911 call that appellant Terry Chapman had a gun and was threatening suicide. The officer reported to the judge concerns that appellant might require hospitalization in a mental-health facility. Judge Choate testified via affidavit that he was acquainted with appellant and familiar with his history of problems, and therefore took appellant’s threats of self-harm quite seriously. The judge instructed the officer to contact the local mental-health clinic, which set up a screening for appellant the following day. On August 2, the judge was informed that appellant was “in pretty bad shape” and had been approved for admission to the State Hospital. Based upon this information, Judge Choate issued an order for appellant to be transported to the State Hospital, and he was taken there that day. This action is consistent with the provisions of Ark. Code Ann. § 20-47-210.

The deputy filed a petition for involuntary admission on Monday, August 4, 1997, in the Stone County Probate Court, and on Friday, August 8, 1997, a Pulaski County probate judge sitting on exchange as a Stone County probate judge conducted a hearing. As pointed out by the majority, this procedure, long-practiced though it may be, lacks specific statutory authorization, and the Monday petition should have been filed in the Pulaski County Probate Court because appellant was then detained in the State Hospital in Pulaski County. Following the hearing, which could have properly been held in Pulaski County within seventy-two hours of the filing of a petition in the Pulaski County Probate Court, the probate judge entered an order involuntarily admitting appellant to the Arkansas State Hospital for a period not to exceed forty-five days.

I would hold that not only did the State substantially comply with the requirements of Ark. Code Ann. § 20-47-210(a) with respect to the initial emergency detention, but also that in many respects Judge Choate provided appellant with greater protection than that ordinarily afforded a respondent under that subsection. The law enforcement officer or any other interested person could have transported appellant to Little Rock, then filed a petition in Pulaski County on or before Tuesday. If the petition had been filed in the Pulaski County Probate Court on Tuesday, it would have been timely, and the Friday hearing before the Pulaski County Probate Court would have been timely as well.

In the case before us, the petition filed in the Stone County Probate Court was filed within seventy-two hours of appellant’s detention; appellant’s first hearing in the Pulaski County Probate Court sitting as the Stone County Probate Court was held four days following, or within one day of the seventy-two hour requirement following the filing of this petition. Under these circumstances, except for the mistake in fifing the petition in the Stone County Probate Court, there was substantial compliance with the requirements of the statutory scheme.

Appellant suffered no harm as a consequence of the mistaken choice of fifing in the Stone County Probate Court. Indeed, rather than simply having been transported forthwith to the State Hospital or an equivalent receiving facility, appellant’s situation was assessed by Judge Choate, who requested a screening of appellant’s condition to verify his condition before he was transported to the State Hospital. It is not challenged that appellant’s condition was serious and his fife in danger, and Judge Choate walked a fine fine in balancing a respondent’s liberties against the State’s obligation to act in parens patrice.

We should note that the statutes concerning involuntary admission state as their purpose, among other laudable goals, “Preventing persons with mental illness from harming themselves or others.” Ark. Code Ann. § 20-47-201 (a)(3) (Repl. 1991). The interest of the State in protecting the mentally ill from harm supports a determination that the Stone County judge and the deputy sheriff were acting substantially in compliance with the terms of their authority in ordering his detention and confinement at the State Hospital. See e.g., Ball v. State, 278 Ark. 423, 425-27, 646 S.W. 2d 693, 695-96 (1983). Therefore, I respectfully dissent on the issue of compliance with the statutes concerning the initial emergency detention. However, the majority raises sua sponte the question whether under the present statutory framework, the petition filed on Monday with the Stone County Probate Court could then be heard by the Pulaski County Probate Court on exchange. Without specific statutory language allowing the Pulaski County Probate Court to act on exchange for the court which commences the commitment process, such action is not authorized. This could be remedied either by the addition of appropriate language to cure the lack of statutory authority by the General Assembly, or by filing the original petition in Pulaski County Probate Court within seventy-two hours of commitment on an emergency basis.

991 S.W.2d 534

I respectfully dissent from any conclusion that the Stone County Probate Court acted erroneously, but because there is no statutory authority for the Pulaski County Probate Court to sit on exchange to conduct the hearing required following an involuntary commitment, I concur in the result reached by the majority in ruling that the Pulaski County Probate Court did not have jurisdiction to enter the forty-five-day order as though it were sitting as a Stone County Probate Court.

I am authorized to state that Justice Smith joins in these views.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

April 8, 1999

William R. Simpson, Jr., Public Defender, by; Russell Byrne, Deputy Public Defender, for appellant.

Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.

Robert L. Brown, Justice.

The State of Arkansas petition for tions for rehearing on the basis that this court has misread Ark. Code Ann. § 20-47-205 (e) (Supp. 1997) and interpreted it in such a way as to render absurd results. Two amicus curiae briefs have been filed in support of the State’s position: one by the Office of the Prosecutor Coordinator and a second by the Arkansas Department of Human Services. We deny the petition for rehearing but issue this supplemental opinion in further clarification of our opinion.

The pertinent section reads:

(e) Each probate judge within the Sixth District may conduct involuntary commitment hearings prescribed by §§ 20-47-214 and 20-47-215 provided that the person sought to be committed is detained within the boundaries of the Sixth District at the time of the hearing. Provided, however, if the person was transported to a location within the Sixth District by order of a court outside the Sixth District, the court of original jurisdiction may conduct the hearings prescribed by §§ 20-47-214 and 20-47-215.

See Ark. Code. Ann. § 20-47-205(e) (Supp. 1997). This section clearly provides that probate judges in Pulaski County may conduct forty-five-day hearings under § 20-47-214, if the person to be committed for evaluation is being detained in Pulaski County. It further states, unambiguously, that if a court outside the Sixth Judicial District transferred the person to Pulaski County, that court may conduct the forty-five-day hearing. The statute does not require that the probate judge outside the Sixth Judicial District actually conduct this hearing in Pulaski County, as our original opinion erroneously stated. The problem with § 20-47-205 (e) is that it does not provide the capacity in which the Pulaski County probate judge presides over these hearings.

Despite this deficiency, it is clear to us, in answer to DHS, the Prosecutor Coordinator, and the State, that § 20-47-205(e) does not convert a Pulaski County probate judge into a probate judge from the county of original jurisdiction, in this case Stone County. Without a clear direction from the General Assembly, we will not assume that a Pulaski County probate judge automatically becomes a Stone County Probate Judge simply because a person has been transferred to a detention facility within Pulaski County.

Second, if a Pulaski County probate judge is to conduct the forty-five-day hearing in his or her own capacity, a petition must be filed before the Pulaski County Probate Court. Though we recognize the time constraints involved in many of these commitment proceedings, a filing by an interested party prefatory to a Pulaski County probate judge’s conducting a forty-five day hearing is necessary to commence the matter before that judge. In short, we read § 20-47-205 (e) as authorizing Pulaski County probate judges to conduct the forty-five-day hearings as Pulaski County probate judges, but a petition must be filed before that court to give it jurisdiction.

Petition denied.

       The statute (§ 20-47-209(a)(l)) requires that the probable-cause hearing be “set” within three days, and we construe that to mean set and held within that time period.

       We note that incarceration in jail is not the type of confinement or detention envisioned under the immediate-confinement statute, Ark. Code Ann. § 20-47-210 (Repl. 1991). Rather, the Sheriffs Department should have transported Chatman to a hospital or receiving facility or program.

       The petition and initial order indicate that this was an involuntary-admission case under §§ 20-47-207 and 20-47-209, but the facts show that Chatman was immediately confined, which brings into play § 20-47-210.

       Though Act 28 as codified uses the term “Sixth District,” Act 28 as enacted uses the term “Sixth Judicial District.”

       Act 1224 of 1997 caused this section to be rewritten so that the pertinent section at issue is § 20-47-205(e) and not § 20-47-205(g), as cited in the original opinion.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    HARTFORD INSURANCE COMPANY of the Midwest v. Melvin MULLINAX and Jim Bottin Enterprises, Inc.
    98-389
    984 S.W.2d 812
    Supreme Court of Arkansas
    Opinion delivered February 11, 1999

      Kilpatrick, Aud & Williams L.L.P., by: Gene Williams, for appellant.

      Boswell, Tucker & Brewster, by: Robert A. Ginnaven III, for appellee Melvin Mullinax.

      Matthews, Sanders, & Sayes, by: Margaret M. Newton and Roy Gene Sanders, for appellee Jim Bottin.
   Robert L. Brown, Justice.

Hartford Insurance Company of the Midwest (Hartford Insurance) appeals a summary-judgment order in favor of appellees Melvin Mullinax and Jim Bottin Enterprises, Inc. (Jim Bottin), on four grounds: (1) error in granting summary judgment to Mullinax for breach of contract; (2) error in denying Hartford Insurance’s motion for summary judgment against Mullinax; (3) error in granting summary judgment to Jim Bottin on-Hartford Insurance’s subrogation claim; and (4) error in denying Hartford Insurance’s motion for summary judgment against Jim Bottin. We agree with Hartford Insurance that it was error to grant summary judgment in favor of Mullinax on the breach-of-contract claim, and we reverse and remand the judgment relating to that claim for further proceedings. We affirm the trial court in its grant of summary judgment to Jim Bottin on Hartford Insurance’s subrogation claim.

On August 7, 1992, Mullinax was injured in a car accident when Cassandra White backed into his vehicle in a K-Mart parking lot in Little Rock. White was employed by Jim Bottin at the time, and Mullinax worked at ALCOA. The injuries to Mullinax’s neck and back were such that his physician determined he could not return to his job. In July of 1993, White’s liability carrier, Farmers Insurance Group, offered Mullinax $25,000 to settle.

On July 19, 1993, Mullinax asked his insurer, Hartford Insurance, if he should accept the $25,000. At the same time, he made demand on Hartford Insurance for the $100,000 policy limits of his underinsured motorist benefits. Hartford Insurance sent Mullinax its own check for $25,000 in substitution for the offer from Farmers Insurance. On November 19, 1993, Hartford Insurance rejected Mullinax’s demand for $100,000 in underinsured motorist benefits because (1) his injuries were aggravations of preexisting injuries, and (2) if White was in the scope of her employment at the time of the accident, Mullinax had an obligation to exhaust any other liability coverage available from her employer, Jim Bottin. On April 20, 1994, Mullinax provided some proof to Hartford Insurance that Jim Bottin did not have insurance for White covering the accident, but Hartford Insurance contended that it was inconclusive. Hartford Insurance later admitted on September 12, 1996, that Jim Bottin had no liability insurance.

On November 18, 1994, Mullinax filed suit against White • and Jim Bottin. Hartford Insurance received a copy of the complaint and wrote Mullinax on December 22, 1994, that it stood ready to participate and be bound by any “verdict” against the tortfeasors in excess of their policy limits up to Mullinax’s policy limits. Hartford Insurance also requested that its subrogation interest be protected if there was a settlement or judgment in favor of Mullinax within the tortfeasor’s policy limits. On July 2, 1996, the trial court dismissed White from the lawsuit without prejudice upon Mullinax’s motion to do so and set a trial date for his complaint against Jim Bottin. By letter dated June 27, 1996, Hartford Insurance wished Mullinax luck in his case against Jim Bottin.

On the afternoon of July 1, 1996, Mullinax notified Hartford Insurance that Jim Bottin had consented to judgment in his favor in the amount of $125,000. He also told Hartford Insurance that it should call immediately if it had any questions or concerns about the consent judgment because he planned to accept the offer the next day. At the time, Hartford Insurance was unaware that, contemporaneous with the consent judgment, Mullinax had agreed not to execute on the judgment or to assign the judgment to Hartford Insurance for subrogation purposes. Mullinax and Jim Bottin also agreed that the consent judgment would be set aside if Mullinax did not receive the underinsurance coverage from Hartford Insurance. The next day, July 2, 1996, the trial court approved the consent judgment, and Mullinax demanded that Hartford Insurance pay $100,000 in underinsurance benefits. Hartford Insurance refused.

On July 16, 1996, Mullinax filed an amended complaint against White for negligence and against Hartford Insurance for bad faith and breach of contract. He sought compensatory and punitive damages against the insurance company. As part of its responsive pleading, Hartford Insurance filed a third-party complaint against Jim Bottin, asserting its subrogation rights for the $7,280 it had paid to Mullinax in wage-loss benefits, the $25,000 it had paid in substitution for White’s carrier, and any future payments. Hartford Insurance also offered $30,000 in settlement of the claim for underinsured benefits. On February 27, 1997, Mullinax voluntarily dismissed his complaint against White for a second time, which was a dismissal with prejudice under Ark. R. Civ. P. 41(a). The parties next filed cross motions for summary judgment. Mullinax only prayed for partial summary judgment on his breach-of-contract claim against Hartford Insurance. The day before trial, the trial court announced that it was ruling in favor of Mullinax and Jim Bottin and against Hartford Insurance on the summary-judgment motions. The bad-faith claim against Hartford Insurance was tried to a jury on April 24, 1997, and the jury returned a verdict in favor of the insurance company.

On January 16, 1998, the trial court (1) granted Jim Bottin’s motion for summary judgment because Hartford Insurance’s subrogation claim was precluded by the underinsured motorist statute (Ark. Code Ann. § 23-89-209 (Supp. 1997)), which provides for subrogation only against the “owner or operator” of an underinsured motor vehicle, (2) denied Hartford Insurance’s motion for summary judgment against Mullinax because Hartford Insurance failed to intervene in the underlying lawsuit against Jim Bottin and because there was no contractual provision requiring cooperation with the insurance company, and (3) granted Mullinax’s motion for summary judgment against Hartford Insurance on the contract claim based on the insurance company’s failure to intervene in the underlying lawsuit and because it was bound by the consent judgment. The trial court entered judgment in favor of Mullinax for $92,720, plus $26,973.68 in attorney’s fees, and prejudgment interest of 6% annually to run from July 13, 1993.

I. Denial of Motion for Summary Judgment

Two of Hartford Insurance’s points on appeal deal with alleged errors in the trial court’s denial of the insurance company’s motion for summary judgment. We cannot reach the merits of these two arguments because a denial of a summary-judgment motion is neither reviewable nor appealable. See Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996).

II. Breach of Contract

We turn then to the first issue appropriately before us: whether the trial court erred in granting summary judgment in favor of Mullinax on the breach-of-contract claim. We believe that error was committed. The reason stated by the trial court in granting summary judgment in favor of Mullinax was Hartford Insurance’s failure to intervene in the underlying action when Jim Bottin consented to judgment in favor of Mullinax in the amount of $125,000. According to the trial court, Hartford Insurance was bound by this amount as the value of Mullinax’s claim. Hartford Insurance vigorously contends that the consent judgment was a sham judgment because Mullinax agreed not to enforce the judgment or to assign it to his carrier, Hartford Insurance, for subrogation purposes. We agree with Hartford Insurance that the circumstances surrounding the consent judgment are highly questionable and smack of a subterfuge. We decline to give the consent judgment credence as a true barometer of the extent of damages incurred by Mullinax.

We turn then to the policy considerations behind underinsured motorist coverage. It is clear to us that this coverage is secondary and supplemental coverage that is activated only after certain hurdles have been crossed. See Shepherd v. State Auto Property & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993). In tracing the history of the underinsured motorist coverage statute from Act 335 of 1987 to Act 1180 of 1993, it is clear that in all versions of the statute, the amount of damages incurred by the insured for bodily injury and the amount of the liability insurance benefits that the insured has recovered from the tortfeasor must be known before payment by the underinsurance carrier is required. See Ark. Code Ann. § 23-89-209 (Supp. 1997); see also State Farm Mut. Auto. Ins. Co. v. Thomas, 316 Ark. 345, 871 S.W.2d 571 (1994). Our caselaw has certainly emphasized the necessity for knowing the amount of liability benefits paid. See State Farm Mut. Auto. Ins. Co. v. Beavers, 321 Ark. 292, 901 S.W.2d 13 (1995); Birchfield v. Nationwide Ins., 317 Ark. 38, 875 S.W.2d 502 (1994); State Farm Mut. Auto. Ins. Co. v. Thomas, supra. We underscored in both the Beavers and Thomas decisions that the obligation to pay underinsurance benefits could not be triggered until it is determined whether the insured is in fact underinsured. That necessarily entails knowing the extent of the insured’s damages and the liability benefits that have been paid by the tortfeasor’s carrier. We further stated in the Birchfield decision that the limits of the liability coverage from the tortfeasors must be paid in full before the insured is entitled to underinsurance benefits.

Viewing the record before us, there appears to remain a material fact question over the amount of Mullinax’s damages incurred by reason of White’s negligence. Certainly, the record is clear that Mullinax made demand on Hartford Insurance for the full $100,000 in underinsurance benefits on July 19, 1993 — almost a year after the accident — and submitted proof of claim to the insurance company. It appears equally clear that Hartford Insurance disputed the claim because it questioned whether the accident merely aggravated preexisting injury. The insurance company also wanted to know the extent of Jim Bottin’s liability coverage because it believed that White was acting in her capacity as an employee when the car wreck occurred. It eventually developed that White’s liability coverage was $25,000 and that Jim Bot-tin, irrespective of the employer-employee issue, had no off-premises liability insurance. This meant the issue of available liability insurance from the tortfeasors had been decided.

But the value of Mullinax’s claim and the extent of his damages had yet to be determined. It seems that all parties viewed the litigation between Mullinax and Jim Bottin as the vehicle for deciding those damages. This led to the subterfuge of the consent judgment entered in favor of Mullinax and against Jim Bottin on July 2, 1996. The consent judgment was apparently agreed to for the purpose of establishing the value of Mullinax’s claim and the extent of his damages. Hartford Insurance, however, had been led to believe that Mullinax’s damages would be decided by a jury verdict. Thus, intervention by the insurance company to protect its interest was not considered necessary. Regardless, because the value arrived at • — ■ $125,000 — was a sham and not a true judgment amount, we consider the intervention question to be of little significance in deciding this matter. A ruse was perpetrated by Mullinax and Jim Bottin to establish damages, and we will not affirm that ruse because Hartford Insurance did not intervene. Suffice it to say that we do not believe it is mandatory for an underinsurance carrier to intervene in every lawsuit between its insured and a tortfeasor to protect against a questionable settlement or sham judgment.

We conclude that the breach-of-contract claim was not ripe for summary judgment in that a material fact question — the extent of Mullinax’s damages — remained to be decided. Hence, the order of summary judgment must be reversed and remanded. We admit to being troubled and concerned that Mullinax was injured over six years ago and that demand was made on Hartford Insurance for payment of underinsurance benefits more than five years ago. Nevertheless, Mullinax’s damages were contested by Hartford Insurance. Mullinax ultimately brought a bad-faith claim against Hartford Insurance, which was unsuccessful. The parties then were looking to the litigation between Mullinax and Jim Bottin to establish the value of his claim. That litigation, however, resulted only in a bogus judgment, which was apparently orchestrated to trigger Hartford Insurance’s underinsurance coverage.

We reverse the trial court’s order because the trial court erred in finding that Hartford Insurance was required to intervene in the negligence action against Jim Bottin or else be bound by a bogus judgment. The extent of Mullinax’s damages has not yet been determined and that is a material issue of fact left unresolved. We remand for further proceedings to resolve the extent of Mullinax’s damages and the issue of Hartford Insurance’s liability to pay underinsurance benefits.

III. Subrogation Against Jim Bottin

Hartford Insurance filed a third-party complaint against Jim Bottin, asserting its right to subrogation and reimbursement for underinsurance benefits paid resulting from the accident. The insurance company had paid Mullinax $7,280 in wage-loss benefits and $25,000 in substitution for insurance proceeds tendered on behalf of White. The trial court granted summary judgment in favor of Jim Bottin because it found that the underinsured motorist statute (§ 23-89-209) only provides for subrogation against the “owner or operator” of an underinsured motor vehicle.

Jim Bottin contends that Hartford Insurance’s subrogation rights are limited to those contained in the underinsured motorist statute, which by its plain language defeats Hartford Insurance’s subrogation rights because Jim Bottin was neither an owner nor an operator of White’s car. Jim Bottin also argues that the claim is barred by the statute of limitations and that the dismissal with prejudice granted in favor of White likewise releases Jim Bottin from any liability imputed to it.

Because of the plain language of § 23-89-209, the question then becomes whether Hartford Insurance has common-law subrogation rights to go against Jim Bottin by virtue of its insurance policy with Mullinax or whether this statute displaces them. Although the General Assembly has the power to alter the common law, see White v. City of Newport, 326 Ark. 667, 933 S.W.2d 800 (1996), a legislative act will not be construed as overruling a principle of common law “unless it is made plain by the act that such a change in the established law is intended.” White v. State, 290 Ark. 130, 136, 717 S.W.2d 784, 787 (1986) (quoting Starkey Constr., Inc. v. Elcon, Inc., 248 Ark. 958, 457 S.W.2d 509 (1970)). Moreover, we stricdy construe statutes in derogation of the common law. See Holt Bonding Co. v. State, 328 Ark. 178, 942 S.W.2d 834 (1997). Here, the statute is not so explicit in its language that all subrogation rights under the insurance policy are voided, or that the vicarious liability of employers is removed. The trial court erred in its decision that the statute voided all common-law rights.

Nevertheless, we hold that the trial court correctly granted summary judgment to Jim Bottin, albeit for the wrong reason. See Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998). On February 17, 1997, White was voluntarily dismissed from the litigation pursuant to a motion by Mullinax. This was a second dismissal, and it operated as an adjudication on the merits. See Ark. R. Civ. P. 41(a). Imputed or vicarious liability is tied to the negligence of the employee. When the employee has been released or dismissed and the employer has been sued solely on a theory of vicarious liability, any liability of the employer likewise is eliminated. See Barnett v. Isabell, 282 Ark. 88, 666 S.W.2d 393 (1984); Davis v. Perryman, 225 Ark. 963, 286 S.W.2d 844 (1956). See also 27 Am. Jur. 2d, Employment Relationship, §§ 469-70 (1996). Because Hartford Insurance stands in the shoes of Mullinax, its claim is no greater than that of its insured. See Union Nat’l Bank of Little Rock v. Hooper, 295 Ark. 83, 746 S.W.2d 550 (1988); Page v. Scott, 263 Ark. 684, 567 S.W.2d 101 (1978). We conclude that any potential subrogation claim against Jim Bottin by Hartford Insurance ended when White was dismissed from the litigation with prejudice. We affirm the trial court on this point, but for a different reason.

Because we reverse and remand on the breach-of-contract claim, we need not address the issue of penalty, attorney’s fees, and prejudgment interest.

Affirmed in part. Reversed in part and remanded.

       The terms “confessed judgment” and “consent judgment” are used interchangeably in this case.

       It is unclear why the trial court set July 13, 1993, as the date for the commencement of prejudgment interest. The date of Mullinax’s demand on Hartford Insurance for underinsurance benefits was July 19, 1993.


author: Annabelle Clinton Imber, Justice.

text:
    David HALE v. STATE of Arkansas
    CR 98-910
    985 S.W.2d 303
    Supreme Court of Arkansas
    Opinion delivered February 11, 1999

      Bowden, Kendel & Jones, by: David O. Bowden; and Tona M. DeMers, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.

       In light of our affirmance on this issue, we need not reach the State’s alternative argument of collateral estoppel.

   Annabelle Clinton Imber, Justice.

The appellant, David L. Hale, brings David L. Hale, brings this interlocutory appeal of the trial court’s denial of his motions to dismiss the State’s charges pending against him. Mr. Hale asserts several double jeopardy-based arguments including immunity, preemption, and the exception to the dual-sovereignty doctrine. Mr. Hale also contends that the trial court erred when it granted a mistrial due to an “overruling necessity” under Ark. Code Ann. § 5-1-112(3) (Repl. 1997). We affirm on all points.

Because this is an interlocutory appeal, the complicated and detañed facts of this case have not yet been resolved by the trier of fact. Suffice it to say, the State claims that in July of 1993 Mr. Hale entered into a complex scheme whereby he directed the president of the National Savings Life Insurance Company (NSLIC) to make a false or misleading statement to the Arkansas Insurance Department in violation of Ark. Code Ann. § 23-60-109 (Repl. 1994). The afieged scheme involved Mr. Hale’s participation in the affairs of the Smañ Business Administration, Capital Management Services, Inc., and other business entities. In April of 1994, the Insurance Department referred the matter to the Pulaski County Prosecutor’s Office and the Little Rock Police Department for criminal investigation and prosecution.

Around the same time, the Independent Counsel for the Department of Justice began investigating Mr. Hale’s business transactions in relation to the “Whitewater” matter. On March 19, 1994, Mr. Hale entered into a plea agreement with the Independent Counsel whereby Mr. Hale agreed to plead guñty to the felonies of conspiracy and mail fraud and to fully cooperate with the Independent Counsel in its investigation of the Whitewater matter. In exchange, the Independent Counsel agreed to ask for a reduction in Mr. Hale’s sentence, and granted Mr. Hale immunity as follows:

If David L. Hale fully complies with the understandings specified in this Agreement, he will not be further prosecuted for any crimes related to his participation in the conduct of the affairs of Capital Management Services, Inc., Diversified Capital, Inc., and Madison Guaranty Savings and Loan, and any other crimes, to the extent David L. Hale has disclosed such criminal activity to this Office as of the date of this agreement.

Meanwhile, the state officials continued their investigation of Mr. Hale’s alleged false and misleading statement to the Arkansas Insurance Department. In November of 1994, members of the Pulaski County Prosecutor’s Office, the Little Rock Police Department, and the Independent Counsel’s Office met to discuss the simultaneous investigations. The Independent Counsel expressed his view that it would be highly unusual for a state prosecutor to initiate separate criminal charges while an individual was cooperating in a federal investigation. Accordingly, the Independent Counsel may have suggested either that the Prosecutor’s Office delay fifing its charges until after Mr. Hale testified, or that Mr. Hale’s dealings with the Arkansas Insurance Department be “taken into account and considered at Mr. Hale’s federal sentencing hearing.” The state Prosecutor did not specifically agree to either request at that time. In fact, in February of 1996, the state Prosecutor sent a letter to the Independent Counsel announcing that he had decided to file separate state charges against Mr. Hale instead of allowing the matter to be addressed at Mr. Hale’s federal sentencing.

In April of 1996, Mr. Hale testified as a witness for the Independent Counsel in the criminal trials of Governor Jim Guy Tucker, James McDougal, and Susan McDougal. In December of 1996, the State filed a felony information that charged Mr. Hale with violating Ark. Code Ann. § 23-60-109 by filing a false or misleading statement or document required to be filed by Arkansas law.

In response, Mr. Hale filed several motions to dismiss in which he asserted that the subsequent state prosecution was barred by double jeopardy. Specifically, Mr. Hale claimed that the exception to the dual-sovereignty doctrine applied, that the State action was preempted by federal law, and that he was immune from state prosecution pursuant to the March 19, 1994 plea agreement with the Independent Counsel. The trial court rejected each of these arguments, and the case proceeded to trial.

The trial began on Wednesday, April 22, 1998. After the jury was sworn, the court excused the jury for the day because Mr. Hale was not feeling well. The next morning, Thursday, April 23, Mr. Hale did not appear for trial because he had been admitted to the hospital for heart problems. The court granted a seven-day continuance. On Thursday, April 30, the jury convened for the third time. Again, Mr. Hale was not present due to heart problems. Mr. Hale’s attorney estimated that Mr. Hale would be released from the hospital on the afternoon of Monday, May 4. Mr. Hale’s attorney, however, did not provide the court with a date certain on which Mr. Hale would be available for trial. The only date discussed by the court for rescheduling the trial was in early July. The court then expressed concern over leaving a sworn jury out for over two months in a highly publicized trial. In this respect, the trial judge said, “they [the jury] have been cast onto the stage as actors now, and they can’t very well ignore what’s going on. Human nature is not that way. There’s too big of a chance to run.” At this point, the trial court granted the State’s motion for mistrial because Mr. Hale’s illness was an “overruling necessity” under Ark. Code Ann. § 5-1-112. Soon thereafter, Mr. Hale filed a motion for dismissal in which he declared that double jeopardy prevented the State from bringing him to trial again because there was no “overruling necessity,” under Ark. Code Ann. §.5-1-112, for granting the mistrial. The trial court denied the motion.

Mr. Hale now brings this interlocutory appeal from the denials of his motions to dismiss the State’s charges pending against him. Because these arguments are based on double jeopardy considerations, it is appropriate for us to consider these matters in an interlocutory appeal. See Edwards v. State, 328 Ark. 394, 943 S.W.2d 600 (1997), cert. denied, 118 S.Ct. 370 (1997); Rowlins v. State, 319 Ark. 323, 891 S.W.2d 56 (1995).

I. Dual Sovereignty

The Double Jeopardy Clause of the Fifth Amendment protects a defendant from a second prosecution for the same offense and from multiple punishments for the same offense. State v. Johnson, 330 Ark. 636, 956 S.W.2d 181 (1997); Edwards, supra. Hence, Mr. Hale claims that his plea agreement with the Independent Counsel bars any subsequent state prosecution. However, the United States Supreme Court has long recognized the dual-sovereignty doctrine, which provides that when a defendant violates the “peace and dignity” of two sovereigns by breaking the laws of each, he or she has committed two distinct offenses, and thus successive prosecutions by the two sovereigns are not barred by the Double Jeopardy Clause of the Fifth Amendment. See Bartkus v. Illinois, 359 U.S. 121 (1959) (state prosecution following federal prosecution); Abbate v. United States, 359 U.S. 187 (1959) (federal prosecution following state prosecution). Likewise, we recognized the dual-sovereignty doctrine in State v. Johnson, supra, where we held that the State could prosecute the defendant for rape even though rape was used for enhancement purposes in the calculation of the defendant’s punishment for a federal conviction.

In Bartkus, the Supreme Court admonished that the dual-sovereignty doctrine would not apply if the subsequent state prosecution was a “sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution.” Bartkus, supra; see also United States v. Basile, 109 F.3d 1904 (8th Cir. 1997); United States v. Williams, 104 F.3d 213 (8th Cir. 1997); United States v. Garner, 32 F.3d 1905 (8th Cir. 1994). In other words, the dual-sovereignty doctrine will not apply if the second prosecution is merely an attempt at a second bite at the proverbial apple. The second prosecution is more likely to be considered a “sham or cover” if the first prosecution resulted in an acquittal, or the two sovereigns acted in collusion instead of merely coordinating their investigations or cooperating with one another. See Bartkus, supra; Basile, supra; Williams, supra; Garner, supra.

Clearly, this case falls under the dual-sovereignty doctrine because, as in Bartkus and Abbate, the state of Arkansas and the federal government are two separate sovereigns that are entitled to prosecute Mr. Hale for the violation of their respective laws. We find no merit to Mr. Hale’s argument that the Arkansas charges are merely a “sham or a cover” for a second federal prosecution because the federal prosecution did not result in an acquittal, and the record establishes that the two sovereigns merely coordinated their simultaneous investigations instead of acting in collusion. In particular, the state Prosecutor chose to file charges in state court instead of allowing the matter to be considered during sentencing in federal court as suggested by the Independent Counsel. Nor is there any indication that the FBI or the Office of the Independent Counsel shared any information from the federal investigation with the state Prosecutor’s Office, the Arkansas Insurance Department, or the Little Rock Police Department. At most, the contacts between federal and state officials in 1994 and 1995 involved the coordination of their respective investigations. For these reasons, we conclude that the second state prosecution was not a “sham or cover” for a second federal prosecution. Both sovereigns conducted separate investigations that resulted in separate prosecutions of the criminal charges against Mr. Hale. Accordingly, we affirm the trial court’s ruling that the exception to the dual-sovereignty doctrine does not apply in this case.

II. Immunity

Next, Mr. Hale contends that double jeopardy bars state prosecution because the Independent Counsel gave him transactional immunity from any prosecutions. As previously mentioned, Mr. Hale’s plea agreement with the Independent Counsel provided, in relevant part, that:

If David L. Hale fully complies with the understandings specified in this Agreement, he will not be further prosecuted for any crimes related to his participation in the conduct of the affairs of Capital Management Services, Inc., Diversified Capital, Inc., and Madison Guaranty Savings and Loan, and any other crimes, to the extent David L. Hale has disclosed such criminal activity to this Office as of the date of this agreement.

(Emphasis added.) Relying upon the phrase “any crimes,” Mr. Hale asserts that the Independent Counsel gave him transactional immunity from all state and federal prosecutions related to the Whitewater transactions. Although we realize that there is a difference between “transactional” immunity, which protects the witness from prosecution for offenses to which the compelled testimony relates, and “use or derivative use” immunity, which only protects the witness from the use of the compelled testimony and the evidence derived therefrom, Kastigar v. United States, 406 U.S. 441 (1972), we need not decide what type of immunity Mr. Hale was given in his agreement with the Independent Counsel. Rather, the relevant inquiry in this appeal involves only what effect, if any, the Independent Counsel’s grant of immunity has on the subsequent state prosecution.

In Kastigar v. United States, 406 U.S. 441 (1972), the United States Supreme Court held that the Fifth Amendment right against self-incrimination only protected the defendant from use of his incriminating statements, or evidence derived therefrom, but not from prosecution for related crimes. Hence, the Court concluded that even if a state granted transactional or use immunity to a defendant in exchange for his or her incriminating testimony, the federal government could prosecute the defendant for a similar federal crime so long as the federal government could sustain the heavy burden of proving that its evidence was “derived from a legitimate source wholly independent of the compelled testimony.” Id. Specifically, the Court instructed that:

Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.
This burden of proof ... is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.
One . . . need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.

Id.

Pursuant to Kastigar, the Eighth Circuit has held on numerous occasions that in accordance with the dual-sovereignty doctrine, the federal government may prosecute a defendant who has been given transactional or derivative use immunity from a state government so long as the federal prosecutor can sustain the burden of proving that the evidence to be used against the defendant was obtained from a source independent of the protected statements made in state court. See, e.g., United States v. First Western State Bank, 491 F.2d 780 (8th Cir. 1974); United States v. McDaniel, 482 F.2d 305 (8th Cir. 1973).

In United States v. First Western State Bank, supra, the Eighth Circuit explained the concept as follows:

The United States as a sovereign is not precluded from enforcing its laws by the grant of immunity of another sovereign, in this case the state. However, as a matter of fairness to the defendants and as a constitutional guarantee against self-incrimination, the state immunized testimony cannot be used, directly or indirectly, to prosecute a federal charge. Murphy v. Waterfront Commission, 378 U.S. at 79, 84 S.Ct. 1594.
* * *
The sovereign not offering immunity has the undeniable right to protect the integrity of its law enforcement prerogatives by prosecuting anyone who allegedly has committed an offense against its peace and dignity. When its own evidence and investigation discloses acts of criminal activity, an undeniable right to prosecute exists. This right cannot be controlled, thwarted, or diminished by another sovereign granting immunity from prosecution of a kindred offense. Fair play and constitutional guarantees demand, however, that the prosecuting sovereign not use, directly or indirectly, the immunized testimony or any fruits from it. Kastigar v. United States, supra; Murphy v. Waterfront Commission, supra. If the prosecuting sovereign has made its independent investigation and can show nonuse of the immunized testimony, either by lack of access to the immunized testimony or direct statements made in good faith that it did not use the immunized testimony, it should have a clear right to proceed with its own prosecution. However, under Kastigar and Murphy the prosecuting sovereign does have the burden of showing an independent source for its evidence.

Id.

In the case before us today, the trial court held a Kastigar hearing to determine if the State’s charges were based on evidence obtained from a source independent from Mr. Hale’s immunized testimony in the federal proceedings. First, the trial court acknowledged that the deputy prosecutor’s father-in-law, Mr. Sam Winstead, attended the federal trial of Governor Jim Guy Tucker and heard Mr. Hale testify. The deputy prosecutor admitted that he discussed the Tucker trial with his father-in-law, but explained that he could not remember the substance of their conversation. The court concluded, and we agree, that this connection was much too remote to cause the State’s prosecution to be tainted by the immunized testimony in the federal proceeding.

Second, the trial court found that the state Prosecuting Attorney may have delayed filing its information so as not to conflict with the federal proceedings. In addition, the court found that the Little Rock Police Department coordinated its questioning of certain witnesses so as not to interfere with the federal investigation. The court, however, correctly ruled that two sovereigns may coordinate their investigations so long as the immunized testimony, or evidence derived therefrom, is not shared. We agree that cooperation is all that occurred in this case.

Finally, the court considered the fact that the state Prosecutor had obtained a copy of Mr. Hale’s immunized testimony. However, distinguishable from United States v. McDaniel, supra, the state Prosecutor averred that he did not read any portion of the transcript. The trial court believed this testimony, which is a credibility determination that is best left to the trier of fact, and not this court on appeal. See Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). In fact, there was no testimony that the transcript had been read by anyone involved in the State’s investigation and prosecution of Mr. Hale.

For these reasons, we cannot say that the trial court’s finding that the state proceeding was independent from the federally immunized testimony, and the evidence derived therefrom, is clearly erroneous. Accordingly, we affirm the trial court’s ruling that the state prosecution of Mr. Hale is not barred by the Independent Counsel’s grant of immunity in the federal proceeding. In reaching this conclusion, however, we admonish, as the trial court correctly did, that the Kastigar issue continues throughout the trial and prevents the State from impermissibly using any of Mr. Hale’s immunized testimony, or the evidence derived therefrom, at any point in the state proceeding.

III. Preemption

Next, Mr. Hale contends that state prosecution is preempted by the Independent Counsel Reauthorization Act of 1994, 28 U.S.C.S § 591 to 599 (1988 & Supp. 1998), which he claims gave the Independent Counsel the sole authority to prosecute any crimes relating to Whitewater. We disagree.

The doctrine of federal preemption is based upon the Supremacy Clause of the United States Constitution, which provides that state laws that “interfere with, or are contrary to the laws of congress, made in pursuance of the constitution” are invalid. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). There are three types of federal preemption: 1) express preemption, where Congress defines explicidy the extent to which its enactments preempt state law; 2) field preemption, where Congress’s regulation of a field is so pervasive or the federal interest so dominant that an intent to occupy the entire field can be inferred, and 3) conflict preemption, where state law stands as an obstacle to the accomplishment of the full purposes and objectives of a federal statute, or where compliance with both laws is impossible. Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597 (1990); Twenty-five Residents v. Arkansas Highway & Transp. Comm’n, 330 Ark. 396, 954 S.W.2d 242 (1997); Medlock v. Leathers, 311 Ark. 175, 842 S.W.2d 428 (1992). In his reply brief, Mr. Hale concedes that the Independent Counsel Reauthorization Act does not contain an express preemption provision. Hence, we must only consider whether either of the latter two forms of preemption exits. In making this determination, we start with the presumption that the State’s historic powers are not superseded by federal laws unless that is the “clear and manifest” purpose of Congress. Wisconsin Public Intervenor, supra; Ciba-Geigy Corp., supra. In Patterson v. New York, 432 U.S. 197 (1977), the United States Supreme Court recognized that “the preventing and dealing with crime is much more the business of the State than it is of the Federal Government.” Finally, the burden is on Mr. Hale, as the moving party, to prove that Congress intended to preempt state law. See Ciba-Geigy Corp., supra.

First, Mr. Hale contends that federal preemption may be found in section 594(a) of the Independent Counsel Reauthorization Act, which provides in relevant part that:

Notwithstanding any other provision of law, an independent counsel appointed under this subchapter shall have, with respect to all matters in such independent counsel’s prosecutorial jurisdiction established under this subchapter, full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice, except that the Attorney General shall exercise direction and control as to those matters that specifically require the Attorney General’s personal action under section 2516 of title 18 [18 USCS § 2516]. Such investigative and prosecutorial functions and powers shall include —
* * *
(9) initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United , States;

28 U.S.C.S. § 594(a)(9) (emphasis added). Mr. Hale argues that the phrase “any court of competent jurisdiction” includes all state courts. Mr. Hale, however, is confusing “concurrent” with “competent” jurisdiction. As explained above, pursuant to the dual-sovereignty doctrine, the state and federal courts have “concurrent” jurisdiction to file criminal charges against a defendant. However, the word “competent” means “duly qualified; answering all requirements; having sufficient capacity, ability or authority.” Black’s Law Dictionary 294 (6th ed. 1990). Likewise, “competent authority” is defined as “jurisdiction and due legal authority to deal with the particular matter in question.” Id. By using the phrase “competent jurisdiction,” it is clear that Congress intended to give the Independent Counsel authority to file federal charges in any federal court that had subject-matter and personal jurisdiction. In this respect, “competent jurisdiction” only specifies where the Independent Counsel may initiate prosecution. In contrast, in numerous sections of the Act, Congress made it clear that the only type of actions the Independent Counsel may file are for violations of “Federal criminal law” or for “Federal crimes.” See, e.g., 28 U.S.C.S. §§ 591(a), 591(c) and 593(b). It is simply illogical to assume that Congress intended to give the Independent Counsel authority to file a federal criminal or civil action in state court.

Next, Mr. Hale argues that federal preemption can be found in the supporting regulations, 28 C.F.R. § 603.1 (1998), which define the jurisdiction of the Independent Counsel, as follows:

(a) The Independent Counsel: In re Madison Guaranty Savings & Loan Association shall have jurisdiction and authority to investigate to the maximum extent authorized by part 600 of this chapter whether any individuals or entities have committed a violation of any federal criminal law or civil law relating in any way to President William Jefferson Clinton’s or Mrs. Hillary Rodham Clinton’s relationship with:
(1) Madison Guaranty Savings & Loan Association;
(2) Whitewater Development Corporation; or
(3) Capital Management Services
(b) The Independent Counsel: In re Madison Guaranty Savings & Loan Association shall have jurisdiction and authority to investigate other allegations or evidence of violation of any federal criminal or civil law by any person or entity developed during the Independent Counsel’s investigation referred to above, and connected with or arising out of that investigation.
(c) The Independent Counsel: In re Madison Guaranty Savings & Loan Association shall have jurisdiction and authority to investigate any violation of section 1826 of title 28 of the U.S. Code, or any obstruction of the due administration of justice, or any material false testimony or statement in violation offederal law, in connection with any investigation of the matters described in paragraph (a) or (b) of this section.
(d) The Independent Counsel: In re Madison Guaranty Savings & Loan Association shall have jurisdiction and authority to seek indictments and to prosecute, or bring civil actions against, any person or entities involved in any of the matters referred to in paragraph (a), (b), or (c) of this section who are reasonably believed to have committed a violation of any federal criminal or civil law arising out of such matters, including persons or entities who have engaged in an unlawful conspiracy or who have aided or abetted any federal offense.

(Emphasis added.) Although this regulation specifically refers to the Independent Counsel’s jurisdiction and authority to prosecute matters relating to Capital Management Services, which is an entity indirecdy involved in the current litigation, the regulation qualifies in five instances that these powers only relate to violations of federal, not state, criminal or civil law.

Reading the Act and the supporting regulations together, we reach the inescapable conclusion that neither the Act nor the supporting regulations in any way limit the State’s power under the dual-sovereignty doctrine to prosecute any Whitewater figure or entity who may have also violated state law. Likewise, there is no conflict between the federal and state law in this matter. Finally, the cases cited by Mr. Hale are inapposite and do not support his preemption argument. See Hamm v. City of Rock Hill, 379 U.S. 306 (1964); Baucom v. Martin, 677 F.2d 1346 (11th Cir. 1982); United States v. Daniels, 929 F.2d 128 (4th Cir. 1991). Accordingly, we affirm the trial court’s ruling that the state prosecution is not preempted by the Independent Counsel Reauthorization Act.

IV. Mistrial

Finally, Mr. Hale contends that the trial court erred when it granted a mistrial, and thus, the State cannot bring him to trial a second time under the Double Jeopardy Clause. We have previously held that double jeopardy attaches in a jury trial once the jury is sworn. Tipton v. State, 331 Ark. 28, 959 S.W.2d 39 (1998). Thus, once the jury has been sworn and jeopardy attaches, the court can grant a mistrial without barring subsequent prosecution only if there is an “overruling necessity.” See Smith v. State, 307 Ark. 542, 821 S.W2d 774 (1992); Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). Specifically, Ark Code Ann. § 5-1-112(3) (Repl. 1997) provides that:

A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
* * *
(3) The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn or, if trial was before the court, after the first witness was sworn, unless the termination was justified by overruling necessity.

In making this determination, we have said that the State bears the burden of proving a manifest necessity, which is a circumstance that is “forceful and compelling” and is “in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care.” Jones v. State, 288 Ark. 162, 702 S.W.2d 799 (1986); Cody v. State, 237 Ark. 15, 371 S.W.2d 143 (1963). We have also said that it is within the trial court’s discretion to determine whether there is an “overruling necessity” that requires the grant of mistrial, and we will not disturb that ruling absent an abuse of discretion. Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991).

On appeal, Mr. Hale argues that the trial court granted the mistrial due to the unavailability of one of the State’s witnesses. This argument is misplaced because the record clearly demonstrates that the trial court granted a mistrial due to Mr. Hale’s unavailability and not because of the unavailability of the State’s witness. In several cases, we have said that there is an overruling necessity to grant a mistrial when a juror, state witness, or the defense counsel is ill. See, e.g., Shaw, supra (sick juror); Jones, supra (sick state witness); Franklin v. State, 251 Ark. 223, 471 S.W.2d 760 (1971) (intoxicated defense counsel). Although we have never squarely dealt with the issue, several other jurisdictions have held that a defendant’s illness is a proper ground for granting a mistrial, and that a subsequent retrial will not be prohibited by double jeopardy. See, e.g., Loux v. United States, 389 F.2d 911 (9th Cir. 1968); In re Dunkerley, 376 A.2d 43 (Vt. 1977); Glover v. United States, 301 A.2d 219 (D.C. 1973); Jones v. State, 187 S.W.2d 400 (Tex. Crim. App. 1945). We think that the reasoning of these cases is sound as it would likely be a violation of the defendant’s constitutional right to confrontation if the trial was allowed to proceed in his absence. Moreover, we cannot say that the trial judge abused his discretion in light of his comments about leaving a sworn jury out for over two months in a highly publicized trial. Accordingly, we affirm the trial court’s ruling that Mr. Hale’s illness was an “overruling necessity,” under Ark. Code Ann. § 5-1-112(3), that justified a mistrial, and that double jeopardy does not prevent his retrial.

Affirmed.

       At the conclusion of the April 23 hearing, Mr. Hale’s attorneys planned to approach their client about the State’s proposal to preserve the testimony of its witness. However, there is nothing in the record to indicate what happened to that proposal.


author: Ray Thornton, Justice.

text:
    J.C.S. v. STATE of Arkansas
    CR 98-1028
    985 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered February 11, 1999

      David J. Potter, for appellant.

      Vada Berger, Asst. Att’y Winston Bryant, Att’y Gen., by: Gen., for appellee.
   Ray Thornton, Justice.

On December 17, 1997, appellant, J.C.S., pleaded nolo contendere to two counts of sexual abuse in the first degree involving two minor children. The court sentenced appellant to three years’ probation and a one-thousand dollar fine pursuant to the first-offender act, Ark. Code Ann. §§ 16-93-301 — 16-93-305 (1987 & Supp. 1997) (Act 346 of 1975). An order reflecting the trial court’s judgment was entered on December 29, 1997. Appellant now seeks to obtain our review to determine whether this sentence triggered the provisions of the Sex and Child Offender Registration Act of 1997, codified at Ark. Code Ann. §§ 12-12-901 — 12-12-920 (Supp. 1997) (Sex Offender Act), and required his registration under that Act. We cannot reach the merits of this issue on review, and affirm.

The record does not disclose any effort by appellant to raise this issue during the proceedings in the two trial dockets, Nos. 96-120 and 96-121, or by any posttrial motions following the sentence. Arkansas Rule of Criminal Procedure 33.3 provides in relevant part:

A person convicted of either a felony or misdemeanor may file a motion for a new trial, a motion in arrest of judgment, or any other application for relief, but all motions or applications must be filed prior to the time fixed to file a notice of appeal. . . . A copy of any such motion shall be served on the representative of the prosecuting party.

The provisions of this procedural rule apply to the circumstances of the sentence in this case. We have determined that a trial court did not err in denying a motion based on an assertion that a prosecuting witness would recant his testimony, when that motion was not reduced to writing and filed as required by this rule. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977). No pleadings were filed in the trial court to challenge the applicability of the Sex Offender Act to the sentence imposed.

Appellant had thirty days from the entry of the sentence on December 29, 1997, to file such a motion, or to file a notice of appeal. Ark. R. Crim. P. 33.3. Appellant failed to file a motion seeking resolution of this question by the trial court, nor did appellant file a notice of appeal until March 24, 1998. The challenge to the trial court’s sentence in docket Nos. 96-120 and 96-121 was untimely.

Rather than filing a motion seeking to obtain a ruling on the question whether the sentencing order under Act 346 triggered the applicability of the registration provisions of the Sex Offender Act, it seems that the appellant may have inquired informally about the applicability of the registration statute. Although the record does not reflect any written pleading seeking a resolution of that question, the trial court sought an advisory opinion from the Attorney General on the matter.

In a letter dated December 29, 1997, and file-marked December 30, 1997, the circuit court requested an opinion from the Attorney General as to whether an individual sentenced to “five years [sic] probation under Act 346 for sexual abuse in the first degree” had to register under the “Sex Offender Act.” The trial court wrote that, “His attorney does not think he has to register as a sex offender since Act 346 says there is not a conviction.” The letter does not refer to appellant and does not indicate that copies of the letter were sent to appellant’s counsel and the prosecuting attorney. There is no indication that the sentence entered on December 29, 1997, was stayed or otherwise modified as a result of an inquiry made by appellant or as a result of the trial court’s inquiry addressed to the Attorney General, and no timely appeal was taken from the imposition of such sentence. It is not clear from the record when registration was ordered, but the Attorney General’s opinion, which is reflected in the record stated that an individual sentenced under the first-offender act for committing sexual abuse in the first degree must register under the provisions for the Sex and Child Offender Registration Act of 1997. The letter is file-marked March 26, 1998.

On March 24, 1998, appellant filed two documents entitled Notice of Appeal and Designation of Record — one in case number 96-120 and one in case number 96-121. The time for filing a notice of appeal from the December 29, 1997, sentence had expired and the notice of appeal preceded the filing of the Attorney General’s opinion. Ark. R. Crim. P. 33.3.

On June 24, 1998, long after the thirty day period for post-trial motions under Ark. R. Crim. P. 33.3, the circuit court signed an order in case Nos. 96-120 and 96-121, stating he had issued a “memo letter” dated February 25, 1998, that expressed his intent to adopt as an order of the court the Attorney General Opinion No. 98-007, but that the letter had not been reduced to a signed order. The trial court then found that the Attorney General’s opinion was the law and that appellant was required to register pursuant to the provisions of the Sex and Child Offender Registration Act of 1997. The trial court added that because he had resolved the issue in an “unsigned memo letter” to the attorneys for the prosecution and appellant, the order should be issued nunc pro tunc as of February 25, 1998. The order was entered on July 1, 1998. Appellant filed notices of appeal from this order the same day.

The issues whether the sentence for sexual abuse in the first degree triggered the registration requirements of the Sex Offender Act and whether the Sex Offender Act constituted an ex post facto law were not timely raised before the trial court according to the record of the proceeding. We hold that appellant has not preserved his arguments for appeal.

Affirmed.


author: Lavenski R. Smith, Justice. Tom Glaze, Justice, Robert L. Brown, Justice.

text:
    James M. BOHANAN II v. STATE of Arkansas
    CR 98-551
    985 S.W.2d 708
    Supreme Court of Arkansas
    Opinion delivered February 11, 1999

      Mark Burnette, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

Appellant, James Monroe Bohanan, II, appeals the decision of the Saline County Circuit Court denying his petition for relief under Ark. R. Crim. P. 37. Appellant was tried and convicted for armed robbery on October 29, 1993, and sentenced to fifteen years. He appealed his conviction, but the Court of Appeals affirmed the trial court. Bohanan v. State, No. CACR 94-227, slip. Op. (Ark. App. Jan. 18, 1995). Appellant then filed, on March 6, 1995, a pro se Rule 37 petition alleging entitlement to postconviction relief. Appellant principally contended that he had been denied effective assistance of counsel. He alleged that his attorney, who he had retained, failed to subpoena any of seven exculpatory witnesses. He also alleged his attorney did not seek exclusion of certain evidence appellant believed was illegally obtained by police. The trial court denied the petition without a hearing by order entered June 27, 1995. Appellant sought review of that denial before this court on March 3, 1997. We reversed the trial court and remanded the case because the trial court’s denial did not make written findings as required by Rule 37.3(a). Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997). Upon remand, the trial court again denied appellant’s petition and made written findings in its denial order entered January 27, 1998. This appeal arises from that order.

In response, the State filed a reply brief on September 10, 1998. The State then sought and received from this Court permission to file an additional belated reply brief. In this second reply, which was a motion to dismiss, the State raises the issues of mootness and lack of jurisdiction relative to Bohanan’s appeal, contending that he was no longer “in custody under sentence of a circuit court” and thus was not entitled to relief under Rule 37.1. The State makes these arguments because the appellant was released from prison on parole on January 13, 1998, approximately two weeks prior to the entry of the trial court’s order on January 28, 1998. Appellant contends in response that he is indeed “in custody” because he remains in the legal custody of the Arkansas Department of Correction.

The threshold issue for this appeal then is whether the legal custody maintained by the Arkansas Department of Correction of a paroled inmate is synonymous with “in custody” for purposes of Rule 37.1. Appellant contends legal custody is sufficient whereas the State contends physical incarceration is necessary for the “in custody” requirement to be met. The State is correct. We hold that a petitioner seeking Rule 37 postconviction relief must be incarcerated in order for the rule’s remedies to be available to the petitioner.

Postconviction proceedings under Rule 37 are intended to avoid persons being unjustly imprisoned. This rule enables the courts to correct a manifest injustice. As we have stated “Rule 37 is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed as to be void.” Williams v. State, 298 Ark. 317, 320, 766 S.W.2d 931 (1989). Rule 37.1 states:

A petitioner in custody under sentence of a circuit court claiming a right to be released, or to have a new trial, or to have the original sentence modified on the ground:
(a) that the sentence was imposed in violation of the Constitution and laws of the United States or this state; or
(b) that the court imposing the sentence was without jurisdiction to do so; or
(c) that the sentence was in excess of the maximum sentence authorized by law; or
(d) that the sentence is otherwise subject to collateral attack; may file a verified petition in the court which imposed the sentence, praying that the sentence be vacated or corrected.
(e) The petition will state in concise, nonrepetitive, factually specific language, the grounds upon which it is based and shall not exceed ten pages in length. The petition, whether handwritten or typewritten, will be clearly legible, will not exceed thirty lines per page and fifteen words per fine, with lefthand and right-hand margins of at least one and one-half inches and upper and lower margins of at least two inches. Petitions which are not in compliance with this rule will not be filed without leave of the court.

(Emphasis added.)

Rule 37.1 begins “A petitioner in custody under sentence of a circuit court. ...” It is apparent that this rule’s provisions are applicable only to such persons who are “in custody.” Appellant contends that the proper construction of the term “in custody” would include not only physical custody but the legal custody of the Arkansas Department of Correction. Hence, a petitioner could be a parolee such as appellant and still be “in custody” for purposes of Rule 37.1. We disagree.

While we have never previously held precisely that a petitioner must be incarcerated to be entitled to Rule 37 relief, such a holding is clearly consistent with our cases addressing Rule 37. The most recent case touching this subject is State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998). In Herred, the appellant was out on bond at the time he filed his Rule 37 petition, but was serving his sentence when the trial court ruled on the motion. The state contended the trial court lacked jurisdiction because the petitioner was not in custody when the petition was filed. We disagreed and concluded the court did have jurisdiction under Rule 37 because the petitioner was in custody when the court considered the merits of his motion. We thus construed “in custody” in that case to mean incarcerated.

Three other recent cases indicate that in circumstances where the petitioner was not actually physically incarcerated no Rule 37 relief was available. In Kemp v. State, 330 Ark. 757, 956 S.W.2d 860 (1997), we held that petitioner was not entitled to relief under Rule 37 where he had only been fined for felony possession of a firearm receiving no jail time and therefore was not “in custody.” Similarly, in a case where petitioner received a fine for illegal turkey hunting, we affirmed the trial court’s denial of relief. Edwards v. City of Conway, 300 Ark. 135, 137, 777 S.W.2d 583 (1989). In Edwards we stated “Pursuant to Ark. R. Crim. P. 37, postconviction relief is available where a prisoner is in custody under sentence of a circuit court. . . .” Id. at 137.

In the second recent case, Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997), the court, in dicta while discussing withdrawal of a guilty plea, cited Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988), where we stated, “Rule 37 could have applied but did not because that remedy is confined to use by a prisoner who is in custody under sentence of the circuit court, and the parties at issue were out on bond.” Johninson. at 386. Later in Johninson, while contrasting Rule 37.1 and 37.2, the Court stated, “While relief pursuant to Rule 37.1 is limited to prisoners incarcerated under sentence, that is obviously not contemplated by Rule 37.2 . . . .” Id. at 387.

In the third recent case, Mason v. State, 323 Ark. 361, 914 S.W.2d 751 (1996), involving juveniles on probation, we denied a motion to withdraw a guilty plea, and in a footnote referring to Rule 37 petitioners stated, “Arkansas Rule of Criminal Procedure 37 ... is available only when they are in custody.” These statements by the Court in the above-cited cases indicate we have consistently viewed incarceration as a prerequisite to Rule 37 relief.

The Commentary to Rule 37 also supports a construction of the rule that would make incarceration a requirement to the granting of relief. It states, “Implicit in the first clause of Rule 1, here Rule 37.1, is the notion that eligibility for relief extends only to incarcerated persons ■ — ■ not, for example, to persons who have completed terms of imprisonment or who have received suspended sentences.

Despite these precedents, appellant argues that Rule 37 still applies to him and cites language from his conditional release that states: “You shall remain in legal custody of the Department of Community Punishment and subject to the orders of the Post Prison Transfer Board until discharged from your sentence, or until you are returned to the Arkansas Department of Correction by order of the Post Prison Transfer Board.” Appellant also relies on Kemp, supra and attempts to distinguish it by pointing out that Kemp involved no incarceration, whereas he had not only been incarcerated but remained in “legal custody.” Appellant’s arguments, however, are unavailing. The key and indeed crucial similarity between this case and Kemp is that in both cases neither party seeking relief was incarcerated when their case was heard by this Court. The boilerplate language contained in appellant’s conditional release does not keep him “in custody” for purposes of Rule 37, which we hold to mean incarceration.

Appellant also points this Court to the federal jurisprudence on habeas corpus, since our Rule 37 is patterned after it, for the effect of petitioner’s parole on his appeal. We acknowledge the parallel, but we decline appellant’s invitation to adopt the federal habeas standards for mootness. In Arkansas, an issue becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Quinn v. Webb Wheel Products, 334 Ark. 573, 976 S.W.2d 386 (1998); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998); Pennington v. Pennington, 315 Ark. 479, 868 S.W.2d 460 (1994). The principal purpose of Rule 37 is to avoid unjust incarceration. In circumstances such as this case, where the petitioner has been released prior to granting relief, granting the relief has no practical effect. We hold that appellant’s Rule 37 petition is rendered moot by his release from custody. It is therefore unnecessary to address the merits of his ineffective-assistance claims.

Affirmed.

Glaze and Brown, JJ., concur.

Tom Glaze, Justice,

concurring. I agree with the majority, but would emphasize the clear introductory language of Ark. R. Crim. P. 37.1, which establishes the parameter of the Rule — a petitioner in custody under sentence of a circuit court claiming a right to he released. . . . This court clearly has pointed out that the “Scope of the Remedy” for proceedings under Rule 37 is confined to a prisoner, in custody under sentence of a circuit court. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988); Burkhart v. State, 271 Ark. 859, 611 S.W.2d 500 (1981); Hartsell v. State, 254 Ark. 687, 495 S.W.2d 523 (1973) (court interpreting Criminal Procedure Rule 1, predecessor to Rule 37, to provide postconviction relief only for a prisoner in custody of sentence and declining to enlarge scope of remedy to include a prisoner under sentence of a federal court; and further holding defendant was not precluded from seeking relief in appropriate federal forum). In Malone, this court stated defendants were not entitled to Rule 37 relief because defendants were out of custody on bonds when they filed their Rule 37 motion.

Robert L. Brown, Justice.

L. Brown, Justice. I cannot disagree that our recent gree that our recent cases that touch and concern Ark. R. Crim. P. 37.1 indicate that physical custody is a prerequisite to petitioning for relief. This is so even though Rule 37.1 merely uses the term “custody” and does not distinguish between legal custody or physical custody.

I am mindful, however, that in this case where parole is the issue, the order of conditional release makes reference to the fact that the respondent, Bohanan, is still in legal custody. This would be sufficient custody for postconviction relief in the federal system. The federal courts have universally interpreted the term “custody” as used in 28 U.S.C. § 2254 broadly and as synonymous with restraint of liberty as opposed to actual physical custody. See, e.g., Carafas v. LaVallee, 391 U.S. 234 (1968) (release of the prisoner does not deprive the court of jurisdiction under federal statute); Jones v. Cunningham, 371 U.S. 236 (1963) (custody includes a person on parole); Jones v.Jerrison, 20 F.3d 849 (8th Cir. 1994) (a parolee is still in custody); Richmond v. Duke, 909 F. Supp. 626 (E.D. Ark. 1995) (parolee in Arkansas remained under State supervision and, thus, in custody).

What concerns me is the hypothetical case of a petitioner who is on parole when the mandate affirming his conviction is issued. In light of today’s opinion, he cannot file a petition for Rule 37 relief. And if his parole is revoked more than sixty days after the mandate is issued, and he is incarcerated, his time for filing a petition will have elapsed. See Ark. R. Crim. P. 37.2(c). Thus, he is deprived of a postconviction remedy. This appears to be fundamentally unfair.

This problem, of course, does not affect Bohanan. But it suggests that it may well be time for this court to revisit Rule 37, bearing this problem in mind.


author: Per Curiam.

text:
    MARY KAY, INC. v. Janet ISBELL
    98-489
    98-1099
    986 S.W.2d 90
    Supreme Court of Arkansas
    Opinion delivered February 11, 1999

      Wright, Lindsey & Jennings, by: Roger D. Rowe, Nancy Bel-Ihouse May, and Troy A. Price, for appellant.

      Stephens Law Firm, by: K. Gregory Stephens and Janis C. Speed, for appellee.

      Barrett & Deacon P.A., by: Price Marshall, for amicus curice.

   Per Curiam.

Janet Isbell has filed a motion in the captioned cases tioned cases seeking permission to use one abstract for both cases, to correct printing mistakes in both abstracts, and to correct a nonconforming exhibit attached to her reply to Direct SeEing Association’s amicus curice brief. Mary Kay Inc. filed a response to IsbeE’s motion and a separate motion to strike. In its response to IsbeE’s motion, Mary Kay Inc. has no objection to the use of one abstract for both cases. Nor does Mary Kay Inc. have any objection to IsbeE’s request for permission to correct printing mistakes in her abstracts. However, Mary Kay Inc. moves to strike: (1) the exhibits attached to IsbeE’s reply to Direct SeEing Association’s amicus curice brief; (2) the portions of the volume of exhibits to abstract (Volume II) submitted by IsbeE in case no. 98-489 that should have been abstracted; and (3) the “Editor’s Notes” in IsbeE’s abstracts.

Based upon the motions and responses filed by the parties, our review of IsbeE’s abstract and brief (Volumes I through III) and IsbeE’s reply to Direct SeEing Association’s amicus curice brief, and the Rules of the Supreme Court and Court of Appeals, we make the foEowing rulings with regard to the motions filed by Mary Kay Inc. and IsbeE. We grant IsbeE’s request that the parties be aEowed to use one abstract in both cases and that IsbeE be aEowed to correct any printing mistakes in both abstracts. We deny IsbeE’s request that she be aEowed to correct a nonconforming exhibit attached to her reply to Direct SeEing Association’s amicus curice brief. The nonconforming exhibit is a copy of 16 C.F.R. § 436.1 that does not faE within the category of documents which may be attached to an abstract under Ark. R. Sup. Ct. 4-2(a)(6). Furthermore, we grant Mary Kay Inc.’s motion to strike Exhibits 1 and 2 to IsbeE’s reply to Direct SeEing Association’s amicus curice brief as neither document was an exhibit introduced at trial. We also grant Mary Kay Inc.’s motion to strike Exhibit 3 to IsbeE’s reply to Direct SeEing Association’s amicus curice brief for the reasons previously stated in connection with our denial of IsbeE’s request to correct nonconforming exhibit.

With regard to Mary Kay Inc.’s motion to strike portions of the volume of exhibits to abstract (Volume II) submitted by IsbeE in case no. 98-489 that should have been abstracted, we grant that motion with regard to the foEowing exhibits in Volume II that were not abstracted and should have been abstracted under Ark. R. Sup. Ct. 4-2(a)(6): Nos. 1 through 4, 7 through 11, 14, 23 through 31, 34 through 35, 43 through 44, and 46 through 47. The remaining exhibits in Volume II were either abstracted (Nos. 5 through 6, 12 through 13, 15 through 16, and 45) or could not be abstracted in words, such as photographs, invoices and charts (Nos. 17 through 22, 32 through 33, 36 through 42, and 48). We, therefore, deny Mary Kay Inc.’s motion to strike with regard to those remaining exhibits in Volume II. Finally, we grant Mary Kay Inc.’s motion to strike the “Editor’s notes” in Isbell’s abstracts, because such notes do not comply with the requirement in Ark. R. Sup. Ct. 4-2(a)(6) that the abstract be an impartial condensation, without comment or emphasis. Examples of such “Editor’s notes” appear in Volume I of Isbell’s abstract and brief filed in case no. 98-489 at pages i-ii, 29, 33, 38-39, 41-43, 48-49, 51-52, 59, and 180.


text:
    STATE of Arkansas v. Robert A. ROBBINS
    CR 98-1394
    985 S.W.2d 296
    Supreme Court of Arkansas
    Opinion delivered February 11, 1999

      Mark Pryor, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., and Kelly K. Hill, Deputy Att’y Gen., for appellant.

      Val P. Price, for respondent.
   Per Curiam.

By per curiam order entered on December 11, 11, 1998, this court affirmed the trial court’s finding that Respondent Robert A. Robbins knowingly and intelligently waived his right to appeal his capital murder conviction and death sentence. State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998). We directed the trial court to conduct a hearing pursuant to Rule 37.5 of the Arkansas Rules of Criminal Procedure within twenty-one days of the mandate. Id. We also directed the trial court to issue findings and to return the court’s transcript and findings to this court for final review. Id.

The trial court conducted the hearing pursuant to Rule 37.5 on December 17, 1998, and issued its findings on December 17, 1998. The transcript of the hearing, included the trial court’s findings, was filed with this court on December 21, 1998. On December 22, 1998, the State filed a motion for review and a motion to dissolve stay of execution. We granted the State’s motions on January 14, 1999, and issued the mandate on the same day.

The State has now filed a motion for clarification on January 21, 1999, in which it seeks clarification with regard to this court’s order entered on January 14, 1999. Specifically, the State wants to know whether additional findings will be entered by this court before the State seeks an execution date. In accordance with our December 11, 1998, per curiam order, and in response to the State’s motion for review and motion to dissolve stay of execution filed on December 22, 1998, this court made its final review of the trial court’s transcript and findings before it granted the State’s motions on January 14, 1999. To the extent that there may be any question about what we meant when we granted the State’s motions on January 14, 1999, the trial court’s findings have been fully and finally reviewed by this court and the stay of execution was dissolved upon issuance of the mandate on January 14, 1999. When we granted the State’s motion for review and motion to dissolve stay of execution on January 14, 1999, we implicitly upheld the trial' court’s finding that Mr. Robbins knowingly and intelligently waived his right to appointment of an attorney under Rule 37.5.